Sunday, May 18, 2014

210 Charges against Me? Come on, Get Real

     When Henry Milken was indicted in 1989, it was on 98 charges of racketeering and securities fraud.  Milken was an extraordinarily successful entrepreneur who pretty much invented junk bonds.  He developed a novel formula for looking at new, small, cash-poor companies and figuring out which ones were likely to make it big, then he invested in them.  Roberts and Stratton (authors of The Tyranny of Good Intentions --How Prosecutors and Law Enforcement are Trampling on the Constitution in the Name of Justice") report that in 1986 Milken had made his employer, Drexel Burnham Lambert, the most profitable firm on Wall Street, "with revenues in excess of $4 billion and earnings of $545.5 million."
     By contrast, my solo rural clinic billed $45,000 to Medicare in 2012.  In prior years, during the heyday of Hawthorne Medical Center, when the clinic was open three times as many hours as the typical family practice office and offered a multitude of procedures that no other family doctors or urgent care centers offered, the clinic may have earned as much as $1 million from Medicare.  In those busy days, personnel expenses--including payroll, health insurance coverage, two retirement plans for employees and paid sick and vacation time--cost the clinic around $1 million per year.
     Nevertheless, the government decided to stack a whopping 210 charges against me.
     I understand that the number of charges doesn't necessarily correlate with the terribleness of the crimes--at least, that's what a lawyer told me.  But, what does it correlate with?  The uncertainty of government agents, who must substitute quantity for quality?
     Or is the number of charges supposed to instill in me 210 times as much fear as only one federal criminal charge?
     It makes no sense to have done listed so many "counts," at least not from the standpoint of getting the court to mete out a maximum sentence, since each charge carries a possible 10-year sentence.  At this rate, the prosecutor seems to want to put  me in jail (should the government's might override my right) for 2,110 years.  Is this ridiculous, or not?
     For that matter, the government's agents could have indicted me on 2,000 charges, or 20,000, given how they chose to interpret office notes and define charges.  I imagine that they went through patient charts (or had "experts" do this), tallying up office notes that looked like good examples of "billing for procedures that weren't necessary," or "billing for services that weren't provided," until they got to 200, and then they got tired.
     "Let's do a few more," a few stalwart investigators said.   "We're on a roll here."
     "Ah, man, I'm whooped," the others countered.  "We've got enough to put that witch in jail for ten lifetimes."
     "Yeah, but we could get so many more charges on her--the sky's the limit!"
     "Think of the press coverage!"
     "He's right," said another.  "Practically every office note could be seen as criminal, when you look at it our way.  None of these services was really necessary."
     "Family doctors aren't necessary," one quipped.
     "Not from the standpoint of the fraud laws, they aren't."
     "Doctors aren't necessary, are they?  Let's get rid of them all!"
     "And go back to shamans, and faith healers, and leeches, and boomba-bamboozle-the-masses  medicine," they laughed.
     "The masses are so easily bamboozled, too."
     "The idiots," someone shouted.
     It was getting raucous in the cooped-up quarters of the FBI office, the agents hemmed in by patient records--12,000 medical charts--in stacks and messy piles everywhere they turned.
     "Damn, this is a drag."
     "Hey, everyone, I'm starving," announced lead agent Robert Murphy--who had put on some weight in the four years since the paper-laden Colasante investigation had started.  "This desk work is a bummer."
     "Sitting around all day sucks!  When are we ever gonna use these guns?"
     "What's the point in having guns, if you can't use them?"   
     "Call it quits, everyone," ordered Murphy.  "Let's go out for pizza."
     "Pizza!  Yes!"
     "Love that pizza!"

Friday, May 16, 2014

Washington Post Article: George Will Regrets Gov't Power to Seize Assets

The heavy hand of the IRS seizes innocent Americans’ assets

Flint, Mich.
     Earnest moralists lament Americans’ distrust of government. What really is regrettable is that government does much to earn distrust, as Terry Dehko, 70, and his daughter Sandy Thomas, 41, understand.
     Terry, who came to Michigan from Iraq in 1970, soon did what immigrants often do: He went into business, buying Schott’s Supermarket in Fraser, Mich., where he still works six days a week. The Internal Revenue Service, a tentacle of a government that spent $3.5 trillion in 2013, tried to steal more than $35,000 from Terry and Sandy that year.
     Sandy, a mother of four, has a master’s degree in urban planning but has worked in the store off and on since she was 12. She remembers, “They just walked into the store” and announced that they had emptied the store’s bank account. The IRS agents believed, or pretended to believe, that Terry and Sandy were or conceivably could be — which is sufficient for the IRS — conducting a criminal enterprise when not selling groceries.
     What pattern of behavior supposedly aroused the suspicions of a federal government that is ignorant of how small businesses function? Terry and Sandy regularly make deposits of less than $10,000 in the bank across the street. Federal law, aimed primarily at money laundering by drug dealers, requires banks to report cash deposits of more than $10,000. It also makes it illegal to “structure” deposits to evade such reporting.
     Because 35 percent of Schott’s Supermarket’s receipts are in cash, Terry and Sandy make frequent trips to the bank to avoid tempting actual criminals by having large sums at the store. Besides, their insurance policy covers no cash loss in excess of $10,000.
     In 2010 and 2012, IRS agents visited the store and examined Terry’s and Sandy’s conduct. In 2012, the IRS notified them that it identified “no violations” of banking laws. But on Jan. 22, 2013, Terry and Sandy discovered that the IRS had obtained a secret warrant and emptied the store’s bank account. Sandy says that if the IRS had acted “the day before, there would have been only about $2,000 in the account.” Should we trust that today’s IRS was just lucky in its timing?
     The IRS used “civil forfeiture,” the power to seize property suspected of being produced by, or involved with, crime. The IRS could have dispelled its suspicions of Terry and Sandy, if it actually had any, by simply asking them about the reasons — prudence, and the insurance limit — for their banking practices. It had, however, a reason not to ask obvious questions before proceeding.
     The civil forfeiture law — if something so devoid of due process can be dignified as law — is an incentive for perverse behavior: Predatory government agencies get to pocket the proceeds from property they seize from Americans without even charging them with, let alone convicting them of, crimes. Criminals are treated better than this because they lose the fruits of their criminality only after being convicted.
Sandy remembers her father exclaiming, “Aren’t we in the United States? We did nothing wrong.” They did something right in discovering the Institute for Justice’s activities against civil forfeiture abuse. IJ, a libertarian defender of property rights and other American premises, says that what was done to Terry is done routinely across the nation — indeed, it was done almost simultaneously to the owner of a gas station near Schott’s Supermarket who deposited his cash receipts whenever he could get to the bank, typically every few days.
Civil forfeiture proceeds on the guilty-until-proven-innocent principle, forcing property owners of limited means to hire lawyers and engage in protracted proceedings against a government with limitless resources just to prove their innocence. Says IJ:
     “To make matters worse, forfeiture law treats property owners like random bystanders and requires them to intervene in the lawsuit filed by the government against their property just to get it back. That is why civil forfeiture cases have such unusual names, such as United States v. $35,651.11 in U.S. Currency — the case involving Terry and Sandy.”
     In what it probably considered an act of unmerited mercy, the IRS offered to return 20 percent of Terry’s money. Such extortion — pocketing others people’s money — often succeeds when the IRS bullies bewildered people not represented by IJ, which forced the government to return all of Terry’s and the gas station owner’s money.
     IJ’s countersuit seeks an injunction to prevent such IRS thefts and extortions. Meanwhile, earnest moralists might consider the possibility that Americans’ distrust of government is insufficient.

Thursday, May 15, 2014

New York Times Article: Doctors Are Leaving Private Practice

Apprehensive, Many Doctors Shift to Jobs With Salaries

Dr. Suzanne Salamon, with a patient at Beth Israel Deaconess Medical Center in Boston, said she has had trouble filling a prestigious fellowship because of relatively low salaries. Credit Katherine Taylor for The New York Times

     American physicians, worried about changes in the health care market, are streaming into salaried jobs with hospitals. Though the shift from private practice has been most pronounced in primary care, specialists are following.
     Last year, 64 percent of job offers filled through Merritt Hawkins, one of the nation’s leading physician placement firms, involved hospital employment, compared with only 11 percent in 2004. The firm anticipates a rise to 75 percent in the next two years.
Today, about 60 percent of family doctors and pediatricians, 50 percent of surgeons and 25 percent of surgical subspecialists — such as ophthalmologists and ear, nose and throat surgeons — are employees rather than independent, according to the American Medical Association. “We’re seeing it changing fast,” said Mark E. Smith, president of Merritt Hawkins.
     Health economists are nearly unanimous that the United States should move away from fee-for-service payments to doctors, the traditional system where private physicians are paid for each procedure and test, because it drives up the nation’s $2.7 trillion health care bill by rewarding overuse. But experts caution that the change from private practice to salaried jobs may not yield better or cheaper care for patients.
“In many places, the trend will almost certainly lead to more expensive care in the short run,” said Robert Mechanic, an economist who studies health care at Brandeis University’s Heller School for Social Policy and Management.
     When hospitals gather the right mix of salaried front-line doctors and specialists under one roof, it can yield cost-efficient and coordinated patient care. The Kaiser system in California and Intermountain Healthcare in Utah are considered models for how this can work.
     But many of the new salaried arrangements have evolved from hospitals looking for new revenues, and could have the opposite effect. For example, when doctors’ practices are bought by a hospital, a colonoscopy or stress test performed in the office can suddenly cost far more because a hospital “facility fee” is tacked on. Likewise, Mr. Smith said, many doctors on salary are offered bonuses tied to how much billing they generate, which could encourage physicians to order more X-rays and tests.
Mr. Mechanic studied 21 health systems considered good models of care — including the Mayo Clinic and the Palo Alto Medical Foundation — and discovered that many still effectively rewarded doctors for each procedure. “It doesn’t make any sense,” he said.
Hospitals have been offering physicians attractive employment deals, with incomes often greater than in private practice, since they need to form networks to take advantage of incentives under the new Affordable Care Act. Hospitals also know that doctors they employ can better direct patients to hospital-owned labs and services.
     “From the hospital end there’s a big feeding frenzy, a lot of bidding going on to bring in doctors,” Mr. Mechanic said. “And physicians are going in so they don’t have to worry — there’s a lot of uncertainty about how health reform is going to play out.”
      In addition, Medicare had reduced its set doctors’ fees over the last decade, while insurers have become more aggressive in demanding lower rates from individual practices that have little clout to resist. Dr. Robert Morrow, a family doctor in the Bronx, said he now received $82 from Medicare for an office visit but only about $45 from commercial insurers.
     Dr. Cathleen London practiced family medicine for 13 years outside Boston, but recently took a salaried job at a Manhattan hospital. She said she accepted a pay cut because she could see that she was losing ground in her practice. “I think the days of what I did in 1999 are over,” she said. “I don’t think that’s possible anymore.”
     The base salaries of physicians who become employees are still related to the income they can generate, ranging from under $200,000 for primary care doctors to $575,000 in cardiology to $663,000 in neurosurgery, according to Becker’s Hospital Review, a trade publication.
     Because of the relatively low salaries for primary care doctors, Dr. Suzanne Salamon said that for the last two years she has had trouble filling a prestigious Harvard geriatrics fellowship she runs.
     Dr. Howard B. Beckman, a geriatrician at the University of Rochester, who studies physician payment incentives, said reimbursements for primary care doctors must be improved to attract more people into the field. “To get the kinds of doctors we want, the system for determining salaries has to flip faster,” he said. 
     Dr. Joel Jacowitz, a cardiologist in New Jersey, and his 20 or so partners decided to sell their private practice to a hospital. In addition to receiving salaries, that meant they no longer had to worry about paying malpractice premiums themselves or finding health insurance for their staff members.
     Dr. Jacowitz said that the economics drove the choice and that the only other option would have been to bring in more revenue by practicing bad medicine — ordering more heart tests on patients who did not need them or charging exorbitant rates to people with private insurance. He said he knew of one cardiologist in private practice who charges more than $100,000 for a procedure for which Medicare pays about $750.
     “Some people are operators and give the rest of us a bad name,” he said, adding that he had changed his opinion about America’s fee-for-service health care system. “I’m fed up — I want a single-payer system.”
Dr. Kirk Moon, a radiologist in private practice in San Francisco, also sees advantages for the nation when doctors become employees. “I think it’s pretty clear that sooner or later we’re all going to be on salary,” he said. “I think there’ll be a radical decrease in imaging, but that’s O.K. because there’s incredible waste in the current system.”
     Various efforts to change incentives for doctors and hospitals are being tested. An increasing number of employers or insurers, for example, pay health systems a yearly all-inclusive payment for each patient, regardless of their medical needs or how many tests are dispensed. If doctors order unnecessary tests, it costs the hospital money, rather than bringing it in.
     And instead of offering bonuses for productivity — doctors cite pressures from hospital employers to order physical therapy for every discharged patient or follow-up M.R.I. scans on every patient who got an X-ray — some hospital systems are beginning to change their criteria. They are providing bonuses that reward doctors for delivering high quality and cost effective care, such as high marks from patients or low numbers of patients with asthma who are admitted to the hospital.
     “The question now is how to shift the compensation from a focus on volume to a focus on quality,” said Mr. Smith of Merritt Hawkins. He said that 35 percent of the jobs he recruits for currently have such incentives, “but it’s pennies, not enough to really influence behavior.”

Columbia Law Review Article, "When Everything Is a Crime"

Ham Sandwich Nation: Due Process When Everything Is a Crime

Glenn Harlan Reynolds*
Prosecutorial discretion poses an increasing threat to justice. The threat has in fact grown more severe to the point of becoming a due process issue. Two recent events have brought more attention to this problem. One involves the decision not to charge NBC anchor David Gregory with violating gun laws. In Washington D.C., brandishing a thirty-round magazine is illegal and can result in a yearlong sentence. Nonetheless, the prosecutor refused to charge Gregory despite stating that the on-air violation was clear.1 The other event involves the government’s rather enthusiastic efforts to prosecute Reddit founder Aaron Swartz for downloading academic journal articles from a closed database. Authorities prosecuted Swartz so vigorously that he committed suicide in the face of a potential fifty-year sentence.2
Both cases have aroused criticism. In Swartz’s case, a congresswoman has even proposed legislation designed to ensure that violating a website’s terms cannot be prosecuted as a crime.3 But the problem is much broader. Given the vast web of legislation and regulation that exists today, virtually any American bears the risk of being targeted for prosecution.

I.  The Problem with Prosecutorial Discretion
Attorney General (and later Supreme Court Justice) Robert Jackson once commented: “If the prosecutor is obliged to choose his cases, it follows he can choose his defendants.”4 This method results in “[t]he most dangerous power of the prosecutor: that he will pick people he thinks he should get, rather than pick cases that need to be prosecuted.”5 Prosecutors could easily fall prey to the temptation of “picking the man, and then searching the law books . . . to pin some offense on him.”6 In short, prosecutors’ discretion to charge—or not to charge—individuals with crimes is a tremendous power, amplified by the large number of laws on the books.

Prosecutors themselves understand just how much discretion they enjoy. As Tim Wu recounted in 2007, a popular game in the U.S. Attorney’s Office for the Southern District of New York was to name a famous person—Mother Teresa, or John Lennon—and decide how he or she could be prosecuted:
It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were not usually rape, murder, or other crimes you’d see on Law & Order but rather the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield: Crimes like “false statements” (a felony, up to five years), “obstructing the mails” (five years), or “false pretenses on the high seas” (also five years). The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences. The, result, however, was inevitable: “prison time.”7
With so many more federal laws and regulations than were present in Jackson’s day,8 a prosecutor’s task of first choosing a possible target and then pinning the crime on him or her has become much easier. If prosecutors were not motivated by politics, revenge, or other improper motives, the risk of improper prosecution would not be particularly severe. However, such motivations do, in fact, encourage prosecutors to pursue certain individuals, like the gadfly Aaron Swartz, while letting others off the hook—as in the case of Gregory, a popular newscaster generally supportive of the current administration.

This problem has been discussed at length in Gene Healy’s Go Directly to Jail: The Criminalization of Almost Everything9 and Harvey Silverglate’s Three Felonies a Day.10 The upshot of both books is that the proliferation of federal criminal statutes and regulations has reached the point where virtually every citizen, knowingly or not (usually not) is potentially at risk for prosecution. That assertion is undoubtedly true, and the consequences are drastic and troubling.

The result of overcriminalization is that prosecutors no longer need to wait for obvious signs of a crime. Instead of finding Professor Plum dead in the conservatory and launching an investigation, authorities can instead start an investigation of Colonel Mustard as soon as someone has suggested he is a shady character. And since, as the game Wu describes illustrates, everyone is a criminal if prosecutors look hard enough, they are guaranteed to find something eventually.

Overcriminalization has thus left us in a peculiar place: Though people suspected of a crime have extensive due process rights in dealing with the police, and people charged with a crime have even more extensive due process rights in court, the actual decision of whether or not to charge a person with a crime is almost completely unconstrained. Yet, because of overcharging and plea bargains, the decision to prosecute is probably the single most important event in the chain of criminal procedure.

II. Checks on Prosecutorial Discretion
Despite the problems described above, most of us remain safe. Prosecutors have limited resource and there are political constraints on egregious overreaching.11 And presumably, most of the time prosecutors can be expected to exercise their discretion soundly. Unfortunately, these limitations on prosecutorial power are likely to be least effective where prosecutors act inappropriately because of politics or prejudice. Limited resources or not, a prosecutor who is anxious to go after a political enemy will always find sufficient staff to bring charges, and political constraints are least effective where a prosecutor is playing to public passions or hysteria.12

Once charged with a crime, defendants are in a tough position. First, they must bear the costs of a defense, assuming they are not indigent. Second, even if they consider themselves entirely innocent, they will face strong pressure to accept a plea bargain—pressure made worse by the modern tendency of prosecutors to overcharge with extensive “kitchen-sink” indictments: Prosecutors count on the fact that when a defendant faces a hundred felony charges, the prospect that a jury might go along with even one of them will be enough to make a plea deal look attractive. Then, of course, there are the reputational damages involved, which may be of greatest importance precisely in cases where political motivations might be in play. Worse, prosecutors have no countervailing incentives not to overcharge. A defendant who makes the wrong choice will wind up in jail; a prosecutor who charges improperly will suffer little, if any, adverse consequence beyond a poor win/loss record. Prosecutors are even absolutely immune from lawsuits over misconduct in their prosecutorial capacity.13

III.  Better Approaches to Prosecutorial Accountability
So how to respond? Although this brief Essay cannot begin to address all of the possibilities, it can serve as the beginning of a much-needed discussion. As this Essay indicates, the decision to charge a person criminally should itself undergo some degree of due process scrutiny. Short of constitutional due process scrutiny, however, it is time to look at structural changes in the criminal justice system that will more successfully deter prosecutorial abuse.

Traditionally, of course, the grand jury was seen as the major bar to prosecutorial overreaching.14 The effectiveness of this approach may be seen in the longstanding aphorism that a good prosecutor can persuade a grand jury to indict a ham sandwich.15 Grand jury reforms—where grand juries still exist—might encourage grand jurors to exercise more skepticism and educate them more.16 But grand juries are not constitutionally guaranteed at the state level, and reforming them at the federal level is likely to prove difficult.

Overall, the problem stems from a dynamic in which those charged with crimes have a lot at risk, while those doing the charging have very little “skin in the game.” One source of imbalance is prosecutorial immunity. The absolute immunity of prosecutors—like the absolute immunity of judges—is a judicial invention, a species of judicial activism that gets less attention than many other less egregious examples. Although such immunity no doubt prevents significant mischief, it also enables significant mischief by eliminating one major avenue of accountability. Even a shift to qualified, good faith immunity for prosecutors would change the calculus significantly, making subsequent review something that is at least possible.

Another remedy might be a “loser pays” rule for criminal defense costs. After all, when a person is charged with a crime, the defense—for which non-indigent defendants bear the cost—is an integral part of the criminal justice process.17 For guilty defendants, one might view this cost as part of the punishment. But for those found not guilty, it looks more like a taking: Spend this money in the public interest to support a public endeavor, or go to jail. Perhaps the prosecution could be required to pay a defendant’s legal fees if he or she is not convicted. To further discipline the process, one could implement a pro-rate system: Charge a defendant with twenty offenses, but convict on only one, and the prosecution must bear 95% of the defendant’s legal fees. This would certainly discourage overcharging.

The “nuclear option” of prosecutorial accountability would involve banning plea bargains. An understanding that every criminal charge filed would have to be either backed up in open court or ignominiously dropped would significantly reduce the incentive to overcharge. It would also drastically reduce the number of criminal convictions achieved by our justice system. But given that America is a world leader in incarceration, it is fair to suggest that this might be not a bug, but a feature.18 Our criminal justice system, as presently practiced, is basically a plea bargain system with actual trials of guilt or innocence a bit of showy froth floating on top.19

A less dramatic option might be to require that the prosecution’s plea offers be presented to a jury or judge after a conviction, before sentencing. Judges or jurors might then wonder why they are being asked to sentence a defendant to twenty years without parole when the prosecution was willing to settle for five. Fifteen years in jail seems a rather stiff punishment for making the state undergo the bother of a trial.

It is also worth considering whether mere regulatory violations—malum prohibitum rather than malum in se—should bear criminal sanctions at all. Traditionally, of course, citizens have been expected to know the law. Yet traditionally, regulatory crimes usually applied only to citizens in specialty occupations, who might be expected to be familiar with applicable regulatory law. Ordinary citizens needed no special knowledge to avoid committing rape, robbery, theft, etc. But now, with the explosion of regulatory law, every citizen is at risk of criminal prosecution for crimes that, as David Gregory’s defenders noted,20 involve no actual harm or ill intent. Yet any reasonable observer would have to conclude that actual knowledge of all applicable criminal laws and regulations is impossible, especially when those regulations frequently depart from any intuitive sense of what “ought” to be legal or illegal. Perhaps placing citizens at risk in this regard constitutes a due process violation; expecting people to do (or know) the impossible certainly sounds like one.

Support for this notion comes from Court of Appeals Judge John R. Brown, who wrote, in a 1965 case holding that a prosecutor could refuse to sign a grand jury’s indictment, that such a refusal was justified by the complexities of modern criminal law:
Putting aside these factors which bear on the delicate nature of governmental decisions, there are technical reasons indigenous to criminal law which are equally compelling. Federal crimes are more and more for violation of highly complex statutes. Federal jurisdiction, indeed, whether the activity constitutes a federal crime, depend on intricate facts, many beyond the knowledge and experience of laymen composing the Grand Jury.21
This naked admission that federal criminal law is so complex that a grand jury cannot be expected to understand it carries two lessons: First, it seems optimistic to expect grand juries to provide an adequate check on prosecutorial overreaching; and second, if a federal grand jury cannot be expected to understand the complexities of federal criminal law, it seems utterly absurd to maintain the fiction that ordinary citizens should be presumed to know the law.

That being the case, it seems to me that the problem here is a real one. If we care about due process—and we should—we should be deeply concerned about a system in which official discretion reigns almost unfettered where constraint matters most.

* Beauchamp Brogan Distinguished Professor of Law, University of Tennessee. J.D., Yale Law School, 1985. Thanks to Leigh Outten for excellent research assistance.
1Peter Hermann, David Gregory Won’t Be Charged, Wash. Post: Post Politics (Jan. 11, 2013, 4:44 pm), (on file with the Columbia Law Review); see also Letter from Irvin B. Nathan, Att’y Gen. of the District of Columbia, to Lee Levine, Att’y, Levine Sullivan Koch & Schulz, LLP (Jan. 11, 2013), available at (on file with the Columbia Law Review) (declining to prosecute David Gregory).
2Lawrence Lessig, Prosecutor as Bully, Lessig Blog, v2 (Jan. 12, 2013), (on file with the Columbia Law Review).
3The relevant legislation was introduced by Representative Zoe Lofgren (D-Cal.). Lawrence Lessig, Aaron’s Law: Violating a Site’s Terms of Service Should Not Land You in Jail, Atlantic (Jan. 16, 2013, 4:38 pm), (on file with the Columbia Law Review). For criticism of the Gregory decision, see David French, David Gregory and the Decline of the Rule of Law, Nat’l Rev. Online (Jan. 15, 2013, 10:12 am), (on file with the Columbia Law Review) (“Can we even speak of the rule of law as a meaningful concept when we combine an explosive regulatory state with near-absolute prosecutorial discretion?”).
4Harvey Silverglate, Three Felonies a Day: How the Feds Target the Innocent, at xxxvi (2011) (quoting Justice Jackson).
6Id; cf. Federal Offenses Series: Examining the Bloated Criminal Code, Wall St. J.: Washington Wire (May 6, 2013, 11:49 am), (“There are more than 4,500 federal laws and regulations on the books. Lawrence Lewis was ensnared in one of them and now has a criminal record to show for it. All for a mistake he didn’t even know he made.”).
7Tim Wu, American Lawbreaking, Slate (Oct. 14, 2007, 8:03 am), (on file with the Columbia Law Review).
8How many crimes are there now? Too many:
There are now more than 4,000 federal crimes, an increase of one-third since 1980. Many of those crimes, spread out through some 27,000 pages of the U.S. Code, incorporate violations of federal regulations that are in turn spread throughout the tens of thousands of pages of the Code of Federal Regulations. As a result, even teams of legal researchers—let alone ordinary citizens—cannot reliably ascertain what federal law prohibits.
Gene Healy, Go Directly to Jail: The Criminalization of Almost Everything, at vii (2004).
10Silverglate, supra note 5.
11State prosecutors are often elected and thus subject to direct political constraint. But even federal prosecutors are subject to supervision by the Attorney General or the President, who must take account of public reaction. After Aaron Swartz’s suicide, for example, Justice Department officials were called to explain his prosecution before Congress. Ryan J. Reilly, DOJ to Brief Congress on Aaron Swartz Prosecution, Huffington Post: Politics (Feb. 15, 2013, 12:12 pm), (on file with the Columbia Law Review).
12Reportedly, Aaron Swartz was prosecuted so vigorously because of Justice Department unhappiness with his copyright activism and “Open Access Manifesto.” Ryan J. Reilly, Aaron Swartz Prosecutors Weighed ‘Guerilla’ Manifesto, Justice Official Tells Congressional Committee, Huffington Post: Politics (Feb. 22, 2013, 1:28 pm), (on file with the Columbia Law Review). Senator John Cornyn (R-Tex.) suggested that anger over Freedom of Information Act requests filed by Swartz may have contributed to his prosecution. Stephen Dinan, Top Senator Scolds Holder over Reddit Founder’s Suicide, Wash. Times: Inside Politics (Jan. 18, 2013, 12:18 pm), (on file with the Columbia Law Review).
13See generally David Keenan et al., The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct, 121 Yale L.J. Online 203, 209–20 (2011), (on file with the Columbia Law Review) (discussing prosecutorial immunity).
14See, e.g., United States v. Cox, 342 F.2d 167, 170 (5th Cir. 1965) (“The constitutional requirement . . . of an indictment . . . has for its primary purpose the protection of the individual from jeopardy except on a finding of probable cause by a group of his fellow citizens, and is designed to afford a safeguard against oppressive actions of the prosecutor or a court.”).
15The phrase, made famous in Tom Wolfe’s novel, The Bonfire of the Vanities, apparently originates with New York City federal judge Sol Wachtler in a lunchtime interview with a reporter from the New York Daily News. Barry Popik, “Indict a ham sandwich,” Big Apple (July 15, 2004) (on file with the Columbia Law Review).
16Grand jurors might, for example, be given extensive training, or be given counsel and investigators of their own.
17See Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 543–45 (2001) (stressing role of attorneys in administration of justice).
18Adam Liptak, U.S. Prison Population Dwarfs That of Other Nations, N.Y. Times (Apr. 23, 2008), (on file with the Columbia Law Review).
19See Stephanos Bibas, The Machinery of Criminal Justice: From Public Morality Play to Hidden Plea Bargaining Machine, Volokh Conspiracy (Mar. 13, 2012, 9:22 am), (on file with the Columbia Law Review) (discussing transformation of legal prosecutorial system from “lay-run morality plan” to “professionalized plea bargaining assembly line”).
20Howard Kurtz, David Gregory, Piers Morgan Under Assault over Guns, Daily Download (Dec. 26, 2012), (on file with the Columbia Law Review). For other examples in the same vein, see Katie Glueck, Media Disdain for the David Gregory Story, Politico (Dec. 26, 2012, 10:44 pm), (on file with the Columbia Law Review).
21United States v. Cox, 342 F.2d 167, 182–85 (5th Cir. 1965) (Brown, J., concurring).

Preferred Citation: Glenn Harlan Reynolds, Ham Sandwich Nation: Due Process When Everything Is a Crime, 113 Colum. L. Rev. Sidebar 102 (2013),

My Lawyer's Contact Information

     If you know me and want to offer your point of view...
     If you'd like to offer support, or complaints, or evidence for or against me, or comments, or a description of your experience as a patient or employee, please contact my lawyer using the contact information below.
     I am not permitted to converse with anyone who used to be a patient or employee at either of my clinics, Hawthorne Medical Center or Colasante Clinic.  When I bump into these individuals at the grocery store, or Lowes, or the farmers market I am supposed to tell them I'm not permitted to speak with them, and refer them to my lawyer.  If I talk with them I might be trying to "sway" them, which I suppose could be a version of altering evidence.  This presents a moral problem for me, when patients come up to me and tell me how their chemotherapy is going, or what new mass has been discovered on a CT scan, or when they ask my advice about a set of symptoms they have or a treatment that isn't going well.
     I'm sorry not to be able to give the benefit of my training and experience.  Perhaps if I had agreed to go to jail, I might be more available.  But I expect the government prosecutors would have forbidden me from speaking to patients from a jail cell, too, so I decided to go home, from the arraignment, instead.
     Here's the contact information:
                                                        Gilbert Schaffnit, Esq.
                                                        719 NE 1st Street
                                                        Gainesville, FL   32601
                                                         (352) 378-6593


What Does It Mean to "Surrender"?

     Local newspapers have reported that the prosecutors in my case made their move, after nearly four years of investigation, after multiple grand juries were convened and one, at last, was persuaded to issue an indictment.  So I went through the standard judicial processing of an alleged federal criminal.
     I am not a criminal, I have not committed criminal acts, and I repeat, for newcomers to this blog, that government agents have been looking for a way to "prove" that I, an upright citizen, committed federal crimes, in order to justify the time and public expense of their last four years of investigation.  The government's involvement was triggered by a whistleblower, Patricia McCullough, a Kentucky horse farm owner, who in 2008 and 2009 had avowed that she wanted to buy and take over my clinic in Hawthorne "for the good of the poor, rural people who needed medical care"-- and then refused to make monthly payments on the loan I carried for her, and proceeded to demolish the clinic (it took less than a year), along with my name, innocence and reputation.. She had her motives, not least of which must have been the prospect of a hefty whistleblower award at the end of the line, should I be convicted of something--anything! --and especially if the government decides I should pay fines.  She had nothing to lose, except her honor, which doesn't mean a lot to some people, not when pitted against a sizable monetary "award."
     This process of being indicted is as follows:  I appear at the federal courthouse;  I sign lots of documents that are put in front of me;  I submit to fingerprinting and DNA testing;  I meet with a probation officer (probation?--am I guilty already?); I stand before the judge who recites for me the conditions of my "release," and then I go home. 
     If I don't sign documents outlining the conditions of my release, I go to jail.  I have a grown son with autism, whose lifeline is closely linked to mine, therefore I would not agree to go to jail.  (Jail?  Guilty, already?)  Besides, my lawyer, Gil Schaffnit, accompanied me to the courthouse and told me I had no choice except to sign the documents.  Appearing at the courthouse, in response to federal agents' mandates, and signing documents is called "surrendering."  It does not mean I said I am guilty;  it does not mean I admit any of the charges have merit.  "Surrendering" means showing up at the courthouse.
     I write this because two days ago an old patient called me at home and said, "I heard you surrendered.  Why?"  Clearly, he did not understand the legal meaning of the word.  "Surrendering does not mean I admitted guilt," I said.  "How could I admit guilt, when I'm not guilty?"
     Then I remembered that one of the conditions of my release was that I not converse with anyone who used to be a patient or an employee.  That's about 12,000 people.
     "I'm sorry, Mr. B.," I said sadly.  "I'm not allowed to speak with you.  But if you wish to offer your point of view, please contact my lawyer, Gil Schaffnit."  Then I wished him good luck with the MRI I knew he was undergoing, for a serious problem, and said good-bye.
     Surrendering, in common parlance, is what you do when you give up, when you admit guilt, when you're ready to pay for your wrongdoing.  I haven't done that.  Surrendering, at an arraignment, is what you do when you agree to conditions that keep you out of jail.  I did that, and now I can harvest (and parboil, and freeze) the bushels of tender, heirloom string beans that are weighing down the plants in my resplendent garden. 
     At least something is flourishing around here, these days.

Tampa Tribune Newspaper Article May 15, 2014

Fla. doctor faces 200 counts of health care fraud

Published:   |   Updated: April 24, 2014 at 08:03 PM
GAINESVILLE, Fla. (AP) — A Gainesville doctor surrendered this week after she was charged with more than 200 counts of health care fraud for allegedly charging the government full price for prescription drugs, even though she was giving patients cheaper drugs not approved by the Food and Drug Administration.
U.S. attorney's officials said Ona Colasante, 57, turned herself in Tuesday after being indicted by a grand jury.
Colasante "misleadingly" billed Medicare, Medicaid and Blue Cross Blue Shield of Florida for medical tests, including colonoscopies, X-rays, and hearing tests that patients didn't need. She also billed for substance abuse counseling, smoking cessation and other treatments that patients never received, authorities said.
She used that money to buy less expensive non-FDA-approved drugs and devices online from Canada and other countries, including mislabeled birth control devices and osteoporosis drugs, according to the indictment.
The doctor then charged the government for administering those drugs, according to the indictment. Officials said Colasante gave the drugs to patients without their knowledge or consent.
"She is going to defend each and every allegation in an attempt to clear her name," her attorney Gilbert Schaffnit said.
Colasante's case is unusual in that authorities usually target high dollar scams. The indictment did not include how much the doctor allegedly billed the government programs for. But her practice billed Medicare for a relatively low dollar amount in 2012, according to federal health officials. She billed just over $55,000 compared to the state's top two billers, a West Palm Beach ophthalmologist who billed nearly $21 million and an Ocala cardiologist who billed $18 million.
In a January blog post, Colasante detailed how she was forced to close her practice after the FBI raided her office in 2011 and that her bank account had been frozen.
A trial is set for June. If convicted, she faces 10 years in prison for each of the health care fraud counts.