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Jim Silver

Jim Silver J.D.

Everyone's a Criminal

How many do you know? More than you think.

Yes, even you.

And, no, I'm not talking about civil infractions and speeding tickets; I'm talking about theft, assault, and fraud, among many others. (I'm leaving out drug crimes—that would just be too easy).

What's my point? That although we like to think of criminals as being very different from us, they're actually not. Of course, I am not saying that you are a murderer or rapist (although, maybe you are); but often the difference between us and someone with a criminal record is one of degree or chance. Let me explain.

First, a definition from the American Heritage Dictionary: Criminal - n. A person who has committed or been legally convicted of a crime. Notice the disjunctive; you are a criminal if you have violated a criminal law, regardless of whether you were convicted. And keep in mind that criminal laws are incredibly broad in their applicability.

"Assault" is generally defined as "an offensive touching"? That's it - no need for viciousness or any injury. "Battery" is a threat to commit an assault. Ever push a neighbor during an argument over using a leaf-blower on a weekend morning or raise your voice and tell that stupid store clerk what you'd like to do to him? "Larceny" (theft) is simply the wrongful taking of property with the intent to permanently deprive the owner - it doesn't have to be jewelry or a laptop. Ever pop a few grapes in your mouth while grocery shopping? Sure, probably no one cares about any of those things because they are small potatoes, but potatoes they are, nonetheless.

Obviously, we wouldn't want to nor could we arrest and prosecute for every infraction of the law. But the difference between "serious" and "not-so-serious" is often in the eye of the beholder. And decisions about whom to arrest and prosecute can have as much to do with racism, class-ism and other "isms" as with reason. In other words, a bunch of your neighbors, family and co-workers have avoided a criminal record based on factors having little or nothing to do with their criminal culpability.

Then, there's the whole issue of how many criminals are never caught even when someone cares enough to call the police. The numbers are pretty grim: Of the 20 million burglaries reported in the last 10 years, about 18 million are unsolved. Of the 65,000 or so arsons reported each year, about 50,000 are unsolved. Sure, many of these crimes are the work of serial offenders, but they don't do all the damage. There are hundreds of thousands of burglars and arsonists on our blocks, in the next cubicle, going to your kid's high school. And you can pretty much project the same percentages to every category of crime (although murders can be solved nearly half the time!). Finally, consider the fact that an enormous number of crimes, even "serious" ones like rape are never reported to the police (surveys show that in 2007 tens of thousands of forcible rapes were not reported to the police).

Bottom line: you have probably had lunch with a criminal, are related to a criminal or will find one when you look in the mirror.

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Jim Silver

Jim Silver, J.D., is a criminal defense attorney and former prosecutor.