Tag Archives: Overcriminalization

WichitaLiberty.TV December 29, 2013

WichitaLiberty.TV.20

In this episode of WichitaLiberty.TV: Are Kansas school leaders being honest with schoolchildren and parents regarding Kansas school test scores? Then: Walter Williams on greed. Finally: Do we have too many laws? A look at the problem of overcriminalization. Episode 24, broadcast December 29, 2013. View below, or click here to view at YouTube.

WichitaLiberty Podcast, episode 2

Voice for Liberty logo with microphone 150In this episode of WichitaLiberty Podcasts: David Boaz, Executive Vice President of the Cato Institute, visits the WichitaLiberty.TV studios and explains the ideas behind libertarianism and its approach to government and society. New figures from the Kansas State Department of Education show that spending on public schools in Kansas is rising, and at a rate higher than the year before. Is Wichita economic development being managed? The problem of overcriminalization. City of Wichita proves Einstein’s definition of insanity. Episode 2, October 25, 2013.

Shownotes

WichitaLiberty.TV October 27, 2013. David Boaz, Executive Vice President of the Cato Institute, visits the WichitaLiberty.TV studios and explains the ideas behind libertarianism and its approach to government and society.
Kansas school spending rises
Wichita economic development not being managed
USA versus You: The problem of overcriminalization
City of Wichita proves Einstein’s definition of insanity

USA versus You: The problem of overcriminalization

Events in recent months have justifiably caused Americans to ask whether a powerful, activist, and interventionist government and bureaucracy is good to have. Those who have been looking at overcriminalization, however, have known that government and regulatory agencies have been targeting and oppressing Americans for a long time. And it’s getting worse.

USA vs. You cover

The new website USAvsYOU.com holds useful information for Americans to know about how law has changed in recent years, compared to how it operated for centuries before. The booklet available for reading is titled USA vs. You: The flood of criminal laws threatening your liberty.

As an example, here is a troubling trend:

In many criminal laws, the “guilty mind” requirement has been removed or weakened. This means people can go to prison regardless of whether they intended to break the law or knew their actions were in violation of the law.

Traditionally, crimes had two components: (l) mens reu (guilty mind), and (2) actus reus (bad act).

Today, many criminal laws and regulations have insufficient or no mens rea (guilty mind) requirement — meaning, a person need not know that his or her conduct is illegal in order to be guilty of the crime.

An example story is the following:

THE CRIME: Rescuing a baby deer

Jeff Counceller, a police officer, and his wife Jennifer spotted an injured baby deer on their neighbor’s porch. Instead of turning a blind eye to the dying fawn, the Councellers took the deer in and nursed it back to health.

An Indiana Conservation Officer spotted the fawn (named Dani) in the Councellers’ yard — and promptly charged the couple with unlawful possession of a deer, a misdemeanor offense. Fortunately for her, the day that “Little Orphan Dani” was to be euthanized by the state, the deer escaped into the wild. Due to public outrage, the government dropped the charges.

The website and booklet is a product of Heritage Foundation and it partners such as the American Civil Liberties Union. Heritage has been covering the issue of overcriminalization here. It describes the problem as this: “Overcriminalization describes the trend to use the criminal law rather than the civil law to solve every problem, to punish every mistake, and to compel compliance with regulatory objectives. Criminal law should be used only if a person intentionally flouts the law or engages in conduct that is morally blameworthy or dangerous.”

We have problems like this in Wichita, believe it or not. An ordinance passed by the Wichita City Council in 2010 might ensnare anyone visiting city hall, if they happen to have a broad-tip marker in their purse or briefcase:

Animated marker

“Possession of Graffiti Implements Prohibited in Public Places. It is unlawful for any person to have in his/her possession any graffiti implement while in, upon or within one hundred (100) feet of any public facility, park, playground, swimming pool, skate park, recreational facility, or other public building owned or operated by the city, county, state, or federal government, or while in, under or within one hundred (100) feet of an underpass, bridge, abutment, storm drain, spillway or similar types of infrastructure unless otherwise authorized.”

“Graffiti implements” are defined broadly earlier in the ordinance.

If you’re thinking about a career in taxicab driving, be advised that the city has ordinances punishing you if you’re found to have violated these standards: “Fail to maintain their personal appearance by being neat and clean in dress and person” and “Fail to keep clothing in good repair, free of rips, tears and stains.”

USA vs. You: The problem of overcriminalization

Events in recent months have justifiably caused Americans to ask whether a powerful, activist, and interventionist government and bureaucracy is good to have. Those who have been looking at overcriminalization, however, have known that government and regulatory agencies have been targeting and oppressing Americans for a long time. And it’s getting worse.

USA vs. You cover

The new website USAvsYOU.com holds useful information for Americans to know about how law has changed in recent years, compared to how it operated for centuries before. The booklet available for reading is titled USA vs. You: The flood of criminal laws threatening your liberty.

As an example, here is a troubling trend:

In many criminal laws, the “guilty mind” requirement has been removed or weakened. This means people can go to prison regardless of whether they intended to break the law or knew their actions were in violation of the law.

Traditionally, crimes had two components: (l) mens reu (guilty mind), and (2) actus reus (bad act).

Today, many criminal laws and regulations have insufficient or no mens rea (guilty mind) requirement — meaning, a person need not know that his or her conduct is illegal in order to be guilty of the crime.

An example story is the following:

THE CRIME: Rescuing a baby deer

Jeff Counceller, a police officer, and his wife Jennifer spotted an injured baby deer on their neighbor’s porch. Instead of turning a blind eye to the dying fawn, the Councellers took the deer in and nursed it back to health.

An Indiana Conservation Officer spotted the fawn (named Dani) in the Councellers’ yard — and promptly charged the couple with unlawful possession of a deer, a misdemeanor offense. Fortunately for her, the day that “Little Orphan Dani” was to be euthanized by the state, the deer escaped into the wild. Due to public outrage, the government dropped the charges.

The website and booklet is a product of Heritage Foundation and it partners such as the American Civil Liberties Union. Heritage has been covering the issue of overcriminalization here. It describes the problem as this: “Overcriminalization describes the trend to use the criminal law rather than the civil law to solve every problem, to punish every mistake, and to compel compliance with regulatory objectives. Criminal law should be used only if a person intentionally flouts the law or engages in conduct that is morally blameworthy or dangerous.”

We have problems like this in Wichita, believe it or not. An ordinance passed by the Wichita City Council in 2010 might ensnare anyone visiting city hall, if they happen to have a broad-tip marker in their purse or briefcase:

Animated marker

“Possession of Graffiti Implements Prohibited in Public Places. It is unlawful for any person to have in his/her possession any graffiti implement while in, upon or within one hundred (100) feet of any public facility, park, playground, swimming pool, skate park, recreational facility, or other public building owned or operated by the city, county, state, or federal government, or while in, under or within one hundred (100) feet of an underpass, bridge, abutment, storm drain, spillway or similar types of infrastructure unless otherwise authorized.”

“Graffiti implements” are defined broadly earlier in the ordinance.

If you’re thinking about a career in taxicab driving, be advised that the city has ordinances punishing you if you’re found to have violated these standards: “Fail to maintain their personal appearance by being neat and clean in dress and person” and “Fail to keep clothing in good repair, free of rips, tears and stains.”

Republicans recognize overcriminalization

A section of the platform agreed to at the Republican National Convention expresses concern over the rise of overcriminalization:

“The resources of the federal government’s law enforcement and judicial systems have been strained by two unfortunate expansions: the over-criminalization of behavior and the over-federalization of offenses. The number of criminal offenses in the U.S. Code increased from 3,000 in the early 1980s to over 4,450 by 2008. Federal criminal law should focus on acts by federal employees or acts committed on federal property — and leave the rest to the States. Then Congress should withdraw from federal departments and agencies the power to criminalize behavior, a practice which, according to the Congressional Research Service, has created ‘tens of thousands’ of criminal offenses. No one other than an elected representative should have the authority to define a criminal act and set criminal penalties. In the same way, Congress should reconsider the extent to which it has federalized offenses traditionally handled on the State or local level.”

Overcriminalization has risen to become a serious threat to the freedom and liberty of citizens, placing increasing and arbitrary power in the hands of federal officials. According to The Heritage Foundation, overcriminalization is characterized by these factors:

  1. The use of strict liability crimes (i.e., offenses that dispense with the requirement that a person act with a “guilty mind,” however defined) to outlaw conduct, particularly in commercial and regulatory fields;
  2. The passage of several laws applicable to the same conduct, which enables prosecutors to multiply charges and thereby threaten a person with a severe term of imprisonment if he does not accept a plea bargain;
  3. The delegation to administrative agencies of the responsibility for filling in the details of a substantive criminal law, which thereby vests in the agency responsible for enforcing the law the power also to define its terms; and
  4. Enforcing through the criminal law conduct that, if it is to be enforced by the government at all, should be enforced through administrative or civil mechanisms.

The first item should be particularly troubling to citizens, as it removes one of the elements necessary to convict someone of a crime — that the person intended to commit a crime. The Heritage Foundation paper Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law explains:

“A core principle of the American system of justice is that individuals should not be subjected to criminal prosecution and conviction unless they intentionally engage in inherently wrongful conduct or conduct that they know to be unlawful. Only in such circumstances is a person truly blameworthy and thus deserving of criminal punishment. This is not just a legal concept; it is the fundamental anchor of the criminal justice system.”

After noting the 4,450 federal laws and estimating that tens of thousands more are located in federal regulations, the authors explain the problem regarding intent:

“But something fundamental is often lacking from this tidal wave of penal provisions: meaningful mens rea requirements. Mens rea is a Latin term describing a culpable mental state, without which there can be no crime. Lamentably, Congress has enacted scores of laws with weak or no mens rea requirements, the result of a legislative process that is haphazard at best and arbitrary at worst. In doing so, it has eroded the principle of fair notice beyond recognition and dangerously impaired the justification for criminal punishment that has for centuries been based on an individual’s intent to commit a wrongful act.”

While overcriminalization is often seen as a federal problem, it infects states and cities, too. Recently the Wichita City Council passed a sign ordinance that has the characteristics of overcriminalization. A key provision is this: “The existence of a temporary sign in the right of way or on public property directing attention to a person is prima facie evidence that such person has caused the placement of such sign in the right of way or on public property.”

This means that the mere existence of a sign promoting a candidate being in the wrong place is evidence that the candidate is guilty of a crime. No matter how well a candidate trains staff and volunteers on proper sign placement, if a sign is in the wrong place, the candidate is presumed guilty. It’s difficult to defend against this presumption.

The National Association of Criminal Defense Lawyers has created a series of short videos that explain more about overcriminalization. The first, titled “Overcriminalization: Criminalizing the Everyday” is presented below, and additional titles may be viewed here.

Proposed Wichita sign ordinance problematic

The Wichita City Council will consider a revision to its sign ordinances aimed at reducing the proliferation of temporary signs placed in right-of-ways, mostly at intersections. The city calls this “sign blight.”

Here’s what the proposed ordinance states, in part: “The existence of a temporary sign in the right of way or on public property directing attention to a person is prima facie evidence that such person has caused the placement of such sign in the right of way or on public property.”

The Wikipedia entry for prima facie explains “It is used in modern legal English to signify that on first examination, a matter appears to be self-evident from the facts. In common law jurisdictions, prima facie denotes evidence that — unless rebutted — would be sufficient to prove a particular proposition or fact.”

Law.com says the term means “[a case] which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial.”

Additional sections of the proposed ordinance extend its reach to “owner or the agent for the owner of that business, product or service” and “promoter of that event or the agent for the promoter.”

In simple terms, this ordinance states that the mere presence of a sign in a prohibited area will be evidence that the person, business, or event promoted on the sign is guilty. While the prosecution still has the burden of proving guilt, this ordinance makes that burden very easy to overcome. I don’t know how someone would defend themselves against this charge. The stakes can be high, with the fine for first violation $50, and subsequent violations fined from $50 to $1,000. The violation, and fine, is per sign.

The ordinance also allows for citizen enforcement of this law. The ordinance exempts “city, county or state government entities” from having to comply with this law, another example of government making rules for everyone to follow but itself.

I wonder: Since this ordinance appears to apply to political campaign signs, do you think that opponents of candidates will place their opponents’ signs in illegal locations, causing the campaign to be fined?

Do you think people might do this to cause business competitors to incur fines?

All it takes is finding a legally-placed sign and moving it across the sidewalk.

It’s hard to believe that the city thinks this ordinance is workable. It’s also possible it is unconstitutional.

Proposed Wichita Sign Ordinance

Kansas and Wichita quick takes: Monday December 19, 2011

Boeing tanker and Wichita. News reports from this morning’s press conference held by U.S. Representative Mike Pompeo of Wichita indicate that Boeing will not use Wichita as the finishing plant for work on the new air refueling tanker project. It was thought that this work would require 7,500 jobs in Wichita. Political and union leaders speak of holding Boeing accountable to what they believe was a promise Boeing made to Wichita, but I don’t know how they can do that. … Pompeo’s press release states: “… the work will be done in Washington state. Until very recently, it had been my expectation based on representations made to all Kansans, personally to me and my office, and to the United States Air Force, that Boeing would create 7,500 aviation jobs in our great state should Boeing prevail in the tanker bid. We now know that Boeing intends to walk away from that promise, which severely jeopardizes the future of the over 2000 aviation jobs currently held by Boeing employees in Kansas. … Boeing fought a long and fierce battle to build the KC-46A Tanker and secured the largest defense contract in the history of the world. Over a decade Boeing won, then lost and then once again emerged victorious over its competitor EADS. Kansas aviation workers were at the very core of Boeing’s effort that entire time. During that competition, Boeing stressed — both publicly and in its formal final bid proposal submitted to the United States Air Force — that its Wichita, Kansas facility would be critical to building the next generation tanker. For years, Kansas’ elected political leadership worked diligently to secure a contract award for Boeing. In short, Kansas workers and Kansas political leaders were central to the Air Force’s decision to select Boeing over EADS. To remove Kansas from the tanker project not only violates a public trust, but it creates risk to taxpayers and to our fighting forces. … I urge the company’s leaders to do all that they can to honor the Boeing name and to take all steps available to do right by the hard-working, talented people who build the world’s greatest airplanes here in Kansas.”

Wichita school dress code. The Wichita Eagle reports on a new dress code for teachers at USD 259, the Wichita public school district: “Mark Jolliffe, principal at Wilbur Middle School and president of the local administrators group, said the guidelines are intended to ‘enhance our professional position, and model for our students, staff and community’ the importance of professional dress.” Teachers continually complain that they are, in fact, professionals, but are not treated as such. I wonder: What does it say when you have to be told how to dress at work? What the community ought to be worried about is a school district that spends time on issues like this while students continue to receive a substandard education. … Furthermore, the mode of dress of schoolteachers ought to be something that parents decide through a market-based selection process. Those parents who believe that their children are best served by schools where the teachers dress nicely (and perhaps the students are in uniform) could choose schools like this, if we had school choice. Also, parents who believe their children would thrive in a more casual environment could select schools with this characteristic, but again, only if we had school choice.

Kansas legislator briefing book. A very useful publication produced by Kansas Legislative Research Department is now available in a 2012 edition. Its target is legislators, but anyone who is interested in understanding state government will find the 2012 Legislator Briefing Book useful. The section on education, for example, has an explanation of the Kansas school funding formula, complete with descriptions and values for the weightings that determine how much state funding districts receive.

Velvet Revolution voice has died. “Vaclav Havel, the playwright who led the Velvet Revolution that ended communism in Czechoslovakia, has died at 75. … Vaclav Havel helped Czechoslovakia make the transition from one of the most repressive Communist regimes to one of the most successful post-Communist countries.” More from David Boaz at Vaclav Havel, RIP.

Open records in Wichita. “The Wichita City Council approved a $2 million payment to the city’s convention and visitors’ bureau, GO Wichita, despite objections to the lack of transparency in how GO Wichita handles taxpayer money. The Kansas Open Records Act requires that entities receiving public money be subject to the law’s transparency provisions, but one of these provisions states that if such an organization files an annual financial statement, it has complied with the law. At issue is whether a one- or two-page financial report listing total revenues and expenditures can substitute for public access to more detailed records regarding specific expenditures of public funds.” More from Paul Sourtar of Kansas Watchdog at City of Wichita Spends $2 million, Rebuffs Citizen’s Transparency Request.

Cellulosic ethanol. The Wall Street Journal notes the debacle of cellulosic ethanol production and government involvement. This is ethanol produced from “wood chips and stalks or switch grass,” said President George W. Bush in 2006, also stating that “Our goal is to make this new kind of ethanol practical and competitive within six years.” So what has happened? “When these mandates were established, no companies produced commercially viable cellulosic fuel. But the dream was: If you mandate and subsidize it, someone will build it. Guess what? Nobody has. Despite the taxpayer enticements, this year cellulosic fuel production won’t be 250 million or even 25 million gallons. Last year the Environmental Protection Agency, which has the authority to revise the mandates, quietly reduced the 2011 requirement by 243.4 million gallons to a mere 6.6 million. Some critics suggest that even much of that 6.6 million isn’t true cellulosic fuel.” … the Journal cites a recent report by National Academy of Sciences that states “currently, no commercially viable biorefineries exist for converting cellulosic biomass to fuel.” The $132.4 million loan guarantee for a cellulosic plant near Hugoton in southwest Kansas is noted. (More about that at Kansas and its own Solyndra.) … Concluding, the Journal writes: “To recap: Congress subsidized a product that didn’t exist, mandated its purchase though it still didn’t exist, is punishing oil companies for not buying the product that doesn’t exist, and is now doubling down on the subsidies in the hope that someday it might exist. We’d call this the march of folly, but that’s unfair to fools.” See The Cellulosic Ethanol Debacle.

Overcriminilization. A new paper from Paul Larkin of of Heritage Foundation reports on the difficulties facing legislative solutions to the problem of overcriminilization. The abstract of the paper Overcriminalization: The Legislative Side of the Problem reads: “The past 75 years in America have witnessed an avalanche of new criminal laws, the result of which is a problem known as “overcriminalization.” This phenomenon is likely to lead to a variety of problems for a public trying to comply with the law in good faith. While many of these issues have already been discussed, one problem created by the overcriminalization of American life has not been given the same prominence as others: the fact that overcriminalization is a cause for (and a symptom of) some of the collective action problems that beset Congress today. Indeed, Congress, for a variety of reasons discussed in this paper, is unlikely to serve as a brake on new, unwarranted criminal laws, let alone to jettison broad readings of those laws by the courts. Therefore, the key to curbing overcriminalization is the American public: It is the people who, if made aware of the legislative issues that enable overcriminalization, could begin to head off such laws before the momentum for their passage becomes overwhelming.” … The conclusion to the report emphasizes the role of the people: “The legislative dynamic is not likely to serve as a brake on new, unwarranted criminal laws, let alone to jettison broad readings of those laws by the courts. The public needs to head off such laws before the momentum for their passage becomes overwhelming. And that can happen only if the public is aware of the legislative side of this problem.”

No Wichita Pachyderm. This week and next week (December 23rd and 30th) the Wichita Pachyderm club will not meet due to the holidays. Upcoming speakers: On January 6th: David Kensinger, Chief of Staff to Kansas Governor Sam Brownback. … On January 13th: Speaker of the Kansas House of Representatives Mike O’Neal, speaking on “The untold school finance story.” … On January 20th: Sedgwick County Commissioner Karl Peterjohn.

Stevens, Pachyderm President, honored. At last week’s meeting of the Wichita Pachyderm Club, President John Stevens received the “Tough Tusk Award.” In presenting the award, club Vice President John Todd remarked: “Once in awhile a local leader comes along who deserves recognition. From time to time The Wichita Pachyderm Club recognizes these special people. Today it is my pleasure to recognize one of our own who deserves special recognition. The Wichita Pachyderm Club awards committee would like to recognize our club President John Stevens as the recipient of our club’s ‘Tough Tusk Award’ as sponsored by the National Federation of Pachyderm Clubs. … He is a retired business owner who now spends his time volunteering with SCORE counseling small business owners and entrepreneurs. John also works as a community activist through his participation in city and neighborhood organizations. He is a past Wichita Park Board Commissioner and serves on boards and committees for Wichita Independent Neighborhoods. … In 2008 John was elected the precinct committeeman for the 101st precinct in Wichita. He has worked as a volunteer in local campaigns and has run as the Republican candidate for the 86th Kansas House of Representatives seat, concerned that Republican values, attitudes, and principles are not being represented in the 86th District. He continues to work toward having a Republican in the 86th House seat. … John has served as President of the Wichita Pachyderm Club for the past three years. Through the Pachyderm Club he is able to facilitate educating citizens about our government, our leaders and the Republican Party. … John says he is addicted to progress, and I can tell you that he works tirelessly for the betterment of The Wichita Pachyderm Club.” … I will add: Thank you, John Stevens, for a job well done.

Occupiers and crony capitalism. “They’re rightfully angry at what’s happening in the United States today. But unfortunately they have confused capitalism and crony capitalism, and they’ve misdiagnosed the cause of their frustration.” That’s Chris Coyne of George Mason University speaking of the Occupy Wall Street protesters. He explains in more detail in the following short video. This video is from LearnLiberty.org, a project of Institute for Humane Studies, and many other informative videos are available.

Kansas and Wichita quick takes: Tuesday September 6, 2011

Live music example of overcriminilization, regulation in Wichita. The Wichita Eagle reports on examples of problems establishments have faced for not complying with Wichita’s requirement for a live music license, which costs $400 per year. In the story No entertainment license in Wichita? Live music is illegal, it is reported that city officials are working with art gallery and coffeehouse owners to revise the ordinance. I agree with Adam Hartke, who wonders why there should be any fees. Like the recently passed regulations on haunted houses, these regulations appear to be regulating something that’s not a problem.

Tax reform in Kansas. In a nine-minute podcast from the Tax Foundation, Kansas Policy Institute president Dave Trabert discusses the prospects for substantive tax reform in the Sunflower State, including the possibility of both phasing out the individual income tax and cutting (or even abolishing) the corporate income tax. Trabert says: “We probably do right now have the 15th highest state and local tax burden in the country. … That is a serious problem, because we understand how the tax burden affects job creation.” In a recent editorial, Trabert noted lack of job growth in Kansas: “Kansas is the only state whose average annual private-sector employment is below its 2010 average. Part of the reason is that, unlike most states, Kansas chose to continue raising taxes last year. … We must reduce our tax burden to create jobs and economic growth. Gradually eliminating the state income tax will have the greatest impact.” … Click on Dave Trabert on the Fight for Tax Reform in Kansas.

Downtown Wichita site launched. As part of an effort to provide information about the Douglas Place project, a proposed renovation of a downtown Wichita office building into a hotel, Americans for Prosperity, Kansas has created a website. The site is named Our Downtown Wichita, and it’s located at dtwichita.com.

Juvenile justice system to be topic. This week’s meeting (September 9th) of the Wichita Pachyderm Club features Mark Masterson, Director, Sedgwick County Department of Corrections, on the topic “Juvenile Justice System in Sedgwick County.” Following, from 2:00 pm to 3:00 pm, Pachyderm Club members and guests are invited to tour the Sedgwick County Juvenile Detention Center located at 700 South Hydraulic, Wichita, Kansas. … Upcoming speakers: On September 16, Merrill Eisenhower Atwater, great grandson of President Dwight D. Eisenhower, will present a program with the topic to be determined. … On September 23, Dave Trabert, President of Kansas Policy Institute, speaking on the topic “Why Not Kansas: Getting every student an effective education.” … On September 30, U.S. Representative Mike Pompeo of Wichita on “An update from Washington.” … On October 7, John Locke — reincarnated through the miracle of modern technology — speaking on “Life, Liberty, and Property.” … On October 14, Sedgwick County Commission Members Richard Ranzau and James Skelton, speaking on “What its like to be a new member of the Sedgwick County Board of County commissioners?” … On October 21, N. Trip Shawver, Attorney/Mediator, on “The magic of mediation, its uses and benefits.”

Campaign contributions flow to Wichita’s subsidy supporters. The Our Downtown Wichita website holds an article that details the campaign contributions made to Wichita’s mayor and several city council members by those who will be asking the city for money next week. The contributions by David Burk and Key Construction owners and affiliates are detailed in Wichita City Council campaign contributions and Douglas Place. … When the issue of campaign contributions was raised at a recent council meeting, several members became testy. Evidently, these contributions are not meant to be discussed in public.

Organ events. This Wednesday (September 7th) sees the first organ recital by Wichita State University’s Lynne Davis as part of the “Wednesdays in Wiedemann” series. These recitals, which have no admission charge, start at 5:30 pm and last about 30 minutes. … The location is Wiedemann Recital Hall (map) on the campus of Wichita State University. For more about Davis and WSU’s Great Marcussen Organ, see my story from last year. … Later this month Davis hosts Jehan Alain, 1911-1940 — The American Festival, a three-day event celebrating the music of the French organist and composer, who died at the age of 29 fighting for his country against Germany in World War II. There will be several recitals that the public may attend.

Urban planning in Wichita: an outside perspective. Randal O’Toole is a Senior Fellow at the Cato Institute and author of The Best-Laid Plans: How Government Planning Harms Your Quality of Life, Your Pocketbook, and Your Future. He visited Wichita last year and toured some of Wichita’s landmarks of government planning and taxpayer subsidy.

O’Toole also appeared on the KPTS public affairs television program Kansas Week.

Guitar makers and players targeted by onerous laws

Today the Wall Street Journal reports again on startling examples of overcriminalization, with federal authorities conducting raids on businesses based on aggressive enforcement of broad and vague laws.

This time it’s the famous Gibson Guitar company, which is charged with importing wood that may have been illegally harvested. But individual guitar owners are targeted, too, if they travel across international borders with a guitar that might possibly have been made from banned wood. If the traveler doesn’t have the proper documentation, the guitar might be seized. As a result, a law professor says he doesn’t leave the country with a wooden guitar.

Gibson had tried to comply with the law. It had used the services of Forest Stewardship Council, an organization that, according to its website, provides a certification service: “FSC certification provides a credible link between responsible production and consumption of forest products, enabling consumers and businesses to make purchasing decisions that benefit people and the environment as well as providing ongoing business value.”

According to Gibson, FSC certification means the wood was not obtained illegally.

The law under which Gibson is charged, the Lacey Act, creates many problems for U.S. importers. According to Gibson, “The U.S. Lacey Act does not directly address conservation issues but is about obeying all laws of the countries from which wood products are procured. This law reads that you are guilty if you did not observe a law even though you had no knowledge of that law in a foreign country. The U.S. Lacey Act is only applicable when a foreign law has been violated.”Gibson says it has statements and documents that wood seized in an earlier raid was legally exported from Madagascar. That’s right — this is not the first time for Gibson, and the earlier case is still pending.

Interestingly, the wood that is in controversy — Madagascar ebony — provides an example of how lack of property rights causes shortages of a desirable product. Further, this is an example of how lack of property rights and economic freedom keeps a country poor, instead of being able to benefit from its natural resources.

Among the countries of the world, Madagascar ranks very low in legal structure and property rights. According to the 2011 Index of Economic Freedom for Madagascar compiled by the Heritage Foundation and Wall Street Journal: “Secured interests in property are poorly enforced. Restrictions on land ownership by foreigners impede investment. … The judiciary is influenced by the executive and subject to corruption, and investors face a legal and judicial environment in which the enforcement of contracts cannot be guaranteed. … Corruption is perceived as widespread. ”

This illustrates the importance of economic freedom, which is rooted in property rights and respect for the ability of parties to contract. When property rights are not felt to be secure and people believe that the government will not enforce contracts, it’s difficult to get people to make investments, especially in things like trees that require investment and stewardship over a period of years. Who will nurture trees for decades to maturity, only for them to be stolen, either by a corrupt government or by thieves who have no fear that the government will protect the property of others?

‘Honest services’ law expansion sought

While the U.S. Supreme Court has attempted to limit the application of vague “honest services” statutes, the Obama Administration is working to restore what the Wall Street Journal describes as “essentially unlimited prosecutorial discretion to bring white-collar cases.”

David Rittgers of the Cato Institute explains the meaning of this law: “The ‘honest services’ statute criminalizes ‘a scheme or artifice to deprive another of the intangible right of honest services.’ This criminalized an employee lying to his employer, and as Justice Scalia pointed out, ‘would seemingly cover a salaried employee’s phoning in sick to go to a ball game.’ Prosecutors were able to get those convicted up to five years in federal prison, a $250,000 fine, or both.”

On the impact of the laws, Rittgers writes: “As a practical matter, the law gave federal prosecutors the power to criminalize objectionable behavior, conflating the merely unethical with the intentionally criminal. Behavior that was not illegal under state law (particularly state ethics requirements for public officials) became illegal under federal law.”

In other words, the power of prosecutors was vast. While the Court rewrote the law, Rittgers contends that little has changed.

The Journal notes how the honest services laws amount to a large expansion of the criminal justice system, and is used as a method of back-door business regulation: “Among the multitude of federal, state and local laws, there is little human behavior, much less criminal activity, that remains outside the reach of the justice system. Federal white-collar criminal statutes have multiplied in recent years, often as a way to regulate business conduct.”

The vagueness of this law troubles Timothy Sandefur, an attorney at the Pacific Legal Foundation and Cato Institute Adjunct Scholar. In his article Get Rid of Vague Laws: They impede on individual rights and economic freedom, he explained the danger of vague laws: “There’s probably nothing more dangerous to individual rights than vaguely written laws. They give prosecutors and judges undue power to decide whether or not to punish conduct that people did not know was illegal at the time. Vagueness turns the law into a sword dangling over citizens’ heads — and because government officials can choose when and how to enforce their own interpretations of the law, vagueness gives them power to make their decisions from unfair or discriminatory motives.”

Sandefur notes that vagueness combined with proliferation of criminal laws gives government large power over citizens: “Combine vagueness with the ever expanding number of statutes and regulations affecting businesses and entrepreneurs on a daily basis and the result is a government bureaucracy with almost unlimited power to intimidate and blackmail citizens with the threat of prosecution — or to punish practically any conduct they choose to declare ‘illegal.’”

Sandefur explains this and more in an audio broadcast The Intangible Right of Honest Services.

The Journal piece also warns of the danger of vague laws: “Vague laws are invitations to legal mischief. In his recent dissent in Sykes v. U.S., Justice Antonin Scalia wrote that ‘We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws.’”

What is troubling are the efforts by the Obama Administration and some members of Congress to undo what limits the Court applied, and also their efforts to expand the power of prosecutors. An assistant U.S. attorney general told Congress that it needed to “remedy” the Court’s decision. The Journal also reports there are three bills in Congress that would “[expand] the reach of prosecutors to go after unpopular politicians or businesses whom they can’t pin with a real crime.”

An example is a bill introduced in the last Congress by Vermont Senator Patrick Leahy, titled “Honest Services Restoration Act.” In the current Congress, virtually identical legislation has been introduced under the title H.R. 1468: Honest Services Restoration Act. It was introduced by Representative Anthony Weiner of New York, who is no longer serving in Congress.

The Journal article is Return of ‘Honest Services’: Politicians try to restore prosecutorial powers that the Supreme Court killed (subscription required).

Criminal laws proliferate, at a cost to freedom

The proliferation of criminal laws and regulations with criminal penalties mean that the freedoms of Americans are increasingly at risk as prosecutors take advantage of expanded authority and reach of the federal justice system. Sometimes prosecutors don’t even need to show criminal intent in order to gain a conviction.

As reported in the recent Wall Street Journal article As Criminal Laws Proliferate, More Are Ensnared: “These factors are contributing to some unusual applications of justice. Father-and-son arrowhead lovers can’t argue they made an innocent mistake. A lobster importer is convicted in the U.S. for violating a Honduran law that the Honduran government disavowed. A Pennsylvanian who injured her husband’s lover doesn’t face state criminal charges — instead, she faces federal charges tied to an international arms-control treaty.”

Even though a person may be acquitted of criminal charges, the process of the trial may be punishment enough. Fighting charges may result in legal bills of hundreds of thousands of dollars.

The Journal piece includes the story of a U.S. man who imported lobsters from Honduras. That country had a statute specifying the minimum size of lobsters for export, and some of the lobsters exported — and accepted by the U.S. importer — were smaller than that size. The man was convicted of a U.S. law that requires U.S. citizens to follow other country’s fish and wildlife laws. During the appeal, Honduras filed a brief in support of the man saying it had canceled the undersized lobster law. Despite this, the conviction was upheld, and the man spent 69 months in prison.

The power of federal prosecutors, armed with an expansive federal criminal code and regulatory regime, is immense. At a recent Cato University lecture that I attended, Radley Balko said “If a prosecutor wants to get you for political reasons or personal reasons … he can find a way to get you. And even if he can’t put you in prison, he can ruin your life and ruin your finances.”

Balko, like the Journal article, described the large number of laws on the books that federal prosecutors may use — “tools in the toolbox,” Balko described. There are perhaps 4,500 crimes contained in our federal statutes, although several efforts to count them have resulted only in estimates, even after two years of counting.

Then, there are the regulations, which may number — again, counting is impossible — in the hundreds of thousands. Some of these carry criminal penalties. And as the saying goes, “Ignorance of the law is no defense.”

Balko described the federal sentencing model which allows judges to sentence defendants as through they were convicted of crimes for which they were acquitted, as long as they are convicted of some charges.

Some laws are good. Laws protect the property rights that are the basis of our freedoms and the free market exchange process that leads to prosperity. But as the Journal writes, “Some federal laws appear picayune. Unauthorized use of the Smokey Bear image could land an offender in prison. So can unauthorized use of the slogan ‘Give a Hoot, Don’t Pollute.’” We should note that these things are created by government, paid for by taxpayers, and ought to be available for free use. But not so for Smokey.

Another example of federal overreach is the charge of lying to investigators. Using this, sometimes defendants are convicted of a crime even though the government can’t obtain a conviction on the underlying charge, that is to say, the actual crime.

A notable case of this is that of Martha Stewart. As told by Ilana Mercer: “When it became apparent to U.S. Attorney David N. Kelley that he could not charge Ms. Stewart with insider trading, he used the unrehearsed interviews she had given law-enforcement officers — interviews not subject to Fifth Amendment protections — to charge her with conspiracy, obstruction of justice, and lying to investigators about a matter that was never a crime. This entrapment was easily facilitated under the unconstitutional Section 1001 of Title 18 in the United States Code. This makes it an offense to make “a materially false” statement to a federal official—even when one is not under oath. (It is perfectly acceptable, however, for said official to bait and bully a private citizen into fibbing.)”

Summarizing, Mercer wrote: “The entrapment of Ms. Stewart and Mr. Bacanovic conjures the ubiquitous scene in the movies where the suspect bolts and the cop gives chase. Cop hauls suspect in for questioning, only to discover he has the wrong man. ‘If you are innocent, why did you run?’ the detective demands. To which the suspect replies, ‘I was afraid.’ The cop has no choice but to release him. In truth-is-scarier-than-fiction America, however, Martha Stewart and Peter Bacanovic were not released. They were prosecuted and convicted for the ‘crime’ of … running.”

Mercer’s article is aptly titled Convicted for Fearing Conviction.

A recent example is that of baseball pitcher Roger Clemens, whom Balko said was “basically being accused of lying to a roomful of politicians.” The audience did not miss the intended irony.

It’s not only at the federal level that laws and regulations are growing. In Wichita we watch the city council struggle to produce a detailed set of regulations covering Halloween haunted house attractions, when it appears that these businesses haven’t had any problems that require regulation.

The Wichita City Council recently revoked the operating license of a bar because the owner had been convicted of a crime of moral turpitude. The owner had plead guilty to providing false statements to police involving a beating at his bar.

Sometimes laws exist just so the state can pile on another offense and add to jail time or fines. Kansas, like some other states, has a marijuana tax stamp law. As Kansas has no medical marijuana law, it appears that it is illegal for anyone to possess marijuana in the state. But should you decide to do so, the Department of Revenue requires you to obtain a tax stamp. Few actually purchase the stamps, so when people are charged with drug crimes, violation of the tax stamp law is just one more charge for prosecutors to add.

Do these laws work?

For all its lawmaking, government often doesn’t solve the problem it’s trying to prevent. Kansas, like many states, has passed a law against texting while driving. But as I reported last year in Texting bans haven’t worked, based on research performed by the Highway Loss Data Institute : “But the bans haven’t worked, and some states have experienced an increase in crashes. … The study does not claim that texting while driving is not dangerous. Rather, the realization by drivers that texting is illegal may be altering their behavior in a way that becomes even more dangerous than legal texting.”

Another example of laws that may or may not be accomplishing their goals are red light camera enforcement laws. While the Insurance Institute for Highway Safety says these laws save lives due to a reduction in certain type of accidents, they also cause an increase in other types of accidents. Furthermore, there is persuasive evidence that simply lengthening the time of yellow lights reduces the types of accidents the cameras are credited with reducing. Balko, writing for reason.com, notes this about longer yellow light times: “Somehow, that doesn’t seem as appealing a policy to city governments. Another reason we critics have impugned the motives of public officials is that several cities have been caught shortening yellow times at intersections after they’ve been outfitted with cameras. That would seem to be a pretty good indication of a government that values revenue more than safety.”

Laws named after dead people are another problem. Generally named for a sympathetic victim, these laws allow politicians to appear to be doing something.

A recent example is the versions of Caylee’s Law, named after the Florida toddler Caylee Anthony. Many people feel that her mother bears responsibility for her death, even though the mother was not convicted of that. So in response we have Caylee’s Law proposed in many states and at the federal level. The laws require rapid reporting to law enforcement offices of a missing or dead child.

In his lecture, Balko provided examples of how parents or caregivers could innocently fall afoul of such a law, and could be charged with a serious crime when in fact there is no culpability. As to the actual effectiveness of such laws, Balko concluded “Can you image a parent depraved enough to murder their own child is going to be dissuaded by a law that requires them to report the death of that child within an hour of having killed them? Nobody’s going to be dissuaded by this law. The law is not going to save a single child’s life. This is about vengeance. People are upset that Casey Anthony was released.”

Balko added that the problem with naming laws after sympathetic victims is that it shuts off debate. If anyone opposes Caylee’s Law, it will be charged that they are not outraged over her death, and they are not serious about protecting children. This, he said, is not a good way to have discussion and debate about public policy.

But the urge by politicians to be seen as “doing something” — even if what they do has more negative consequences than positive — is often the driving force behind laws, and also behind the cases of overzealous prosecutors.