Voice For Liberty

Tag: Overcriminalization

  • The overcriminalization in the charges against Michael O’Donnell

    The overcriminalization in the charges against Michael O’Donnell

    The indictment against Sedgwick County Commissioner Michael O’Donnell smells of overcriminalization.

    Former Wichita City Council Member, former Kansas Senator, and present Sedgwick County Commissioner Michael O’Donnell has been charged with a series of serious crimes — serious, at least, in the potential penalties he faces.

    First, I know Michael O’Donnell, and although I have been critical of some of his votes in the Kansas Senate and many while a member of the Sedgwick County Commission, I still consider him a friend, and I hope he considers me the same. I have worked on some of his campaigns, sometimes as a volunteer, and sometimes for pay.

    In the indictment, counts one through five accuse O’Donnell of wire fraud, because five campaign finance reports filed with the Kansas Governmental Ethics Commission contained allegedly false and fraudulent information, that being that O’Donnell allegedly converted campaign funds to his personal use. And, the email service used to file the reports routed the data through other states on its way to Topeka. This is described as a scheme to “defraud the State of Kansas, the County of Sedgwick, Kansas, and the citizens thereof.” 1

    Counts six through ten accuse O’Donnell of bank fraud, because the banks involved are insured by the Federal Deposit Insurance Corporation.

    Counts eleven and twelve allege money laundering based on the above activity.

    Overcriminalization

    O’Donnell is being charged with multiple criminal offenses for the same acts. He allegedly converted campaign funds to personal use. That is against the law, and if done more than once, there can be multiple counts. But how this is done (the means of transmission of reports to KGEC) and what type of banks were used (FDIC insured banks) really don’t have anything to do with the underlying bad acts and should not result in additional crimes, at least in this case.

    For example, if O’Donnell had used an internet service that sent email with the transmission remaining at all times within the borders of Kansas, then one of the elements of the first five counts would not apply, that he “transmitted by means of wire communications in interstate commerce.” Or, if he had delivered the reports personally, interstate commerce might not apply.

    This is the issue of criminal intent. If the allegations in the indictment are true, O’Donnell committed a crime by improperly spending campaign funds and falsely reporting that. The indictment presents evidence of criminal intent in doing these things. But it is unlikely he intended to commit a crime involving interstate commerce. He probably did not know that Google would route his Gmail communications across state lines.

    In a similar vein, because the banks involved are insured by the Federal Deposit Insurance Corporation, counts six through ten accuse O’Donnell of bank fraud. But it’s unlikely O’Donnell intended to defraud the banks. The checks he wrote didn’t bounce; there were sufficient funds in the accounts. So it’s very difficult to see how the transactions alleged in the indictment posed any threat to the banks, or by extension, to the federal government through FDIC insurance. Further, if O’Donnell had used state-chartered banks, the second five counts might not apply.

    If we want to have campaign finance laws, that’s one thing. If people violate those laws, then charge them with that. But this piling on of charges is a characteristic of overcriminalization, where people are charged with multiple crimes for the same underlying criminal act.

    Could the piling on of charges be a bargaining chip to use in future negotiations concerning things O’Donnell may know? In a recent op-ed, prominent attorney Alan Dershowitz quoted a federal judge regarding squeezing a potential witness: “This vernacular is to ‘sing,’ is what prosecutors use. What you got to be careful of is, they may not only sing, they may compose.” 2

    Dershowitz continued:

    I have been using this “compose” metaphor for decades and I am gratified that a judge borrowed it to express an important civil liberties concern. Every experienced criminal lawyer has seen this phenomenon at work. I have seen it used by prosecutors who threaten wives, parents, siblings and, in one case, the innocent son of a potential witness who was about to graduate law school. Most judges, many of whom were former prosecutors, have also seen it. But few have the courage to expose it publicly, as Ellis has done.

    Defenders of Mueller’s tactic argue that the threatened witnesses and their relatives are generally guilty of some crime, or else they wouldn’t be vulnerable to the prosecutor’s threats. This may be true, but the crimes they are threatened to be charged with are often highly technical, elastic charges that are brought only as leverage. They are dropped as soon as the witness cooperates.

    Is this what is happening to Michael O’Donnell? Will the piling on of multiple felony charges carrying multi-year prison terms be dropped if O’Donnell cooperates in criminal prosecutions against other people?

    If anything, these alleged acts might constitute fraud committed against campaign donors. It’s difficult to see how the average person would care how candidates spend their campaign funds. Citizens may be concerned with who gives and how much they give, and if a candidate converts these campaign contributions to personal use, it opens the door to corruption. But the people really harmed are the donors who gave funds expecting to help O’Donnell win an election, not pay his personal expenses. (Unless the donors gave with such an understanding in place, and that is not legal.)

    As an aside, O’Donnell’s political opponents ought not to be so concerned, although currently they are overjoyed at his situation. If a candidate converts funds to personal use — away from campaign activity like advertisements, mailings, and yard signs — that seems to make the candidate less likely to win. Candidates and their supporters should hope their opponents spend campaign funds unwisely.

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    Notes

    1. United States Attorney’s office for the District of Kansas. Federal Fraud Charges Filed Against County Commissioner O’Donnell. Available at https://www.justice.gov/usao-ks/pr/federal-fraud-charges-filed-against-county-commissioner-o-donnell. Also see the indictment, available here. ↩
    2. Alan Dershowitz. Federal judge rightly rebukes Mueller for questionable tactics. The Hill, May 7, 2018. Available at http://thehill.com/opinion/judiciary/386508-federal-judge-rightly-rebukes-mueller-for-questionable-tactics. ↩
  • WichitaLiberty.TV: Keen Umbehr on criminal justice reform

    WichitaLiberty.TV: Keen Umbehr on criminal justice reform

    In this episode of WichitaLiberty.TV: Keen Umbehr is a criminal defense attorney. He talks about reforms needed in the criminal justice system. View below, or click here to view on YouTube. Episode 143, broadcast March 19, 2017.

    Show notes

  • In Wichita, your house numbers may become illegal

    In Wichita, your house numbers may become illegal

    House numbers that may become illegal in Wichita.
    House numbers that may become illegal in Wichita.
    Thousands of Wichita homeowners may soon be lawbreakers if the city council follows its staff’s recommendation.

    An update is at the end of this article.

    This week the Wichita City Council may make your house number illegal, even though those numbers may — literally — be set in stone. This will be the case if the council takes the action recommended by its Department of Public Works and Utilities.

    Current city code requires address numbers three inches high. The proposed ordinance requires numbers four inches tall. The penalty for noncompliance is $500 per day, with each day being “a separate and distinct offence.”

    Existing and proposed ordinances

    The existing city code:1

    Sec. 10.04.190. – Same — Duty of owner or occupant to place; size, etc.

    The owner or occupant of each and every house or building in the city is required to place on the house or building, in a conspicuous place, numbers of at least three inches in height of a type to be selected by the owner or occupant, which numbers shall be in conformity with and according to the provisions of the two preceding sections of this chapter. (Ord. No. 14-491 § 2)

    The proposed code.2

    SECTION 10. Section 10.04.190 of the Code of the City of Wichita, Kansas, is hereby amended to read as follows:

    “Duty of owner or occupant to place; size, etc.”

    The owner or occupant of every house or building in the City is required to conspicuously place on the house or building house numbers of at least four (4) inches in height. Painting house numbers on the Curb alone shall not be sufficient to comply with this Section.

    Such numbers shall be consistent with Sections 10.04.170 and 10.04.180. Such numbers shall be of a sufficient contrast such that police officers and firefighters can read the numbers from the abutting street. Any property owner failing to comply with this Section is guilty of a misdemeanor punishable by a fine not to exceed five hundred (500) dollars. Each day house numbers are not properly placed on the house or building is a separate and distinct offence.

    Update
    At its August 9 meeting, the city council deferred this item to September.

    —
    Notes

  • Wichita to impose burdensome occupational requirements

    Wichita to impose burdensome occupational requirements

    The proposed massage therapist regulations in Wichita are likely to be ineffective, but will limit economic opportunity and harm consumers.

    Kansas occupational license requirements, with proposed Wichita massage therapists. Click for larger.
    Kansas occupational license requirements, with proposed Wichita massage therapists. Click for larger.
    The Wichita City Council is concerned about human trafficking for the purposes of prostitution. That’s good. But the response the council is considering — which is licensing massage therapists — is not needed. We have strict laws already on the books that make human trafficking a serious criminal offense, which it is. The proposed Wichita regulations will simply make it more difficult for honest people to become massage therapists. Criminals will operate illegally. They are criminals, after all. Or, they will easily obtain false credentials.

    Kansas already has many burdensome occupational licensure requirements that limit economic opportunity and protect entrenched interests. Nearby is a chart of the number of days training or experience required to obtain a license if various fields, according to Institute for Justice in 2012. 1 I’ve added the proposed Wichita massage therapist requirements. As you can see, it will require more than twice as much education to become a massage therapist as is required to become an emergency medical technician. How does that make sense?

    Comparing the proposed Wichita requirements to the nation, we find that the Wichita standard is quite lax. 39 states license massage therapists, with the average education or training requirement being 139 days, with the range being from 117 days to 327 days2. Wichita is proposing 83 days, which might inspire one to ask this question: If the Wichita City Council is truly concerned about protecting Wichitans from getting a bad massage, why is it proposing such minimal requirements, compared to other states?

    In reality, the high barriers to becoming a massage therapist in many states is testimony to the massage industry’s success in erecting barriers to entry. By making it difficult to become a massage therapist, the supply is lower than it could be, and prices are higher. Consumers lose.

    As has been observed by myself: “City officials note that the existing local massage industry requested this regulation. That’s not surprising. The purpose of nearly all occupational licensure laws is to restrict entry to the industry so that existing practitioners can charge higher rates. That is a scam, especially against low-income people that need a masseuse or a plumber. It is also a burden to people who want to become plumbers, barbers, massage therapists, or one of the many other licensed occupations.” 3

    —
    Notes

    1. Institute for Justice, (2012). License to Work. Available at: ij.org/report/license-to-work/ Accessed 29 Feb. 2016. ↩
    2. ibid ↩
    3. Weeks, B. (2016). Massage business regulations likely to be ineffective, but will be onerous. Voice For Liberty in Wichita. Available at: wichitaliberty.org/wichita-government/massage-business-regulations-likely-ineffective-but-will-be-onerous/ . ↩
  • Massage business regulations likely to be ineffective, but will be onerous

    Massage business regulations likely to be ineffective, but will be onerous

    The Wichita City Council is likely to create a new regulatory regime for massage businesses in response to a problem that is already addressed by strict laws.

    During a presentation to the Wichita City Council on February 23, 2016, police officials reported on a number of investigations and arrests. In 2015, there were 22 arrests for human trafficking and other violations. The presentation did not include what comprised “other violations,” nor did it contain any information about the disposition of these cases.

    If the city is concerned about prostitution and child trafficking, the latter being a serious crime, we already have strong laws concerning this. As far as the two crimes being related: If you are a prostitute or promoter of such, you are already a criminal, according to the law. Committing more crimes, therefore, is just another step down the path you’ve already chosen.

    A solution is to bring prostitution out of the shadows. Stop making consensual behavior between adults a crime. Then police can focus on actual and serious crime, like child trafficking.

    But the zeal of the Wichita City Council for creating new regulatory regime is likely to overwhelm any rational thought about the problem. Now Wichita massage business owners and therapists are likely to be saddled with onerous licensing requirements. To become a newly-licensed therapist, you must possess one of several educational credentials, one of which is 500 hours of training. Existing therapists must meet similar requirements.

    City officials note that the existing local massage industry requested this regulation. That’s not surprising. The purpose of nearly all occupational licensure laws is to restrict entry to the industry so that existing practitioners can charge higher rates. That is a scam, especially against low-income people that need a masseuse or a plumber. It is also a burden to people who want to become plumbers, barbers, massage therapists, or one of the many other licensed occupations.

    It is both shocking and disappointing to realize that Wichita city bureaucrats and council members do not realize these economic realities. Another economic reality is that when licensing requirements are strict, the quality of service that many people receive declines. Investigating the demand for licensed plumbers, researchers found this:1

    This proxy assumes that the more stringent are the barriers the higher will be the cost of licensed service and the smaller will be its quantity. These two effects increase the motivation of consumers to substitute their own services for those of trained professionals. This substitution process should show up in rising retail sales of plumbing supplies in more tightly restrictive states since licensed plumbers will generally purchase supplies wholesale. The implicit assumption is this causal chain is that self-service is on the average of lower quality than could be obtained from even a marginally trained journeyman plumber.

    When presented with a convincing but fake credential, how diligently with Wichita officials investigate?
    When presented with a convincing but fake credential, how diligently with Wichita officials investigate?
    In other words, when strict licensure requirements make plumbers expensive, more people do their plumbing work themselves, and this work is likely to be of lower quality. It’s quite a stretch (literally and figuratively) to apply this reasoning to do-it-yourself massage, but here’s another economic reality: The more difficult it is to achieve a credential, the greater incentive to cheat. You don’t have to search very far before you find vendors advertising their services like this:

    We are one of the oldest and most trusted seller of fake diplomas on the web. We use real diploma paper, the same paper that most major universities and high schools use. We also use professional security paper for our fake transcripts. We have more than 12 years experience in printing fake diplomas. You can rest assured that your fake diploma or fake transcript will look very authentic. We offer many different types of fake diplomas and fake certificates such as, FAKE GEDs, fake college diploma, fake university degree, fake high school diploma, fake college degree, or fake high school transcripts and fake skill certificate.

    How diligently will Wichita’s bureaucratic machinery investigate when presented with a fake diploma certificate and transcript? The city’s record is not good. After the city passed new taxicab regulations, somehow the regulation that prohibited convicted sex offenders from receiving licenses was not implemented effectively. The city granted a taxi driver license to a man who was on the state sex offender registry. He raped a passenger.

    I urge the city council to reject these regulations and devote the city’s resources to protecting people from actual crime.

    —
    Notes

    1. Carroll, Sidney L., and Robert J. Gaston. “Occupational Restrictions and the Quality of Service Received: Some Evidence”. Southern Economic Journal 47.4 (1981): 959–976. ↩

  • If you can’t get a cop in Wichita

    It could be that the officers are busy protecting the city from the illegal playing of poker.

    This is an area ripe for reform. Why is playing poker for money on east Kellogg illegal? At one time the state thought it had to protect us from gambling because it was sinful. That argument has faded as states across the nation have sanctioned casinos. Kansas is unique — at least at the time of the start of non-Indian casino gambling in the state — in that the casinos are actually owned by the state.

    So if the state of Kansas owns casinos, and if the state profits from casinos, how can the state object to gambling on any moral ground? It can’t. Whatever the merits of the arguments against gambling, the state discarded them in exchange for money. Now the state continues to prohibit non-casino gambling because it is competition to Kansas state sanctioned gambling.

    See KWCH News: Seven arrested following investigation at SE Wichita poker room.

  • WichitaLiberty.TV: Sales tax exemptions, criminal justice reform, and charity

    WichitaLiberty.TV: Sales tax exemptions, criminal justice reform, and charity

    In this episode of WichitaLiberty.TV: Does the elimination of sales tax exemptions hold the solution to Kansas budget problems? We have a problem with overcriminalization and the criminal justice system. Then, is there a difference between government and charity? View below, or click here to watch in high definition at YouTube. Episode 96, broadcast September 27, 2015.

  • Criminal justice reform: Why it matters

    Criminal justice reform: Why it matters

    Mark Holden, Senior Vice President and General Counsel at Koch Industries, Inc., speaks about criminal justice reform initiatives Koch is encouraging in and why they’re important from moral, constitutional and fiscal perspectives. Holden spoke at a luncheon of the Wichita Pachyderm Club on September 18, 2015. View below, or click here to view in high definition at YouTube. Videography by Paul Soutar.

    More information about this topic is at The Overcriminalization of America.

  • Making Wichita an inclusive and attractive community

    Making Wichita an inclusive and attractive community

    There are things both easy and difficult Wichita could do to make the city inclusive and welcoming of all, especially the young and diverse.

    Wichita Chamber of Commerce 2013-07-09 004In its questionnaire for candidates for Wichita mayor and city council, the Wichita Metro Chamber of Commerce asked this: “How will you work to make Wichita an inclusive community where all will feel welcome, particularly the young and diverse talent we need to help attract more young and diverse talent?”

    There are a few very easy things Wichita could do to appeal to millennials — I think that is one of the groups the Chamber addresses in its questions — and diverse people.

    Support the decriminalization of marijuana. The city council reacted to a recent petition to reduce the penalty for carrying small amounts of marijuana by placing the measure on the April general election ballot. Another option the city had was to adopt the ordinance as submitted. That would have sent a positive message to millennials, but the council did not do that.

    Ask the state to positively end marriage discrimination. The city has a legislative agenda it prepares for state legislators each year, but this matter was not mentioned.

    wichita-taxi regulationsWichita should reform its taxicab regulations so that ride-sharing businesses like Uber are operating fully within the law, instead of outside the law as Uber is currently operating. Uber is an example of the type of innovation that city officials and civic leaders say we need, and millennials love Uber. But: Uber has been operating in Wichita since August. Uber has model legislation that could be adopted quickly. Yet, six months later the city has not acted. This delay does not send a message that Wichita welcomes innovation. Instead, it sends a message that the regulatory regime in Wichita is not able to adapt to change.

    Pledge to resist the growth of the surveillance state. No street surveillance cameras in Wichita. No mass license plate scanning by police.

    To the extent there are problems with the Wichita Police Department, resolve them so that citizens feel safe and minorities feel welcome and not threatened. A citizen oversight panel that has real authority would be a good step. Proceed quickly with implementation of police body cameras. End the special entertainment districts, which many feel are targeted at minority populations.

    Here’s a bad idea, but an indication what passes for innovation at the Wichita Chamber: Pay down the student loan debt of young people. This is a bad idea on several levels. First, it rewards those who borrowed to pay for college. Those who saved, worked, or went to inexpensive colleges are not eligible this benefit. Further, if we award this incentive, those who receive it might wonder if that someday they will be taxed to provide this benefit to younger people. After all, the corollary of “Come to Wichita and we’ll pay down your student loan” is “Stay in Wichita, and you’re going to be paying down someone else’s student loan.” If the Chamber wished to raise funds voluntarily to provide such a program, that would be fine. But no tax funds should be used for anything like this.

    What Wichita really needs to do

    Most of the above are relatively easy to accomplish. Here’s something that is very important, something that should be easy to do, but goes against the grain of elected officials, bureaucrats, and civic leaders like those who run the Wichita Metro Chamber of Commerce. That is: Promote free markets instead of government management of the economy.

    A Reason-Rupe survey of 2,000 Americans between the ages of 18 and 29 found that millennials strongly prefer free markets over a government-managed economy. When asked to choose the better system, 64 percent of millennials choose the free market over an economy managed by the government (32 percent).

    Also, the survey found that millennials are distrustful, believing that government acts in favor of special interest groups and that government abuses its powers: “A Reason-Rupe survey of 2,000 Americans between the ages of 18 and 29 finds 66 percent of millennials believe government is inefficient and wasteful — a substantial increase since 2009, when just 42 percent of millennials said government was inefficient and wasteful. Nearly two-thirds of millennials, 63 percent, think government regulators favor special interests, whereas just 18 percent feel regulators act in the public’s interest. Similarly, 58 percent of 18-to-29 year-olds are convinced government agencies abuse their powers, while merely 25 percent trust government agencies to do the right thing.”

    What could Wichita do, in light of these findings? One thing is to stop its heavy-handed regulation of development, particularly the massive subsidies directed to downtown Wichita.

    We should take steps to make sure that everyone is treated equally. Passing “pay-to-play” ordinances — where city council members or county commissioners are prohibited from voting on matters that would enrich their campaign contributors — would be a first step in regaining the trust of citizens.

    We also need to reform our economic development practice to favor entrepreneurship. Millennials like to start businesses, the survey tells us: “55 percent of millennials say they’d like to start their own business one day and that hard work is the key to success (61 percent). Millennials also have a positive view of the profit motive (64 percent) and competition (70 percent).” red-tape-person-upsetMuch of our economic development practice consists of directing subsides to our existing large firms or large firms we hope to lure here. But young and small firms — entrepreneurial firms, in other words — can’t qualify for most of our incentive programs. For example. the programs that offer property tax abatements have lengthy application forms and other obstacles to overcome, plus annual fees. Sometimes there are minimum size requirements. Young firms can’t suffer through this red tape and the accompanying bureaucratic schedules.