Voice For Liberty

Tag: Overcriminalization

  • 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.