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The following op-ed by our policy analyst, Josh Daniels, was published today in the Salt Lake Tribune.

Earlier this year, the state of Utah was widely mocked for considering the re-authorization of firing squads as a form of capital punishment. Unfortunately, the debate never addressed the acceptability of the death penalty itself, despite lengthy consideration by the Legislature of a comprehensive package of criminal justice reforms during the same time. This missed opportunity can be corrected next year; Utah should abandon the use of capital punishment in favor of life without parole.

The Utah Legislature often looks for ways it can squeeze more value from each tax dollar by reforming government programs. This drive for tax efficiency was a primary impetus behind this year’s criminal justice reforms. With the death penalty, however, taxpayers get a lot less bang for the buck. While a desire for justice has led legislators in the past to favor this policy of ultimate retribution, capital punishment has become a failure of big government and falls far short as an effective policy.

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Sam Giles, a young student in Georgia, missed a few days of school beyond what the law considered acceptable, and as a result, his mother was arrested. Julie, who works as a substitute teacher, notes that “Sam originally had what they consider 12 unexcused absences, 6 are allowed per year, so he had 6 more than is acceptable, but the doctor reissued 3 excuses that Sam didn’t turn in, so basically I am being arrested for THREE days.”

Her Facebook posts further clarified that young Sam was performing just fine in school:

Commenting on Julie’s arrest over a few days of skipped school, the Superintendent commented, “It’s important for these children to be in school and I think the courts recognize that.” This absurd result is the logical consequence of compulsory education laws.

Would a parent in Utah face a similar consequence?

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In October 2013, our organization filed an open records request with the state of Utah’s Division of Administrative Services to determine what type of military gear was being requested and received by police agencies around Utah. Our request was denied, with the government essentially arguing that disclosure of this information would jeopardize the lives of the officers using the equipment if the citizens who employ them knew what it was.

We appealed and were able to obtain de-identified information—the list of assets in aggregate, without knowing which agencies possessed what. At the same time, Salt Lake Tribune reporter Nate Carlisle requested and received the information directly from the federal government. Throughout 2014, public interest in and opposition to this flow of military weaponry and goods created enough political pressure that culminated in the responsible agency ultimately providing the raw data regarding all items transferred.

Today, the White House announced a revision to the policy—no longer will local law enforcement agencies be given grenade launchers, tracked armored vehicles, armed aircraft, bayonets, and guns and ammunition of .50 caliber or higher. Other supplies, including wheeled armored vehicles, drones, helicopters, firearms and riot gear, will still be allowed but will have restrictions placed on their use. Police agencies desiring these forms of equipment will be required to provide a “clear and persuasive explanation” for their need, and will have to get approval from their local government.

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Libertas Institute has scheduled several public forum meetings to discuss Senator Madsen’s proposal to legalize medical cannabis in Utah. The first meeting, the details of which are below, will focus on law enforcement, criminal justice, and banking regulatory issues.

We expect this to be a standing room only event with over 300 people showing up. We will save a few seats for media in the front; please arrive early.

  • Where: Wildcat Theater, Shepherd Union Building, Weber State University
    3848 Harrison Blvd, Ogden, UT 84408
  • When: Tuesday, May 19, 7-8:30pm
  • Who: Senator Mark Madsen, sponsor of the legislation; Salt Lake County District Attorney Sim Gill; 22-year undercover Utah narcotics agent Allen Larsen; Christine Stenquist, director of Drug Policy Project of Utah; and Representative Marc Roberts, president of a high-risk payment processing company.

Future meetings will discuss patient stories, medical research, regulatory issues, PTSD, and other topics.

“Few legislators oppose this policy, but there was some legitimate concerns during the previous legislative session that it was happening too quickly and that there were unanswered questions,” said Connor Boyack, president of Libertas Institute. “As a result, we’re holding meetings statewide to openly discuss the bill, field questions, resolve concerns, and educate the public about the importance of and need for medical cannabis as a treatment option for many sick and suffering Utahns.”

Senator Mark Madsen commented, “I’m eager to participate in these meetings. For Utahns like me who sincerely believe in individual liberty and limited government, and who are interested in learning about medical cannabis, these public forums will be invaluable. People need to become informed and weigh in if we are ever going to stop government from making decisions for people that are better left to them and their physicians.”

A poll conducted by Y2 Analytics earlier this year found that 72% of likely voters in Utah support the proposed legislation.

A legislative audit released this morning notes that “accurate water use data is critical” for managing the state’s water resources, while concluding, after research, that the data relied upon by state planners “contains significant inaccuracies”—inaccuracies which were admitted to, and known by, these government officials.

In some cases, the reported usage of water by some cities did not match the numbers listed in internal city reports. In one case, a city reported water usage for 2012 that was actually the data from another city with the same name in the state of New York.

The gravity of this mangled data is significant when considering the taxpayer investments made in water infrastructure throughout the state. The executive director of the Utah Rivers Council, for example, told the Deseret News today that, “The Division of Water Resources has been using bad data to support billions of dollars in unnecessary spending for massive water projects.” These same water managers who have been providing incorrect data—regarding the very reason for which they are employed—project that the state will need to spend $33 billion over the next several decades to repair current systems and expand supply.

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Free Market Think Tank Strengthens Its Resources

Salt Lake City, UT (May 4, 2015) — Libertas Institute announced today that DJ Schanz has joined the Institute to help further its goals of advancing the cause of limited government and the ideals of the free market. DJ Schanz brings with him a wealth of experience, relationships, and foresight to add to Libertas’s recent successful initiatives, both educationally and legislatively.

Speaking of his new role, DJ commented, “I’m excited to be part of the Libertas team and the dynamic energy the organization has for bettering our society in real, pragmatic ways. Few organizations can boast the same success and effectiveness Libertas has shown in such a relatively short period of time.”

Connor Boyack, president of Libertas Institute said, “DJ’s experience and knowledge, both politically and philosophically, line up perfectly with the direction Libertas is headed. We view his addition to our team as a sign of not only our growth and success, but of our vibrant future as a positive influence on public policy.”

DJ received his undergraduate degree from Brigham Young University and an MBA from the Thunderbird School of Global Management. In addition to his duties with Libertas, DJ owns a medical records company and a political phone bank. He currently sits on the Utah GOP State Central Committee. In his spare time he coaches Little League, conducts Cub Scout meetings, cycles, and enjoys spending as much time as possible with his wife and four children.

About Libertas Institute

Libertas Institute’s mission is to advance the cause of liberty within the State of Utah by supporting and defending individual liberty, private property, and free enterprise. The Institute promotes liberty by generating non-partisan analysis and commentary on public policy issues relating to Utah, and recommending our findings to opinion leaders, policy makers, media, and interested Utahns.

School children across Utah were likely exposed this week to the virtues of environmental conservation and the heroics of “Captain Planet” in honor of Earth Day. We presume that few were introduced to the unintended consequences of federal environmental regulation. Forty three years ago, the Clean Water Act was enacted—the original intent of which was to authorize the EPA to ensure waters of the United States were not being polluted. This law has been used in modern times to prevent private property owners from developing their own property without first obtaining expensive permits from the federal government.

Later this month the EPA may be finalizing a proposed rule to define the “waters of the United States” over which it has regulatory jurisdiction under the Clean Water Act. The EPA has been unsatisfied with the way in which ambiguity about the definition has led to recent court decisions that seem to confine EPA authority to interstate or “navigable” waters and only those additional waters that have a “significant nexus” to navigable waters. Conversely, the regulatory trend of EPA enforcement has led to the expansion of their jurisdiction to intrastate waters including adjacent wetlands, intermittent tributaries that may only flow during wet seasons, and even remote bodies of water at times. Historically, the EPA’s attempt at enforcement over such waterways has led to Supreme Court litigation resulting in precedent that has narrowed this scope. Dissatisfied with this result, the EPA now seeks to permanently define their regulatory overreach in a more expansive way while also precluding future legal battles over jurisdiction.

The way “waters of the United States” is defined in statute will have significant and far-reaching effects for private property owners, agriculture, and industries throughout the country. By expanding the scope of this term, the EPA will gain jurisdiction over millions of acres and countless private activities. Representative Harold Rogers (R-Ky), Chairman of the House Appropriations Committee, called the proposed rule “the biggest land grab in the history of the world,” expressing concerns that it would have a profoundly negative economic impact. Farmers across the country are so concerned about the impact of the rule that the Farm Bureau launched a public awareness campaign to “ditch the rule”—referencing their assessment that application of this expanded definition could extend regulatory control even to irrigation ditches on farm property.

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Around the country, states have imposed licensure requirements on a large number of professions, effectively requiring workers to seek government permission—and pass through a number of bureaucratic hurdles—in order to practice their chosen profession. Whereas in the 1950s only one in 20 U.S. workers were required to obtain a license, that figure today stands at almost one in every three workers.

For each licensed profession, state legislatures usually authorize and empower a governing board, comprised in most cases of members of that same profession. For example, in Utah, the licensure of chiropractors is regulated by a board made up of four chiropractors and a token “public member” who is not a member of the industry. Nurses are regulated by a board comprised of nine fellow nurses and two public members. Direct-entry midwives are overseen by four licensed people from the profession and one “public member.” The trend holds constant for the other several dozen licensed professions in Utah.

That trend may soon change in light of a U.S. Supreme Court opinion issued in February that may put these boards on the defense. The case at hand, North Carolina State Board of Dental Examiners v. FTC, arose due to the dental board—comprised primarily of dentists—engaging in non-competitive behavior and being sued by the Federal Trade Commission. Specifically, the board attempted to prohibit non-dentists from providing teeth whitening services, presumably because this competition undermined their monopolistic hold on the market.

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Editor’s note: The following is a lightly edited interview with Paul Cassell, a former federal judge in Utah who now teaches law at the University of Utah. This interview discusses one of his rulings, imposing a 55-year prison sentence on a low-level drug dealer. Cassell’s ruling notes that mandatory minimum sentencing laws required him to impose the sentence—one which he stated, in his ruling, to be “unjust, cruel, and even irrational.”

The comments in this interview do not necessarily reflect the views of Libertas Institute.

Libertas Institute: One of the cases you adjudicated that has received the most attention is that of Weldon Angelos. Can you summarize who he is, and what the case was about?

Paul Cassell: The details are set out in the court opinion, so obviously this is just a summary not intended to be an exhaustive account. In essence, Weldon Angelos was involved with three marijuana deals [in 2002], and for each of those deals he brought along a firearm with him. Under federal law, if you have a firearm that is in furtherance of a drug deal—and simply bringing a firearm would be in a furtherance of a drug deal—then the first offense is a five year mandatory minimum, the second offense is 25 years, and the third offense is another 25 years.

So in the course of, as I recall, a week or 10 days, Angelos racked up about 55 years of mandatory federal prison time.

LI: Is Angelos’s case, in your judicial experience, an anomaly—or did you see other cases like it?

PC: I was on the bench for about 5.5 years in Utah, and that was certainly the most extreme mandatory minimum sentence I saw while I was there. I can’t point to other cases I had that were like that, but I know there a number of other cases around the country. These are called 924(c) counts. There are other people who have been subjected to those kinds of penalties.

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We have written previously about Utah’s voluminous laws and are pleased to report that after this session, the number of criminal offenses has been reduced significantly due to the comprehensive criminal justice reform effort. House Bill 348, the Justice Reinvestment Initiative, garnered a lot of attention for its reduction in criminal offense levels for certain low-level drug offenses—but it also had a significant impact on certain misdemeanor traffic offenses. The bill reclassified 259 offenses from a class C misdemeanor to an infraction, 34 class B offenses to a class C, and made a handful of other reductions.

Many places in Utah code previously set the default criminal classification as a class C misdemeanor, which comes with a possible jail sentence of up to 90 days. These reclassifications represent significant progress in reducing the impact of over-criminalization on Utahns and the taxes they pay. The purpose of the reforms was to refocus criminal justice resources on those crimes that have the largest impact on public safety. For example, instead of sending someone to jail for “driving over a firehose,” the state will now treat this as an infraction with fines instead of expensive and burdensome jail time.

You can view the list of changes made by HB 348 here.

John Oliver, host of HBO’s “Last Week Tonight,” recently did a segment on over-criminalization in America and the impact of municipal and other small violations on people’s lives. At one point he quipped that the state has to “spend money to make money to be able to afford to jail people to lose money.” This describes quite accurately the fiscal shortcomings to a criminal justice approach where expensive enforcement resources are devoted to collecting fines on small offenses that can land offenders in expensive jails for unpaid fines related to minor offenses. Such an approach turns our “public safety” apparatus into nothing more than a veiled return to the debtor prisons of the past—but at significant taxpayer expense.

Over-criminalization also has the effect of undermining the morality of law as it expands state sanctions against morally wrong behavior to mere violations of the regulatory state. George Will wrote that this “corrodes the rule of law” in his column this week where he argued that the administrative state threatens liberty.

We applaud the legislature for passing these sweeping reforms and hope that they will sustain this commitment to reducing over -criminalization in Utah.

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