Center for Individual Liberty
“No bill of attainder, ex post facto law, or law impairing the obligation of contracts shall be passed.”
—Utah Constitution, Article 1, Section 18 (see also Article 1, Section 10 of the U.S. Constitution)
A fundamental principle of law in our country is that of prospective application—that laws should apply to individuals and actions in the future as opposed to retroactively in the past. For this reason, both the United States and Utah Constitutions expressly prohibit “ex post facto” laws—laws that apply after the fact. This principle was so obvious to the Constitution’s framers that some even opposed its inclusion, arguing that it was unnecessary.
Oliver Ellsworth, a delegate from Connecticut, said “there was no lawyer, no civilian who would not say that ex post facto laws were void in themselves” and James Wilson, a delegate from Pennsylvania, was literally embarrassed at the thought of what other nations would think if the Constitution made explicit something so obvious. He said he was “against inserting anything in the Constitution as to ex post facto laws. It will bring reflexions on the Constitution—and proclaim that we are ignorant of the first principles of Legislation, or are constituting a Government which will be so.”
After ratification of the Constitution, Thomas Jefferson remarked that some state constitutions did not see the need to even mention the prohibition on ex post facto laws because it was so obvious:
A new study published in the Lancet medical journal—the most comprehensive study of its kind to date—looks at adolescent marijuana use in states with legalized medical marijuana from 1991 to 2014. Using annual, repeated cross-sectional surveys of over one million teenagers, the study finds that marijuana use does not increase when states legalize medical marijuana.
The authors of the study write that “the risk of marijuana use in states before passing medical marijuana laws did not differ significantly from the risk after medical marijuana laws were passed.” The study finds that states with higher rates of teenage marijuana use before enacting their medical programs into law were unaffected by the new legal framework.
According to the U.S. Department of Health and Human Services, 40% of adolescents nationwide have tried marijuana at one or more times in their life. In Utah, that number is only 20%. As the new study indicates, based on indicators from over 20 other states, this number is unlikely to rise if Utah’s legislature allows a medical cannabis program.
While a slight uptick in teen use would not have justified denying sick Utahns the medical treatment they need, it is nevertheless a welcome development to have findings indicating that this concern—shared by some Utah legislators—is resolved.
After two requests for delayed filings, the Utah Attorney General’s office recently submitted its appeal in the Kody Brown polygamy case to the Tenth Circuit Court of Appeals. In it, the state’s attorneys seek to reverse a recent district court ruling invalidating Utah’s statute that criminalize consensual cohabitation. In other words, Utah taxpayers are funding legal research and a court proceeding seeking to re-classify Utah polygamists as felons.
The state’s appeal relies heavily on generalization—that “polygamist communities are rampant with sexual abuse of children and women,” that “polygamy is generally harmful to citizens,” and that “the citizens of Utah have declared that polygamous relationships are harmful.” The AG’s office therefore contends that the government may “criminalize bigamy and polygamy in the interests of health, safety, welfare, and even morals, under their police power.”
In short, because some (or even many) polygamists do indeed abuse children and women, the government claims—and exercises—the power to criminalize all polygamists.
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?
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.
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.
Legislation introduced last year by Representative Marc Roberts sought to prevent material assistance in the state of Utah to the National Security Agency (NSA) for its warrantless surveillance of innocent individuals. Last year’s bill received discussion during an interim session this past fall, and may be re-introduced in the 2015 general session.
Asked about this effort today, Governor Gary Herbert told reporters, “I know people have had some frustration with the NSA,” but that the state’s agreement with the NSA was “something I think we need to continue to honor.”
The Utah Data Center has been the subject of widespread reporting. In our exclusive interview with Bill Binney, a 30-year NSA employee turned whistleblower, he indicated that the storage facility was created to retain every bit of digital information about people possible “in the hopes of retroactively going back and analyzing it sometime in the future to figure out what’s important.”
“Don’t do drugs, because if you do drugs you’ll go to prison… and drugs are really expensive in prison.”
This humorous quote underscores the fundamental problem with imprisoning people with a substance addiction problem. Prison alone is not a sufficient treatment for a physiological disorder. Despite the walls and guards, inmates still find a way to access and use drugs. Treating and solving drug addiction requires a different approach. Finally in Utah, policy may soon begin to reflect that reality.
Since early this year, the Utah Commission on Criminal and Juvenile Justice (CCJJ) has been working on a study of the Utah criminal justice system in order to propose reforms that will reduce recidivism and the need for more prison beds. One of the goals of these reforms is to focus existing jail beds on more serious offenders and relieve the fiscal burdens on localities. CCJJ believes this can be accomplished by reclassifying certain offenses and eliminating certain sentencing enhancements that needlessly lengthen prison stays. In other words, by addressing the rampant criminalization of human activity, less people will be charged with crimes and sent to prison.
Among the recommendations from CCJJ is a specific proposal to reclassify simple drug possession from a third degree felony—which carries a penalty of up to five years in prison—to a class A misdemeanor, which carries a penalty of only up to one year in jail. Currently, minor marijuana possession is already at the class A misdemeanor level. This proposal would bring minor drug possession charges for all substances into alignment with marijuana possession, thus ending the discrimination against type of substance. Additional reductions would include one for commercial drug offenses in order to differentiate between professional drug dealers and those whose conduct is driven by serious substance abuse problems. Also included is a proposal to reclassify certain moving vehicle misdemeanors from a Class B down to a Class C or from a Class C to an infraction.
In two recent and separate incidents, individuals recording the actions of police officers were cited for “disorderly conduct” after testy exchanges between the person recording an the officer(s) being recorded.
The first incident occurred in Bountiful, where Bryce Weber noticed a police officer sitting outside his home for some 40 minutes. He stepped outside to record the officer, who alleged that Weber’s recording of him was interfering in his work. Despite Weber ultimately moving across the street while continuing to record, the officer still claimed that he was interfering and thus cited him for disorderly conduct, as Weber refused to return to his home when ordered to do so by the officer. Read more details of the encounter here.
As it relates to this situation, a person in Utah is guilty of disorderly conduct if “the person refuses to comply with the lawful order of a law enforcement officer to move from a public place…” The question Weber’s defense attorney will likely push back on is whether the officer’s command to Weber to return to his home was lawful. While in certain circumstances an officer can lawfully order a person to move away so as not to impede the flow of traffic, interfere with an investigation or other police action, etc., an order to go inside one’s home—as opposed to moving away a safe distance, for example—seems unreasonable and unlawful.
“The Constitution… meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” –Thomas Jefferson to Abigail Adams, 1804
In Thomas Jefferson’s analysis a Supreme Court that can decide the constitutionality of laws for all other branches renders it a “despotic branch.” Certainly many would agree that the Supreme Court has become far more powerful than envisioned by the framers who sought a balance of power between co-equal branches. As the Court acts to overturn congressional and presidential action, many lament that the only seeming check on the court is the selection of the justices themselves. However, the recent Hobby Lobby case pulls back the curtain on a significant area of congressional power that can limit court action.
In the recent Supreme Court case of Burwell v. Hobby Lobby, the Court decided in a 5-4 decision that Hobby Lobby’s religious freedom in deciding not to cover certain birth control treatments through its employee health care plans is protected under the 1993 Religious Freedom Restoration Act (RFRA). Congress passed RFRA in order to reverse a previous court decision in the 1990 case of Employment Division v. Smith. In the Smith case the Court declined to acknowledge Native American ritual use of peyote as protected under the Free Exercise Clause of the First Amendment. The decision seriously narrowed the “compelling interest” doctrine where the Court previously placed a high burden on government regulations that threaten religious practices. In response, Congress—in a nearly unanimous vote—passed RFRA to statutorily require that strict scrutiny be used by the Court in assessing government action that burdens a person’s exercise of religion. That statute played a key role in the Court’s decision for the Hobby Lobby case as justices acknowledged that RFRA protects against substantial government burdens on the free exercise of religion by closely held for-profit corporations.
While proponents of the Affordable Care Act’s mandates on employer coverage are outraged at the thought that Congress cannot micromanage the employee benefit decisions of private employers on account of religious beliefs, they should remember that it was also Congress who decided to protect religious liberty long before it sought to micromanage employer sponsored health care plans. The important distinction here is that the latter is a protection against government power while the former is an expansion of it.