Center for Individual Liberty

Creating Crime in Utah

August 15, 2016  |  Posted in: Center for Individual Liberty  |  One comment

Each year bills passed by the legislature have the potential of creating new, or altering existing, crimes and the penalties associated with them. In an age when government policy can result in criminalizing everything from unlicensed lemonade stands to catching the wrong lobster, it is important that we pay careful attention to the bills passed by the legislature to ensure that they are not inadvertently criminalizing conduct that is not truly criminal. A few years ago we covered this issue in depth.

In Utah, the legislature passes nearly 500 bills each year. On average, about 50 of these (10%) deal with criminal laws or processes and 20 of those have a potential impact on criminal penalties. Since 2008, 455 bills have passed the legislature dealing with criminal laws with 193 of those creating new, or altering existing, criminal laws. In Utah, there are over 10,000 criminal laws you can be charged with (many of them are repetitive for each local jurisdiction). To find a master list of each potential criminal offense you can be charged with you can refer to the state’s Master Offense Table.

The Utah Sentencing Commission tracks bills that may impact sentencing and criminal penalties each year. We have compiled these reports into one cumulative listing since 2008 for easy reference. While a variety of legislators sponsor these bills, some legislators sponsor more than average. Many of these legislators also serve on either the Judiciary or Law Enforcement Committees.

Here are the top legislative sponsors for criminal justice related bills since 2012:

Most criminal justice bills:

Rank Legislator Bills
1 Sen. Thatcher 13
2 Rep. Ray 12
3 Sen. Bramble 12
4 Sen. Hillyard 11
5 Rep. Hutchings 10
6 Sen. Weiler 9
7 Rep. Seelig 7
8 Rep. Hall 7

Most bills with felony changes:

Rank Legislator Bills
1 Sen. Thatcher 5
2 Sen. Hillyard 2
3 Rep. Seelig 2
4 Rep. Greenwood 2
5 Rep. Powell 2

Most bills with misdemeanor changes:

Rank Legislator Bills
1 Rep. Ray 5
2 Sen. Weiler 4
3 Sen. Mayne 4
4 Sen. Thatcher 3
5 Rep. Seelig 3
6 Rep. Powell 3
7 Rep. Dunnigan 3
8 Sen. Urquhart 3
9 Sen. Bramble 3

In 2015, the legislature overhauled many criminal statutes in an effort to ensure fewer admissions and stays in prison and to reinvest savings on treatment and rehabilitation instead. We applaud this effort to be smart on crime and believe that taxpayer dollars should not be wasted on senseless over-criminalization.

Why Utah Should Abandon the Work Requirement Waivers for Food Stamps

August 9, 2016  |  Posted in: Center for Individual Liberty  |  One comment

In his 2016 State of the State address, Governor Herbert has emphasized, “our state economy has added 219,000 new jobs, with an unemployment rate dropping from 8 percent down to 3½ percent today.” According to the U.S. Dept. of Labor, he’s right; Utah has the 15th lowest unemployment rate in the country. Why then did the state request a federal waiver for time limits on welfare requirements? Why are we still keeping some able-bodied working age adults dependent instead of helping them become self-reliant?

In 1996 Congress passed significant welfare reforms, ending the Aid to Families with Dependent Children (AFDC) and replacing it with Temporary Assistance for Needy Families (TANF). The rationale behind the change came from a study by the Cato institute in 1995. Cato found in some cases that someone on welfare could earn as much as twice the amount of a minimum wage job. While welfare has undergone many reforms, there is still room to improve and incentivize work instead of perpetuating a cycle of dependency—a trend that for too many has become intergenerational.

In its 2013 follow-up study, The Work vs. Welfare Trade-Off, Cato compared the poverty level with the amount of total welfare benefits available (up to 126 federal programs, not including local programs) and found that in 42 states, the value of welfare programs more than exceeded the poverty level as compared to wage earners—sometimes more than twice over (220% in Hawaii).

To put this into perspective, one of the highest paying states for welfare benefits in hourly wages is Hawaii at $29/hr; 13 states pay the the equivalent of over $15/hr. Moreover, welfare benefits are tax-free; thus, the dollar value of benefits is worth more than wages at a minimum wage job. While that differential may be offset with the Earned Income Tax Credit (EITC) and the Child Tax Credit (CTC), the value and dignity of work and self-reliance cannot be understated. Those who work now, even if at a low wage, are building experience for future wage increases putting them in a better long-run position than those who do not work and subsist on welfare programs.

While there are certainly a variety of problems in assistance programs, including fraud, improper asset testing, and inaccurate income eligibility caps, the work requirements for ABAWDS (able-bodied adults without dependants) seem ripe for reform.

ABAWDS receiving food stamps have three months in a 36 month period where they don’t need to fulfill work requirements. After exceeding that time frame, they are required to work for 20 hours per week or participate in either a work or workfare program of the state. If they do not meet this requirement, they will no longer be eligible to receive food stamps.

This is the very reason welfare programs have work requirements—to give recipients time to work and build job skills while still receiving assistance in order to propel them into future self-reliance.

After the recession in 2008, the federal government established a state-by-state waiver for the work requirement time limits. States could seek the waiver and renew it each year. The waiver removes the time limit (three months) for which an ABAWDS can receive food stamps without utilizing any work programs. With the waiver, one no longer has to participate in these required work programs that are designed to assist individuals in becoming self-reliant or gaining job skills or experience in preparation for re-entering the workforce. This in turn places the recipient of food stamps at a long-term disadvantage as they may put off activities that would otherwise help them transition into the workforce.

Many welfare recipients report fear of job security at low wage jobs. Because many lack job skills to obtain high-paying jobs and therefore often work in entry-level positions, they are reluctant to leave the security of various assistance programs. However, this is the very reason welfare programs have work requirements—to give recipients time to work and build job skills while still receiving assistance in order to propel them into future self-reliance. Removing work requirements actually exacerbates the problem of recipients fearing lack of opportunity in the job market. Given this reality, it is understandable to see why many people remain on federal programs.

Deterring dependence on welfare and promoting self-reliance does not just matter to taxpayers—it matters to individuals, to families, and to entire communities.

The work requirements are not just in place to protect taxpayer dollars from freeloaders or those who would abuse the system—they exist because of the economic value of putting people to work, both individually and collectively. Deterring dependence on welfare and promoting self-reliance does not just matter to taxpayers—it matters to individuals, to families, and to entire communities. Work brings a sense of individual dignity and accomplishment. Work starts people on a ladder to future economic success. Work increases the economic pie of a community, and it creates very real social and economic capital for a family. Work is a valuable thing for society. Assistance programs were designed to assist individuals in times of hardship and then push them to find a job that pays enough to free them from a cycle of government dependence.

Many Utahns desperately need assistance. A few extra dollars for food every month can make a big difference for a family in need. However, insofar as these assistance programs are provided by government, policy makers must ensure that the inherent problems of bureaucracy do not inadvertently incentivize dependence. These workers need incentives to become self-reliant and they need the constructive support of work programs.

A study of Kansas, which reinstated work requirements in 2013, found a huge increase in re-employment. The study monitored the effects on individuals’ employment and earnings through an extensive tracking system. It found that the number of ABAWDS on food stamps dropped 75%, freeing 13,000 Kansans from welfare at the end of 2013. “Nearly 60% of those leaving food stamps found employment within 12 months,” notes the study, “and their income rose by an average of 127% per year.” This in turn increased economic activity, allowing the state to apply those resources to other state priorities. Kansas work participation has nearly tripled.

A study of Kansas, which reinstated work requirements in 2013, found a huge increase in re-employment.

On average, Kansas enrollees earn more than double the amount since work requirements were reinstated, and dependence on food stamps has been cut in half. Welfare reform in Kansas helped taxpayers save nearly $100 million over two years. The study’s conclusion is that the best anti-poverty tool is work.

Similarly, in 2011, Maine re-established work requirements and watched the ABAWDS caseload drop 80%, from over 13,000 recipients to under 2,700. As the Heritage Foundation noted, “Giving welfare to those who refuse to take steps to help themselves is unfair to taxpayers and fosters a harmful dependence among beneficiaries.”

Work is a sound principle of self-reliance and the greatest of anti-poverty tools.

Food stamp dependents across the country have tripled in the last 15 years, growing from 17 million in 2000 to 46 million in 2015. Spending on the food stamp program has grown ten times as fast as federal revenue—diverting resources from other priority programs. Studies show that implementing work requirements is the best way for food stamp dependents to move out of poverty.

Utah sought, received, and has renewed a partial waiver for the time limits on work requirements since 2009. This partial waiver allows the state to remove time limits for work in counties with “hardship” where unemployment rates exceed 10%. Our research indicates that 17 counties across Utah have met this criteria since 2009. In a letter to the U.S. Department of Health and Human Services in 2012, the state defended the waiver and the ability of states to receive it. The argument centered on the need for state flexibility and autonomy instead of federal executive micromanagement. While we agree that federal programs should be returned to the states, it is important that the programs we implement in Utah are based on sound principles. Work is a sound principle of self-reliance and the greatest of anti-poverty tools.

Utah sought, received, and has renewed a partial waiver for the time limits on work requirements since 2009.

Utah’s robust economy should provide ample opportunity for those in need in our state to find a job, even if it requires moving from a low population rural county to a place in the state with more opportunity. With an economy this great, Utah should not be incentivizing reliance on federal welfare programs. If Utah followed the examples of Kansas and Maine, it would likely further reduce unemployment while helping more Utahns to become self-reliant. Utah’s motto is industry. In the beehive state Utahns ought to be industrious, not dependent.

In 2012 Wyoming Governor Matthew Mead rejecting the waiver that Utah now has, stating that, “such a weakening waiver is not something Wyoming will neither seek nor accept… We must all continue to encourage a productive society, empowering Americans by promoting individual responsibility.”

Cato’s study concluded that, “If Congress and state legislatures are serious about reducing welfare dependence and rewarding work, they should consider strengthening welfare work requirements, removing exemptions, and narrowing the list of activities that qualify as ‘work.’ Moreover, states should consider ways to shrink the gap between the value of welfare and work by reducing current benefit levels and tightening eligibility requirements.”

If our economy is so strong, why do we continue to implement a policy that abuses taxpayer dollars and deters economic growth? By implementing these sound principles, we will gain a more resilient workforce, lower unemployment rate, and better assistance programs that help move people from welfare to work. That is—or should be—the Utah way.

Popular Waze App Partially Illegal to Use in Utah

July 5, 2016  |  Posted in: Center for Individual Liberty  |  2 comments

Crowd-sourcing and decentralization have innovated many industries, including transportation. Rather than relying on a government agency to furnish accurate and localized data about road conditions, drivers can now create and share the data on their own. This is the concept behind Waze, a popular mobile app used by many Utahns each day.

What these Utah drivers likely do not realize is that using Waze—though it can help improve public safety—is actually illegal.

Utah law prohibits “manually enter[ing] data into a handheld wireless communication device” while driving. This means that it is against the law to let fellow drivers know of a roadside hazard, freeway accident, police officer’s location, or other data, thus rendering the entire app legally unusable in Utah; if drivers cannot share information then there will be none for other drivers to passively view.

The passage of Senate Bill 253 in 2014 raised awareness of driving while using a mobile device. In a controversial vote, that bill criminalized additional uses of a phone while driving, such as dialing a phone number or accessing the internet. However, even before that bill state law said that Utahns could not, while driving, “manually enter data into a handheld wireless communication device.”

Of course, Waze can legally be used by a passenger in a car, though it is unlikely this accounts for most usage.

We objected to 2014’s change in the law and support loosening the legal standard such that mobile devices are treated like other distractions in a vehicle. It remains perfectly legal to manually manipulate radio controls, eat a meal, apply makeup, discipline a child, have a conversation, daydream, scratch a hard-to-reach itch, or perform any number of other actions that may lead to reckless driving and potentially an accident.

An even better example is Tesla, the popular auto maker who is legally prohibited from selling their cars directly to Utahns. These vehicles feature a touchscreen device mounted to the vehicle’s console, providing the driver with a wide range of features to customize and configure. It’s basically a large, mounted iPad. And yet because it is not “handheld” or “wireless” it falls outside the scope of Utah law and therefore remains legal to use.

But because it’s like a large iPad, its use is similar to that of a mobile device and offers a number of distractions like its smaller counterparts. Why is one okay, but the other is not?

Simply banning a specific type of activity does not address the underlying problem of distracted driving. If anything, it can exacerbate it; whereas drivers would sometimes use a device within their field of vision of the road in front of them, the criminalization led many of them to use the phone in their lap, out of a police officer’s sight, but creating a substantial risk by having to move their gaze away from the road ahead.

A better approach would be to increase the legal penalty for distracted driving when an accident is actually caused. If it can be proven that the driver was intentionally distracted—using a mobile device or not—then the penalty could be increased to create a deterrent effect. Drivers who safely use a mobile device (or listen to the radio or discipline a child, etc.) would face no legal penalty. (This includes the many lawmakers who themselves violate this same law.)

Waze offers real-time metrics on driving, making a safer and more efficient experience. The data is generated by drivers themselves, creating a community-centric system where drivers let those behind them know what to expect. This app, which is unfortunately illegal for single-passenger drivers to utilize, will remain popular in the months and years ahead, despite its legal prohibition. The Utah Legislature should therefore fix the law and let this innovative tool do its job to ensure public safety.

Update: A reader points out, correctly, that the law referenced above contains an exception to the law “when reporting a safety hazard.” As such, Waze is apparently only illegal to enter data pertaining to the location of law enforcement officers, unless one were to argue that an officer stopped at roadside is also a safety hazard (a plausible argument, to be sure).

Utah ‘measurable amount’ drug statute ruled unconstitutional

January 21, 2016  |  Posted in: Center for Individual Liberty  |  17 comments

Earlier this month, a Utah court of appeals ruled in State v. Ainsworth that the penalties under the state’s Controlled Substance Act, which criminalize having “any measurable amount” of a controlled substance in your body, are unconstitutional. This is because the law penalizes the same conduct worse than the DUI statute and is thus unconstitutional as it violates the uniform operation of laws provision of the Utah Constitution.

As the court wrote, “there does not appear to be any rational basis for punishing individuals who have ‘any measurable amount’ of controlled substance in their bodies more harshly than individuals who have an incapacitating amount of the substance in their bodies.” The court went on to rule that there is no “rational basis for charging users of nonprescribed Schedule I or II controlled substances who have a measurable amount of controlled substance in their body, but not enough to render them incapable of safely operating a motor vehicle, with a higher-degree crime than users of nonprescribed Schedule I or II controlled substances who have so much controlled substance in their body that they are demonstrably unsafe to operate a vehicle. Thus, we agree… that the second-degree designation in subsection (2)(h)(i) in the Measurable Amount Statute violates the uniform operation of laws provision of the Utah Constitution.”

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Federal “Family Engagement” Plans

January 15, 2016  |  Posted in: Center for Individual Liberty  |  No comments

The U.S. Departments of Education and Health and Human Services have issued a draft policy statement calling for “family engagement” and “including” parents as “partners” in the education and rearing of their children.

In an op-ed in the Deseret News, our president, Connor Boyack, highlighted a few specific concerns of this policy proposal, including:

The policy statement in question refers to the importance of Parent Training Information Centers and calls on schools to “conduct periodic home visits.” Noting that the “health and mental health” of parents plays a factor in “parenting and children’s outcomes,” the federal bureaucracy calls on government to “promot(e) their wellness alongside their children’s.” Even worse, the feds are calling for a detailed database containing reports of “family engagement,” including assessments of the relationships between teachers and families.

State law in Utah makes clear that “a student’s parent or guardian is the primary person responsible for the education of the student, and the state is in a secondary and supportive role to the parent or guardian.”

It is important that state legislators protect parental rights; increasing federal encroachment threatens the autonomy of Utah families and the natural rights of parents in their stewardship over their children. You can encourage them to do so by using our lookup tool to find who represents you, and contact them to express your concerns.

The Utah Legislature said NO to REAL ID—So Why is the State Now Fully Compliant?

January 5, 2016  |  Posted in: Center for Individual Liberty  |  7 comments

Starting this year, the U.S. Department of Homeland Security is threatening that the TSA will begin rejecting driver’s licenses from states that refused to comply with the federal REAL ID guidelines. This now sets the stage for a significant battle over federal power and state’s rights—a battle Utah quietly bowed out of. While this is likely just more posturing by DHS to enforce deadlines it has constantly been extending in order to save face, it also serves as a not-so-gentle reminder of the expansion of federal power in the name of security.

In the wake of 9/11, Congress passed the REAL ID Act of 2005. The Act created a list of security mandates for state-issued driver’s licenses, effectively creating a nationally standardized ID card. Because Congress has no constitutional authority to legislate in this area, the implementation was predicated on a threat from the federal government that any non-compliant driver’s license would be rejected as an official form of identification for any federal purpose—including admittance to secure government facilities like military bases and TSA screenings at the airport. The statutory deadline for state compliance was originally May 2008. However, by that time not a single state was in compliance and nearly twenty states had passed laws or resolutions rejecting REAL ID. Utah joined the list with a resolution in 2009. Now, eight years later, the federal government is finally saying it will clamp down as it prepares to act on its threats.

In 2010, the legislature instructed the state to refuse to comply with REAL ID. However, by that time, it was too late for most of the substantive requirements of the law. In 2008, Senate Bill 81 required proof of citizenship for the creation of any state-issued government identification. This bill was designed to prevent immigrants without legal status from gaining government identification cards. The next year, the legislature passed Senate Bill 40 which gave driving privilege cards to Utahns without legal immigration status instead of Utah driver’s licenses which are reserved for those with citizenship or legal status. This required proving legal immigration status to the driver’s license office before being approved for a Utah license. Together, these two measures undermined Utah’s effort to opt-out of REAL ID, as the identity verification requirements under these bills pushed Utah into material compliance with many of the provisions of REAL ID.

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Enedina Stanger: Charged with a Felony for Using Medical Cannabis

December 22, 2015  |  Posted in: Center for Individual Liberty  |  No comments

Our new video briefly features the story of a young mother charged with a felony for seeking relief from cannabis, after opiate-based prescription drugs administered by doctors nearly killed her.

For more information on Enedina’s story, see this detailed interview we recently published featuring her story.

Private Attorneys General: Incentivizing the Protection of Liberty

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State and federal constitutions were designed by their authors to protect our rights against violation by the government. The enforcement of these protections often requires litigation and court orders—and thus a watchful guardian to protect the public’s rights.

While many believe that the Attorney General serves this function, this is not so. In a constitutional dispute between an individual and the government, the Attorney General’s primary duty is to defend the government—even when wrong. As such, the public interest requires watchful guardians who are independent of the government to challenge it in court when it is in violation of the public’s constitutional rights.

When victorious, it seems inappropriate to lay the legal costs at the feet of a few. The private attorney general doctrine resolves this inequity by allowing the court to award attorney’s fees to the prevailing party, incentivizing watchful guardians to jealously protect our God-given, constitutionally protected rights.

Here’s How Many Utah Parents Have Been Imprisoned for their Child’s Truancy

November 3, 2015  |  Posted in: Center for Individual Liberty  |  13 comments

Childhood education in our country has gone from private and optional to public and mandatory. However, schools were never intended, and are not equipped, to replace parents. Local control of education at the state, district, and neighborhood level is designed to ensure that schools remain an extension of the child’s parents at home—not a replacement for them. Unfortunately, it appears that Utah has moved away from this ideal. As attendance at government schools was legally made mandatory, the government subsequently created criminal penalties for failure to attend.

Compulsory education laws in Utah make it a class B misdemeanor for parents to keep children absent from school without a government-defined “valid” excuse, thereby turning parents into criminals for not taking full advantage of government schools on each and every government-assigned school day. A class B misdemeanor carries the possibility of jail time, placing parents behind bars if their children are not behind their desks.

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Police Officer Kills Sam DuBose, is Indicted for Murder—Because of a Body Camera

July 30, 2015  |  Posted in: Center for Individual Liberty  |  No comments

Last week, Sam DuBose was shot in the face and killed by a University of Cincinnati police officer, Ray Tensing, after being pulled over for not having a front license plate on his vehicle. Today, the officer was indicted for murder—a result that would not have happened, were it not for the officer’s body camera.

Officer Tensing’s statement to the reporting police officer affirms that Tensing “began to be dragged by a male black driver who was operating a 1998 Green Honda Accord.” Tensing claims that “he almost was run over by the driver of the Honda Accord and was forced to shoot the driver with his duty weapon.”

Another officer, Phillip Kidd, offered corroborating testimony to the reporting officer, affirming that he witnessed the Honda Accord drag Officer Tensing, and that he witnessed Officer Tensing [subsequently] fire a single shot.

Both officers lied.

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