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As Libertas Institute’s success rate continues to climb, and as our portfolio of policy work keeps expanding, our need to hire additional staff members grows. As such, we are excited to announce a new policy analyst joining the Libertas team!
Audrey Mortensen brings a wealth of experience to this position, having worked for several years in related fields. Most recently, she worked in New Mexico both in the governor’s office and the Republican Leadership office in a variety of capacities—legislative analysis, constituent liasing, office management, event planning, and more. Audrey comes recommended with extremely high praise from those she worked with in these offices, all of whom commended her for her excellent work and great personality.
Before that she worked for the Republican Party in New Mexico, training and managing hundreds of volunteers and interns, and for the Republican National Committee, helping with fundraising and finances.
Audrey is a graduate of the University of Utah, where she double majored in political science and international relations, also receiving a business minor. While in school, she interned at the Utah Legislature and the Scottish Parliament.
Send Audrey an email at firstname.lastname@example.org.
With this new hire, Josh Daniels—who has previously been serving as policy analyst—has been promoted to Director of Policy.
Editor’s note: The following is a lightly edited interview with Weldon Angelos, who was recently released from prison after 13 years of a 55-year sentence for selling marijuana while in possession of a firearm. The views expressed below do not necessarily represent Libertas Institute.
Libertas Institute: Can you briefly summarize why you were in prison?
Weldon Angelos: I was in prison for selling marijuana while in possession of a firearm. I sold marijuana three times to a confidential informant, so about $300 worth of marijuana, and there was a firearm either in my possession or in the vicinity. That resulted in a 55 year sentence—five years for the first offense and 25 years for each offense after that, for a total of 55 years.
LI: What was the reason for such a heavy sentence for that type of crime?
WA: I think it was the way the statute was written and was misinterpreted by the Supreme Court. The statute was originally interpreted to be a recidivist provision where someone commits this offense and gets five years for each count, and if you get out and do the same offense again, then it results in a 25 year penalty. So it is basically a recidivist provision. However, in 1993 the Supreme Court interpreted the statute to allow the 25 year sentence to occur on the first conviction.
LI: Had you been convicted of anything before?
WA: I had a minor juvenile misdemeanor count, but I was treated as first time offender in the sentencing guidelines.
LI: What was your reaction when the 55-year sentence was announced?
WA: I was numb at first because I couldn’t get myself to understand or believe that this could happen in our country. Growing up, I saw individuals sentenced for murder get out after serving eight years, and sentences for other offenses receiving way less time. So when my attorney told me 55 years was mandatory, and that the judge had no discretion, I didn’t really believe it.
I was like “okay, I’m hearing what you’re saying, it’s mandatory,” but for some reason I thought there was some way that I could get out of it. Either the higher courts or the judge could find some legal maneuver to get me a just sentence. So I didn’t really understand it until the day I was sentenced and then when the judge explained it from the bench.
I was numb when he said, “I have no choice but to sentence you to 55 years. While the sentence appears to be cruel, unjust, and irrational, I have no choice in the matter because Congress made this mandatory.” That’s when it hit me and then I was sort of numb after that. But, because my judge did call out for a presidential commutation I was able to have some hope through the process.
Weldon with his two sons before being sentenced to 55 years in prison.
LI: Was Congress doing this because they didn’t understand the implications of what they were doing? Do you think it was an unintended consequence?
WA: I think it was an unintended consequence. I don’t think Congress envisioned an offender like me when they created this statute.
LI: If you could speak to that confidential informant who reported you to the police, what would you say to that person?
WA: I wouldn’t really have anything to say. I mean, he did what he felt he had to do. So I really wouldn’t say anything to him. I think this is more of an issue of Congress. I think this is something Congress created and Congress has to deal with, because regardless of what the informant did, if Congress didn’t create the mandatory minimum I would have received a lighter punishment. Or, if the federal system didn’t have so many criminal offenses on the books I probably would have went state and received roughly six months in jail.
LI: You were offered a plea deal if you would have admitted your guilt to the gun charges—a 15 year prison sentence. Looking back, do you regret not taking the plea deal?
WA: Not really. Kind of… It’s hard to take 15 years for one marijuana offense. Obviously I was facing a lot of time, 105 years. But at the time, even 15 years was like a lifetime. I was 22 years old, I had just started a career in the music industry, I had two young children and the sentence seemed like a life sentence to me. So at the time I just couldn’t get myself to accept 15 years. The 15 years was the exchange to plead to one marijuana distribution count and one gun count and at the time I felt that was far too harsh for that conduct.
LI: The judge who sentenced you to prison asked President Obama to commute your sentence, but he never did. There have been a lot of commutations, but the president didn’t do your case. What are your thoughts about that?
WA: I have a number of theories, but it’s just conjecture. I really don’t know why my sentence wasn’t commuted. We filed a petition in 2012 during Obama’s first term and we haven’t seen any action on it since. There were number of cases similar to mine that were commuted so I felt that I was coming up next and we just kept getting passed up and finally when I was about to reach my 15 year mark—which was the plea offer—my prosecutor found a legal maneuver to get me out of prison after I served the 15 year sentence, which is what he offered me initially.
With good time credit I had earned almost two years of good time credit so I served approximately 13 years straight, but with the good time I hit the 15 year mark.
Weldon was in prison for roughly 13 years.
LI: What led that prosecutor to do this on your behalf? Did the prosecutor agree with Judge Cassell that that was too much and he wanted to help you out?
WA: He did. He did agree that the 55 year sentence was too much. He felt that the offer was reasonable and that was the sentence I should have received, which is why he did this. I don’t know why I was not getting clemency. It could have been because my case was high profile. I mean it could be a number of factors. Obviously the high profile nature of the case meant that I could get out and re-offend and make the president look bad. I mean, there are so many different theories. I just really don’t know why my sentence was not commuted.
LI: You said if your case had gone through a state court you might have gotten six months jail. Why was your case pulled into federal court to begin with?
WA: I’m not sure. I suppose it’s because the informant had federal charges pending which is why I believe the case went federal. It could have went through the state system but I’m not really sure who makes that decision. But if it had went state, according to the former U.S. Attorney for Utah, Brett Tolman, he said his calculations were about six months. Judge Cassell said it may have been two years, but either way, it would be a lot less time.
LI: Having gone through the experiences you have, what are your thoughts on the criminal justice system?
WA: It’s definitely broken, for sure. I think we’re sending the wrong message if we incarcerate drug offenders for this long. A 55 year sentence is too long, especially when it’s more than somebody might get for killing somebody. I think that definitely sends the wrong message and makes people lose confidence in the federal system.
LI: Do you think there’s a place for mandatory minimum sentences?
WA: I don’t think there is. If they’re going to have them, they should be reserved for the harshest crimes, such as murder or terrorism. It’s ironic, because a lot of those offenses have no mandatory minimum and a lot of the most serious ones have a guideline sentence, which gives the judge discretion. I think if we’re going to have mandatory minimums, let’s have them where they’re appropriate, with the most severe offenses.
LI: Do you feel that non-violent offenders should be sentenced to prison at all?
WA: I guess it depends on the circumstances, if it’s a first offense, second offense, if they’re a threat to public safety. I think if it was just drug offenders, pure drug offenders, I don’t think prison should be the first choice. I think prison should be the last option. I think that other things should be tried first, and prison is like a last resort.
LI: What are your thoughts on the marijuana laws themselves, seeing that they’ve changed so much since you were convicted? Do you think marijuana should be legal?
WA: Personally, I think it should be left up to the states. If the state wants to legalize it, the state should be able to legalize it. So people could sort of vote with their feet, if they don’t like it they could leave. I definitely think we should go with science, if science supports the medicinal use then we should go with science, obviously.
Weldon and his sister embrace after being reunited following his release.
LI: Can you describe how this sentence has affected your family life over the past decade plus?
WA: It’s been a nightmare. I mean, it’s completely destroyed our lives. My sons especially, because they witnessed everything: the trial, the sentencing, the disappointment from getting passed up on for clemency. They went through everything. It just destroyed us.
Now I’m out and we’re trying to fix that, but it did put us through a lot of hard times. My sons struggled. Sometimes they had no where to live, or were living in a motel.
And my sister, she’s been fighting for me for 13 years. I’m fortunate enough to have such a strong group of supporters and have such a wonderful sister to fight for me. Not everyone has a sister like I have or supporters like I have, and they deserve a second chance as well. We’re just all glad it’s over with.
LI: This sentence didn’t just affect your life, but also many other people’s lives: your kids, your family, your friends. Is that the kind of a feeling you have as well?
WA: It is. These policies affect generations of kids. My kids have missed out on a lot. They could have been in nice colleges if I was able to stay out and work and keep my company together. I could have put my kids through better college. Now we’re kind of starting over from scratch.
LI: Do you have any plans? What do the next few years of your life look like moving forward?
WA: I have a few opportunities. I’m probably going to be advocating for criminal justice reform for the near future. I’m probably going to write about my experiences and I may produce a documentary. A lot of people ask me, “Are you getting back in the music industry?” And the answer is, I do not know. It’s changed so much so I really don’t know what I’m going to do. But for the immediate future, I plan on advocating for comprehensive criminal justice reform, if I can be effective and helpful in that area.
The following op-ed, written by our president Connor Boyack, was published this weekend in the Daily Herald.
Elder Lance B. Wickman, general counsel for the LDS Church, spoke last week to a crowd concerned about religious freedom. In his remarks, he outlined a strategy for winning the fight for religious freedom. While the goal is an important one that I and many Utahns share, I worry that the strategy is unlikely to succeed.
Before explaining why, consider an analogy. Imagine we’re in a war. Some people decide that we need to use soldiers to defend the munitions factory so that the enemy can’t destroy our ability to produce weapons. While a phalanx of guards protect this factory, the enemy destroys the barely-guarded mines from which the factory receives the raw materials necessary to create the weapons. Now all that’s left is a well-guarded shell of a building that isn’t worth much, since the materials are missing.
This is effectively the strategy that Elder Wickman advocated — a narrow focus on, and prioritization of, a “core” of religious freedoms. Outside of that inner circle reside freedoms that deserve less of our attention and effort if religious freedom is to be preserved, he claimed.
Last year, we released the Freest Cities report—a first-of-its-kind analysis of city laws and fees for the top 50 most populous cities throughout Utah. One of the metrics we analyzed was that of animal ownership, helping residents understand how many animals their cities legally allow them to have (and, by extension, what the city has prohibited).
In many cities, the law imposes an arbitrary limit of ownership. For example, assuming a standard starter home in a single family residential zone, Lehi residents can have two dogs, Logan lets you have four, whereas North Ogden only allows a single dog.
There is no data that supports these numerical restrictions. Three small dogs might make less noise than one large one, for example. The potential impact to neighbors is not mitigated properly by imposing a cap. And, of course, it turns peaceful residents into criminals when they, as prudent caretakers of animals, exceed the limit but create no negative burden on their neighbors.
Last November, along with the Utah Taxpayers Association, we sued the state seeking to overturn a clearly unconstitutional law requiring disclosure of information about our donors. Today, due to the great work of attorneys from the Center for Competitive Politics, who represented our organizations in this lawsuit, we are happy to announce a settlement—and a victory for free association in Utah.
House Bill 43, passed by the legislature in 2013, was sponsored in response to a political consultant’s illegal use of non-profit organizations to hide the identity of the source of his donors—from the payday lending industry—to fund a negative campaign against Representative Brad Daw, who had sought to regulate the industry’s practices. The bill passed the Senate 20-8 and passed the House 60-13.
The law compels private non-profit organizations—such as Libertas Institute—to publicly disclose the personal information of their donors when the organization spends $750 or more on political activity in a single year. This creates a substantial chilling effect, harming our potential to raise funds from people who may not wish to be publicly identified with their ideological and financial support, whether for family, business, religious, or personal reasons.
Salt Lake City, UT (July 13, 2016) — A lawsuit filed last November by the Utah Taxpayers Association and Libertas Institute, represented by attorneys from the Center for Competitive Politics, has now reached a mutually agreeable settlement.
The lawsuit alleged that House Bill 43, passed by the Utah Legislature in 2013, was unconstitutional under the First and Fourteenth Amendments to the U.S. Constitution by seeking to compel non-profit organizations, for whom political activity is not a primary purpose, to disclose detailed information about their private donors.
In the settlement, the defendants recognize and agree that the law is “unconstitutional” as applied to our organizations, since political advocacy is not our major purpose. The state also agrees that House Bill 43 will not be enforced against organizations such as ours who engage “in constitutionally protected political advocacy and political issues advocacy.”
“House Bill 43, while well meaning, was reactionary legislation that resulted in our organization being unable to engage in the public square on an important ballot proposition,” said Connor Boyack, president of Libertas Institute. “This chilling effect was palpable and threatened to undermine our ability to educate Utahns in the future. We are pleased with the outcome that not only protects the free association and speech of our organizations as plaintiffs, but organizations throughout Utah as well.”
The settlement makes clear the following:
- The state will not enforce HB43 against non-profit organizations who engage “in constitutionally protected political advocacy and political issues advocacy,” recognizing that doing so would be “unconstitutional unless those organizations are political action committees or political issues committees for which such advocacy is their major purpose.” In other words, 501(c)3 nonprofits that engage in political advocacy on a limited, infrequent basis (as in our case) are exempt from prosecution.
- Exempted organizations in Utah—not just our organizations as plaintiffs—will not be fined or criminally charged for failing to comply with the provisions of HB43.
- By the end of 2016, the state’s publications, websites, and other information about disclosure requirements will be changed to not indicate in any way that exempted organizations are required to disclose the information required by HB43.
- Past, current, or future violations of HB43 by our organizations will not be prosecuted.
- The consent decree (settlement) is an enforceable contract that can be used by us or another organization in the future as may be necessary, should the state violate its agreement not to enforce the law.
Given the state’s decision to no longer enforce key provisions of the law, we expect the Utah Legislature to amend the law in the 2017 General Session to align statute with the terms of today’s settlement.
The pursuit of justice is plagued with many problems—over-criminalization, perverse incentives, faulty forensics, and disproportionate penalties. Fortunately, police and prosecutors enjoy significant discretion throughout the process to weed out cases where justice would not be served.
Despite this discretion, agents of the government still prosecute many cases where the application of the law is clearly unjust and the alleged criminal should not be found guilty. Jurors, as the final step in the system of justice, have this same discretion—but are not told about it. People cannot exercise a power they do not know exists.
Jurors are unable to see that justice is done if they are not aware that they, like the police and prosecutors, can use discretion to determine whether a prosecution should be allowed to move forward. For that reason, jurors should be fully informed and their power of discretion preserved to ensure justice is served.
Utah has a controversial history with civil asset forfeiture—a tool allowing the government to confiscate property from people not charged with, let alone convicted of, a crime. Last Friday, the Commission on Criminal and Juvenile Justice (CCJJ) issued a first-of-its-kind report providing detailed information on how this power is being used in Utah.
The report is the result of Senate Bill 52 from the 2015 General Session. Libertas Institute proposed the reforms that led to this legislation—which passed unanimously—to help the public better understand in what cases property is being seized. Civil asset forfeiture is a highly controversial practice that has received significant nationwide attention.
Connor Boyack, president of Libertas Institute, issued the following statement in response to the publication of the report:
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).
Editor’s note: The following is a lightly edited interview with Kirsten Tynan, executive director of the Fully Informed Jury Association. The organization works to informed potential jurors about the nature and importance of juries, and the power jurors have to refuse to convict defendants of violating an unjust law.
Libertas Institute: Why are juries important?
Kirsten Tynan: In the legal system, there are many parties involved who have a vested interest in a certain outcome. Really, the only independent party in the courtroom is the jury—or, if you prefer, each individual juror. The judge obviously is paid by and works for the government; judges often come from the ranks of prosecutors. They have an interest in keeping business rolling by keeping the courtroom full. Prosecutors, of course, are often elected officials whose livelihood depends on getting prosecutions and whose continued employment often depends on appearing to be tough on crime.
Defense attorneys are also not always independent; although we may think of them as always on the side of the defendant, that’s not always true. A lot of public defenders, who incidentally are also paid by the government, have a cozy relationship with the other government employees in the courtroom and may not steer their client in a direction that is in their client’s best interest.
So really, the purpose of the jury is to be an independent body that stands between the defendant and a malicious prosecution, unjust law, or corrupt process. They are there to be a bulwark for liberty.