Policy Papers

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Civil Asset Forfeiture: The Legalization of Theft

Utah voters passed Initiative B in 2000 to protect property rights and due process by limiting the government’s authority to take ownership of a person’s property. Ever since then, police and prosecutors have attempted to undermine the expressed will of the voters.

Civil asset forfeiture allows the government to confiscate property from an individual who may not even be charged with a crime. This power has been abused around the nation, including in Utah.

Contrary to claims that this legal tool is used to go after drug kingpins and crime syndicates, 74% of forfeiture cases in Utah involve under $5,000 in assets. This low amount enables the government to easily take the property; a person whose small amount of cash was taken is unlikely to pay an attorney thousands of dollars to recover it.

Critics are correct to point out that civil asset forfeiture is legalized theft. At a minimum, it is a law in dire need of substantive reform.

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Food Truck Freedom: Removing Barriers for Mobile Businesses

Governments regularly struggle to apply antiquated laws to new, innovative businesses. Food truck owners have experienced this firsthand, with cities unaware of how to best classify and regulate their mobile kitchens.

Unfortunately, this has resulted in a patchwork of arbitrary and redundant policies that frustrate truck owners, provide no consumer protection, and in the aggregate result in significant compliance costs that threaten to undermine an upstart business.

Unnecessary regulations should be eliminated—duplicative health and fire permits, prohibitions on operating within a certain distance from restaurants, mandates to change locations frequently, costly bonding, background checks, and more. Even worse, many cities in Utah completely ban food trucks.

Food trucks are highly popular and provide a great community service and economic development opportunity. Barriers placed in their way should be reduced or removed.

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Ensuring Justice through Juror Discretion

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.

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Policy Analysis

The High Price of Retribution: A Case for Repealing the Death Penalty

In 2015, the Utah Legislature reauthorized the use of the firing squad 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. The legislature should consider abandoning the use of capital punishment in favor of life without parole.

While the death penalty might appeal to our emotional appetite for justice—or revenge—the reality is that it is not justly administered, the risk of executing an innocent is too high, and it does not serve victims very well.

Given the low value and high cost of the death penalty, capital punishment does not give taxpayers much bang for the buck. Instead it has become a bloated and bureaucratic policy that blindly seeks retribution despite a significant moral, social, and financial cost.

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Personal Freedom

Private Attorneys General: Incentivizing the Protection of Liberty

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.

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Property Rights

The Fundamental Right to Use One’s Own Property

Property rights were an essential and fundamental pillar of the American experiment, and their usurpation and violation were among the reasons listed in the Declaration of Independence that justified separation from Great Britain and the formation of a new country.

Unfortunately, governments at all levels of this country have become just as oppressive on this issue as the King once was; property rights, though widely regarded as a core aspect of good government, are routinely subordinated to the interests of the state. They are frequently mentioned on the campaign trail, in academia, and in debates over political theory, but in actual practice, property rights are not what they were initially intended to be.

While many states constitutionally protect the right to acquire, possess, and protect property, no state recognizes one’s inalienable right to actually use it. The need is great, and the fix is easy; Utah now has an opportunity to be a leader in restoring and protecting this right.

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Property Rights

Farms, Food, and Freedom: Informed Consumerism in Utah

As industrialization of America’s food system has increased in the past half a century, so too has its centralization. The average person has become almost totally disconnected from their food supply.

This distance between farm and fork has led to a lengthy list of regulations, intended to protect the health of the uninformed consumer who does not, and cannot, know anything about the safety, security, or quality of what they are buying.

Such regulations are unnecessary, and therefore should not be required, of producers who sell directly to informed consumers who can either inspect the farm’s assets and processes, or buy a product knowing that it is free of regulation.

Freeing up small farmers will increase their number, reduce restrictive compliance costs, and protect the freedom of both parties, thereby confining regulation to its proper domain.

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Property Rights

Overreaching EPA Water Rule: Utah Property Rights In Peril

The EPA has recently adopted a final rule to redefine the term “waters of the United States” in the Clean Water Act in a way that would expand the agency’s regulatory authority to many intrastate waters.

This rule threatens the property rights of Utahns across the state as it would allow federal agencies to impose permit requirements on the most routine industrial or agricultural activities when it concerns even the most insignificant bodies of water.

This rule exceeds the intended limits set by Congress, violates 10th Amendment principles, and is an assault on property rights and Utah’s economy.

Utah should actively oppose this federal bureaucratic overreach by refusing to comply with the EPA’s new rule and also by prohibiting state agencies from cooperating.

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Income Tax Credit for Home-schooling Families

The Utah Constitution requires 100% of the state income tax to be used as revenue for government education services—“public” and “higher” education.

Families who choose to educate their children outside of this taxpayer-funded system must therefore pay for the education of others’ children before their own. Curriculum, learning kits, field trips, travel costs, and other necessary expenses are post-tax costs. The state, by imposing an income tax, requires these families to financially prioritize the education of other children first.

To encourage behavior by and minimize the tax burden on select segments of the citizenry, certain tax credits are currently offered by the state. Examples include adopting a special needs child, employing a veteran, or contributing to a medical savings account. We believe that home-schooling families should be added to this list, given the income tax’s direct connection to education funding. If these families do not utilize public schools, their mandate to help fund them should be reduced. These families will still be required to fund the public education system through property and federal taxes; our proposal only addresses the Utah state income tax.

Many parents claim enough deductions and/or credits that leads to their income tax burden being significantly reduced, if not eliminated. Our proposed tax credit would not apply to such situations, as it is a nonrefundable credit—money will not be given to families as a subsidy. If they owe no income tax, then they will receive no benefit. The credit only applies to those who do owe the tax.

These deductions may not always be in place, however. One Utah legislator has proposed eliminating the personal deduction, which would significantly increase the tax burden upon large home-schooling families—thereby making it even more difficult for them to fund their children’s educational needs.

Before helping to pay for the school costs of other children, Utah families should be allowed to meet their own family’s needs, and the current tax structure does not allow for this. Our proposal helps to remedy this imbalance.

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Law Enforcement Transparency

Governor Herbert has stated, “Taxpayers and citizens have a right to know where every tax dollar goes and how it is spent, and state government has a responsibility to be accountable and open to constituents.” He continued: “On balance, we have made great strides toward more openness and transparency in government. That’s evident by enhanced web reporting and the installation of a government records ombudsman. But we will not back off our commitment to do better.”

We believe that the government can do better.

Serving as the people’s representatives, Utah lawmakers can only respond to any problems that may exist to the extent that they understand these problems. This understanding requires information—how the process currently works, how it’s being abused, how it’s falling short, etc. If this information is not available, then legislators cannot realize and respond to problematic areas in public policy.

This bill proposal does not seek to restrain officers in their work. Instead, we believe it is necessary to better inform lawmakers, and the public at large, regarding how police officers are using their authority to enforce the law. We agree with Governor Herbert that the government, including law enforcement, must “be accountable and open.” This bill proposal facilitates that objective.

We sincerely hope that such transparency will reveal no problems. Of course, whether problems exist or not is a secondary concern—transparency in the enforcement of the law is a needed step to help ensure the public can have an informed trust of the police.

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