Bag Ban is a Bad Law and a Criminal Penalty in Disguise

On Thursday, the Austin City Council will vote on whether or not to put a ban on single use carryout bags for all facilities and businesses (for-profit and non-profit) within the city’s jurisdiction. While the proposed resolution itself only includes civil penalties, the act of outlawing a product or act automatically kicks into effect default criminal penalties. By not mentioning criminal penalties within the bill this is a sneaky way for the government to hide the ridiculousness of a possible misdemeanor conviction and $2,000 fine for providing a person with the wrong type of bag.

According to the Code of the City of Austin, TX:

“The Code creates an offense when an act is prohibited… if the Code does not state a penalty for an offense:

  1. The offense is punishable by a fine not to exceed $500; or
  2. If the violation of an ordinance that governs fire safety, zoning, or public health and sanitation [written in the statute as the justification for the bag ban], including dumping of refuse, the offense is punishable by a fine not to exceed $2,000.                                                                                                                               “

If a person receives such a criminal citation and does not pay or appear in court to challenge it, a warrant would be issued for his arrest.  Tellingly, the default provision exempts city bureaucrats, so their actions and omissions in not following the law don’t result in criminal liability. So if some city agency or bureaucrat uses a plastic bag in their work, that’s entirely permissible. Shouldn’t those living off the taxpayers live by the laws they enforce?

Also, because the default provision creates a misdemeanor for any required act that is not performed, businesses could be cited if they fail to comply with the proposed ordinance’s requirement to put up signs telling consumers to bring their own canvas or special thick plastic bags with handles.

Even more peculiar is the definition of a reusable bag under the statute. While you would think the act of using a bag twice would make it thus reusable, you are wrong. The classifications of a legal reusable bag in Austin under this proposal would be that it must display “a recycling label consistent with the Packaging Recovery Label System” and be made out of cloth or city-certified plastic or paper. None of these things assure that the bag will be used more than once though and not having these things does not mean a person can’t reuse a typical plastic bag. In fact, many people reuse grocery bags for taking their lunch to work, collecting household garbage, and cleaning up after their dogs.  Moreover, the Austin American-Statesman recently reported that the thick plastic bags with handles are almost all imported from Asia, meaning the energy used to bring them here could come at a greater environmental cost than the purported environmental benefit.

Also, if the members of the Austin City Council find plastic bags so intolerable why did the city put out a long list of special exceptions for newspapers, dry cleaning services, packages of multiple bags (for trash and pet waste), and restaurants for carry-out food, among other exceptions to the bag ban?

The bag ban is a bad law, and the criminal consequences make it worse. While these consequences are obscured because they are not mentioned in the proposed ordinance itself but rather triggered by an existing default provision, this just exacerbates the problem as it has obscured the criminal penalties from the media and the public.

This is yet another example of the problem of overcriminalization – the growing number of criminal laws that apply to ordinary activities that are not morally wrong and do not directly harm others.  Instead of allowing the growing number of recycling programs that evolved in the free market to work, the busybodies on the Austin City Council have chosen to dispose of our liberties.

Intensive Supervision for Young Offenders in South Carolina

South Carolina is expanding a program that focuses on young offenders—ages 17-25—who are amenable to rehabilitation and may be turned away from a life of crime.

Under South Carolina’s Youthful Offender Act, first-time offenders in that age group receive indeterminate sentences in conjunction with more intensive supervision aimed at reducing recidivism rates. Currently, this subset of offenders re-offends at a rate of 50 percent, considerably higher than the average rate for other adult offenders, which is only 30 percent.

The intensive supervision incorporates skill-building and education that is designed to ensure that the offenders have a trade and can earn a living outside of prison. The intensive supervision is also intended to build a community-based support system to ensure more effective reentry.

West Virginia Mulls Sentencing Reform

West Virginia, facing overcrowded prisons and an outsized corrections budget, is considering legislation that would provide alternative sentencing options.

The state is second in the nation in the percentage of general funds spent on corrections, and costs have doubled in the last decade. Overcrowding has led corrections officials to request $200 million to build another prison, a move legislators are seeking to avoid.

The new legislation focuses on effective reentry that includes transitional housing, a parole process in county-funded regional jails, and drug or mental health treatments as alternatives to prison time. The legislation also focuses on using swift-and-sure parole revocations, rather than lengthy and protracted proceedings.

One bill also calls for increasing property transfer fees to provide additional funding for corrections. With better corrections strategies and cost-efficient sentencing options, however, it should not be necessary to increase fees on West Virginia citizens.

West Virginia’s governor, Earl Ray Tomblin, is also seeking input from the Council of State Governments Justice Center, which has worked on prison reform issues in dozens of other states, including Texas.

Doggy Justice or Nanny State?

The Wall Street Journal is reporting on a new court in San Antonio, TX that has been established to deal with domestic animal problems. The court meets every week to deal exclusively with the revamped chapter five of the city’s Code of Ordinances, which addresses dog bites, stray pets, failure to register and vaccinate animals, and the specific weight, length, and material of leashes and collars. Code violations can lead to fines of up to $2,000 per day.

Some citizens argue that the city is frequently “prosecuting picayune offenses.” Ramal Shaw, for example, is a resident of San Antonio who faces charges that his Chihuahua bit his 6-year-old son. Shaw claims that the bite was actually a scratch, and his son complained about it to a school nurse in an attempt to “play hooky” from school. Shaw now faces a $269 fine and must appear in the new court to face a prosecutor. If Shaw does not pay the fine, the court has the power to seize the dog. For some individuals, this is the equivalent of losing a family member because of an inability to pay a fine.

Lisa Wayne, the president of the National Association of Criminal Defense Lawyers, argues in the article that “[w]e have moved towards an over-criminalization model, where everything is punishable by jails or fines.” In her view, the city should focus on “educating people about their animals rather than punishing them.”

San Antonio’s new system has thus far accumulated a total of $250,000 in fines from the prosecution of similar cases.

Using Incarceration to Solve a Contract Dispute in Michigan?

Eight years ago, the transportation department for the state of Michigan contracted with a bridge and construction company called Ambassador Bridge to work on a throughway between Michigan and Canada. The two parties interpreted parts of the agreement differently, and the state sued Ambassador Bridge for breach of contract.

Two years after the trial—which, naturally, was a civil trial—had concluded, and Michigan had won, the trial judge threw the 84-year-old owner of Ambassador Bridge, Matty Moroun, and the company’s president, Dan Stamper, into jail for contempt of court because Ambassador Bridge had not complied with the court’s order to complete the work on the bridge.

The construction executives, who spent one night in jail with the threat of more to come, had been under the impression that they were in complete compliance with judicial orders.

Jail time—even one night—should not be used to force the hand of a party to a contract dispute. Ordering specific performance on a contract and then jailing a party for failing to perform is akin to putting a person in debtor’s prison. Such criminal sanctions for otherwise civil disputes are unnecessary and needlessly wasteful of several state resources including the courts that are forced to hear the appeal, the jail space occupied by the non-criminal business owners, the jailers who monitor that jail space, and the sheriff deputies called upon to arrest and transport the offenders.

Furthermore, the use of criminal sanctions in otherwise ordinary business disputes does not exactly encourage growth in Michigan, a state with dismal employment rates where the expansion of business, construction, and innovation are sorely needed.

Kentucky Continues New Focus on Juvenile Justice Reform

Right on Crime recently highlighted a Kentucky judge’s pilot program to better handle status offenders. Now the legislature, too, is joining the effort.

With a unanimous vote, the House Judiciary Committee in Kentucky recently approved establishing a task force, the “Unified Juvenile Code Task Force” to study the issues plaguing Kentucky’s juvenile justice system.

This comes after heightened public attention to the system following instances of delinquency charges filed against very young children—as young as five—as well as high rates of detention for status offenders.

If approved, the task force would study the system and recommend legislation for consideration in 2013.

Juvenile justice reforms in other states have produced savings of millions of dollars and more effective treatment for juvenile delinquents. Kentucky’s focus on this issue could bring the state’s system in line with those best practices and produce better outcomes for both the Bluegrass State’s taxpayers and juveniles.

Montana Delays Prison Construction Plan

Last month, Montana put out a request for bids to build a new 120-bed medium security prison.

This month, Montana has decided to hold off on those plans.

For the next 90 days, Montana’s Department of Corrections will reevaluate its prison population projections, based on reduced recidivism due to a renewed focus on reentry programs.

Rather than rushing into an expensive new project, Montana has decided to wait and see if it is truly needed.

This is a step forward for taxpayers in Montana. Millions in taxpayer dollars are wasted when unused facilities sit empty or are sold at a loss, and as crime rates continue to fall across the United States, and fewer prison beds are filled, there may not be a long-term need for increased capacity.

Three months of study will better ensure that such an important decision is evidence-based and properly considered.

GPPF Releases New Paper by Right on Crime Senior Advisers

Today, the Georgia Public Policy Foundation released a new report, “Peach State Criminal Justice: Controlling Costs, Protecting the Public,” by Right on Crime Senior Advisers, Marc Levin and Vikrant P. Reddy. The issue analysis reviews the recommendations made by the Special Council on Criminal Justice Reform for Georgians and discusses how commonsense adjustments to the criminal justice system have assisted other states in ensuring public safety, holding offenders accountable and controlling corrections costs.

“In Georgia and across the nation, conservatives are uniting behind the idea that we can increase public safety and provide restitution for victims while reducing the burden on taxpayers,” said Kelly McCutchen, president and CEO of the Foundation and a Right on Crime signatory. “It’s time to hold the criminal justice system accountable and the recommendations discussed in this paper truly think outside the cell and provide an excellent step toward reform.”

McCutchen has signed Right on Crime’s Statement of Principles.  He joins national signatories including former Florida Governor Jeb Bush and Reagan Attorney General Ed Meese, as well as leaders in Georgia including the founder of the Faith and Freedom Coalition Ralph Reed, former U.S. Deputy Attorney General Larry Thompson, former Acting U.S. Associate Attorney General Joe Whitley, and president of the Georgia Family Council Randy Hicks.

“Georgians simply can’t build their way out of the state’s prison problems,” said Senior Policy Adviser to Right on Crime and Director of the Center for Effective Justice at the Texas Public Policy Foundation Marc Levin, the paper’s co-author.  ”Rather than asking taxpayers to construct another costly prison facility, policymakers should recognize that community corrections programs that are based on evidence, customized to the risk level of each offender, and subjected to rigorous performance measures offer a better option for holding nonviolent offenders accountable and turning them into productive taxpayers.”

To view the full report, click here.

Kentucky Begins to Focus on Status Offenders

Late last year, the Louisville Courier-Journal reported that Kentucky locks up status offenders at one of the highest rates in the nation.

Status offenses are those that are only a crime as a result of the age of the offender—like running away from home, truancy, and possession of alcohol.

Given the high costs of juvenile incapacitation—and the dismal rates of effectiveness—juvenile justice leaders in Kentucky are understandably eager to lose this dubious distinction.

One leader, District Judge Karen Thomas, is looking to develop a new way to handle status offenders. She has proposed addressing the misbehavior through a case management system, incorporating stakeholders from sectors beyond the justice system and applying services to address the underlying issues that precipitated the status offense.

Importantly, Judge Thomas is focusing on the role of the family. Status offenses often represent a breakdown in the traditional parent-child relationship, and therefore, effective responses usually involve parents and families as an integral part of the process.

Judge Thomas’s proposal will likely be piloted in one county in Kentucky. If it is successful, it could spread across the state.

Probation Downsizes Jail Populations Across Texas

Counties across Texas are beginning to take advantage of probation-type programs to ensure that limited county jail space is most effectively used. At the same time, the counties can look forward to millions in savings.

In Angelina County, judges are placing would-be jail detainees on a “rocket docket,” which ensures a speedy assessment of each defendant’s risk factors. The risk analysis is then used to determine whether pre-trial probation is sufficient, or if detention is necessary to protect public safety. As a result, county jail populations are down by an average of 50 detainees each month. Because such detention costs $45 per day, the county could realize savings of over $900,000 per year.

Similarly, Coryell County is increasing the number of low-level defendants who are released on a personal recognizance bond with probation-style supervision prior to their trial, rather than allowing low-risk defendants who cannot afford to pay a bond to languish in jail—on the taxpayers’ dime. By limiting such releases to low-level offenders, Coryell County’s tactic preserves public safety, while still preventing jail overcrowding and saving $51 per inmate per day.

The use of such probation-style pre-trial supervision ensures that county jail space—which is both expensive and limited—is available for those defendants who do pose a risk to public safety and must be detained prior to their trials. Low-level defendants who pose no such risk can be safely released and save counties unnecessary detention expenditures.