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Last week Attorney General Eric Holder announced that the Department of Justice would be suspending its adoption of state civil forfeiture cases through its “Equitable Sharing” program. To review, civil asset forfeiture is the procedure by which law enforcement seizes property suspected of having been associated with a crime, and then auctions it off and uses the money for its own purposes. Under federal law, asset forfeiture is easy: the agency must simply show by a preponderance of the evidence that the property was associated with a crime, and then the owner bears the burden of proving her innocence. Under the Equitable Sharing program, the Department of Justice “adopts” state cases in states in which forfeiture laws are stricter, thereby implicating the weaker federal standard, then shares up to 80% of the proceeds of these forfeitures with state and local law enforcement.

The system creates perverse incentives for seizing the cash, vehicles, and businesses of innocent people, as last year’s blockbuster investigation by the Washington Post revealed. Moreover, the Equitable Sharing program intentionally circumvents state law. The Institute for Justice’s 2010 study Policing for Profit showed that states with stricter civil asset forfeiture procedures saw substantially greater Equitable Sharing revenues.

Thus, Holder’s announcement is very welcome. Still, as Radley Balko points out, the new policy contains some big exceptions:

. . . (1) seizures by state and local authorities working together with federal authorities in a joint task force; (2) seizures by state and local authorities that are the result of joint federal-state investigations or that are coordinated with federal authorities as part of ongoing federal investigations; or (3) seizures pursuant to federal seizure warrants, obtained from federal courts to take custody of assets originally seized under state law.

According to the WaPo story, only 57% of Equitable Sharing proceeds came from state-only investigations, so the new policy should cut payments to state and local agencies by about half. When it comes to big forfeitures, the new policy creates an obvious incentive for local law enforcement to bring in a federal investigator to create a pretext for adoption. Moreover, many of those forfeitures that are no longer adopted will still be pursued under state law, simply with a higher evidentiary threshold in many cases. Thus, the total amount of civil forfeiture that occurs in this country can be expected to drop by only a small fraction of the current annual average total.

To get a better sense of how this policy change will affect asset forfeiture in the states, I will present some numbers from the new asset forfeiture dataset that we are compiling for the fourth edition of Freedom in the 50 States. We have data on Equitable Sharing proceeds by state from Fiscal Year 2000-01 to Fiscal Year 2012-13, as well as detailed information on state standards for forfeiture.

The following time-series chart shows Equitable Sharing revenues per $1000 of state personal income for several large states: Texas, Florida, California, Illinois, and New York. These data exclude a massive, one-time payout to New York agencies for the Bernie Madoff case.
equitable sharing by state
As the chart shows, Equitable Sharing really began to ramp up in 2006-07. By 2012-13, these five states combined for $228 million in forfeiture revenues from the federal government. For each of the last four years, California was first or second among these five states in forfeiture revenue as a share of the state economy. Probably not coincidentally, California has some of the toughest procedures for civil forfeiture in the country.

In the U.S. as a whole, Equitable Sharing forfeiture revenues totaled $486 million in FY 2012-13, more than double the total of 2004-05. We don’t know just what the total value of assets forfeited in the country is, because states and localities don’t often keep track of the data. Moreover, the Equitable Sharing program includes proceeds of criminal as well as civil forfeiture (criminal forfeiture upon conviction is much less controversial). But from the states for which we do have data, it appears that, at least in the early 2000s, total assets forfeited through state law amounted to about 20-50% more than what the states got from Equitable Sharing. Those figures undercount the losses to victims of forfeiture, because agencies get, at best, market value for what they seize. So it’s quite possible that each year, more than $1 billion in value is taken from property owners through civil asset forfeiture.

Now that the Equitable Sharing program is being curtailed, state laws will matter more. Which states are best positioned to protect property rights in the new order? Here’s a ranking of states as of January 1, 2015 on citizen protections from civil asset forfeiture, based on the burden of proof for showing that the property was connected to a crime, whether there is an “innocent owner” rebuttable presumption, where the proceeds of asset forfeiture go (when they go to the forfeiting agency, there are more incentives for abuse), and whether the state had put any limits on Equitable Sharing already:

1. North Carolina
2. California
3. Colorado
4. New Mexico
5. Florida
5. Minnesota
7. Oregon
8. Vermont
8. Missouri
10. Nebraska
10. Wisconsin
10. Indiana
10. Maine
14. Kansas
14. Michigan
14. Maryland
17. Connecticut
18. Utah
19. New York
19. Kentucky
21. Louisiana
21. Mississippi
21. Nevada
24. New Hampshire
24. Texas
26. Alabama
27. Arizona
27. Arkansas
27. Hawaii
27. Idaho
27. Iowa
27. New Jersey
27. Ohio
27. Oklahoma
27. Pennsylvania
27. Tennessee
27. Virginia
27. West Virginia
39. Illinois
39. Rhode Island
39. South Carolina
42. Georgia
42. North Dakota
42. South Dakota
42. Washington
46. Alaska
46. Delaware
46. Massachusetts
46. Montana
46. Wyoming

With any luck, Holder’s decision will inaugurate a new round of forfeiture reforms at the state level, as legislators realize that they once again have the power to set policy for their own officials.

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Dragnet’s Joe Friday may have never uttered those words, but he would be impressed nonetheless by the facts on crime. There was a fascinating piece by Erik Eckholm in yesterday’s New York Times on the Drop-in-crimedramatic reductions in crime over the past several decades. Overall, crime peaked in 1991 and has fallen steadily since then.

 

All of this leads to the big question: why? Is it a change in tactics (e.g., aggressive policing, the “broken window” theory)? Is it a product of an increase in the costs of criminality (e.g., mandatory sentencing and the decision to keep 1.5 million people in prison)? Is it a product of good economic times? Perhaps it simply reflects demographics (e.g., the aging of the population, the decline in teenage pregnancy)? In the end, law professor Franklin E. Zimring (UC-Berkeley) is quoted as describing the search for an explanation as “criminological astrology.”

 

Max Ehrenfreund (Washington Post Wonkblog) has designated the above “chart of the day” as “something of a Rorschach test. Everyone sees what they want to see in it.” That may be something of an overstatement. Certainly, the advocates of the war on drugs, police militarization, aggressive policing and harsh sentencing laws will view it as evidence that their strategies have worked. They will have the challenge of explaining why similar trends are evident elsewhere, including Canada, that have not embraced the US model. And I am not at all certain of how the Left would make sense of the fact that crime has fallen as inequality has increased.

Will the decline in crime have an impact on public policy? Will it lead to a rethinking of police militarization and mass incarceration? I hold little hope given that public opinion seems immune to the facts.

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Even if crime has fallen dramatically, according to Gallup the majority of Americans in most years on record believe that crime is getting worse. As Gallup observes: “federal crime statistics have not been highly relevant to the public’s crime perceptions in recent years.” A public concerned with crime and (willfully) ignorant of the long-term trends will continue to demand an aggressive police presence. And that demand will be met.

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With this post, I’m reporting updated results on the ideological ideal points of New Hampshire legislators, introduced previously here. In that analysis, I found that libertarians in the New Hampshire House in 2014 tended to vote with the right (and vice versa) on most roll-call votes scored by the New Hampshire Liberty Alliance. That included votes on bills to prevent localities from acquiring military vehicles for police, to reform civil asset forfeiture, to protect public school students’ privacy, and other civil-liberty issues where you would have expected the left to be more libertarian. In fact, the more left-wing you were, the more likely you were to oppose the libertarian position on those bills.

However, there were a few bills on which the left was more libertarian, mostly dealing with marijuana and other criminal-justice issues. When those were separated out, the analysis revealed a distinct cluster of 10-40 legislators (depending on the strictness of the criteria for inclusion) who tended to vote with the left or center on this just-mentioned subset of social issues but with the center or right, respectively, on the majority of roll-calls: a libertarian(-ish) caucus.

I am now updating the analysis with 2013 roll-calls included, to cover the entire biennial session. I’m also reporting more charts and tables for the geekily inclined.

To recap, I ran a Bayesian IRT analysis with imputation of missing data (abstentions and absences) using R package “pscl.” First, I began with the hypothesis that libertarianism-communitarianism was the first dimension underlying all roll-call votes. This hypothesis seemed to work for most roll-call votes, but it failed on some. In fact, a left-right dimension underlies most legislators’ voting decisions. So I separated out the bills on which the hypothesis failed and ran separate analyses on both sets. That resulted in two dimensions of ideology: how right-wing you are on right-libertarian issues (henceforth, “right-libertarianism”) and how left-wing you are on left-libertarian issues (henceforth, “left-libertarianism”).

I also corrected some errors in the NHLA data (votes coded the wrong way and one individual legislator vote miscoded) and made some different judgment calls from them. I mentioned some differences I had with their inclusion of votes against casino bills as pro-liberty and votes against a domestic violence bill as pro-liberty. I would have dropped them from the analysis if they had made any difference to the results, but they didn’t, so I didn’t bother. However, I did make some more substantial judgments. I dropped two voter ID/registration bills that the NHLA supported (loosening voting requirements). These were party-line votes: libertarian Democrats voted with their party in favor, and libertarian Republicans with their party against. NH’s voter registration rules are extremely lax, and the reform proposals so modest, that I could hardly count these bills, which undid some changes of the 2011-12 legislature, as clearly pro- or anti-liberty. Had I included them, they would have dominated the second dimension, reducing the additional information it supplies beyond mere left-right ideology. Finally, I counted votes in favor of a bill banning prison privatization as anti-liberty and votes against expanding the research and development tax credit as pro-liberty, directly contradicting the NHLA’s positions (but with good reason, I think – the data showed stronger fiscal conservatives voting against the NHLA on both).

There were 404 legislators that served at some point during the 2013-14 session (the maximum at any one time is 400). There were 149 total bills I looked at, but in the end 136 made it into the right-libertarianism analysis and 11 made it into the left-libertarianism analysis.

Another small difference from the last effort is that this time I ran a NOMINATE analysis first to get priors on each dimension for each legislator. The NOMINATE analysis also suggests 2 dimensions of ideology, just rotated slightly differently.

For the geekily inclined, here is a table of the discrimination parameters for the 10 most important bills contributing to the right-libertarianism dimension (here’s the intuition: a higher discrimination parameter means the bill is more important in distinguishing the right-libertarian from the left-communitarian):

bill	mean	stdev	lower	upper proliberty antiliberty notvoting
hb544	8.27	1.159	5.892	10.343	154	182	68
sb413	6.284	0.894	4.848	8.267	132	202	70
hb271	5.065	0.793	3.508	6.798	155	206	43
hb370	4.19	0.57	3.136	5.281	151	188	65
hb1570	4.048	0.536	2.894	5.226	142	161	101
hb1541	3.939	0.541	3.025	5.418	109	162	133
cacr1	3.938	0.523	3.123	5.086	149	206	49
hb1403	3.775	0.531	2.676	4.933	118	173	113
hb427	3.654	0.505	2.772	4.661	152	185	67
sb120	3.545	0.458	2.756	4.544	119	186	99

All of these were losses for liberty, and given the Democratic control of the House then, that’s not surprising. But only two of them passed both houses and were enacted into law: SB 413, Medicaid expansion, and SB 120, increasing campaign finance reporting and registration requirements. The top bill, HB 544, would have created a state-based Obamacare exchange.

Here are the bills that fed into the second dimension, left-libertarianism vs. right-communitarianism (all 11):

bill	mean	stdev	lower	upper proliberty antiliberty notvoting
hb573	10.171	0.24	9.735	10.804	286	64	54
hb492	2.092	0.297	1.531	2.94	170	162	72
hb1625	1.492	0.218	1.118	1.99	215	92	97
hb621	1.376	0.177	0.946	1.669	193	136	75
hb1325	0.872	0.147	0.56	1.162	66	219	119
hb249	0.807	0.149	0.566	1.105	266	68	70
hb1237	0.701	0.092	0.551	0.9	231	97	76
hb1577	0.674	0.124	0.475	0.943	209	116	79
hb1501	0.526	0.097	0.253	0.728	211	86	107
sb296	0.429	0.095	0.283	0.638	210	128	66
hb1624	0.327	0.109	0.147	0.567	256	40	108

HB573, medical marijuana legalization, dominates this list. The next on the list, HB492, was marijuana legalization. All of these were victories except Death with Dignity, HB 1325, again predictable given Democratic control of the House. Only medical marijuana and HB1624, modernizing the juvenile justice system, were passed and enacted into law. Of course, some of the victories consisted in defeating bad bills.

Here were the 10 most right-libertarian legislators in the last session:

name	party
Groen Warren	R
Sylvia Michael	R
Meaney Richard	R
Hoell J.R.	R
Murphy Keith	R
Sandblade Emily	R
Notter Jeanine	R
Baldasaro Alfred	R
Lambert George	R
O'Brien William	R

William O’Brien was the 2011-12 Speaker of the House. Several of these legislators are Free State Project movers.

Here were the 10 most left-libertarian legislators in the last session:

name	party
Winters Joel	D
O'Flaherty Tim	D
Vaillancourt Steve	R
Ketel Stephen	D
Levasseur Nickolas	D
Bickford David	R
Gardner Janice	D
Friedrich Carol	D
Arsenault Beth	D
Carroll Douglas	D

Joel Winters was the first FSP mover elected to the state house (2006). Steve Vaillancourt is a left-libertarian gadfly and served in the legislature for close to two decades, before losing this year.

I created an index of libertarianism weighted 3:1 toward right-libertarianism (on the theory that economic and personal freedom are equally important, and right-wingers are better on economics and half of personal freedom, and worse on the other half). Here are the most libertarian legislators according to that blend:

name	party
Lambert George	R
Sylvia Michael	R
Garcia Michael	D
Hoell J.R.	R
Sandblade Emily	R
Pratt Calvin	R
Warden Mark	R
Meaney Richard	R
Murphy Keith	R
Tasker Kyle	R

Here is a plot of the legislators on both dimensions, color-coded by party (click to expand):

2013-14 NH House Ideal Points

Note that a handful of communitarians do now reveal themselves: William Butynski, Daniel Hansberry, Katherine Rogers, Leigh Webb, Deanna Rollo, Richard Eaton, Mary Nelson (all Dems).

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Constitute.org is a useful website designed by political scientists to let researchers search for and compare constitutional texts on particular topics. Here for instance is a search on secession clauses. Although one of the site’s creators, Zachary Elkins, says that 22 states contemplate some process for state divorce, only three constitutions expressly authorize some part of the country to secede: Ethiopia, Liechtenstein, and St. Kitts and Nevis. Ethiopia lets each people or nationality secede by a supermajority vote of its legislature, Liechtenstein lets each commune secede (I believe this was an addition of the 2003 constitution), and St. Kitts and Nevis lets Nevis secede by a supermajority referendum vote.

In addition to these, Britain’s Northern Ireland Act of 1998 lets the majority of Northern Irelanders decide to join the Republic of Ireland, and the constitution of Uzbekistan lets Karakalpakstan secede with the consent of the Uzbekistan government.

It would be interesting to see how many states define themselves as “indivisible,” thus tying a government’s hands and preventing it from authorizing secession. A search on the term brings up some irrelevant cases, but 72 constitutions contain the term.

By the way, the Prince of Liechtenstein is a moderate libertarian, and their constitution is fairly consistent with the philosophy. Check out his book on the topic.

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NH House in 2 Dimensions

Ideal Points of NH State Legislators in 2 Dimensions (Click to Expand)

The New Hampshire Liberty Alliance does a Liberty Rating each year in which they analyze liberty-related roll-call votes of state representatives and senators and grade them. (The NHLA is a great government accountability organization, by the way, and well worth supporting; a lifetime membership is only $100.)

I used their roll-call votes for the 2014 N.H. House of Representatives but analyzed them differently (I also corrected three errors in their spreadsheet). The vast majority of roll-call votes are on economic issues, where conservative Republicans and libertarians line up. So the Liberty Rating might overstate how libertarian conservative House members really are, if those social issues that are voted on are disproportionately important. The Liberty Rating tries to assess how important each vote is, but the way they do it is arbitrary and subject to dispute (for instance, they rate a bill restricting the sharing of public school student information as highest-priority, on a level with legalizing marijuana and three times as important as a bill enacting occupational licensure of medical technicians). Furthermore, some of their bills are disputably freedom-related: they rated as negative a bill creating a new crime of “domestic violence.” Now, that bill might or might not have been a good idea, but it doesn’t seem like a liberty-related issue, unless you’re an anarchist who wants to legalize everything, including violence.

I used Item Response Theory in a Bayesian framework to estimate the ideal points of legislators in two dimensions. Let me unpack that statement for the layman. I let the data speak for itself. If legislators who generally voted libertarian voted in favor of a bill, the data are telling me that that bill is liberty-enhancing. If legislators who generally vote libertarian split on a bill, then maybe it’s not a liberty issue. Some votes might be “harder” or “easier” than others, like questions on a test. Even a pretty libertarian legislator might vote the wrong way on a hard vote, like a bill legalizing physician-assisted suicide (“Death with Dignity”, HB 1325 in 2014), which failed 219-66.

Using the R package “pscl,” I first hypothesized that all 93 roll-call votes in 2014 reflected a single ideological dimension: each legislator’s degree of libertarian-ness. We could line up all legislators’ ideal points in ideological space along a single line, and that line would be the best way to predict how all the legislators vote on any given issue.

That hypothesis ended up being wrong. On 84 roll-call votes, I couldn’t reject that hypothesis, but on 9, I could. Those were votes on which those voters who tended to vote in a libertarian direction on the other 84 votes tended to vote in an anti-libertarian direction instead – and conversely, those voters who usually voted anti-libertarian actually tended to vote libertarian on those 9 votes.

What were those 9 votes?

  1. HB1237, prohibiting local sex-offender residency restrictions (passed 231-97)
  2. HB1325, Death with Dignity (failed 66-219)
  3. HB1501, mandating licensing of outpatient abortion facilities (killed 211-86) (the NHLA generally stays out of abortion bills, but they believed, and I agree, that business licensing is the wrong way for pro-lifers to restrict abortion)
  4. HB1577, allowing alkaline hydrosis for the disposal of human remains (passed 209-116)
  5. HB1624, modernizing the juvenile justice system (passed 256-40)
  6. HB1625, decriminalizing small amounts of marijuana (passed 215-92)
  7. HB249, mandating employer use of E-Verify (killed 266-68)
  8. HB492, legalizing marijuana (passed 170-162)
  9. SB296, discriminating in favor of veterans in public employment (killed 210-128)

What do all these issues have in common? They’re social issues on which libertarians make common cause with the left! And note that apart from Death with Dignity, libertarians won on every one of these bills. Part of that has to do with the fact that socially liberal Democrats were in the majority in 2014, and part of it has to do with the fact that libertarians are numerous enough in the House to swing some close votes, like the legalization of marijuana.

There were also a few votes without a clear libertarian position; in statistical jargon, they didn’t “load” onto the first ideological dimension at all:

  1. SB318, establishing the crime of domestic violence (passed 325-3)
  2. SB336, banning deer baiting on public land (killed 200-85)
  3. SB366, establishing two casinos in New Hampshire (killed 173-172)

Arguably these roll-calls shouldn’t have been included in the Liberty Rating.

So I divided the roll-call votes into two groups: (more…)

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Once and Future King

Frank Buckley was kind enough to send me a copy of his new book, The Once and Future King: The Rise of Crown Government in America, and now seems like an appropriate time to post my review.

Buckley argues persuasively — and surprisingly — that the Founders intended to establish a semi-parliamentary form of government in Philadelphia in 1787. But the rise of democracy, especially the popular election of the president, empowered the executive and led by the 1830s to a new form of government: separation-of-powers presidentialism. Most political scientists still perceive the U.S. system as one of extreme checks and balances, but Buckley argues that we have now progressed to yet another constitutional order, marked by executive dominance, the “elective monarchy” that the Founders feared so much. The impetus for this change has been the rise of a vast regulatory apparatus: “Modernity, in the form of the regulatory state, is the enemy of the separation of powers and diffuse power, and insists on one-man rule” (p. 6).

When the Constitutional Convention met in Philadelphia, they first dealt with a “Virginia Plan” that had the president elected by Congress, the Senate chosen by the House from states’ nominees, and no executive veto. The plan was clearly parliamentary. The changes that occurred, to an electoral college process for the President, to an executive veto, and to state legislative selection of the Senate, were largely the product of compromises between states’-rights and nationalist factions at the Convention. The Framers did not anticipate direct popular election of the President, and in fact they thought that in most presidential election years, no candidate would win a majority, throwing the choice to states’ House of Representatives delegations. Some delegates claimed that a directly elected President would be a dangerous seed of demagogic monarchy.

F.H. Buckley

F.H. Buckley

In the 19th century, the progress of democracy caused the British and Canadian constitutions to cross paths with the American one. In the U.S., the electoral college became toothless, and Presidents were effectively directly elected by the people. In Britain and Canada, the monarch and the upper house lost legitimacy as nondemocratic bodies, and electoral reform in the U.K.’s House of Commons gave it democratic legitimacy and the upper hand in any battles among the branches. By the time Canada adopted its institutions under the British North America Act of 1867, they were consciously copying a fused legislative-executive, parliamentary system that had emerged in Great Britain, what Walter Bagehot referred to as “the efficient secret” of the British constitution. While the U.S. now featured strong separation of powers, Britain and Canada concentrated power in the Prime Minister.

Today, political scientists still teach that presidents are less powerful than prime ministers, because their legislative role is weak. The U.S. system has more veto players, and as a result policy change is slower.

Buckley acknowledges the logic of the traditional political science approach, but his story doesn’t end there. (more…)

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The Cato Institute has conducted a new poll of Americans’ attitudes toward federalism. Apparently Americans have become much more favorable to federalism and decentralization over the past 40 years.

The Cato Institute commissioned YouGov for the poll. They asked respondents questions about which level of government should have primary control over each issue area, using the exact same wording from a Harris poll conducted in 1973. This method allowed them to see how Americans’ attitudes have evolved over the past 40 years. On 10 out of 11 issues, Americans were more favorable to state or local control in 2013 than they had been in 1973 (the bars in this graph represent the percentage of Americans favoring primarily federal control over that issue):

cato poll

A majority of Americans still want primarily federal decision-making over national defense, Social Security, and cancer research. Two of those three seem to make a great deal of sense: cancer research is a global collective good, and national defense, by definition, is a national collective good. “Prison reform” and “drug reform” are the two issues on which Americans’ attitudes have moved most significantly toward decentralization. A large majority of Americans now think housing, transportation, education, welfare, prison reform, health insurance, and drug reform, in that order, should be primarily state and local issues. Only on education have Americans become more centralist, and that change is so small as to lie within the margin of error.

Another compilation of surveys suggests that a majority of Americans also want primarily federal decision-making over immigration, stem-cell research legality, protecting the border, protecting civil rights, protecting civil liberties, abortion laws, creationism in public schools, and food safety, in descending order. Most Americans also think paving roads, providing job training, law enforcement, running courts, providing pre-K to low-income children, unemployment, gay marriage, and gun control should be primarily state and local issues.

These results are consistent with those of other surveys, which have tested Americans’ views on particular issues. A 2012 CBS News poll found that 69% of Americans preferred that the states handle marijuana policy, while only 27% preferred that the federal government handle it.

What’s interesting is that on all these issues on which the study reports a partisan breakdown, even drug laws, Democrats are more in favor of federal control than are Republicans. Decentralization has emerged as a very starkly partisan wedge issue.

Growing support for decentralization in the U.S. does not necessarily mean that decentralization is a good idea or that it will happen, of course. As my review of Daniel Treisman’s recent book acknowledges, decentralization can have its pitfalls. Yet within the American context of largely market-preserving federalism, greater decentralization on many of these issues will (more…)

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