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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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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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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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Early Friday morning, the House passed an important amendment to the  appropriations bill for Commerce, Science, Justice and Related Agencies. As Billy House reports (National Journal):

Using states’ rights as a bipartisan rallying cry, the House voted 219 to 189 early Friday to prohibit the Justice Department from using federal funds to conduct raids or otherwise interfere with medical marijuana activities that are legal in the states.

The amendment, which was sponsored by Rep. Dana Rohrabacher (R-CA), passed with the support of 49 Republicans and 170 Democrats.

“Despite overwhelming shift in public opinion, the federal government continues its hard line of oppression against medical marijuana,” Rohrabacher said. But he said the Drug Enforcement Administration would be blocked from using any money in this appropriations bill to conduct raids on state-legal medical marijuana operations or dispensaries, or otherwise interfere with state medical marijuana laws or doctors or patients abiding by them.

One might have hoped that more Republicans would have dusted off their support for the 10th amendment to cast a yea vote. But GOP support was far weaker when similar amendments were offered in the past (there have been six failed attempts since 2003). As the Marijuana Policy Project’s Dan Riffle (Reason) notes: “This measure passed because it received more support from Republicans than ever before…It is refreshing to see conservatives in Congress sticking to their conservative principles when it comes to marijuana policy. Republicans increasingly recognize that marijuana prohibition is a failed Big Government program that infringes on states’ rights.”

These days you take victories—even small ones—wherever you can find them. On to the dark hole of the Senate!

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A few days ago, I gave the theoretical logic for why the availability of the government shutdown results in growing government spending. Advocates of smaller government should advocate a default budget rule that is far milder than shutdown. Now, I have come across academic research by David Primo finding just this at the state level. States with an automatic shutdown provision actually spend on average $64 more per capita than states without such a provision.

As Tea Party Republicans approach the final denouement of their humiliating, destructive defeat on the latest budget battle, it bears thinking about how U.S. fiscal institutions essentially predestined this outcome.

HT: Matt Mitchell

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I have just posted a couple of my working papers to SSRN for those who are interested. They are as follows:

  1. Public Policy and Quality of Life: An Empirical Analysis of Interstate Migration, 2000-2012
    Abstract:
    Individuals and households choose their political jurisdiction of residence on the basis of expected income differentials and jurisdiction-specific characteristics covered by the general term “amenities.” In addition to fixed characteristics like climate and terrain, amenities may include public policies, as in the well-known Tiebout model of migration. Do Americans reveal preferences for certain public policies by tending to migrate toward jurisdictions that offer them? This article tests whether state government involvement in fiscal policy, business regulation, and civil and personal liberties more often reflects an amenity or a disamenity for Americans willing to move. As identification strategies, the article estimates spatial, matched-neighbors, and dyadic models of net interstate migration for all 50 states, covering the years 2000-2012. The evidence suggests that cost of living, which is in turn strongly correlated with land-use regulation, strongly deters in-migration, while both fiscal and regulatory components of “economic freedom” attract new residents. There is less robust evidence that “personal freedom” attracts residents.
  2. Civil Libertarianism-Communitarianism: A State Policy Ideology Dimension
    Abstract:
    This paper investigates the existence of a second dimension of state policy ideology orthogonal to the traditional left-right dimension: civil libertarianism-communitarianism. It argues that voter attitudes toward nonviolent acts that are sometimes crimes, particularly weapons and drugs offenses, are in part distinct from their liberal or conservative ideologies, and cause systematic variation in states’ policies toward these acts. The hypotheses are tested with a structural equation model of state policies that combines “confirmatory factor analysis” with linear regression. The existence of a second dimension of state policy essentially uncorrelated with left-right ideology and loading onto gun control, marijuana, and other criminal justice policies is confirmed. Moreover, this dimension of policy ideology relates in the expected fashion to urbanization and the strength of ideological libertarianism in the state electorate. The results suggest that the libertarian-communitarian divide represents an enduring dimension of policy-making in the United States.

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Is federalism for progressives? Libertarians, who are generally enthusiastic about the competitive federalism model, have tried to argue that the model provides, at the very least, a kind of modus vivendi for all ideological camps, allowing citizens in each state to have roughly the kind of government that they want. Relative to a single national standard on every policy issue, everyone is better off, right? Some progressives have agreed, to a point.

The problem is that status quo U.S. federalism is a long way from the competitive federalism model that scholars like Michael Greve favor. (I have contended that competitive federalism is still alive in the U.S. to a much greater extent than just about any other country excluding Switzerland and Canada.) The federal government establishes a firm national baseline on both economic and social policies. First, the U.S. Congress has authorized federal matching grants that incentivize state and local governments to spend their own taxpayers’ money on federal priorities. Even conservative politicians often have political trouble turning down “free” (better: “highly discounted”) federal money. Second, the U.S. Congress has authorized extensive federal regulations intruding into areas previously considered state prerogatives: securities and exchange regulation in the 1930’s (a provincial-only responsibility in Canada), occupational safety and health regulation in the 1970’s, mortgage originator licensing in the 2000’s, and health insurance regulation in the 2010’s, to name just a few examples. Third, the federal judiciary has established a firm baseline on civil rights, civil liberties, and “social” policies, repeatedly striking down laws regulating or criminalizing abortion, sodomy, contraception, and free speech, and, more recently, laws prohibiting gun possession and carrying, enacting public election financing, and authorizing certain regulatory takings. While some of these examples suggest that progressives might have reasons to favor a looser “baseline” from the federal judiciary, the overall historical trend has been for the judiciary to constrain conservative policies. (Note that libertarians typically favor judicial engagement on all or almost all of these questions, distinguishing their kind of limited-government federalism from the old “states’ rights” variety.)

Is there evidence that U.S. federalism as it already exists is tilted toward progressive priorities? I believe I have found such evidence in the distribution of state policy priorities.

Using the Ruger-Sorens database of state policies, which covers the years 2000-2010 (year-end), (more…)

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