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Republicans might actually be willing to do something about climate change

January 12, 2016, 1:49 AM

From Washington Post

Earlier in the year, both the R Street Institute and the Niskanen Center, two think tanks with unimpeachable conservative libertarian credentials, touted free-market plans for pricing carbon.  These coalitions could make serious climate legislation possible.


Does the USPS even need a board of governors?

January 11, 2016, 9:00 AM

The U.S. Postal Service Board of Governors is supposed to have 11 members. It currently has three: one governor, the postmaster-general and the deputy postmaster-general.

By law, the board cannot discharge its duties unless it has a quorum, which requires six members be present. The board has been short of that number for more than a year, falling from six governors in November 2014 to five in December 2014 to three in November 2015 to one in December 2015.

The USPS board has important duties. By law it must: “direct and control the expenditures and review the practices and policies of the Postal Service.” For an agency with a $70 billion budget, and one that has lost $10 billion since 2007, this is a major job.

The governors appoint the top USPS executives and name the agency’s inspector-general. The board is supposed to “represent the public interest generally” and ensure the agency meets its various statutory obligations.

President Barack Obama has nominated five individuals to serve on the board, including James Miller, who previously served. The Homeland Security and Governmental Affairs Committee, which has jurisdiction over the Postal Service, gave the thumbs-up to all five appointees last year. But the full Senate has not yet voted on the nominees.

There are reports (here and here) that Sen. Bernie Sanders, I-Vt., has placed a hold on some of the nominees. Sanders has not yet fessed up publicly and the Senate sadly clings to its hidebound practice of permitting secret holds that gum up the legislative works.

The board purports to be still carrying out its duties. Shortly before it fell to five members, it created a “temporary emergency committee” comprised of its own members and delegated authority to it. In short, it renamed itself to dodge the quorum requirement, a maneuver that seems legally suspect. Regardless, there is no way Jim Bilbray, the sole remaining governor, can possibly do all the work himself.

Interestingly, the USPS’ performance over the past year —with just three governors— is not appreciably worse. Which prompts the question: does the USPS really need a board?

Recall that private corporations have boards that serve as representatives of shareholders. The Postal Service has no owners per se. It is a government corporation assigned duties by law. The federal government has created many government corporations, not all of which have boards. The St. Lawrence Seaway Development Corp., for example, is headed by an administrator appointed by the president, who reports to the secretary of the Department of Transportation. Not having a board has not harmed its ability to manage competently the well-trafficked waterway between the Port of Montreal and Lake Erie.

The Postal Service Board of Governors is not well-structured to provide competent oversight of USPS executives and the massive USPS apparatus. The agency has a half-million employees and more than 30,000 facilities. Governors are part-timers who rarely have expertise in postal operations or corporate matters. They do not have a squad of permanent professional staff who can school them on postal issues and watch the hen house while they are away. Governors’ compensation, notably, is not affected by their performance or by the USPS’ financial results.

As Congress slogs away at postal reform legislation, one hopes it will rethink the USPS board of governors. It may determine that a board is still needed, but if so, lawmakers should define its purposes, and craft the board in a way that would give its members the ability and incentive to be successful.

This work is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

These are not the free market rates you’re looking for

January 11, 2016, 8:00 AM

This piece was co-authored by R Street Digital Director Zach Graves. 

America’s music-copyright world was shaken up in December when the Copyright Royalty Board (CRB) issued its long-awaited rate adjustment for Pandora, a digital Internet radio service. The decision lowered rates paid by its subscription service and increased rates for its ad-supported service – the latter representing the vast majority of Pandora’s listeners and revenues. For more detail on how this process works, check out Ali Sternburg’s blog post at DisCo.

Based on a surge in Pandora’s stock price when the decision came out, the development seems to have been received well by investors (although it has since slumped). It represented a middle ground of potential rate outcomes and also removed a great source of uncertainty for the company, even though Pandora is still losing money – as is its main competitor, Spotify.

Like all rate-setting exercises in the music-copyright industry, the CRB rate adjustment for these Internet radio services pay artists is supposed to represent what a “willing buyer” would pay to a “willing seller.” That sounds like free-market talk, even though, when it comes to music copyrights, no free market has ever really existed in the modern era, and certainly not in the digital era. So, it’s a guess, at best.

The landscape for music licensing and royalty payments is governed by a maze of consent decrees, statutory licenses, multiple royalty types, twin copyrights for the composition and sound recording and myriad other stakeholders, including publishers, labels, artists, performance-rights organizations and other entities. The framework of music copyright is “fractally complex,” even when compared with other areas of intellectual property law.

For webcasters like Pandora, statutory license rates are set by the CRB, a panel of three appointed judges operating with a limited scope of information they are allowed to consider, in an industry warped by decades of government intervention. At one point the CRB announced rates under the so-called “willing buyer/willing seller” standard that were higher than webcasters’ total revenues, which doesn’t seem like something to which a “willing buyer” in the real world would agree (i.e. under a free market).

But are Internet radio services at least on equal footing with their competitors in other media? Not exactly. Many legacy services are grandfathered in, due to special deals. For instance, terrestrial radio stations don’t even have to pay sound recording royalties. By comparison, Pandora pays 50 percent of its revenues to recording artists.

Given their leverage, especially with their control of the artists and labels that command the most music-buyer attention, it’s no surprise many companies have opted to circumvent this framework and make direct deals with rights-holders. These include Amazon, Spotify and even Pandora. Yet these deals are typically opaque and can obscure direct payments, equity and other revenues that are going to intermediaries rather than artists. R Street Associate Fellow Sasha Moss covers this issue in more detail in her recent paper, “Transparency in Music Licensing and the Statutory Remedy Problem.”

While there’s no obvious (or at least obviously beneficial) way to raze this system and return to a free-market state of nature, policymakers should recognize that government should not be picking winners and losers from the outset. Even if it’s impossible to say what the appropriate rate ought to be under a free market (since, again, that’s not what we have), what we can do is say that different platforms doing the same things ought to be treated the same way. Ultimately, a system that punishes innovators for not having been around to capture regulations is not what our political system should stand for.

This work is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

Fingerprint background checks: not as reliable as you think

January 11, 2016, 7:00 AM

The Austin City Council last month passed rules mandating fingerprint-based background checks for prospective ridesharing drivers. These new requirements were part of wider changes to Austin’s ordinance regulating transportation network companies like Lyft and Uber.

Under the new ordinance, to be eligible as a TNC driver, an individual must “provide a complete set of fingerprints and other identifying information [for] a national background check through the FBI.” The requirement, which is slated to go into effect over the next year, has proved highly controversial. Both Uber and Lyft have suspended operations in other cities that have imposed fingerprint-based background checks, citing concerns that the hassle would discourage individuals from becoming drivers. A petition drive to overturn the new requirement is currently being circulated in Austin.

Evaluating the new requirement is difficult, as the ordinance deliberately left several key questions unresolved. For example, while the ordinance states that an individual must “pas”” a criminal background check to be eligible as a TNC driver, it does not specify the offenses for which a conviction would be a disqualifier. Instead, the ordinance states that a list of prohibited offenses will be developed later in a separate ordinance.

Austin’s current regulation of taxis does not bar drivers who have been convicted of “a criminal homicide offense; fraud or theft; unauthorized use of a motor vehicle; prostitution or promotion of prostitution; sexual assault; sexual abuse or indecency; state or federal law regulating firearms; violence to a person; use, sale or possession of drugs; or driving while intoxicated” so long as the driver has shown “good conduct” since release.

In any event, while most of the controversy has focused on the relative safety of TNCs versus traditional taxis, less attention has been given to the reliability of the FBI background check system. This is a mistake.

Fundamentally, the FBI criminal history database is not a database of convictions, but a database of arrests. About half the records in the database do not include information about the final disposition of the case (e.g., whether the arrest resulted in a conviction, acquittal, expungement or if the case was even pursued). That’s significant, because around a third of felony arrests do not lead to a conviction. Among those who are convicted, 30 percent are convicted of a different offense than the one for which they initially were charged (often a lesser offense or misdemeanor).

Further, while the FBI provides a process for individuals to challenge a faulty background information, this process can be time-consuming and difficult to navigate. As a report by the National Employment Law Project states:

When a faulty FBI record stands between the worker and the government agency that is responsible for certifying suitability for employment, job seekers are frequently unable to navigate the complex maze to correct the record and therefore lose out on job opportunities through no fault of their own. Because many criminal justice records are not readily available, individuals often have to travel directly to the sentencing court or arresting agency to obtain proof of the final disposition—which may mean traveling to a courthouse or law enforcement agency in a different county or even state. If an arrest did not result in actual charges, there is likely no court record available. In that instance, the individual must ‘prove a negative’ and obtain paperwork verifying that no official action was taken after the initial arrest.

The federal government itself recognizes the limitations of using the FBI database for background checks. In 2009, the FBI’s Advisory Policy Board formed a Dispositions Task Force to look at the lack of completeness in criminal history records. But while the government has identified the problem, there is currently no timeframe in place to correct it.

Because so many of the FBI’s records are incomplete, the checks can unintentionally become a means of injustice. As Sen. Chuck Grassley, R-Iowa, (chair of the Senate Judiciary Committee) put it recently:

[I]f an employer uses the [FBI] database for hiring purposes, the records can be inaccurate and old.  And, just as bad, the database includes arrest records that never resulted in a conviction.  It’s unfair that an arrest—not resulting in a conviction—is included in a criminal background check.  And, while there is a process by which people can contest their records being in the database, there are flaws in that process that need to be looked and changed.

Until this happens, regulators should be wary of requiring individuals to pass these checks as a condition of employment.

This work is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

Reform the sex-offender registry

January 08, 2016, 4:22 PM

In 1972, at the age of 21, Phillip Garrido had his first arrest. The charge: sexual assault of a minor. Four years later, he kidnapped and raped Katherine Callaway, a crime for which he received a 50-year sentence in the federal Leavenworth Penitentiary. During his trial, Garrido testified to masturbating while sitting outside middle schools and going on drug binges.

After serving 11 years in federal prison and an additional seven months in Nevada State Prison, he was released in 1988 to parole authorities in Contra Costa County, Calif. For much of the next 20 years, as befitting a convicted sexual predator placed on sex-offender registries, police and social workers often dropped by Garrido’s house.

Yet it wasn’t until a sharp-eyed official at the University of California-Berkeley became suspicious that police raided his house and discovered the awful truth: that Garrido was guilty of the 1991 kidnapping of Jaycee Lee Dugard. Snatched off the street at age 11, Dugard was held in Garrido’s backyard for 19 years, where he repeatedly abused her and until she and two children he had fathered were rescued in 2011.

The story of how Garrido went undetected for so long ought to raise serious questions about one of the least controversial and most widely adopted criminal justice policies: sex-offender registration. Since public registration began in Minnesota in 1991, the federal government and all 50 states have adopted the practice. Those required to register are forbidden from living in certain areas, working in many professions and, in some cases, even from handing out candy on Halloween. Since widespread adoption of the registries has correlated with significant drops in rape and child abuse, there’s good reason to suspect they’ve helped to fight crime.

However, a growing body of research, which I summarize in a longer piece for National Affairs, makes clear the unintended consequences of this vastly popular policy. Fixing sex-offender registries in a way that helps law enforcement sift through the almost 90,000 registrants in California alone to target monsters like Garrido will require rethinking how these laws are used.

To start, states need to cut down on the clutter. Nicole Pittman of Impact Justice has documented that 40 states currently allow children adjudicated in juvenile court to be placed on registries—sometimes for life. This undermines the purpose of the juvenile justice system, which is based on second chances and rehabilitation. It also is deeply perverse, as most juveniles who end up on registries were guilty of nothing more than consensual sex with other teenagers or playing games of “doctor” they might not even have understood. Juvenile offenders should be removed from the registries, as should adults convicted of crimes like prostitution, public urination, consensual adult incest and kidnapping their own children in custody disputes. Placing these offenders on registries diverts critical public-safety resources and unnecessarily stigmatizes those who pose no threat to the public.

Moreover, access to sex-offender registration records should be limited to law enforcement, schools, medical licensing boards and the like rather than displayed to everyone with an internet connection. An extensive body of research shows that the only thing accomplished by public notification over the Internet is to harm property values in the neighborhoods where offenders live. Notification laws do nothing to change offenders’ behavior. This shouldn’t be surprising, since family members and family “friends,” not random strangers, commit the overwhelming majority of sexual assaults against children.

Restrictions on sex offenders should be designed to enhance public safety while also being tailored to fit individual circumstances. For example, it makes sense to ban offenders from working in schools or even from entering school grounds during school hours. On the other hand, forbidding them from living anywhere near a school does nothing to reduce assaults on school children.

Finally, given that some sex offenders – like Phillip Garrido – are both hugely dangerous and nearly impossible to treat, states should intensify efforts to monitor the worst of the worst. In particular, the 30 states that don’t currently have them should consider strictly limited “civil commitment” laws that create a formal process to hold the most dangerous offenders in hospital-like settings indefinitely, even after they’ve finished prison sentences. Proposals to require more stringent background checks for school employees – such as the Protecting Students from Sexual and Violent Predators Act, sponsored by Sens. Joe Manchin, D-W.Va., and Pat Toomey, R-Pa. – also deserve serious consideration.

Sex-offender registration laws have helped to reduce sexual violence, but at the cost of sometimes significant unintended consequences. Targeted reforms of these laws can help make America safer.

Mr. Smith takes on the regulatory state

January 08, 2016, 11:39 AM

By a 245 to 174 margin, the U.S. House this week passed the Searching for and Cutting Regulations that are Unnecessarily Burdensome Act of 2015, also known as the SCRUB Act.

The legislation seeks to address the perpetual growth of federal regulations, as federal agencies issue new rules each year, but rarely scrap the old ones. Over time, the Code of Regulations (CFR), the corpus of all in-effect federal rules, has growth to more than 175,000 pages.

Chart created by R Street Institute from data at http://regulatorystudies.columbian.gwu.edu/reg-stats.

This “regulatory accumulation” inflicts costs, notes Patrick McLaughlin of George Mason University, manifesting in “high barriers to entry for entrepreneurs, which decreases economic growth.” The proliferation of regulations prompts businesses to hire lawyers and lobbyists to keep watch for new regulations and to ensure the firm does not violate any rules.

Congress has considered various ways to tackle this issue of regulatory aggregation. It could, for instance, set expiration dates for all regulations. It also could cap the number or cost of regulations an agency can issue in a given year, an approach known as “regulatory budgeting.” Then there are proposals to do something similar to the Base Realignment and Closure (BRAC) approach, under which a bipartisan commission would identify unworthy regulations and submit them en masse to Congress for a single up-or-down vote.

The SCRUB Act, which passed the House nearly a year after it first was introduced by Rep. Jason Smith, R-Mo., incorporates all three of these policies. H.R. 1155 would:

  • Establish a bipartisan, presidentially appointed Retrospective Regulatory Review Commission, which would scour the CFR for regulations that should be repealed. The commission’s goal would be to excise enough regulations to reduce overall regulatory costs by 15 percent;
  • Mandate that agencies offset new rules by abolishing old rules identified by the Retrospective Regulatory Review Commission; and
  • Require agencies issuing new regulations to conduct look-back reviews after 10 years. Although not a true “sunset” requirement, these post-hoc assessments would force agencies to publicly determine if their rules were working.

Having successfully passed the House, despite garnering only six Democratic votes there, the bill now moves on to the Senate. Sen. Orrin Hatch, R-Utah, introduced a version of the SCRUB Act in June 2015 as S. 1683.

The Senate Homeland Security and Governmental Affairs Committee’s regulatory subcommittee held a hearing on the measure last September, but has yet to schedule a markup.

This work is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

The awkward truth about President Obama’s ‘tough’ actions on guns

January 08, 2016, 10:55 AM

When President Barack Obama announced his intent to impose unilateral gun control measures through executive fiat, Republicans loaded for bear—or at least, aggressive overreach from a lame duck president.

The president announced his actions in a tearful meeting where he blasted Congress, the gun lobby and, yet again, made the ambiguous call for “commonsense” gun-control reforms.

That certainly left gun owners and supportive politicians ready to dig in for a fight. Count me in that number. The Second Amendment is a right, not an inconvenient suggestion from a time gone by. 

But then the president explained his plan and things just got weird. 

His proposals amounted to hiring more FBI agents, spending that requires congressional action and essentially enforcing existing law. The main area for heartburn is the president’s interest in trying to redefine someone “engaged in the business” of selling firearms. But even that action comes in the form of a nonbinding guidance letter.

Keep in mind that this is the same president whose administration elected to rewrite immigration law unilaterally and create an aggressive regulatory scheme to cut carbon emissions. There’s a reason this president has lost roughly half his cases before the Supreme Court and it has a lot to do with his aggressive interpretation of executive-branch authority.

Conservatives have ample reason to be skeptical about the president’s support of the Second Amendment. More importantly, the president’s executive actions and rule-making power should be checked. That’s an important feature of our federal government.  

If there is a real constitutional battle brewing over President Obama’s most recent gun proposals, I must have missed it.  

As it turns out, his feared “gun grab” was basically a political dog and pony show where President Obama wanted to let the nation know he’s “doing something.” The whole ordeal was high on emotion and short on substance.

The president should enforce existing gun laws, particularly keeping firearms out of the hands of felons and the mentally ill. That’s his job. He’s also made spending proposals to Congress every year he’s been in office, another one of his responsibilities. Republicans aren’t required to agree with his spending preferences, so there’s nothing coercive about them.

Republicans should be more concerned about the dangers of crying wolf than the president requiring a report on gun-safety technology. If the president and gun-control advocates really do intend to restrain lawful gun ownership, conservatives would be wise to save their shots for real policy targets.

Of course it’s politically expedient for most Republicans to ignore what the president actually proposed and rattle their gun barrels in a general display of defiance. Unfortunately, that practice limits our ability to make any progress on fairly reasonable policy improvements.

We do need to improve the National Instant Criminal Background Check System (NICS). We should make it more accurate and useful, while ensuring that outdated or incorrect information can be removed efficiently. We might even find a way to give NICS access to gun owners wanting to make responsible private sales. Those conversations are a far cry from trying to take away the guns of lawful gun owners. 

The awkward truth about the president’s “tough” actions on guns is that they didn’t amount to much of anything and neither did the ensuing Republican shadow boxing.

What’s the cost of caution?

January 07, 2016, 1:55 PM

Everyone cares about safety. And no one can agree on what that term means or what it entails.

That was the only bit of consensus to be found during a workshop about the future of autonomous vehicles, hosted by the State of Nevada on the eve of the Consumer Electronics Show in Las Vegas. Leaders from the public sector, business community and academia all took part in the full-day session, with the goal of getting these different communities to talk to one another about the public-policy challenges we need to grapple with before autonomous vehicle technology hits the roads.

One term thrown around a lot is “goal zero,” whereby autonomous vehicles would be held to a much higher standard than traditional vehicles, toward an end goal of zero operator fatalities. Should safety be evaluated based on the outcomes achieved by autonomous vehicles? Or does safety simply mean adhering to current federal standards for collision-worthiness? The question is of real and pressing concern as state legislatures pass laws that enable agencies to regulate the operation of autonomous vehicles, without expressing a clear understanding of the concept of safety.

Bernard Soriano, chief information officer of the California Department of Motor Vehicles, noted his state is taking a cautious approach to autonomous vehicles, in line with an enabling statute that repeats the word “safety” a lot.

California’s draft regulations set the federal collision safety standards as a floor for any vehicles that would be certified to operate in the Golden State. But the California Department of Motor Vehicles rules then go beyond that, barring any private sales or ownership of autonomous vehicles (they could be leased, but only up to three years); barring any commercial uses of the vehicles whatsoever; and barring any vehicles that lack steering wheels or other driver inputs – what the National Highway Traffic Safety Administration calls “Level 4″ vehicles.

Taking a measured approach to rolling out autonomous vehicles certainly has appeal, but it also has costs. Volkswagen representative Barbara Wendling expressed that a “cautious” approach could mean the technology doesn’t go through the ordinary stages of being perfected, as it otherwise would. In practice, a cautious approach looks much like a heavily prescriptive approach.

The stakes of such missteps are high. The United States currently sees about 5.3 million traffic accidents annually, with 2.2 million accident-related injuries and 33,000 fatalities. Sebastiaan Bongers of SwissRe shared his firm’s projections of meaningful reductions in both fatalities and injuries that could be achieved with widespread adoption of autonomous vehicles.

In light of those findings, a cautious approach could actually be more destructive, literally, than a more liberal approach. More basically, without a concrete understanding of what sort of “safety” is sought, it’s impossible to know whether a particular set of regulations strikes the right balance, because we haven’t yet agreed on what would be the most desirable outcome.

Without an operating definition of “safety,” the California DMV has elected to revel in the ambiguity presented by its enabling legislation. Its self-proclaimed cautious approach will effectively insulate the state government from criticism as autonomous vehicles are rolled out and, inevitably, suffer setbacks.

But regulation that dampens the promise of autonomous vehicles without a clear vision of the costs and the benefits is deeply problematic. Advocates of caution should be made to justify the human cost of their cautious approach. Proclaiming caution without explanation is as unconvincing as it is destructive.

This work is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

Vegas transportation reform: the proof is at the cabstand

January 07, 2016, 12:41 PM

Any city looking to host conventions for more than 170,000 people, like this month’s Consumer Electronics Show, needs some serious infrastructure and sufficient transportation options.

But until Nevada lawmakers passed a measure last summer legalizing transportation network companies like Uber and Lyft, Las Vegas had balked at the option to jump into the 21st century. The city previously had effectively banned the TNCs, preferring to protect local taxi cartels.

Vegas is a city that should have every incentive to be the nation’s best at providing hospitality, with huge revenues tied to bringing in tourists and convention-goers. Indeed, on top of its multibillion dollar tourism industry, Las Vegas hosted 22,103 conventions last year, bringing in a total of 5,169,054 attendees.

While the regulatory climate for transportation-for-hire in Las Vegas isn’t perfect now, at least it’s no longer one of the nation’s worst. Thanks to the leadership of state legislators, Las Vegas’ score in R Street’s annual Ridescore report moved up 33 points since 2014, bringing it from a D- to a B.

On the ground, the effects are evident. Exactly one year ago on the first day of CES, I witnessed enormous taxi lines with a wait of 45 minutes for a four-mile ride to the stip from McCarran International Airport.

This year, both Uber and Lyft are cleared to offer their service at the airport, bringing 18,000 Uber drivers (plus an unknown number of Lyft drivers) to augment the city’s 3,000 taxis. In other words, we got to skip the line, and go in a more appropriate style to a conference that’s all about innovation.

Looking at the taxi stand this year (also on the first day of CES and around the same time), it’s pretty clear what consumers think. (Although the airport still has some kinks to iron out in how it handles the influx of ridesharing pickups).

Of course, the danger of being a disrupter is that, sooner or later, someone might disrupt you. As we are reminded by the innovations showcased at CES, autonomous vehicles are coming, and will soon dominate transportation networks. Indeed, both Uber and Lyft have inked deals to develop this technology. On this front, as my colleague Ian Adams writes, Nevada deserves great credit for getting it right in many areas where other states, like California, are getting it wrong.

At a CES in the not-too-distant future, I’ll likely revisit this post, having taken a self-driving car from the airport to my hotel, and marvel at the days when people used to wait in line at taxi stands.

This work is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

Congress could run out the clock on Obama’s regulatory reign

January 06, 2016, 12:00 PM

Welcome to 2016. By now, you should have noticed that it’s a presidential election year. (Either that, or political punditry from average citizens of Iowa is at an all-time high.) That means you’ve heard plenty about President Barack Obama’s executive overreach on everything from immigration to carbon emissions to, most recently, guns.

Unfortunately, most voters care more about issues than process. The legislative process may be boring, but it remains a fundamental part of preserving our freedoms. We rejected a monarch way back in the 18th century in favor of a model of divided power. To preserve that system, Congress needs to start thinking about playing hardball with the tools at its disposal.

The Congressional Review Act (CRA) and creative use of the legislative calendar might just be enough to run out the clock on a lame duck president looking to jam through the rest of his agenda via regulation in 2016. Under the CRA, Congress has the power to reject major federal rules within roughly 60 legislative days—not to be confused with calendar days—of receiving such rules from a federal agency or the date of their publication in the Federal Register. Such measures may not be filibustered in the Senate, but they do ultimately require the president’s signature.

That’s why the CRA is usually toothless.

No president is going to veto a rule his or her administration has just crafted. The CRA has only been used once successfully, to overturn a Clinton-era ergonomics rule. In that situation, Congress rejected a rule put forth by the Clinton administration with time left on the clock. President George H. W. Bush signed the resolution and the rule vanished, with the added bonus that the CRA prohibits the executive branch from creating a substantially similar rule without new enabling legislation from Congress.

Right now, the House of Representatives is slated to meet for 111 legislative days in 2016. That means that, using the current House calendar and adding a couple of days in January 2017, the Republican Congress could possibly send the next president a rule-killing resolution reaching all the way back to the end of May 2016, if they play their procedural and scheduling cards carefully.

If Congress contracted its legislative calendar, it could address regulations crafted even earlier in 2016. Members of Congress don’t really want to take tough votes in an election year, and Senate Democrats intend to lock down the upper chamber with the filibuster on all but the most innocuous measures.

What would congressional Republicans rather do? Pass “messaging” legislation during the next year or cut the calendar to deal solely with essential functions, thus teeing up a Republican president who could literally shut down the current administration’s regulatory reign.

Obviously, there’s no assurance that a Republican will win the White House. There’s a further risk that Republicans will be labeled “do nothings” in an ultimately futile effort if a Democrat sympathetic to Obama’s priorities wins the presidency. Democrats taking back the Senate in 2016 could complicate the calculus even further.

On the other hand, the payoff from this tactical move could be huge. A Republican president could erase much of Obama’s regulatory agenda and prevent agencies from crafting substantially similar rules under existing regulatory authority. While it’s certainly a long-shot and a political risk, members of Congress need to decide whether they’re as serious about checking the president’s overreach as he is about pushing his agenda.

The Financial Crisis Inquiry Commission Report: Five Years Later

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  • R Street statement on resignation of Florida insurance commissioner

    January 05, 2016, 4:22 PM

    TALLAHASSEE (Jan. 5, 2016) – The following is a statement from R Street Institute Florida Director Christian R. Cámara on today’s announcement by Kevin McCarty that he will resign from his post with the Florida Office of Insurance Regulation effective May 2:

    Commissioner McCarty has served Florida with distinction. Indeed, while we may have been critical of some of his regulatory decisions over the years, he has effectively overseen the state’s complex and politically charged insurance ‎system with fairness and restraint. Undoubtedly, he deserves credit for restoring sanity and stability to Florida’s shaky insurance marketplace. His service and unparalleled institutional knowledge will be missed.

    Kevin McCarty to resign from insurance post

    January 05, 2016, 11:50 AM

    From Tallahassee Democrat

    “Indeed, while we may have been critical of some of his regulatory decisions over the years, he has effectively overseen the state’s complex and politically charged insurance system with fairness and restraint,” R Street Institute Florida Director Christian Camara said in a release. “Undoubtedly, he deserves credit for restoring sanity and stability to Florida’s shaky insurance marketplace.”

    Nashville tops national ridesharing scorecard with innovative attitude

    January 05, 2016, 9:00 AM

    When it comes to an inviting regulatory environment for transportation innovators like Uber, Lyft and Sidecar, Nashville is the best city in the nation.

    According to a report recently released by the R Street Institute, a free-market think tank based in Washington, Nashville has commonsense ridesharing regulation with few of the hostile rules adopted in other jurisdictions that serve to restrict access.

    In fact, the only negatives about Nashville’s regulatory environment were insurance requirements during the periods when a driver is matched with and actively transporting a fare that are slightly high. Nashville’s overall score of 97 was two points higher than Memphis and a full 12 points higher than Atlanta.

    As a native son of Tennessee, born in Memphis and raised outside of Nashville, I’ve seen the benefits of Nashville’s entrepreneurial streak. Whether it’s the hustle of the music industry or the fast pace of change in the health care and software sectors, Nashville has never shied from change.  In that sense, R Street’s report isn’t surprising.

    Yet Nashville’s welcoming and accommodating attitude toward innovative business models shouldn’t be taken lightly.   Over the past several years, I’ve called Alabama home.  Just a few hours down I-65, Birmingham serves as a sharp contrast to Nashville’s willingness to shake up the marketplace to meet the needs of its residents.

    Birmingham’s City Council recently was dragged kicking and screaming into the modern age transportation network companies. Even as part of the new ordinance they passed a few weeks ago, they only permitted a six-month operating period, after which the new rules and market operations will be re-evaluated.

    The difference in attitude between the two cities couldn’t be any more pronounced. One is finding ways to grow and bring in new industry; the other is offering one excuse after another as to why a technological convenience embraced by cities across America isn’t acceptable for its citizens.

    As Nashville literally is struggling to find enough people to fill all the jobs it is creating, more than 30 percent of Birmingham’s population suffers in poverty.

    That’s the difference between pursuing policies that encourage creative business models and competition and stubbornly preserving the status quo for fear of the unknown. It’s a simple distinction, but it makes all the difference in the world.

    While my R Street colleagues and I happily tip our hat to Nashville’s success in crafting positive transportation regulations, I’m secretly hoping that some of the city’s eye to innovation makes its way a little further south.

    This work is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

    Texas’ insurance rankings are cause for concern

    January 04, 2016, 9:05 PM

    They say everything’s bigger in Texas. Unfortunately, this is true of the monthly insurance bill. Premiums for homeowners’ insurance are the third highest in the nation, with premiums 60 percent above the national average.

    Government regulation of the insurance industry is bigger too, which is somewhat curious given the state’s general aversion to government intrusion into the free market. According to the R Street Institute’s recently released 2015 Insurance Regulation Report Card, Texas ranks 47th in terms of how effectively and efficiently it regulates the business of insurance.

    Why does Texas rank so low? Part of the answer has to do with Senate Bill 900, a reorganization of the Texas Windstorm Insurance Association passed by the Legislature during the 2015 session. The association is a government-created agency that offers windstorm insurance coverage to residents of certain Texas coastal counties. It’s supposed to be an insurer of last resort, but over the past decade the number of policies has grown rapidly.

    The Texas Windstorm Insurance Association now covers approximately 60 percent of residents in a 14-county Texas coastal region. This rapid expansion is related to the agency’s below-market rates. Only a few years ago, its rates were 40 percent below the level needed to meet expected payments. While the agency has made substantial progress in recent years, rates are still below actuarially sound levels.

    Instead of dealing with these fundamental problems, however, SB 900 shifted more of the costs of the program onto private insurers, increasing assessments on insurance companies to pay Texas Windstorm Insurance Association claims. The costs of these assessments will, of course, inevitably show up in higher insurance premiums throughout the state.

    But new legislation is not the state’s only problem when it comes to insurance. Close to half of Texas’ property-casualty insurance market is being written by thinly capitalized firms whose premium-to-surplus ratio exceeds 100 percent. The Texas FAIR plan, a more generalized insurer-of-last-resort program available statewide, nearly doubled in size between 2011 and 2014. Also counting against Texas were longstanding issues, such as the limited flexibility in ratemaking that is impairing the state’s file-and-use system.

    Texas also needs to look ahead to growing future risks. Litigation historically has sometimes been as big a threat to Texas’ insurance system as have storms. Just over a decade ago, losses from mold claims were as bad as years with major storms. Total losses during the peak years of the mold crisis in 2001 and 2002 were surpassed only by 2008’s Hurricanes Ike and Dolly.

    Now, a new litigation crisis may be brewing, this time involving hail. Hail claims have increased 84 percent since 2010, and litigation over hail damage has exploded in certain parts of the state. An analysis by attorneys G. Brian Odom and Tyler McGuire found that, while 2 percent of insurance claims historically have resulted in litigation, for recent claims in Hidalgo County, the number is 35 percent. This litigation explosion has been encouraged by current Texas law, which allows attorneys to collect large fees and penalties in hail-insurance cases. The costs of this litigation ultimately will be borne by ratepayers.

    The good news, as the song says, is that there’s still time to change the road we’re on. In fact, there are a number of things the state can start doing now to improve it’s ranking for next year.

    Texas can start by shrinking the size of TWIA. Continuing to move toward rate adequacy and using reinsurance would shift risk and policies back into the private market, ultimately making the program more sustainable. And nothing prevents the Texas Department of Insurance from moving toward the true use-and-file system in homeowners insurance that was envisioned by the legislature when it was passed in 2003. This move would likely also serve to shrink both TWIA and the FAIR plan and make the property insurance market more attractive to major carriers.

    Texas has shown that a free-market, light-touch regulatory approach works best for both businesses and consumers. It’s time we applied the same approach to insurance.

    Rethinking sex-offender registries

    January 04, 2016, 9:02 PM

    The attached was published originally in National Affairs Issue Number 26 – Winter 2016.


    As they bicycled and scootered back to their homes from a trip to the local convenience store in the 9 p.m. darkness of Sunday, Oct. 22, 1989, Jacob Wetterling, his brother Trevor, and their friend Aaron Larson were accosted by a masked gunman with a raspy voice. After ordering them to lie face down in a ditch, the man told all three boys to turn over, asked their ages and examined their faces. Brandishing his gun, the kidnapper ordered Aaron and Trevor to run toward a nearby forest, threatening to shoot if they turned back. He took Jacob, then 11 years old.

    Jacob’s mother, Patty Wetterling, spearheaded an all-out effort to find her son. FBI agents, National Guard troops and volunteers descended on St. Joseph, Minnesota. Posters were hung. Jacob’s face appeared on the back of milk cartons. Tips flooded in, but no firm leads materialized.

    Jacob remains missing. Mrs. Wetterling, for her part, wondered if anything could have been done differently. The answer, she believed, came in part from what the police told her: If only they had a list of suspects — a registry — they would at least have a place to start.

    Mrs. Wetterling proved herself an effective lobbyist: In 1991, thanks largely to her efforts, the state of Minnesota established the nation’s first public sex-offender registry. Three years later, President Bill Clinton signed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act that required all states to establish their own registries. Votes to establish and fund state registries and maintain national standards passed with almost no dissent.

    The registries grew over time. Megan’s Law, a 1996 amendment to the Wetterling Act, required community notification for certain sex offenders and placed many records on the then relatively new World Wide Web. In 2006, another new law, the Adam Walsh Act, established new national standards for the registries, assessed penalties on states that didn’t follow them, built a national Internet database of offenders, established an office to track them, and expanded the registries. Today, all 50 states, the District of Columbia, and Puerto Rico maintain registries. The practice has spread internationally, and the United Kingdom, Canada, and Australia have all established registry systems of their own.

    Life on a registry imposes many burdens on those required to take part. Individuals included on registries must inform police or other public-safety officials of their places of residence and work. Failure to register in a timely fashion can result in additional felony charges. They must obtain permission to move and, often, to travel. Most have their names posted in publicly accessible Internet databases. A number of states — including Florida, Oklahoma, Tennessee, and Nevada — require some classes of sex offender to have special state ID cards or driver’s licenses identifying them as such.

    Many states and localities have laws forbidding sex offenders from living anywhere near schools or day-care centers, which often requires them to live far outside any city or reasonably dense suburb. Many are even barred from homeless shelters. Positions that bring sex offenders into regular contact with children — nearly all jobs at schools — are also off-limits. In many places, people on registries cannot patronize sexually oriented businesses, own firearms, and even hand out candy on Halloween. Laws to increase penalties on registered sex offenders even further — restricting them from visiting playgrounds or barring them from living with their own children — also have widespread public support. Indeed, it appears that no proposed sex-offender registration law has ever failed a free-standing, regular-order floor vote in any state legislature. No state that has passed a sex-offender registration law has ever repealed it, and no law has ever been weakened in a substantial way — even when stories emerge of serious consequences for former offenders. In California, for instance, which keeps some of the most detailed public statistics on sex offenders, 20 percent have no place to live as a result of residency restrictions. Such stories evoke little public sympathy and inspire few calls for reform.

    In short, few new public policies have become so widespread so quickly or attracted such unanimous support from across the political spectrum. The reason for this is obvious: All parents are horrified by the thought of their children being snatched from them and sexually abused. Sexually oriented crimes committed against children are, for deep-seated cultural and perhaps innately human reasons, considered particularly grave violations of human dignity.

    The registries have, in an important sense, worked: Patty Wetterling’s successful crusade correlated with improvements in public safety. Rape rates, tracked by the Federal Bureau of Investigation’s Uniform Crime Reporting Program, declined from roughly 37 per 100,000 in 1995, after the first national registry law passed Congress, to about 26 per 100,000 today, a 30 percent drop. Even as the population has grown by roughly 13 percent, the number of child sexual-abuse cases fell from about 88,000 in 1999 (the first year for which the Department of Health and Human Services collected data on a national level) to fewer than 61,000 in 2013. While these numbers (and any others associated with sex crimes) are probably best considered as relative measures since so many sexual offenses go unreported, they reflect a significant drop in the offenses that registries are intended to prevent.

    Despite all this good news, however, a closer look at sex-offender registration reveals a more nuanced and disturbing story. Although effective in some respects at reducing crime, today’s sex-offender registries do not work as well as they could. Current registries are too inclusive, are overly restrictive, and end up hurting some of those they are intended to help. With some common-sense reforms, sex-offender registries could become far more effective in improving public safety.

    Lawmakers and public-safety advocates should consider reforms to limit the number of people in the registries. Though it may seem counterintuitive, they must roll back some of the restrictions placed on those who register if we are to have any hope of reintegrating them into society. We must do more to keep the most dangerous offenders out of schools, and we must monitor the most potentially dangerous criminals more closely and even increase the use of the most severe sanctions (like lifetime civil commitment) that are currently available. Registration of sex offenders can be an effective law-enforcement tool, but overregistration and overly restrictive rules on all those who are registered may do more harm than good.


    Any examination of the registries must start with a look at the demographics of sex offenders who target children; they are far different than many people imagine. Sex offenders come from all walks of life. People convicted of sex offenses are slightly more likely to be white than nonwhite, relative to other felons. They have slightly higher levels of income and educational attainment (most are high-school graduates) than those incarcerated for other serious crimes. Insofar as they pursue adult sexual relationships at all, the overwhelming majority are men sexually interested in women. But few broad demographic characteristics give evidence as to who is likely to become a sex offender.

    According to the Bureau of Justice Statistics’ overview of sex offenders, most sex offenders targeting children have some sort of prior criminal record. Only about 15 percent, however, have been convicted of another sex offense, and only about a third of these prior offenses involve children. Among violent sex offenders, a category that includes all those who have sex with someone under the age of consent, the BJS data show that over 40 percent are arrested again within three years for some crime, but only about 5 percent actually commit another sex offense within three years. Indeed, just over 3 percent of released child molesters are arrested within three years for committing another sex crime against a child. When nonviolent sex offenders — a category that includes those who deal in child pornography and expose themselves in public — are included in the dataset, recidivism rates drop substantially. And by all accounts, the recidivism of sex offenders is well below that of felons in general.

    This does not mean, as some left-of-center academics seem to contend, that convicted sex offenders pose no danger to society and should not be monitored. They are at least 50 times more likely to commit sex offenses than are randomly selected men from the population as a whole. According to scholar Emily Horowitz, roughly 90 percent of sex offenders know their victims. Random kidnappers, like the man who took Jacob Wetterling, are quite rare. By most estimates, about a third of victims are family members of their abusers and most of the rest are victimized by someone else their parents know. Pedophiles seldom “kidnap” victims, as seen in movies and portrayed in popular novels. The Polly Klass Foundation estimates that fewer than 100 children are kidnapped by strangers each year in the manner that Jacob Wetterling was. Many of these “stranger kidnappings” involve children who were sitting in the back seats of stolen vehicles or interrupted another crime in progress. Parents wanting to protect their own children should worry much more about their own friends and relatives than random strangers.

    Although no pedophile, by definition, has a healthy adult sex life, about 98 percent of male pedophiles, who account for over 90 percent of all pedophiles, classify their adult relationships as heterosexual or predominantly heterosexual.

    It’s not clear, however, if it’s correct to think of any pedophile as “gay” or, for that matter, “straight.” An influential, although hardly uncontested, body of research led by Fred Berlin of the Johns Hopkins School of Medicine suggests that pedophilia itself is a sexual orientation that, like heterosexuality or homosexuality, results from a complex interplay of difficult-to-measure social, environmental and perhaps genetic factors. If this is the case, then, like other sexual orientations, it may well be essentially impossible to modify in adults. Even if true, however, this finding would not mean that people who are attracted to children are uncontrollable and untreatable: People with all sorts of sexual orientations can abstain from sex altogether. And this is precisely what we would expect pedophiles to do if they cannot overcome their attraction. Furthermore, it’s not entirely clear (and may be impossible to know) whether every person convicted of molesting a child is a pedophile by “orientation.” A large number of people may engage in sexually pathological behavior involving children for reasons such as a sex addiction, a desire to transgress social rules, or a non-age-related sexual fetish rather than an attraction to children per se.

    Whatever the case, pedophiles exist, molest thousands of children each year, and pose a clear and present danger to society.


    The correlation between widespread sex-offender registration and falling rates of sex offenses does not establish that the offenses have declined because of registration. The falling rates of rape closely track a decline in all forms of violent crime. One could name any number of theories explaining the causes of the overall drop in violent crime. They include but aren’t limited to better policing, higher rates of incarceration, demographic trends, bans on lead-based paint and gasoline, changes in the architectural design of cities, the wider legalization of elective abortion, and cultural shifts that more harshly sanction violent behavior. Reductions in child sexual abuse also closely track a more-or-less equal reduction in non-sexual abuse of children.

    The best research on the efficacy of sex-offender registration does show positive effects, in terms of reduced sexual offenses. What appears to be the single most comprehensive, robust, and recent review of the national data, a 2011 study published in the Journal of Law and Economics, finds registration reduces the number of sex offenses by about 13 percent, after controlling for a number of relevant variables. But while the literature finding a causal reduction from registration is reasonably robust, this result is by no means universally confirmed. A more limited study published in the same journal that confined its work to Washington, D.C., found no effect at all. It’s also not clear in which direction the causation flows. Since 95 percent of sex offenses are committed by people who have not committed a prior sex offense, a large part of the value of registration may come from deterring some number of sex offenses by people who might otherwise commit them.

    Most important, virtually no well-controlled study shows any quantifiable benefit from the practice of notifying communities of sex offenders living in their midst. No study of the practice has shown notification, as opposed to registration, to have deterrence value in preventing sex offenses. The literature does show overwhelming evidence of large costs to neighbors in the form of reduced real-estate prices. A major study published in the American Economic Review measured an average 4 percent loss in the value of homes within a tenth of a mile of a sex offender. While there are some anecdotal cases of community notification helping to catch individual sexual predators, it’s not clear that any sex offender who reoffended has ever been caught by neighbors solely because of public notification of his presence. In other words, the biggest quantifiable cost of sex-offender notification appears to be borne by the neighbors it is intended to help, with no measurable improvement in public safety.

    When it comes to the most important presumed function of the registries — keeping pedophiles out of schools — they seem to be failing dramatically. Although 46 states and the District of Columbia maintain procedures to keep pedophiles out of schools (and nearly all sizable school districts in the remaining four states have procedures of their own), a Government Accountability Office report found the system simply doesn’t work and has allowed hundreds of sex offenders into direct contact with children.

    Possibly due to bureaucratic confusion stemming from a patchwork of government agencies that lacks a single point of contact, a surprisingly large number of pedophiles find work in school settings with the very types of children they victimized. Some state laws and union contracts may even limit schools’ ability to fire pedophiles or parents’ ability to sue. Fear of lawsuits can instead lead some districts to counsel sex offenders out of jobs and subsequently send them on to other districts with letters of reference. In a typical year, school personnel commit roughly 400 sexual offenses against students. While the monitoring of sex offenders in society may be too harsh in some respects, efforts to monitor them in schools do not seem extensive enough.

    While some people on the registries certainly are public threats, many are not. Journalist and lawyer Chanakya Sethi found that 12 states require registration for urination in public and six states do for prostitution-related offenses. Teenagers who have consensual sex with other teenagers can be forced to register (sometimes for life) in 29 states. Numerous states permit and some even require registration for kidnapping, even where it has no sexual element. Consensual incestuous sex between adults (while deeply abnormal) can require registration, even though it presents no public danger.

    Most disturbingly, about 40 states put juveniles on sex-offender registries, and Nicole Pittman of Impact Justice has found that six states can require juveniles to register for life. Indeed, the federal Adam Walsh Act created some incentives for doing exactly that. At least 5 percent and perhaps as many as a quarter of all people on the registries around the country are there for offenses for which they were tried as juveniles. Many of the offenses these juveniles have committed are as trivial as indecent exposure. In Pittman’s fieldwork, she has uncovered numerous children younger than 10 years old who have ended up on the registry for “assaults” that involved games of “doctor” and other sexually oriented play they may not have even understood. In 2015, one Michigan judge handed down a sentence of 25 years on the sex-offender registry to a young man who, at 19, had consensual sex with a 14-year-old girl who had claimed to be 17. (After a public outcry, the judge reluctantly agreed to reconsider his sentence.) Prosecutors in Archbold, Ohio, brought charges that could have resulted in mandatory registration for high-school students caught exchanging nude “selfies.”

    Certainly, some juveniles may commit heinous and violent sex crimes for which registration is appropriate. Where that is the case, all states but New Mexico allow people under the age of juvenile jurisdiction to be tried as adults for at least some sex offenses. But the presence of non-violent and non-threatening juveniles on sex-offender registries contributes to registry “clutter” that makes it difficult for police and social workers to monitor the truly dangerous sex offenders. Phillip Garrido, who kidnapped and held Jaycee Dugard in his backyard for 18 years and abused her repeatedly, is a good example of someone who slipped through the cracks. He was on a sex-offender registry for prior incidents of molestation and kidnapping. His home was visited by parole officers and social workers numerous times. But, overtaxed by the need to monitor California’s more than 83,000 registered sex offenders, officials never performed the thorough search of his house that would have located Dugard. Instead, it took sharp-eyed officials at the University of California, Berkeley, to bring about her eventual rescue. In a time of stretched budgets, effectively monitoring truly dangerous sex offenders is going to require pruning the registries.

    People looking at the system of registration are thus left with a paradox: It seems to do some good, but many of its features also do a great deal of harm. Ending the registries would be both unwise and hugely unpopular, but responsible policymakers should focus on some sensible ways they could be improved.


    Making the registries more effective should start with reducing the number of offenders listed. Removing those who do not pose any particular public danger would both remedy the injustices done to them and improve public officials’ ability to monitor those who remain. Two groups in particular deserve speedy release from the registries: those convicted of minor, sometimes non-sexual offenses and those whose convictions were handed down by juvenile courts.

    Adults convicted of offenses like indecent exposure, public urination, prostitution or soliciting prostitution, kidnapping their own children as part of a custody dispute, and consensual incest with other adults all deserve various forms of social censor or punishment or both. But there’s no evidence they pose public dangers beyond those associated with these relatively minor criminal offenses. None of these behaviors have been linked to child molestation or violent sexual assaults anywhere in the academic literature. Requiring such offenders to remain on registries wastes public resources, ruins lives, and does nothing to improve public safety.

    For many of the same reasons, people convicted in juvenile court should, as a class, be removed from registries; their continued presence is perverse and undermines the purpose of the juvenile justice system. Juveniles who act out sexually get branded as “pedophiles” under laws that consider victims’ ages but not those of offenders. A 17-year-old boy who has consensual sex with a 15-year-old girl might need counseling or punishment from his parents, but he certainly isn’t a pedophile. Two teenagers who swap naked “selfies” may deserve to lose their smartphones, but they certainly aren’t “child pornographers.” Laws that fail to take these obvious realities into account impose huge consequences on juveniles convicted of sex offenses: the threat of being banned from living with their own siblings, being forced into foster care, and expulsion from their high schools (the same schools doing such a poor job of ensuring that pedophiles don’t get hired). None of these collateral consequences does any good for society, for the offenders or for their victims.

    Moreover, the long-lasting, sometimes lifelong, nature of sex-offender registration runs counter to the purpose of the juvenile justice system. Juvenile courts are intended primarily as therapeutic and rehabilitative mechanisms. They have looser rules of evidence than adult courts; they maintain far fewer public records; and, at least in theory, they hand out sanctions based on the “best interest” of the accused, rather than a desire to punish. Only a few states allow jury trials in juvenile court, and even then they are quite rare. Most states allow juvenile records to be sealed; the process is sometimes even automatic. Even people with unsealed records typically retain the rights to vote, receive government benefits and live where they choose.

    If prosecutors or police believe that a juvenile is so dangerous that he merits long-term registration, they ought to avail themselves of procedures to try him in an adult court. Any other standard undermines the very idea of maintaining a distinct system for younger offenders.

    Estimating precisely how many offenders would be removed from registries as a result of this change in policy is difficult. Registries rarely report the age at which their registrants were convicted. What data do exist suggest that those convicted as juveniles make up as much as a third of registered offenders in the 40 states that have some form of juvenile registration. It’s estimated an additional 10 percent of non-juvenile registrants are guilty of offenses that pose no obvious public harm, although this may differ a good deal from state to state. Whatever the ultimate figure, it would be easy to reduce the size and scope of sex-offender registries — and the hardships imposed on those who have committed only minor offenses — while actually increasing public safety.

    By any count, however, the majority of people on the sex-offender registries are adults who committed reasonably serious crimes. They are more likely than members of the population as a whole to commit such acts again, even though most of them will not. Of course, the same can be said of almost anybody with any sort of criminal record. As with other people who commit crimes, it’s unfair and unjust to brand all sex offenders as social pariahs for the rest of their lives, particularly since they have lower recidivism rates than other types of felons.

    Making it impossible for sex offenders to live in most places contributes directly to their becoming homeless, which in turn makes them harder to track — and harder to keep away from potential victims. Far-reaching residency bans, although politically popular, simply do not pass the most basic cost-benefit test. Every dataset makes clear that children are far more likely to be sexually abused by family members than by strangers who happen to live near their school or day care center. Judges, police, and probation officers can and should still be able to require many classes of sex offenders to stay off school grounds during school hours and avoid other areas where children congregate (something modern GPS-monitoring can assure cheaply and easily), but blanket residency restrictions simply do not serve any valid public-safety purpose.

    Forcing convicted sex offenders to the margins of society also tends to remove them from the orbit of family, friends and houses of worship, making it more likely that they will turn to crime again. For instance, it’s difficult to see why sex offenders should be automatically denied commercial driver’s licenses or barred from working as insurance agents. Aside from obvious restrictions on working with children and perhaps carrying out certain medical tasks, most restrictions on sex offenders should be tailored to fit individual circumstances and levels of dangerousness. Restrictions on professional licensing should be set to fit the specific sex offense, rather than applied to every person convicted of any sexually oriented crime.

    Moreover, the lack of any evidence that public notification reduces crime, coupled with its negative effects on property values, counsels in favor of restricting the practice. Notification helps attach an unnecessary stigma even to those convicted of only minor sex offenses. A person who sexually gropes a stranger once has done something wrong and perhaps traumatizing, but he does not pose the same public danger as a murderer, who is not required to notify his neighbors of his prior conviction. Yet, because of registries, he faces a greater public stigma than a murderer. Eliminating public notification completely would face huge political hurdles and, given the ease with which information already on the Internet can be preserved, is probably impossible anyway. The most practical change might be limiting mandatory community notification and Internet recording to actual predators over the age of 21 who have sexually assaulted young children. Even in these cases, the value of notification likely comes more from the fact that the public wants it than from any demonstrable benefit it actually provides.

    On the other hand, efforts to keep sex offenders out of schools ought to be enhanced and improved. Finding the resources to do this would be reasonably easy if much of the excess currently cluttering sex-offender registries were removed. In this context, a new, bipartisan proposal by Senators Joe Manchin and Pat Toomey deserves serious consideration. The bill would set federal standards to prevent child predators from working in schools and would penalize states where districts try to “pass the trash,” or counsel sex offenders to resign quietly before they are sent along to other schools with positive letters of reference.


    For serious offenders, who constitute the majority of those currently on sex-offender registries, the practice of registration offers a deterrent value that appears effective at reducing sexual assault and child sex-abuse rates. Three careful and deliberate policy changes could help law enforcement deal more effectively with these truly bad actors: increased mandatory outpatient treatment; increased use of indefinite civil commitment for the worst offenders; and more targeted focus of federal resources on serious, mostly Internet-based child predators and other serious sex offenders, rather than the child pornographers who currently make up the lion’s share of the federal case load.

    Insofar as sexual attraction to children is an essentially fixed sexual orientation, it may be impossible to truly “cure” it. Comprehensive literature reviews led by a team from the University of Illinois at Chicago have mixed findings: While the best-run treatments do reduce actual recidivism among sex offenders, the reduction is only by about one-third, and even then it’s far from clear that pedophiles are made to let go of their sexual attraction to children altogether.

    Interestingly, after adjustment for a variety of variables, outpatient treatment outside of secure facilities appears to work even better than forcing treatment behind bars. In fact, a number of studies show that treatment for sex offenders behind prison walls is counterproductive. This suggests it may be better to focus prison sentences for child molesters almost entirely on deterrence and punishment, while augmenting treatment efforts outside the jailhouse walls. For those who fail to participate in treatment programs, a version of the rapidly spreading “swift and certain sanctions” regimes — which provide short, often immediate jail stays every time an offender slips up — may provide an incentive to stick with the program and receive treatment. They have worked to encourage many drug addicts to break their habits, and they may help pedophiles in the same way. Many offenders who are removed from registries or kept on law-enforcement-only registries might continue to be subject to long-term GPS monitoring to keep them away from schools and other areas where they might pose a threat.

    Some sex offenders may be resistant to all treatment and unable to control their urges to molest children. In these cases — which comprise a small but non-trivial percentage of sex offenses — moves toward increased civil commitment may make sense. All states allow for civil commitment of the dangerous mentally ill in hospital-like settings when the individual is deemed to pose a risk to himself or others. Currently, 20 states and the District of Columbia have statutes that provide for an additional level of review following the release of certain sex offenders. A small number of offenders at very high risk of offending again can, under these regimes, be detained indefinitely in hospital-like settings.

    Such treatment, of course, is advisable only as an absolute last resort. But just as it’s possible to detain a mental patient who experiences a drive to kill or maim others, it should also be possible to detain someone in situations where expert testimony convinces a court that they will commit sexual violence if released. A mandatory review process for certain grave sex offenses may be desirable. In exceptional cases, civil commitment of a tiny number of particularly dangerous juvenile sex offenders (who might otherwise be released with no public record) might be justified as well. Indefinite civil commitment is a very powerful tool to put in the hands of the state, and, certainly, it carries a risk of being overused. But it should not be ruled out in all cases for sex offenders, and its use likely deserves expansion.

    The most difficult cases to deal with involve individuals found guilty of possessing child pornography. It goes without saying that any use of sexual materials involving children deeply offends social norms, and its mere possession ought to be subject to significant criminal sanction. Despite efforts of many left-leaning researchers to minimize the problem, furthermore, it is a truly serious one that has grown with the Internet. Indeed, a recent study of the “Dark Web” conducted by scholar Gareth Owen found that roughly 80 percent of users visiting the secret websites that use untraceable Tor network technology were seeking child pornography.

    But current laws involving child pornography — often prosecuted under federal law — may need to be updated. Child-pornography laws were written largely with the idea of prosecuting those who distributed magazines, print photographs, videotapes, and celluloid film strips depicting minors in sexual situations. Today, nearly all child pornography gets shared on peer-to-peer networks that make all consumers “distributors” simply by virtue of participation.

    The average sentence for child pornography is now nearly eight years, longer than the average sentence for rape, which is just over five years. Whatever harm looking at a picture of a child in a sexual situation causes (and it’s significant), it is probably not greater than the harm resulting from actual sexual assault. Nonetheless, the BJS finds that child-porn offenses make up 70 percent of the federal sex-offender registry caseload.

    Rather than try to effect a change in federal law or prescribe punishments federally, it would be better to focus federal resources on the greatest dangers. These include human-trafficking rings and actual predators who lure children across state lines. Meanwhile, states should be encouraged to take on a greater share of the child-porn caseload and decide punishments based on local attitudes and beliefs. In any case, mere possession of child pornography should remain a reasonably serious crime, albeit one that is dealt with, for the most part, on the local level.


    The practice of requiring sex offenders to register with law-enforcement officials is effective and has contributed to a sizable drop in sex offenses committed against children in the United States. Notifying the public of sex offenders, on the other hand, is ineffective and should be limited if not eliminated. The registries that exist, furthermore, do tremendous harm to some people who, although clearly guilty of various wrongs, do not pose a significant threat to children or anyone else in society.

    The nation needs to reconsider its headlong rush into ever-expanding sex-offender registration and target the registries more carefully at the most genuinely dangerous individuals. Certain petty restrictions should be dropped and many individuals should be deleted from the registries in order to minimize unnecessary damage to individuals and communities and to allow law enforcement to focus on the most dangerous offenders. In certain cases, serious punishments, including indefinite civil commitment for certain offenders, also ought to be expanded. Efforts to keep sex offenders out of schools also deserve expansion.

    More than two decades after her initial success in establishing Minnesota’s registry, Patty Wetterling — now a political activist who has run twice for Congress — expresses second thoughts about the registries she fought to establish. While she still supports the idea of the registries, Wetterling thinks they have gone too far and should drop juveniles and many other categories of offenders. “We can’t just keep locking [sex offenders] up,” she told Minneapolis’s City Pages in 2013. “That doesn’t change the problem.”


    Attack on e-cigarettes as gateway products draws from same old playbook

    January 04, 2016, 4:46 PM

    False claims that e-cigarettes are a gateway to smoking dissuade smokers from switching to safer smokeless products, leaving them at greater risk of fatal disease. The prohibitionists’ playbook was developed some 15 years ago, when Dr. Scott Tomar, of the Centers for Disease Control and Prevention and the University of Florida, published a smokeless tobacco study with a pronounced “gateway” spin:

    Some men may use snuff to quit smoking, but U.S. men more commonly switch from snuff use to smoking. Some smokers may use snuff to supplement their nicotine intake, and smokers who also use snuff are more likely than nonusers to try to quit smoking but tend to have less success.

    At the time, my letter to the editor, which was not published, noted:

    Recently, Tomar reported that 1998 National Health Interview Survey data show that snuff users are three to four times more likely to have quit smoking than have-never users. However, he also suggested that more American men switched from snuff use to smoking than vice versa. We disagree with some of Tomar’s interpretations of the available data and offer alternative explanations for his findings.

    Tomar suggests that the data show that snuff use is a ‘gateway’ to cigarette smoking among adolescents and young men because ‘former’ snuff users were current smokers in this adult survey. However, Tomar has inferred causation solely from temporal patterns (post hoc, ergo propter hoc). If snuff had been a ‘gateway’ to smoking for some individuals, they would have been much older when they started to smoke than smokers without a snuff history. The survey shows no such difference, suggesting that snuff was merely an adjunct for some smokers. More importantly, Tomar did not evaluate the gateway possibility for other forms of tobacco use. For example, survey data also reveals that pipe smoking was much more of a ‘gateway’ than was snuff. Yet it is obvious that few adolescents initiate tobacco use by smoking a pipe. A more reasonable interpretation of all the available information is that there is a subset of smokers who additionally have used other forms of tobacco.

    Tomar interprets his findings as evidence that switching smokers to ST is not a workable public-health strategy. We point out that for more than 20 years, the dominant public health message from tobacco prohibitionists has been that ST use is as dangerous as smoking. This erroneous, even dangerous, message is reinforced by the mandated warning on packages of ST (‘This product is not a safe alternative to cigarettes’). Most smokers have accepted this message and continue to smoke. Tomar’s study only confirms this and suggests further, and unfortunately, that some ST users also accepted it and switched to cigarettes. Tobacco users need to be told the truth – that ST use is associated with only 2 percent of the mortality risks of smoking, and that it is an effective form of nicotine substitution for smokers unable to achieve abstinence. Only then can a harm-reduction strategy be tested and judged.

    Prohibitionists today use the same groundless gateway attack to vilify e-cigarettes, even as teen smoking is dropping at an unprecedented rate.

    2016: A look ahead at the year in government

    January 02, 2016, 4:31 PM

    From San Diego Union-Tribune

    “The safety gains of self-driving cars — as well as the associated savings in health care, litigation and insurance costs — are tied closely to eliminating the leading cause of automotive death and destruction: human drivers,” wrote Ian Adams, director of the R Street Institute’s Sacramento office, in a recent Sacramento Bee column. Caltrans wants to be sure these cars don’t drive themselves into accidents.


    Reflections on a year gone by

    January 01, 2016, 4:13 PM

    It’s dark and quiet at my house right now. Alabama just won the Cotton Bowl with a shutout. My wife and I watched the ball drop in New York, and I have less than an hour to put forth any last minute thoughts for 2015.

    This one isn’t as hard as I thought it would be. This year has been tough. Period.

    Honestly, I’ve had my fill of all the fighting and anger. It’s tiring.

    I’m a conservative guy who loves his family, thinks free markets really do work and believes we need to do a better job at loving each other.

    Yes, I know that might seem like a strange combination, but give me a minute to explain.

    While I don’t like the liberal solution of promising people more government stuff to improve their lives, I’m not interested in defending the capitalist who doesn’t care about his or her community.

    It’s more than opposing cronyism.

    I believe that people who profit from free markets in a nation like America ought to take care of their employees, ensure that they’re caring for the environment and show people that a free marketplace really can produce better outcomes for the average person.

    It boils down to this: Do the right thing at the right time for the right reasons. We need more people in politics who understand how to do that instead of religiously adhering to partisan talking points.

    I’m not interested in hunting RINOs or blasting our president who is about to leave office. That’s not productive.

    As I sit here in the darkness of my living room, I’m struck with the reality that we need patriots. They aren’t simply people who agree with our perspectives; they’re the kind of leaders and voices who are willing to sacrifice their own convenience, income and political expediency to ensure that America is a beacon of opportunity for generations to come.

    I think about people like my friend, Major David Lasseter, who risked life and limb in Iraq to keep us safe. I’m moved by Gunnery Sergeant Ivan Ponce about to leave behind his family while deployed. They believe in the greatness of America and so do their many brothers and sisters in arms.

    It’s time we do the same.

    Yeah, we’re going to argue. We’re definitely going to disagree. That’s always the challenge for free people.

    But it doesn’t mean we can’t treat each other well. It doesn’t mean we can’t try to build our future together.

    I could make you mad. Trust me; it isn’t hard. I could throw some bombs at the political left or post some diatribe about how awful it is to be alive today in America. I’m not interested in taunting those who disagree with me, and I actually think our country is pretty amazing. For as much as I write about our political class, I’m more interested in the rest of us. I wonder if we’ll be able to see past the media haze and rhetorical war to rally around the concept of building a more perfect union.

    My sons might be beasts when they’re awake, but I look at them asleep in bed, and they’re angels. I want them to have a future. I want them to be free, but I want them to have hearts that care deeply for their fellow man.

    In the coming year, we have too much at stake to be petty. It’s more than an election year; it’s a chance to change our stars. Together, we can chart a better course. We can look out for each other a little more, be more tolerant of our differences, and build a better tomorrow.

    That’s a tall order, but I’m willing to be the optimist. Here’s to a happy, healthy and productive 2016!