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

| February 29, 2012

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

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

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

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

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

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

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

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

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

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

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MARC A. LEVIN is Right on Crime’s Policy Director, as well as the Director of the Center for Effective Justice at the Texas Public Policy Foundation.  Based in Austin, Texas, Levin is an attorney and an accomplished author on legal and public policy issues.  Levin served as a law clerk to Judge Will Garwood on the U.S. Court of Appeals for the Fifth Circuit and Staff Attorney at the Texas Supreme Court.  In 1999, he graduated with honors from the University of Texas with a B.A. in Plan II Honors and Government.  In 2002, Levin received his J.D. with honors from the University of Texas School of Law.  Levin’s articles on law and public policy have been featured in national and international media outlets that regularly turn to him for conservative analysis of states’ criminal justice challenges.

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