Harry Houdini was considered one of the great magicians
of the 20th century, but his best trick may have been turning a congressional
hearing about the regulation of business licenses in the District of Columbia
into a four day entertainment extravaganza featuring undercover detectives, an
impromptu psychic reading, and a surprise appearance by Mrs. Houdini. The topic
of debate was a law that would criminalize fortune telling. This new law,
modeled on one from New York, would replace D.C.’s practice of requiring
fortune tellers to acquire a license.
Total bans on fortune telling were common at the time. The
laws against fortune telling had roots back to colonial America and the British
1736 Witchcraft Act.[1] While the title of the law
might conjure images of a witch being weighed against a duck and then burnt,
the act was not about prosecuting real witches. Instead it was a consumer
protection act meant to stop fraud.[2]
By the time of the Houdini hearings in 1926 fortune
telling was no longer considered to be inherently fraudulent. Three years
earlier New Jersey’s Supreme Court said that taking money for giving a fortune
was protected religious speech in State v. De Laney, 122 A. 890, 891 (N.J. Sup.
Ct. 1923), and the academic field of parapsychology had begun experiments
trying to prove the existence of Extra sensory perception.
One reason for the change in opinion was the rise of
spiritualism as a religious practice in the United States. Founded in New York
in 1848, Spirtualists believed that people could communicate with the dead who
could impart knowledge from heaven about future events.[3] After the American Civil
War belief in spiritualism spiked as people grieving those lost in the war
wanted to find some type of closure by contacting them through mediums,
séances, or the use of spirit or Ouija boards.[4]
Much
of the conversation in the Houdini hearing focused on discussions about
spiritualism as a religious practice. Leaders of spiritualist societies wanted exemptions
for those who were members of their sect, while skeptics said that it would be
wrong to allow fraud under the color of religion. The one thing that both sides
seemed to agree on was that the licensing wasn’t the right way to go. Houdini
spoke for those urging the ban saying that “Washington is the only place where
you can buy a license for $25 with which to blackmail and rob the public”[5]. At the same time
practicing spiritualists who conferred with spirits felt that they should not
have to acquire a license in order to practice their faith.[6]
Although
licensing seemed unpopular with both sides, it has ended up being the path that
many cities have taken in trying to allow fortune tellers to practice while
also protecting the public from fraud. The existence of these licenses are sometimes
held up as an example of over-regulation of businesses or government
inefficiency. One think thank spokesperson joked that fortune telling licensing
is pointless since “it is literally impossible to be a competent fortune
teller." [7]This comment, like so much
conversation on fortune telling, is premised on first deciding if psychic abilities
are real.
By
centering the conversation on the legitimacy of fortune telling what has been
ignored is the practical problem of consumer protection. This paper looks to
address that issue by not focusing on proving, or disproving, psychic
phenomenon but by trying to limit criminal activity related to psychics using an
economic model of offender action.
Section
One of this paper discusses the problem of fortune telling focusing on the
factors that make some type of government intervention both necessary and difficult.
Section Two will discuss the offender model proposed by Gary Becker. Section
Three will apply the model to the types of interventions used by governments
and evaluate how well they work to prevent criminal acts by fortune tellers.
Section One: The Problem of Fortune Tellers
As
an initial matter, it is important to define what we are talking about with the
phrase fortune tellers. For the purposes of this paper, fortune telling will
encompass all of the types of predictive services offered for sale. This
includes the well known techniques like astrology, palmistry, numerology,
tasseograpghy (tea leaf readings), casting of runes, scrying (the use of a
crystal ball), and cartmancy (the use of cards). It also includes the services
offered by mediums who claim to be able to connect and receive messages from
the dead (think of Whoopi Goldberg in Ghost). Mediums may not always make
predictive comments but the services they offer have the same types of
difficulties of proof as those that offer to tell the future.
There
are four factors related to fortune telling that make it difficult for
governments to deal with:
1) There
is a demand for fortune telling services from people who believe that these
abilities exist.
2) There is no scientific proof that psychic
abilities or communication with the dead are possible and no universally
accepted test of abilities.
3) Some
percentage of people claiming to be fortune tellers do not have the abilities
they claim.
4) Some
number of people purporting to be fortune tellers use the position to find
targets for criminal activity.
There
is a demand for fortune telling services from people who believe that these
abilities exist.
2.6 million people tune into the TLC series Long Island
Medium, now in its sixth season, which follows Theresa Caputo as she connects
people with deceased family members who she claims to be in contact with, and
who offer her predictions of the future from the other side. Caputo’s series is
just one of many reality shows which present fortune telling as real. You have
The Dead Files which features a retired homicide detective who works with a
medium to solve violent crimes and the upcoming Psychic Matchmaker whose
premise is in the title[8]. While some may watch
these shows for entertainment, there are many who believe they represent real phenomenon.
2009
poll by the Pew Research Center’s Forum on Religion & Public Life found
that many people believed in the supernatural and the types of services offered
by fortune tellers.15% of respondents had consulted a psychic.[9] 16% reported a belief in the ability of some
people to cast spells or curses, a service offered by some fortune tellers
along with services that report to remove curses from people. A full quarter of
people said they believed in astrology, and the ability of the location of planets
to influence events in a person’s life. Finally, 29% of the respondents said
that they believed they had been in touch with someone who had died, important
because such ability to “cross over” to the spirit realm is a core belief of
mediums and psychics who claim to get their information from the dead.
American’s do not only believe in these things, they
spend their money in actively using psychic services. Psychic consultation was
expected to bring in 1.9 billion dollars in revenue in 2014, and that study
only looked at one-on-one consultation.[10] Not included in that statistic
are the revenues brought in by mass market astrologists like Susan Miller
(whose astrology zone website gets 20 million monthy page views) and the money
earned from the television programs previously mentioned. [11]
People who visit psychics are often facing some type of
personal crisis; the end of a relationship, loss of a loved one, or financial
difficulties.[12]
A study looking at belief in psychics found that people were most likely to
hold a belief in precognition when they felt out of control in their own lives,
and that such beliefs can help people feel they have control in their lives. [13] Counterintuitively, the
fact that a psychic reports to see their future makes these believers feel that
they have power in their life and that they aren’t passively predestined to a
certain fate.
Belief in fortune tellers and the paranormal seems to be
a natural part of certain personality types that can’t be dissuaded even with
evidence of trickery. [14]
When self-reported believers in the
paranormal were told in advance how a psychic demonstration was done without
paranormal powers they reported that they believed they had witnessed a
paranormal experience, rejecting the mundane explanation they had been given in
advance.[15]
For a good number of people belief in psychics is a core
belief which is not simply dissuaded, and which seems to offer some benefits to
feelings of well-being and control. There is a demand for psychic services worth
billions of dollars annually which wants to be served.
There
is no scientific proof that psychic abilities or communication with the dead
are possible and no universally accepted test of abilities
In 1922 Scientific
American offered $2500 for anyone able to demonstrate proof of psychic
phenomenon or spirit communication. While a few people attempted to claim the
prize, their demonstrations were debunked as fraudulent- Look up some examples.
Since then many organizations have offered a bounty for proof that
precognition, astrology, or other paranormal abilities are real including the
$1,000,000 James Randi Foundation Award name.
None of these awards have ever been claimed.
There have been attempts to use scientific methods and
investigation to prove the existence of the paranormal in an academic field
called parapsychology. Once a field of intense interest (Duke and Stanford both
had parapsychology laboratories, the later as recently as 1980) the remaining
parapsychology programs are focused more on examining why people believe in the
paranormal than trying to prove its existence.[16]
Decades of failed experiments, or successful ones that
were unable to be replicated under scientific conditions, led to the end of the
field.[17] Studies of psychic
abilities still exist, but are rare and still have not stood up to tests of
replicability.
Psychics claim that the rigors of science hamper the
ambiance needed to commune with the beyond. When psychic Patricia Putt learned
that her attempt to claim the Randi prize had failed she said that the
conditions meant the subjects were “not really free to link with Spirit making
[her] work a great deal more difficult."[18] The need for a positive
atmosphere is a necessary condition for many psychic practioners, which is
incompatible with the detachment that a part of scientific research.
Whether the lack of proof of psychic ability is because
it does not exist or because of the vibes of researches is not important. In
either case there is no accepted test of these abilities. For this reason there
is no way to offer a qualification exam to demonstrate the psychics have the
powers they claim. The lack of any proof is used by many as evidence that
paranormal phenomenon does not exist, but this is not persuasive to believers.
For this reason focusing on proving, or disproving, that psychic abilities
exist is a pointless exercise since both sides are assured they are right.
Some
percentage of people claiming to be fortune tellers do not have the abilities
they claim.
In 2004 the mother
of missing teenager Amanda Berry appeared on the Montel Williams talk show to
talk about the case and try and get clues on the case from psychic Sylvia
Browne. Browne appeared regularly on talk shows, including the news interview
program Larry King Live. The author of a dozen books, including one that
offered tips on how to choose a real psychic, Brown was a psychic medium whose
insights came from messages from the dead who had gained omniscience once they
enter the spirit world.
On
the show, Browne claimed to be speaking to the spirit of Berry who had been
killed. She also offered a location where police could find a jacket with DNA
that would belong to the killer. The jacket was never found, but Amanda Berry
was in 2013. She had been held captive for a decade, not dead as Browne had
claimed. [19]
The
very public failed predictions of fortune tellers like Browne is proof that at
least some of those who claim to predict the future are not able to do so. We
also have confessions from those who once worked as fortune tellers, like Mark
Edwards, who have explained that their insight came from the mundane and not
supernatural.
The
most common technique used by fraudulent fortune tellers is a technique called
Cold Reading. A fortune teller may start the reading with a generic statement
or one which is statistically likely to be correct. For example, “you are
having a difficult time in your life right now,” has a high likelihood of being
correct since most people seeing a psychic are going through some type of
difficulty.
The
client may then drop a hint about why they are there (“yes, I’m getting a
divorce”) which allows the psychic to elaborate the reading. Even if they do
not explicitly say their reasons, body language and facial expressions allow
the fortune teller to see what statements seem to connect with the client and
which ones don’t.
Cold
reading works because of the Barnum effect, which is the tendency of people to
think that generic or universal things are uniquely directed towards them. You,
dear reader, have a tendency to be critical of yourself. I was likely correct,
not because I have written this for a particular person but because part of the
human condition is to be self-critical. By using generic statements a fortune
teller can appear to have crafted a highly personal.[20]
Along
with cold reading, fortune tellers may attempt a “scattershot” method of
prediction. This was most famously done by 60s psychic Jeane Dixon, who came to
prominence when she predicted the assassination of John F. Kennedy nine years
before it happened. What is often overlooked is that along with predicting that
the 1960 Democratic candidate would win but would die in office during his
first or second term, she also predicted that Richard Nixon would win the
election, and that Kennedy would not win the democratic nomination. Dixon made
many different, often conflicting, predictions but after the fact only her
successes were discussed. In a reading a fortune teller might make many
guesses, some of which are incorrect, but they will focus on the things they
get correct with the knowledge that most people will recall those times when
they got something right while minimizing the misses. It helps that most people
seeing a psychic are already believers. Confirmation bias, the human tendency
to accept things that conform to our existing beliefs, is very helpful to the
cold reader since the client will ignore things that are wrong because they
want to believe.
Along
with cold reading, some fortune tellers use advanced information in order to
appear to have insights into client lives. John Edward is a medium who sells
out shows nationwide and can be seen on the series John Edward Cross Country
connecting families with their dead loved ones. Unlike one-on-one consultation,
Edward tends to work in a large room where he will often be speaking to
multiple spirits at once, with any confusion in what they are saying being
explained by the confusion of trying to talk to multiple ghosts. In an article
for Time Magazineon Edward, the writer noted that his show’s staff gathered
details from the audience including family trees and details on what they were
hoping to hear which could be fed back to Edward[21]. This is called hot
reading, when a fortune teller has advanced knowledge on a client that they use
to appear more credible.
Hot
reading is much easier in the era of Facebook and the internet. Someone making
an appointment with a fortune teller may be asked to leave their email to
receive a confirmation, but that same email can be used to scan social media to
find out their relationship status, career, and what they have on their Amazon wish
list. Other methods of hot reading use a plant in the waiting room to make
small talk which gathering information. If cold readings methods of generic
statements can seem impressive to a receptive client, when someone has the
specific knowledge gained through hot reading they are even more credible. This
credibility may lead in the client being more likely to believe claims that
they are under a curse or that they need to buy an expensive charm to protect
them, which can be part of larger criminal frauds.
Even
without those criminal activities, the fact that cold and hot reading
techniques have been exposed by former psychics and professional skeptics means
that someone who is hiring a fortune teller cannot know immediately if they are
dealing with someone who truly has a gift, or is using these techniques.
Fortune telling is an example of a post-experience good where consumers may not
know the quality of the good even after using it since they may not know if the
predictions are truly from the beyond, or simply guesses from someone who
appears to have insight through other means.
Skeptics
would say that all fortune tellers use these methods, and that is one reason
that the industry should be banned. However, for believers the fact that some fortune
tellers are frauds does not mean that they all are. What both sides can agree
on is that some percentage of fortune tellers do not actually have the skills
they report to have, and that consumers can’t clearly tell the real from the
fake.
Some
number of people purporting to be fortune tellers use the position to find
targets for criminal activity.
Jude Deveraux’s marriage was failing and her son had recently
died. Depressed and desperate she went to a psychic for advice. Over the next
seventeen years Deveraux would continue to see the psychic and was amazed at
the accuracy of her readings. Soon, the psychic was offering to help her ease
problems in her life by conducting rituals. $1,200 for a ritual that would
insure an easy divorce. One million dollars for use in a ritual that would help
her son be reincarnated back into her life. When Deveraux would become
suspicious something amazing would happen to convince her that the psychic was
real. Former Secretary of State Colin Powell began a romantic correspondence
with Deveraux, just as the psychic had predicted. She came into contact with a
woman who had given birth to Deveraux’s child after a mix up at a fertility
lab, a story which the psychic had explained even though the lab denied it.
Through it all the psychic needed more and more money to use in rituals to keep
Deveraux’s family safe.
In 2013 Deveraux saw her psychic for the last time. It
was in a court room where Deveraux was having to embarrassingly testify that
she had fallen victim to a con artist for over 17 million dollars. The letters
from Powell were really from a friend of the psychic. The child from the in
vitro mix up was the psychic’s nephew. The money hadn’t been destroyed in a
ritual, but kept by the psychic, who was found guilty and sentenced to ten
years in federal prison for the fraud committed on Deveraux on others.
Some
people would argue that there is no real difference between the fortune teller
who defrauded Deveraux and the fortune teller using cold reading techniques;
both are committing frauds. Yet, it seems important to draw a distinction
between the pretender fortune teller and they type of large scale criminal
activity used against Deveraux. The fortune teller who lacks actual ability
must still satisfy their client’s desire for information. If it doesn’t come to
pass then they will not come back in the future. On the other hand, the
criminal psychic will deceive the client into believing the prediction DID
happen. There is a difference between the fraudulent fortune teller making a
general statement about meeting a man, and hiring someone to pretend to be that
man to gain the credibility of the client.
Since
many people turn to fortune tellers during times of emotional crisis, the
position can be used as a “roper” to capture targets for large scale frauds and
theft. In the 1920s Medium H.E. Parker ran a scam where he would claim that
spirits were suggesting the purchase of certain stocks which just happened to
be owned by associates.[22] One of the most common
types of criminal frauds conducted by fortune tellers is the bujo or egg scam,
which is described by the Illinois State Police in this fictional example:
After several visits, Jane is told
the "dark evil" surrounding her life is being caused by her late
husband's insurance money. The "psychic" rubs an egg around Jane's
body to absorb some of the evil. When the egg is cracked open, an ugly,
disgusting mass (usually made up of hair, bread, and maybe a small plastic
devil's head) is discovered inside the egg. The "psychic" tells Jane
she must bury the insurance money in the graveyard. Jane is understandably
reluctant to perform such an act. The "psychic," pretending to be a
compassionate person, volunteers to bury the money for Jane (the psychic buries
the money right into her own pocket).[23]
Similar
to the bujo is the bag scam, where someone is told that they must make a
sacrifice to lift a curse on them. The sacrifice normally takes the form of
money which is placed in a bag and set on fire. Only the bag has been swapped
out and the fire is burning worthless paper. [24]
In these cases the fortune teller is taking property
under false pretenses and not providing the service for which they have been
contracted. While laws against theft and fraud already cover these crimes the
unique relationship of trust given to the psychic can make these cases
difficult to detect and prosecute. In the bag switch scam, a victim may not
even realize that a theft has been committed since they believe the money to
have been destroyed. Other victims may not come forward because they are
embarrassed to admit they believed in the paranormal. Without victims making
reports, law enforcement is almost powerless to detect these types of frauds.
How
These Four Factors Work Together
There is a demand for fortune tellers but no clear way to
test to see if a fortune teller is qualified. We know that some number of
fortune tellers do not have the abilities they attest to, and that some number
have criminal motivations.
It may help to place fortune tellers into one of four
groups based on their legitimacy and mendacity. We have the legitimate psychic
criminals, the fraudulently psychic criminals, the legitimate non-criminal
psychics, and the fraudulent non-criminal psychics. A perfect regime would be
one where only the legitimate non-criminal psychics would practice, however the
lack of any test makes this difficult. Since there is no accepted way to
determine legitimacy, we must instead shift to try and prevent clients from
coming into contact with a criminally minded fortune teller.[25]
Section Two: The
Beckerian Offender Model
A community looking to prevent the negatives of psychics,
such as fraud or deception, while also maintaining the potential benefits of
psychics, accurate information or a sense of well-being from the service, can
use law and economics to determine how to best craft their laws so as to
dissuade criminal elements while still allowing some people to practice.
In his 1974 essay Crime and Punishment: An Economic Approach,
Gary S. Becker applied theories of rational markets to the criminal arena in
creating a model to determine the optimal levels of crime.
To understand Becker’s paper, one must begin by accepting
the premise that committing a criminal act is like any other market transaction
where one is expecting a certain benefit in exchange for a certain price, the
only difference is that the price paid by the criminal is not only the cost of
the tools needed to complete the offense but also the potential cost of being
caught and punished. This premise is not incompatible with other theories of
criminology that focus on moral reasoning or socialization, nor does it demand
that the offender be logical or emotionless in order to be considered a
rational actor. Becker was simply saying that someone decides to commit an
offense because their perceived benefit is greater than their perceived cost,
including the potential of punishment.
B>C+S(p)
B=benefit, c=cost
S=saction p=probability
To demonstrate this theory, imagine a city that charges
$10 an hour for parking or issues a $5 fine for those who park without paying.
If the town only issues one ticket per vehicle each day, then everyone should
park illegally because they will be saving money by doing so. Put into the
Beckerian equation the benefit gained is the value of the spot ($10 per hour at
least), there is no immediate cost, your sanction is $5. Even if the
probability of getting caught was 100%, it would still make sense to illegally
park in this town because the benefit is at least $10 which is greater than the
maximum cost of $5.
Even in this system there may still be people who pay the
fee instead of risking the fine, but it isn’t because they are not rational,
but because their perception of the values of the equation are different. For
example, the Mayor of the town might always pay the parking fee because they
know that their potential sanction for not paying will be negative publicity or
stigma related to the act. Or some who takes pride in their record of never
breaking the law would experience a cost for parking illegally that the general
case doesn’t. The people deciding not to park illegally are still making the
same rational decision as everyone else, they just have personalized factors to
take into account that change the balance of the equation. As Becker notes
“Some persons become “criminals,” therefore, not because their basic motivation
differs from that of other persons, but because their benefits and costs
differ.”
Under the Beckerian equation, policies looking to reduce
crime need to either reither decrease the left side of the equation or increase
the right. In our example, dropping the value of the parking spot from $10/per
hour to $1/per hour would reduce the number of people parking without paying
because the benefit of doing so is lessened. Similar reductions in offenses can
be found by increasing the equation on the right side, either by increasing the
cost, the perceived sanction, or the perceived probability of being sanctioned.
Increasing the cost of a ticket for illegal parking from $5 to $150 will reduce
the number of those who refuse to pay the fee. The amount that it will reduce
it is based on the perceived probability of being sanctioned. Someone who sees
a traffic warden writing tickets on the block is more likely to pay the parking
fee than someone who knows that the area doesn’t have enforcement agents
working. As the probability of sanction increases, the number of offenders
decrease.
Of course not all people will react identically to these
changes in probability and sanction. Becker noted that risk neutral people
would be equally impacted by a change in sanction or an equivalent change in
probability, so twice the sanction would deter as many risk neutral people as a
sanction that you are twice as likely to receive. However, some people are risk
averse and are more likely to be deterred by a change in sanction than one in
the probability of receiving the sanction. Consider these the pessimistic sort,
the ones who assume that they will definitely get caught any time they violated
the law. On the other hand, the risk seeking individual is one who assumes that
they will not be caught and so they are not deterred by increased sanctions.
After all, you will only be punished if you get caught! For that reason the
risk seeking are more motivated by increased enforcement which leads to a
greater probability of getting captured than a similar increase in sanctions.
The offender model was only one part of Becker’s paper,
which addressed optimum levels of crime. The idea that some non-zero level of
crime would be optimal seems wrong at first glance. However, it if a concept
that we understand and have used in our own lives, although likely
subconsciously. Think about what security system you have at your home. A
locked door offers more protection than an open one, but an alarm offers even
more protection, and a 24-hour private guard offers even more protection. Yet,
we don’t all have full time guards, or even alarm systems, because we have
decided that the cost of these measures are not worth the increased protection.
We accept that some level of burglary is an acceptable trade-off instead of
paying for those protections.
In the same way, there comes a point where the societal
costs of crime are not worth the extra costs that would be necessary to prevent
that crime. When looking at how various laws impact the offender model, we have
to keep in mind what the cost are of crimes being prevented and how much it will
cost for enforcement and punishment.
Section Three: Regulatory
Regimes and the Offender Model
Attempts to limit the negatives of fortune telling have
focused either on total bans or licensing. In order to compare these options,
we can compare two states: New York who has a ban on fortune telling and
Massachusetts who uses a licensing regime.
Under
New York law
“A person is
guilty of fortune telling when, for a fee or compensation which he directly or
indirectly solicits or receives, he claims or pretends to tell fortunes, or
holds himself out as being able, by claimed or pretended use of occult powers,
to answer questions or give advice on personal matters or to exorcise,
influence or affect evil spirits or curses; except that this section does not
apply to a person who engages in the aforedescribed conduct as part of a show
or exhibition solely for the purpose of entertainment or amusement. Fortune
telling is a class B misdemeanor.”
The New York ban is broad enough to cover all types of
fortune telling and mediumship, including astrology, which would be covered
under the section on giving advice on personal matters. The previous version of
the law, which only forbade fortune telling, was found not to apply to
astrologers who the court said were giving character readings and advice.[26]
The New York ban also focuses on those who claim to be
able to tell fortunes, overcoming one of the problems with a similar ban in
Illinois which made it illegal to “obtain money or property from another by
fraudulent devices and practices in the name of… fortune telling“.[27] Courts found that the
phrase “fraudulent device and practices” meant that there needed to be an
intent to defraud, so those who legitimately believed in their abilities could
not be prosecuted.[28]
While the New York ban fills these gaps, it does leave
open a fairy large exemption for fortunes given for entertainment purposes
only. A note in the window or on a website would seem to satisfy this
disclaimer, and that is indeed what is done by many practicing fortune tellers
in New York.[29]
Using this loophole, or simply ignoring the law, many
fortune tellers operate throughout the Empire State. A search on Yelp found 374
psychics and astrologers in New York City, and an analysis of the psychic
service industry found that 7.4% of the nation’s fortune tellers were located
in New York State. To put that into perspective, New York has about 6.2% of the
US population so the number of psychic services located there are slightly more
than what you’d expect if they were equally distributed by population.[30]
Clearly the ban has not resulted in an elimination of the
industry. In part because the enforcement of the ban seems to be fairly rare.
Only 10 people were charged with the misdemeanor crime of practicing fortune
telling between January 2010 and August 2011, which is punishable by 90 days in
jail or a $500 fine. In part this appears to be because law enforcement does
not consider violations of the law to be pressing matters. This might be
because they do not view the savings to society by preventing these crimes to
be worth the cost of enforcement. In other words, illegally operating fortune
tellers might be an optimum level of offence for the current law enforcement in
New York, which explains why they are not arresting more people for violating
the law. Even the larger criminal frauds involving fortune tellers may be
overlooked by law enforcement, who may mistakenly believe the issue is one for
a civil court.[31]
While New York’s ban on fortune telling doesn’t seem to
have impacted the availability of the service, it may signal a stigma on
victims. After all, a community that bans the practice of fortune telling is
seemingly coming down on the side of Houdini and other skeptics who do not
believe that paranormal experiences exist. There is a potential area of
research to see if communities with psychic bans treat potential victims of
criminal psychics more harshly than other communities that may be more
publically accepting of believers.
We can compare New York’s ban to the licensing regime in
Massachusetts which says
No person shall
tell fortunes for money unless a license therefor has been issued by the local
licensing authority. Said license shall be granted only to applicants who have
resided continuously in the city or town in which the license is sought for at
least twelve months immediately preceding the date of the application. No such
license shall be transferred or assigned. Unless otherwise established in a
town by town meeting action and in a city by city council action, and in a town
with no town meeting by town council action, by adoption of appropriate by-laws
and ordinances to set such fees, the fee for each license granted under this
section shall be two dollars, but in no event shall any such fee be greater
than fifty dollars. Whoever tells fortunes for money unless licensed under this
section shall be punished by a fine of not more than one hundred dollars.
Massachusetts’s
fortune telling licenses are not expensive, a maximum of $50, which is low
compared to other similar laws. Virginia allows local authorities to charge up
to $1000 for a license[32]. An unreasonably high
license fee may function as a de facto ban shifting fortune tellers to nearby
places without the fees. North Carolina allows local governments to issue a
“privlege license tax” on fortune tellers with no limitation.[33] As a result a fortune
teller in Jacksonville, NC would need to pay $1000 each year to do business in
that city, but no additional fees for the fortune teller operating outside the
city limits in unincorporated Onslow County.
Along with the lower fees, Massachusetts is also unusual
because it does not require a background check to be issued a license. While
the state law only requires a 12 month residency, the local licensing
authorities have the authority to ask for more. Plymouth, Salem, and Boston all
require criminal background checks for anyone wanting to get a fortune telling
license. This is an important part of any licensing regime since it works to
prevent the known criminal fortune tellers from working legally within the
state.
Massachusetts allows local licensing authorities the
power to tailor the rules for fortune tellers to their specific circumstances.
This is especially important in Salem, which is a popular tourist destination
for believers in the Occult because of its association with the witch trials of
Colonial times. In an effort to prevent the town from being overrun with psychic
practioners. In 1998 the city set a quota allowing one psychic license per
10,000 residents. Along with a grandfathering rule, this allowed about a dozen
psychics in town. However, the law did not require temporary fortune tellers,
who would come to town as part of fairs during the Halloween tourist season,
which upset residence who were unable to be licensed and made it hard to protect
tourists.[34]
In 2007 the town eliminated the quota, but began requiring temporary fortune
tellers to contract with one of the licensed businesses in town. Complaints may
also be made to a licensing board, who reserve the right to withdraw a license
at any time, and has at least once.[35] Being able to go to a
licensing board instead of law enforcement, especially of the board is made up
of people sympathetic to the contention that psychics are real, may increase
the number of complains made by victims who feel more comfortable talking to
like-minded people. It also better aligns the cost of enforcement with the
benefits to society since licensing hearings are less expensive than criminal
proceedings. Those who are practicing without a license are commiting a strict
liability crime, which also reduces the costs of enforcement since there is no
element of mens rea needed to prove.
To compare how these different regimes impact the
criminal offender, we need to go back to the Becker formula:
B>C+S(p)
B=benefit, c=cost
S=saction p=probability
When we compare a neutral regime (one with no additional
regulation of fortune telling other than existing laws) to the regimes that ban
fortune telling and those that license it, there are some factors that are
common in all of them. All three regimes still have laws against fraud and
theft which are a concern for criminal fortune tellers. They also share similar
costs in setting up the fortune telling business. Since these factors exist in
all three regimes we can remove these costs and sanctions from the comparison.
One thing that is potentially different is the
probability of being sanctioned for fraud or theft. We have to consider if a
victim of fraud or theft is more likely to 1) know they are a victim 2) contact
law enforcement and 3) have law enforcement pursue a case. In all three regimes
the first factor is probably the same, but a licensing regime may foster people
to come forward because they are not afraid of the stigma of believing in the
paranormal. This is speculative however, and further study would be needed to
determine if banning fortune telling impacted the likelihood of victims to come
forward, and the likelihood of cases to be pursued.
In the banned regime there is an additional sanction to
be considered, that of the crime of fortune telling. However, the number of
fortune tellers still operating in New York in spite of the ban seems to show
that this is not a serious limitation on entry. What is interesting is to
consider if the people who are likely to become a fortune teller in spite of
the ban are more likely to flout other laws. In other words, are the people who
become fortune tellers in spite of the laws against it more likely to commit
other crimes, such as the frauds that concern us most? That certainly seems
possible. A risk averse person, the type who is more likely to focus on the
existence of the sanction than the probability of receiving it, will likely be
dissuaded by the ban on fortune telling since they will assume that they will
be one of the few people caught and punished under the law. It would follow
that risk seeking and risk neutral people would continue to practice even when
fortune telling is banned. The lack of enforcement in New York, our example of
a state with a ban on fortune telling, seems to increase the chances of
interaction with one of the criminal fortune tellers than there would be in the
neutral or licensing regime.
If a ban may scare off the risk averse fortune tellers,
the largest concern with a licensing regime is that it confers legitimacy onto
psychics that they do not deserve. The fear is that people who are currently on
the fence about seeing a fortune teller will be more likely to visit one when
they can show they are licensed. The license may reduce the natural skepticism
in a client which will make them more compliant if they are told to bring in
money or property.
On the other hand, the licensing regime has the benefit
of adding to the potential sanctions and the probability of enforcement. The
sanctions are increased since having a clean criminal record is necessary to
have a license, and so along with the sanctions for fraud there is an
additional sanction of the loss of the license and the ability to practice in
the future. The fact that the license is in the real name of the fortune teller
means that attempts to evade detection by false names will be more difficult.
The 12 month residency requirement limits the ability of fortune tellers to go
from town to town fleecing victims and evading the police. By increasing both
the sanction and the probability of sanction, the licensing regime impacts all
risk levels instead of just the risk averse.
One of the most intriguing options was the Salem quota
regime. The benefit of this system is that the people in the community who want
one of the licenses, but were not able to get one, can act as an enforcement
mechanism. People in the fortune telling community are the ones who are most
likely to hear about problems with other fortune tellers and should be
incentivized to come forward. An opportunity to free up one of the limited
licenses would be that type of incentive. Even though the city no longer uses
the quota, it remains an interesting policy option since it increases community
enforcement and overcomes the problem of getting victims to talk to law
enforcement.
Conclusion
Licensing of fortune tellers may be mocked by
libertarians, and frowned upon by skeptics and believers alike, however by
looking at it through the Beckerian model it seems to work on reducing criminal
behavior by increasing the sanctions and probability of detection over other
regulatory options. By requiring a clean background check the licensing regime
creates additional sanctions for anyone who is convicted of criminal fraud.
Fingerprinting and licensing under a real name increases the probability of
detection by making it easier for police to catch a criminal fortune teller. A
licensing regime may also help increase enforcement by allowing victims to go through
the less stressful administrative complaint procedure instead of dealing with
law enforcement. By impacting both the sanctions and the probability of
enforcement the licensing regime will influence the behavior of all risk
levels, as opposed to bans which will work to deter the risk neutral and risk
averse. Licensing regimes may be even more effective by limiting the number of
licenses to incentivize those wanting to enter the market to detect bad actors.
Licensing can be a legitimate option for policy makers trying to prevent
criminal activity, although the lack of public support for these regimes shows
that the public does not understand the mechanism by which it works.
[1] http://www.parliament.uk/about/living-heritage/transformingsociety/private-lives/religion/overview/witchcraft/
[2]
The act is clear in its focus on fraud, saying that the purpose of the act
was“for the more effectual preventing and punishing of any pretences to such
Arts or Powers as are before mentioned, whereby ignorant Persons are frequently
deluded and defrauded.” A copy of the
Act is available at https://scholar.vt.edu/access/content/user/tmcasey/Portfolio%20Resources/Witchcraft%20Act%201736.pdf
[3]
Cathy Gutierrez, Spiritualism: Communion with the Dead. Religion Compass, Vol
4, Issue 12, pages 737-745, Dec 2010.
[4]
Gary Laderman and Luis D. León, Religion and American Cultures: An Encyclopedia
of Traditions, Volume 1
page 390
[5]
Fortune Telling Hearings before
the subcommittee on judiciary of the committee on the district of Columbia of
representatives sixty-ninth congress first session on HR 8989, Page 15.
[6]
Id, Page 78.
[7]
Ramesh Ponnuru, Is Your Fortune Teller Licensed, Bloomberg, March 28, 2014.
Available at https://www.aei.org/publication/is-your-fortune-teller-licensed/
[8] http://www.hollywoodreporter.com/live-feed/tlc-renews-90-day-fiance-692908
[10]
Britanny Carter, Ibis World Industry Report September 2014, Psychic Services.
[11]
Jon Methven, Dude, Where’s My Horoscope. The Atlantic. July 11, 2014. Available
at http://www.theatlantic.com/business/archive/2014/07/dude-wheres-my-horoscope/374258/
[12]
Britanny Carter, Ibis World Industry Report September 2014, Psychic Services.
[13] Greenaway
KH, Louis WR, Hornsey MJ (2013) Loss of Control Increases Belief in
Precognition and Belief in Precognition Increases Control. PLoS ONE 8(8):
e71327. doi:10.1371/journal.pone.0071327
[14] Lindeman,
Marjaana. Aarnio, Kia. European Journal of Personality20.7 (Nov 2006): 585-602.
[15] Hergovich,
Andrea. The effect of pseudo-psychic demonstrations as dependent on belief in
paranormal phenomena and suggestibility. Personality and Individual
Differences36.2 (Jan 2004): 365-380.
[16] http://www.koestler-parapsychology.psy.ed.ac.uk/research.html
[17]
Glenn McDonald. Whatever Happened to Parapsychology. Discovery News, June 24
2013. Available at http://news.discovery.com/human/psychology/whatever-happened-to-parasychology-1306241.htm.
[18]
Chris French. Scientists Put Psychic’s Paranormal Claims to the Test. The
Guardian, May 12, 2006. Available at http://www.theguardian.com/science/2009/may/12/psychic-claims-james-randi-paranormal.
[19]
Hollie McKay. Celebrity psychic Sylvia Browne hit for telling mom of Amanda
Berry she was dead. Fox News, May 9, 2013. Available at http://www.foxnews.com/entertainment/2013/05/09/celebrity-psychic-sylvia-browne-under-fire-for-telling-amanda-berrys-mom-was/
[20]
For more on the Barnum effect see Forer, B. R. (1949). The fallacy of personal
validation: A classroom demonstration of gullibility. Journal of Abnormal and
Social Psychology, 44, 118-123. An online personality profile based on the
Barnum Effect is available at http://psych.fullerton.edu/mbirnbaum/psych101/LittleBig5B.htm.
[21]
Leon Jaroff, Talking to the Dead. Time Magazine, Feb. 25, 2001.
[22] Fortune
Telling Hearings Page 141
[23]
Common Citizen Scams. Illinois State Police. Available at http://www.isp.state.il.us/crime/citizenscam.cfm
[24] Noreen
S. Ahmed-Ullah. Losing a Fortune to Psychics. The Chicago Tribune, January 15,
2000. Available at http://articles.chicagotribune.com/2000-01-15/news/0001150199_1_psychic-con-artists-israeli-woman
[25]
Of course, the legitimate psychic with criminal designs is likely unstoppable.
Any attempts to capture this person would be impossible since they would be
able to avoid detection perfectly.
[26]
See Pellman v Valentine (1945) 185 Misc 873, 57 NYS2d 617
[27] Section
1988 of the Chicago Code of 1911
[28]
See Chicago v Payne (1911) 160 Ill App 641 and Chicago v Westergren (1912) 173
Ill App 562.
[29] http://www.nytimes.com/2011/08/06/nyregion/in-new-york-fortunes-told-and-too-often-taken.html?_r=0
[30]
IBIS Report.
[31]
The article When Is Fortune Telling a Crime from the November 2014 issue of The
Atlantic (available at http://www.theatlantic.com/business/archive/2014/11/when-is-fortunetelling-a-crime/382738/?single_page=true)
details the problems that one victim had in trying to get New York City law
enforcement interested in prosecuting a case against the psychic who took over
$55,000 in order to remove a curse.
[32] VA
Code Ann. § 58.1-3726
[33]
[N.C. Gen. Stat.
§§ 153A-152, 160A-211, and 105-58]
[34] http://content.time.com/time/nation/article/0,8599,1654386,00.html
[35] http://www.popsci.com/blog-network/unpopular-science/regulating-fantasy-psychics-salem
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