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Preview: Jacob Sullum: Reason Magazine articles.

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Updated: 2017-08-23T00:00:00-04:00

 



Forfeiture Loot Corrupts Justice

2017-08-23T00:01:00-04:00

In Ohio during the 1920s, people caught with "intoxicating liquors" could be tried by rural mayors, who were paid for each conviction and authorized to impose fines that were split between the village and the state. Four decades later, mayor's courts in Ohio were handling traffic cases, which did not reward the mayors directly but generated substantial income for their villages. According to the U.S. Supreme Court, both of these arrangements violated the right to due process, since the judges had a financial incentive to find people guilty. Civil asset forfeiture creates a similar problem, encouraging police and prosecutors to take property from innocent owners and turn a deaf ear to their objections. That is what happened to Rhonda Cox, whose pickup truck was seized in 2013 by Pinal County, Arizona, sheriff's deputies when they arrested her son for installing stolen parts in it. Cox argues that the forfeiture violated her right to due process, and last week a federal judge refused to dismiss her lawsuit, recognizing the constitutional concerns raised by a system that lets law enforcement agencies make money by confiscating assets they say are linked to crime. In Arizona, U.S. District Judge Diane Humetewa noted, the law enforcement agencies that initiate and complete a forfeiture get to keep all of the proceeds. Some agencies, such as the Arizona Department of Public Safety's bomb squad, SWAT team, and hazardous materials unit, are funded entirely by forfeitures, while others rely on them to pay for vehicles, equipment, overtime, retirement fund contributions, and image-building donations to local civic groups. According to Cox's complaint, Lando Voyles, who as Pinal County attorney approved the confiscation of her truck, even used forfeiture loot to pay for his home security system. This financial interest tends to make cops and prosecutors less than sympathetic to the rights of innocent property owners like Cox, who did not know her son had borrowed her truck, let alone that he was doing anything illegal with it. The deputies who took the truck said there was no way she'd ever get it back, and Voyles' office rejected her "petition for mitigation" out of hand, claiming (incorrectly) that she was not entitled to relief because she had purchased the truck for family use. Deputy Pinal County Attorney Craig Cameron also claimed, inconsistently, inaccurately, and irrelevantly, that Cox was a "straw buyer" for her son. "Rhonda was caught in a Kafkaesque predicament where, bizarrely, she bore the burden of proving that she was entitled to get the Truck back," her complaint notes. "The State did not have to prove that Rhonda did anything wrong—let alone criminal—in order to keep the Truck." Cox could not afford to take her challenge further, especially since the cost of a lawyer could easily have exceeded the $6,000 she paid for the truck. Under state law at the time, she also would have been on the hook for the government's legal expenses if she lost. The American Civil Liberties Union, which is representing Cox, notes that forfeitures in Pinal County frequently involve property worth less than $1,000, making legal challenges prohibitively expensive. That effectively means the agencies that stand to profit from a forfeiture are the first and final arbiters of whether it's justified. Even prosecutors understand the potential for corruption in this situation. A training presentation from the Arizona Prosecuting Attorneys Advisory Council, which Judge Humetewa quotes in her ruling, warns that "when your bosses can't find any money in their budget they get depressed," and "when they get depressed they tell you to start doing forfeiture cases." Playing off those jokey Direct TV ads about the hazards of cable, the downward spiral continues until cops "start seizing everything in sight," "screw things up," and "ruin forfeitures for all of us." Although the slide is supposed to be an admonition about the need for "educated, ethical and professional" forfeiture practices, it is really a lesson about the hazards of lega[...]



Trump’s Opioid Emergency Response

2017-08-16T00:01:00-04:00

Last week Donald Trump promised to "spend a lot of time, a lot of effort, and a lot of money on the opioid crisis," which he declared a "national emergency." Judging from the president's campaign rhetoric and his comments since taking office, which have focused on building a border wall to "stop the drugs," much of that time, effort, and money will be devoted to erecting barriers between Americans and the intoxicants they want. That supply-side approach has been failing for more than a century, and it seems doubtful that Trump will be the man to finally make it work. But he may very well succeed in exacerbating the problem he is trying to solve. To understand how, consider recent trends in opioid use. Since 2010 or so, heroin use has been rising while nonmedical use of narcotic painkillers has been falling. Many of those new heroin users are former prescription opioid users driven to a black-market alternative by the government's crackdown on painkiller prescriptions. That switch exposed them to much higher risks. The U.S. Centers for Disease Control and Prevention (CDC) attributed 18,893 deaths to opioid analgesics in 2014. It attributed 10,574 to heroin, which was used by less than a tenth as many people. By that measure, heroin was more than five time as dangerous. "I used to take just the pills, and then I started doing dope, the heroin, only when I could get it, when it was cheaper," said an opioid user interviewed for a study recently reported in the International Journal of Drug Policy. "But I don't prefer it because you never know what you're getting. It's scary." In recent years the unpredictable potency of heroin has been magnified by increased adulteration with fentanyl, a synthetic narcotic that is roughly 40 times as potent. "Heroin fluctuation in purity is a known overdose risk," notes another study in the same journal, "and the presence of illicit synthetic opioids contaminating the heroin supply has led to a particularly erratic 'street dope' market that multiplies this risk." These two developments—novice heroin users accustomed to the reliable doses of prescription opioids, plus greater variability in potency thanks to more use of fentanyl and its analogues—may help explain the strikingly disproportionate increase in heroin-related deaths during the last decade. Between 2007 and 2015, the number of heroin users (as measured by the National Survey on Drug Use and Health) more than doubled, while heroin-related deaths more than quintupled, from about 2,400 to nearly 13,000. The government has contributed to these deaths in several ways. It created a black market in which drug users do not know what they are getting, encouraged traffickers to move toward increasingly compact and potent products (such as fentanyl), and reduced access to less dangerous alternatives (such as prescription painkillers). Carrie DeLone, Pennsylvania's former physician general, recently confessed that "we knew that this was going to be an issue, that we were going to push addicts in a direction that was going to be more deadly." Her justification: "You have to start somewhere." Why not start with policies that might save lives instead of killing people? In addition to lifting restrictions on buprenorphine-based treatment and increasing access to the overdose-reversing opioid antagonist naloxone, the government can shield bystanders from criminal charges when they call for help in response to an overdose, provide honest information about ways to reduce the hazards of drug use (such as not taking opioids in combination with other depressants), promote drug testing services that can alert heroin users to the presence of adulterants such as fentanyl, and tolerate safe injection facilities where people can use drugs in a sanitary environment under medical supervision. Trump can try to "stop the drugs," which will increase the dangers faced by people who manage to use them anyway. Or he can try to reduce the harm associated with opioid use, including the harm caused by prohibition. © Copyrigh[...]



Sessions Stays Off the Grass

2017-08-09T00:01:00-04:00

Attorney General Jeff Sessions has moved swiftly to encourage the use of mandatory minimum sentences and civil asset forfeiture, two major weapons of a war on drugs he seems bent on escalating. But six months after taking office, Sessions, despite his well-known anti-pot prejudices, has not challenged the legalization of marijuana in any serious way, and it is starting to look like he may never do so. Last week the Associated Press reported that an advisory panel Sessions charged with studying the issue "has come up with no new policy recommendations to advance the attorney general's aggressively anti-marijuana views." While that may seem surprising, there are sound practical and political reasons for Sessions to think twice before trying to shut down the state-licensed marijuana businesses that blatantly violate federal law every day. Sessions has made no secret of his displeasure at the ongoing collapse of marijuana prohibition. But so far his concerns have not resulted in any prosecutions, forfeitures, or even threatening letters. Nor has he tried to challenge state marijuana laws in federal court. Instead Sessions has been waiting for advice from the Justice Department's Task Force on Crime Reduction and Public Safety. According to the A.P., which obtained parts of the task force's unpublished interim report, that advice is "vague" and "tepid," recommending a wait-and-see approach little different from the Obama administration's. The report does say the Justice Department "should evaluate whether to maintain, revise or rescind" the 2013 memo from Deputy Attorney General James Cole that established a policy of prosecutorial restraint regarding state-legal cannabusinesses. But the task force does not advocate any of those options, and Sessions does not seem inclined to scrap the Cole memo, which he has called "truly valuable in evaluating cases." The memo leaves lots of leeway for more vigorous enforcement of the federal ban on marijuana. It lists eight "enforcement priorities" that could justify federal action against state-licensed marijuana producers and distributors, several of which are so ambitious (e.g., preventing marijuana from crossing state lines) or so broad (e.g., preventing "adverse public health consequences") that they could always be used as a pretext for prosecution. Sessions, who as a senator complained that the Obama administration was not taking the memo's conditions seriously enough, recently sent Washington Gov. Jay Inslee and Attorney General Bob Ferguson a letter asking how they plan to address several concerns related to the enforcement priorities, including interstate smuggling, stoned driving, and underage consumption. If he is not satisfied by their response, Sessions theoretically could take matters into his own hands, but a cannabis crackdown would not necessarily deliver results he likes. Since all but one of the eight states that have legalized marijuana for recreational use allow home cultivation, shutting down state-licensed cannabusinesses would undermine federal enforcement priorities by making production and distribution less visible and harder to monitor. So would a lawsuit that successfully challenged state licensing and regulation of marijuana merchants as contrary to the Controlled Substances Act. Sessions also may be reluctant to further irk a boss who has been publicly castigating him for weeks over his handling of the investigation into Russian meddling in the presidential election. While running for president, Donald Trump repeatedly said he favors allowing medical use of marijuana, as 29 states now do. Trump was less keen on legalizing recreational use but said the decision should be left to the states. Abandoning that commitment to marijuana federalism would be politically risky. According to a Quinnipiac University poll completed last week, 61 percent of Americans support marijuana legalization, which makes that policy considerably more popular than Trump. An even larger majority, 75 percent, opposes fede[...]



The FDA Warms to Vaping

2017-08-02T00:01:00-04:00

On the face of it, the decision that the Food and Drug Administration (FDA) announced on Friday, extending by four years a crucial deadline for e-cigarette manufacturers to seek approval of their products, was no more than a stay of execution. But the FDA also signaled a new receptiveness to vaping as a harm-reducing alternative to smoking, which suggests this reprieve could turn into a commutation. That would be good news for smokers who want to quit and for anyone sincerely interested in helping them. For too long American public health officials have been unreasonably hostile to e-cigarettes, which are far less hazardous than the conventional kind and offer a closer simulation of the real thing than nicotine gum or patches do. Scott Gottlieb, the new FDA commissioner, seems to appreciate the public health potential of this innovation. "The overwhelming amount of death and disease attributable to tobacco is caused by addiction to cigarettes," he says. "Envisioning a world where cigarettes would no longer create or sustain addiction, and where adults who still need or want nicotine could get it from alternative and less harmful sources, needs to be the cornerstone of our efforts—and we believe it's vital that we pursue this common ground." Gottlieb's vision of nonaddictive cigarettes involves mandating a gradual reduction in nicotine content, which would increase the risks that smokers face by forcing them to absorb more toxins and carcinogens for the same dose of nicotine. But his interest in less dangerous alternatives to cigarettes is encouraging. The FDA says "a key piece" of its new approach is "demonstrating a greater awareness that nicotine—while highly addictive—is delivered through products that represent a continuum of risk and is most harmful when delivered through smoke particles in combustible cigarettes." The agency wants to strike "an appropriate balance between regulation and encouraging development of innovative tobacco products that may be less dangerous than cigarettes." Toward that end, the FDA is giving e-cigarette companies until August 8, 2022, to apply for permission to keep their products on the market under regulations published last year, rather than the original deadline of November 8, 2018. The agency says it will use the extra time to seek additional public comment and develop clearer guidance for the industry. The 2016 regulations require manufacturers of vaping equipment and e-liquids to demonstrate that approval of their products "would be appropriate for the protection of the public health." It is not clear what that means in practice, but the FDA projected that applications would cost hundreds of thousands of dollars per product, and many observers thought that was an underestimate. To give you a sense of how expensive and burdensome the process was expected to be, the FDA anticipated that it would receive applications for just a tiny percentage of existing products. The implication was that the regulations would drive the vast majority of companies out of business. If the FDA is serious about making "less harmful sources" of nicotine "the cornerstone of our efforts," it will develop transparent, straightforward, and practical criteria for approval of current and new vaping products. Standing between smokers and products that can save their lives is surely not "appropriate for the protection of the public health." Nor is making those products less appealing by arbitrarily restricting flavors. Since supposedly "kid-friendly" e-liquids are very popular among adults who switch from smoking to vaping, it's a bit worrisome that the FDA plans to solicit public comment on regulation of flavors, which it acknowledges may be "helping some smokers switch to potentially less harmful forms of nicotine delivery." A recent BMJ study suggests that e-cigarettes have accelerated the downward trend in smoking and may account for the first increase in the cessation rate since the early 1990s. "These findin[...]



Jeff Sessions Lets Cops Be Robbers

2017-07-26T00:01:00-04:00

Donald Trump made two things abundantly clear during a meeting with county sheriffs last February: He did not know what civil asset forfeiture was, and he wanted to see more of it. The president will get his wish thanks to a directive issued last week by Attorney General Jeff Sessions, who has a clearer idea of what civil forfeiture entails but is only slightly more sensitive to its potential for abuse. That potential is built into the very concept of civil forfeiture, which allows police to take property allegedly tied to crime without charging the owner. Worse, law enforcement agencies get to keep revenue generated by forfeitures they initiate, which gives them a financial incentive to target people based on the assets they own rather than the threat they pose. In theory, the government can forfeit a seized asset only after proving it is a tool or fruit of crime, typically drug trafficking. But the burden of proof is much lighter than in a criminal case, and it applies only if the owner challenges the seizure in court, which often costs more than the asset is worth. Recognizing how easily innocent people can lose cash, cars, and homes to money-hungry cops, two dozen states and the District of Columbia have reformed their forfeiture laws since 2014. The changes include mandating data collection and reporting, strengthening standards of proof, and requiring a criminal conviction before some or all forfeitures. By reviving federal "adoption" of forfeitures initiated by state or local agencies, Sessions is offering cops who chafe at these restrictions the option of ignoring them. Adoption, which Attorney General Eric Holder mostly eliminated in 2015, lets police and prosecutors evade state limits on forfeiture and keep up to 80 percent of the proceeds. Seven states prohibit or restrict such circumvention. But in the rest, cops who do not like reforms aimed at protecting innocent property owners from legalized theft can once again easily dodge them with help from the Justice Department. Although Sessions pays lip service to the need for safeguards, he argues that innocent owners are rare. "Over the last decade," he says, "four out of five administrative civil asset forfeitures filed by federal law enforcement agencies were never challenged in court." According to Sessions, that means only a "small minority of cases" involve people whose property was seized for questionable reasons. But since challenging a forfeiture is difficult and may be prohibitively expensive, the failure to do so is hardly an admission of guilt. Sessions says a state or local agency seeking federal adoption of a forfeiture will have to provide "information demonstrating that the seizure was justified by probable cause." But in practice probable cause may be little more than a hunch—e.g., you've got a lot of cash, so you must be a drug dealer. And given the obstacles to recovering seized property, such vague, unsubstantiated suspicions may be all the government needs to keep it. The Fifth Amendment Integrity Restoration (FAIR) Act, reintroduced by Sen. Rand Paul (R-Ky.) in March, would withdraw Sessions' invitation to forfeiture abuse by abolishing federal adoption along with the rest of the Justice Department's so-called Equitable Sharing Program, which includes loot grabbed in the course of joint operations. The FAIR Act, which has bipartisan support, also would strengthen the standard of proof in federal forfeiture cases, require the government to show that the owner of seized property consented or was willfully blind to its illegal use, give indigent owners a right to counsel, and assign forfeiture revenue to the general fund instead of the Justice Department. Reforms like these should be supported by anyone who believes forfeiture "has become a tool for unscrupulous law enforcement officials, acting without due process, to profit by destroying the livelihood of innocent individuals, many of whom never recover the lawful assets[...]






Reefer Madness at The New York Times

2017-07-22T06:00:00-04:00

"The federal government should repeal the ban on marijuana," The New York Times declared in an editorial published on July 27, 2014. That week, the paper ran a series of essays fleshing out the case for legalization, including a piece in which editorial writer Brent Staples exposed the ugly roots of pot prohibition. "The federal law that makes possession of marijuana a crime has its origins in legislation that was passed in an atmosphere of hysteria during the 1930s and that was firmly rooted in prejudices against Mexican immigrants and African-Americans, who were associated with marijuana use at the time," Staples wrote. He mentioned "sensationalistic newspaper articles" that tied marijuana to "murder and mayhem" and "depicted pushers hovering by the schoolhouse door turning children into 'addicts.'" He did not mention that many such stories appeared in The New York Times. In the context of the era, when papers across the country were running news reports with headlines like "Evil Mexican Plants That Drive You Insane" (Richmond Times-Dispatch) and "Smoking Weed Turns Mexicans to Wild Beasts" (Cheyenne State Leader), the Gray Lady's marijuana coverage during the first few decades of the 20th century was not especially egregious. But to modern eyes, it is remarkably naive, alarmist, and racist. There were occasional bursts of skepticism, but in general the paper eagerly echoed the fantastical fearmongering of anti-drug crusaders such as Harry J. Anslinger, who ran the Federal Bureau of Narcotics (FBN) from 1930 to 1962. The path the Times traveled from promoter to opponent of pot prohibition parallels the journey of Americans generally, most of whom supported legalization by the time the paper's editorial board came around on the issue. In both cases, the single most powerful explanation for the reversal is growing familiarity with marijuana, which discredited the government's claims about its hazards. Since exotic intoxicants tend to be scarier than the ones you and your friends use, it is not surprising that fear of marijuana receded as direct or indirect experience with it became a normal part of adolescence and young adulthood. Conversely, people are much more inclined to accept outlandish claims about drugs they have never personally encountered. In that respect, the supposedly sophisticated and empirically grounded journalists employed by The News York Times are no different from their fellow citizens. 'Mexican, Crazed by Marihuana, Runs Amuck With Butcher Knife' On the face of it, the fact that marijuana seemed exotic to Americans at the turn of the 20th century is puzzling, since it was a common ingredient in patent medicines during the 19th century. Elixirs containing cannabis were sold as treatments for a wide range of maladies, including coughs, colds, corns, cholera, and consumption. An 1857 letter to what was then known as the New-York Daily Times even recommended "Cannabis Indica, the East Indian hemp, known most widely as Hesheesh," as "a sure counteractive to the poison of rabies." The letter cited "that famous benefactor to medical science," Irish physician William O'Shaughnessy, who encountered cannabis as a folk cure in India and introduced it as a medicine to Europeans in the early 1840s. By 1876, a Times story (reprinted from The Boston Globe) was describing cannabis as a medicine that "has been used by the faculty here with great success in cases of dropsy." But that was cannabis, a.k.a. Indian hemp. The first reference to "the Marihuana" in the Times, in a 1901 story with a Mexico City dateline, described it as "a harmless-looking plant" that "sends its victims running amuck when they awaken from the long, deathlike sleep it produces." The origin of the word marijuana (also spelled marihuana and mariguana) is uncertain. A quarter-century after the term first appeared in the Times, the paper's Latin American correspondent spec[...]



Do You Have a Right to Follow the President on Twitter?

2017-07-19T00:01:00-04:00

It will surprise no one familiar with Donald Trump's attitude toward criticism that people who make negative comments about him on Twitter may find their access to his account blocked. If Trump were an ordinary Twitter user, he would be well within his rights to shun anyone who offends him. But Trump is no ordinary Twitter user. He is the president of the United States, and he regularly uses his @realDonaldTrump account—which has 34 million followers, about 15 million more than the official @POTUS account—for presidential purposes. A federal lawsuit filed last week argues that Trump's current use of the Twitter account he established in 2009 makes it a "designated public forum," meaning that banishing people from it based on the opinions they express violates the First Amendment. The idea that you have a constitutional right to follow the president on Twitter is not as silly as it might seem. If the White House let visitors to its website post comments and used a filter to block criticism while allowing praise, that would pretty clearly violate the right to freedom of speech. The Knight First Amendment Institute at Columbia University, which filed the Twitter lawsuit on behalf of itself and seven Trump critics blocked by his account, argues that the president's viewpoint discrimination on the social media platform is analogous. The institute's beef is not with Twitter, a private company that is not constrained by the First Amendment, but with the president and his staff. If Trump used his Twitter account primarily to discuss golf, real estate, or his grandchildren, his criteria for granting access to it would not raise constitutional issues. But Trump uses his Twitter account primarily to discuss work-related subjects such as appointments, executive orders, international affairs, policy initiatives, and press coverage of his administration. Trump's tweets, some of which are posted by White House aides, routinely make news. Sometimes they announce major decisions, such as the appointment of a new FBI director, before any other source. The @realDonaldTrump profile lists his location as Washington, D.C., describes him as the "45th President of the United States of America," and displays official White House photos. The White House social media director describes @realDonaldTrump, along with @POTUS and @WhiteHouse, as a way of "communicating directly with you, the American people!" Trump's press secretary says his tweets are "official statements by the President of the United States." The National Archives and Records Administration agrees, meaning the tweets must be preserved along with other official records. Except for those specifically banned, Trump's Twitter account is open to all, and according to Bloomberg BusinessWeek "a typical Trump tweet" generates "20,000 or so replies." As a result, says the Knight First Amendment Institute, the @realDonaldTrump account has become "an important public forum for speech by, to, and about the President." Twitter users banned by Trump are largely excluded from that forum. They cannot follow him, see his tweets while logged onto Twitter, reply to them, debate other commenters, send direct messages to him, use Twitter's search function to locate specific Trump tweets, or see which accounts follow the president or are followed by him. Banned users can still see the president's tweets if they log out of Twitter, and they can evade the restrictions by creating new accounts under pseudonyms, although they run the risk of being banned again if they say something that irks the president. Alex Abdo, one of the attorneys behind the Twitter lawsuit, argues that "these possibilities are not constitutionally adequate alternatives for users blocked by President Trump any more than the possibility of reentering a town meeting in disguise, or listening in through an open window, would be a con[...]



Camera-Shy Cops Have No Legal Recourse

2017-07-12T00:01:00-04:00

Last month former FBI Director James Comey said he was relieved to hear there might be "tapes" of his conversations with Donald Trump, since the audio record would confirm his account of those interactions. Last year Comey was less keen on recordings of law enforcement officials, worrying that "viral videos" of police encourage a dangerous passivity that may contribute to rising homicide rates. Those dueling reactions reflect the dual potential of ubiquitous recording technology, which can expose bad behavior or exonerate cops falsely accused of it. Police across the country will have to adjust to the reality that any citizen with a smartphone can record them when they are on duty, because there is nothing they can legally do to stop it, as a federal appeals court confirmed last week. The decision, by the U.S. Court of Appeals for the 3rd Circuit, involved two incidents in which Philadelphia police officers forcibly interfered with people who were trying to record them. Such harassment, which often involves phone confiscation and trumped-up criminal charges, is sadly common, even though every federal appeals court to consider the issue has said it violates the First Amendment. In 2012 Amanda Geraci, a member of a police watchdog group, was observing an anti-fracking protest at the Philadelphia Convention Center when she tried to record an arrest. As the 3rd Circuit describes it, "An officer abruptly pushed Geraci and pinned her against a pillar for one to three minutes, which prevented her from observing or recording the arrest." In 2013 Richard Fields, then a Temple University sophomore, was standing on a sidewalk when he noticed cops breaking up a house party. After he took a picture and refused to leave the area, the police grabbed his phone and cited him for obstructing a public passage. After Geraci and Fields sued the cops and the city, the defendants did not challenge their claim that the First Amendment protects the right to record police in public places. That would have been hard to do, since the Philadelphia Police Department has officially acknowledged as much since 2011. Instead the officers argued that they should be immune from liability because the right to record the police was not "clearly established" when they violated it. U.S. District Judge Mark Kearney gave them a victory they were not seeking, saying what Geraci and Fields were trying to do was not sufficiently "expressive" to be protected by the First Amendment. According to the 3rd Circuit, Kearney missed the point. "This case is not about whether Plaintiffs expressed themselves through conduct," the appeals court says. "It is whether they have a First Amendment right of access to information about how our public servants operate in public….Recording police activity in public falls squarely within the First Amendment right of access to information." The appeals court nevertheless concludes that the law was not clear enough on this point in 2012 or 2013 to hold the officers responsible for violating it. As Judge Richard Nygaard notes in his partial dissent, that aspect of the ruling is hard to swallow. When the cops roughed up Geraci and detained Fields, four circuit courts had already ruled that recording police is protected by the First Amendment. Even more tellingly, Nygaard notes, "the Police Department's official policies explicitly recognized this First Amendment right well before the incidents under review here took place." The department's rule against interfering with recordings, established in 2011, was reiterated in 2012, when "the Department mandated that a sergeant read it at every roll call." Nygaard notes that "each police officer also received a copy of the Directive and was required to sign that they received it." Given this background, it's hard to believe the cops who assaulted Geraci and stole Fiel[...]



It's Not a Lie If the President Believes It

2017-07-05T00:01:00-04:00

Donald Trump views the mainstream press with contempt, and the mainstream press returns the favor. Or is it the other way around? Just as the president has trouble distinguishing between negative press coverage and "fake news," the journalists who cover him tend to treat every inaccurate, unfounded, or even debatable statement he makes as a lie. That mistake, to which I myself am sometimes prone, clouds the judgment and damages the credibility of reporters and commentators who aspire to skepticism but too often settle for reflexive disbelief. New York Times columnist David Leonhardt recently catalogued "nearly every outright lie [Trump] has told publicly since taking the oath of office." There are a lot of verifiably false assertions on Leonhardt's list, but it's an exaggeration to say every one of them is an "outright lie," which implies that Trump knew the statement was wrong when he made it and said it with the intent of misleading people. Take Trump's preposterous puffery about the size of the crowd at his inauguration. "It looked like a million, million and a half people," he said the next day in a speech at CIA headquarters. Four days later, Trump was still marveling at the size of the crowd. "The audience was the biggest ever," he told ABC News anchor David Muir on January 25, standing in front of a photo on the wall in the White House. "This crowd was massive. Look how far back it goes." Maybe Trump was trying to trick people into ignoring plain photographic evidence that his inaugural audience paled beside Barack Obama's in 2009. But it seems much more likely that he was offering an emotionally tinged, self-flattering impression of his experience as he took the oath of office. Similarly, Trump's fanciful claims about the size of his Electoral College victory and the millions of phantom fraudulent voters who cost him the popular vote probably are best understood not as lies but as ego-stroking delusions. The ease of disproving such contentions hardly seems consistent with a calculated plan to deceive. Yet here is the headline that the Times used for its January 23 story about Trump's obsession with voter fraud: "Trump Repeats Lie About Popular Vote in Meeting With Lawmakers." It's not a lie if the president believes it. Leonhardt likewise deems it an "outright lie" when Trump makes an ill-informed statement on subjects such as the murder rate, the number of people affected by his travel ban, or the adequacy of refugee screening procedures. Sheer sloppiness, combined with a tendency to accept misinformation that serves one's agenda, is a more plausible explanation for such lapses. Leonhardt's list is also marred by the inclusion of arguable claims that hinge on interpretation. On at least five occasions, for instance, Trump has described a post-election statement by Times Publisher Arthur Sulzberger Jr. and Executive Editor Dean Baquet as an apology to the paper's readers. Leonhardt counts all five, insisting that the Times "never apologized," which is technically true. But Sulzberger and Baquet did suggest that "Donald Trump's sheer unconventionality [led] us and other news outlets to underestimate his support among American voters," which certainly sounds like an admission of error. In that same statement, Sulzberger and Baquet promised to "report America and the world honestly, without fear or favor, striving always to understand and reflect all political perspectives and life experiences in the stories that we bring to you"; to "hold power to account, impartially and unflinchingly"; and "to bring the same fairness, the same level of scrutiny, the same independence to our coverage of the new president and his team." These are noble aspirations. The Times clearly falls short of them when it reports as fact something that is fundamentally unverifiable: the pr[...]



What America Taught a Murderous Drug Warrior

2017-07-02T15:42:00-04:00

The masked gunmen came for Paquito Mejos two days after he surrendered to police in Manila, identifying himself as an occasional user of methamphetamine, known locally as shabu. The cops later claimed Mejos, a 53-year-old electrician and father of five, was a drug dealer who drew a gun on them. Relatives say the cops planted the gun, along with a packet of meth. This is what daily life during Rodrigo Duterte's murderous war on drugs looks like, which is why his critics were dismayed that Donald Trump seemed to bless it during a "very friendly" telephone conversation with the Philippine president in April. Trump's chumminess with Duterte fits a pattern of admiration for authoritarian leaders around the world. But it is also a logical extension of the policies the U.S. government has been pushing for more than a century. According to the Philippine National Police (PNP), more than 7,000 people have been killed by officers, vigilantes, or other unidentified gunmen since Duterte took office last summer. As of April 23, some 2,717 of the dead were described as "suspected drug personalities killed in police operations," a category that supposedly includes Paquito Mejos. When Human Rights Watch (HRW) investigated that case and 31 other deaths, the group found "a damning pattern of unlawful police conduct in these killings, designed to paint a veneer of legality over summary executions." The author of the report said "police routinely kill drug suspects in cold blood and then cover up their crime by planting drugs and guns at the scene." Besides the police killings, the PNP's numbers indicate, another 3,603 people had died in "extrajudicial, vigilante-style, or unexplained killings" as of January 9. HRW says many of these homicides "are in fact death-squad-style extrajudicial executions by police and police agents." The carnage, which has drawn international condemnation, is only a down payment on Duterte's campaign promise to "kill them all." As a candidate, he said he would fatten the fish in Manila Bay by filling it with the bodies of criminals. Since his election, he has publicly urged people to murder drug addicts, described children killed in the drug war as "collateral damage," likened his own bloodthirstiness to Adolf Hitler's, and told police they needn't worry about being investigated for excessive use of force. "My order is shoot to kill you," Duterte said in remarks aimed at drug dealers last August. "I don't care about human rights, you better believe me." Trump's reaction to all this, according to a transcript of his conversation with Duterte prepared by the Philippine Department of Foreign Affairs, was to "congratulate" Duterte for his "unbelievable job on the drug problem" while criticizing Barack Obama for expressing reservations about it. "What a great job you are doing," enthused the U.S. president, who also invited Duterte to the White House. Trump surely can be faulted for either not knowing or not caring what Duterte's "great job" entails. But Duterte's main sin is taking the rhetoric of American drug prohibitionists a little too seriously. Back in 1989, the head of the Office of National Drug Control Policy, William J. Bennett, who has a Ph.D. in philosophy, cited his expertise in ethics while declaring on CNN that "there's no moral problem" with beheading drug dealers, since the penalty is "proportional to the nature of the offense." The following year, Los Angeles Police Chief Daryl Gates took Bennett's reasoning a step further, telling a Senate committee that casual drug users "ought to be taken out and shot" as traitors in the war on drugs. Duterte is implementing the program outlined by Bennett and Gates, extirpating anyone who dares to flout the government's pharmacological taboos. Like U.S. drug warriors, he casts peac[...]



Trump's Travel Ban Is Legal but Dumb

2017-06-28T00:01:00-04:00

This week the Supreme Court unblocked most aspects of President Trump's executive order limiting entry into the United States, signaling that the restrictions are likely to be upheld. That makes sense, because the reasons that two federal appeals court offered for upholding injunctions against Trump's order are unpersuasive. But the fact that Trump's policy is legal does not make it smart. The original version of Trump's order was issued in great haste a week after he took office, and it showed. The 90-day ban on entry by citizens of seven Muslim-majority countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen) applied to current visa holders, including people working and studying in the United States, and legal permanent residents, who were barred from returning home after traveling abroad. Adding to the confusion, the travel ban took effect immediately, stranding residents and visitors in mid-trip without notice. The result was dismay and disorder at airports around the world as officials, travelers, and lawyers grappled with the new policy. After the order was blocked by the courts, Trump issued a revised version on March 6, clarifying that the travel ban did not apply to legal permanent residents, who have a right to due process when the government tries to prevent their re-entry, or to current visa holders, whose hosts may have standing to sue. Notably, the order issued by the Supreme Court on Monday says that while the case is pending the travel ban should not be enforced against visa applicants or would-be refugees with a "bona fide relationship" to Americans, such as relatives, students accepted by U.S. universities, employees hired by U.S. companies, or lecturers booked to speak here. The revised order also eliminated Iraq from the list of targeted countries and excised language favoring religious minorities from the section imposing a 120-day moratorium on admission of refugees. Critics cited that preference as evidence that the order was motivated by anti-Muslim bias. The U.S. Court of Appeals for the 4th Circuit nevertheless concluded that the March 6 order "in context drips with religious intolerance, animus, and discrimination." The context that the court deemed relevant consisted mostly of statements made by Trump or his surrogates before and after the election, including his support for "a total and complete shutdown of Muslims entering the United States." But that is not the policy Trump actually tried to implement, and relying on his campaign comments to conclude that his executive order is a "Muslim ban" in disguise leads to strange results. The plaintiffs conceded, for example, that if Hillary Clinton had been elected president and issued exactly the same executive order, it "could be constitutional." The U.S. Court of Appeals for the 9th Circuit relied on a different rationale when it upheld an injunction against Trump's order, saying he exceeded his statutory authority because he did not make an evidence-based determination that admitting the people he wants to exclude would be "detrimental to the interests of the United States." But that was really just another way of saying that Trump's policy, which is supposedly aimed at protecting Americans from terrorists, is half-baked and empirically unsound. That much is true. Since 1975, no terrorist from any of the countries covered by the travel ban has killed anyone in the United States, and the odds of being killed by a refugee are infinitesimal. In any case, it has never been clear why a travel ban was necessary for Trump to deliver the "extreme vetting" he promised. Even the "total and complete" Muslim ban he originally proposed was supposed to last only as long as it took to "figure out what is going on," which according to his executi[...]



The NRA Shuns a Second Amendment Martyr

2017-06-21T00:01:00-04:00

Philando Castile did what you are supposed to do if you have a concealed-carry permit and get pulled over by police: He let the officer know he had a gun. Had Castile been less forthcoming, he would still be alive. Last Friday a Minnesota jury acquitted the cop who killed Castile of second-degree manslaughter, demonstrating once again how hard it is to hold police accountable when they use unnecessary force. The verdict also sends a chilling message to gun owners, since Castile is dead because he exercised his constitutional right to keep and bear arms. Jeronimo Yanez, an officer employed by the St. Anthony, Minnesota, police department, stopped Castile around 9 p.m. on July 6 in Falcon Heights, a suburb of Minneapolis and St. Paul. The official reason was a nonfunctioning brake light. The actual reason, according to Yanez, was that Castile resembled a suspect in a convenience store robbery that had happened four days before in the same neighborhood. The full extent of the resemblance was that Castile, like the suspect, was black, wore glasses and dreadlocks, and had a "wide-set nose." Castile, a 32-year-old cafeteria manager, had nothing to do with the robbery. But in Yanez's mind, Castile posed a threat. The traffic stop began politely but turned deadly within a minute. Audio and video of the encounter show that Yanez asked for Castile's proof of insurance and driver's license. After Castile handed over his insurance card, he calmly informed Yanez, "Sir, I have to tell you that I do have a firearm on me." Yanez interrupted him, saying, "OK, don't reach for it, then." Castile and his girlfriend, Diamond Reynolds, who was sitting in the front passenger seat, repeatedly assured the officer that Castile was not reaching for the weapon. But by now Yanez was in full panic mode. "Don't pull it out!" he screamed, immediately drawing his weapon and firing seven rounds into the car, heedless of Reynolds and her 4-year-old daughter, who was in the backseat. Mortally wounded, Castile moaned and said, "I wasn't reaching for it." Reynolds, who drew nationwide attention to the shooting by reporting it via Facebook Live immediately afterward, has consistently said Castile was reaching for his wallet to retrieve his driver's license, per Yanez's instructions. Yanez initially said he thought Castile was reaching for his gun; later he claimed to have seen Castile pulling out the pistol, which was found inside a front pocket on the right side of the dead man's shorts. Yanez clearly acted out of fear. The question is whether that fear was reasonable in the circumstances and whether deadly force was the only way to address it. Jeffrey Noble, an expert on police procedure, testified that Yanez's actions were "objectively unreasonable." The officer had "absolutely no reason" to view Castile as a robbery suspect, Noble said, and could have mitigated the threat he perceived by telling Castile to put his hands on the dashboard or stepping back from the car window. If Castile planned to shoot Yanez, why would he announce that he had a firearm? That disclosure was obviously aimed at avoiding trouble but had the opposite effect because Yanez was not thinking clearly. Officers like Yanez, who is leaving his department under a "voluntary separation agreement," pose a clear and present danger to law-abiding gun owners. Yet the National Rifle Association (NRA) has been curiously reticent about the case. A day after the shooting, the NRA said "the reports from Minnesota are troubling and must be thoroughly investigated." It promised "the NRA will have more to say once all the facts are known." The reports have been investigated, and the facts are known. Yet the NRA has not added anything to the bland, noncommittal state[...]



The Search for a Place to Toke Up

2017-06-18T06:00:00-04:00

Denver has a bunch of businesses where you can legally buy marijuana but none where you can legally use it. That is supposed to change under a local ballot initiative approved by voters last fall. But a statewide solution to Colorado's cannabis consumption conundrum has been derailed by fears of a federal crackdown.

Amendment 64, the 2012 ballot initiative that made Colorado the first state to legalize marijuana for recreational use, allows adults 21 and older to use it at home. But Amendment 64 does not apply to "consumption that is conducted openly and publicly," which is a petty offense punishable by a $100 fine. Because the meaning of "openly and publicly" is a matter of dispute, finding places to enjoy the marijuana that has been sold by state-licensed retailers since 2014 remains a tricky proposition.

In Denver, which banned marijuana use not only in parks and on sidewalks but in all businesses open to the public, frustrated cannabis consumers put the issue to a vote. Initiative 300, which was approved by 54 percent of voters in November, lets customers of specially licensed businesses use marijuana they bring with them.

Under Amendment 64, those establishments cannot include pot shops, and state alcohol regulators say bars may not allow marijuana use either. But any other business can seek a city permit to create a "designated consumption area," provided it is not within 1,000 feet of a school and has the support of "an eligible neighborhood organization." The city, which at press time was still working on details such as whether and where pot smoking (as opposed to vaping or edible consumption) will be allowed, planned to start accepting permit applications this summer.

At the state level, meanwhile, legislators in April gutted a bill that would have authorized "marijuana membership clubs" because they worried about how Attorney General Jeff Sessions, an old-fashioned pot prohibitionist, might respond. Democratic Gov. John Hickenlooper had threatened to veto the bill, citing "the uncertainty in Washington."

Instead of allowing cannabis clubs wherever they are not prohibited by local law, the revised bill authorizes local governments to legalize them. "I'd like to see [a bill] that goes much further," Rep. Jonathan Singer (D–Longmont) told the Associated Press. "But in a year with Jeff Sessions, a small first step is better than no step at all."

Other states have learned from Colorado's difficulties when it comes to defining spaces outside of private residences where marijuana use will be allowed. The legalization initiatives approved by voters in California, Maine, Massachusetts, and Nevada last year all leave the door open to on-site consumption in businesses that sell cannabis.




A Presidency Consumed by Pettiness

2017-06-14T00:01:00-04:00

Last month Donald Trump interrupted his own comments on Republican health care legislation to marvel once again at the victory he had won six months before. "I'm president!" he exclaimed. "Hey! I'm president! Can you believe it, right?" Trump's comical obsession with his own electoral accomplishment is at the root of his current political troubles, including investigations that will hobble him for months, even if they ultimately find no criminal wrongdoing. By constantly revisiting his unexpected defeat of Hillary Clinton and insisting that everyone acknowledge how amazing it was, he may ensure that nothing he does in the White House will be nearly as impressive. After the election, Trump called his victory a "landslide." It wasn't. As political scientist John J. Pitney Jr. pointed out, Trump's share of the electoral vote ranked 46 out of 58 presidential contests. Trump said his feat was still impressive because, as he put it last week, "it's almost impossible for the Democrats to lose the Electoral College." That is not true either. If anything, Republicans have a slight advantage in the Electoral College, because Democrats are more concentrated in certain parts of the country and therefore tend to waste more popular votes by far exceeding the threshold needed to win a state. Trump said he would have won the popular vote were it not for "the millions of people who voted illegally." Nearly every study of the issue has found that voting fraud is rare, and there is no evidence that it happened last year on the scale suggested by Trump. Even the ridiculous spat over the size of the crowd at Trump's inauguration was a proxy for the debate about how big his victory was. By insisting, contrary to photographic evidence, that something like 1.5 million people showed up, Trump was again suggesting that the official tally on Election Day underestimated his popular support. All of these Trump-generated tiffs were counterproductive distractions from the president's avowed policy goals. But none compares to the ongoing controversy over the FBI's investigation of Russian meddling in the presidential election, which Trump has magnified because he cannot abide any implied diminishment of the achievement he commemorates by handing election maps to White House visitors. Trump calls the FBI investigation, which includes possible ties between his campaign and the Russians who hacked emails that made Clinton look bad, a "witch hunt" and a "taxpayer-funded charade." After he fired FBI Director James Comey last month, he admitted that the Russia investigation was a factor, lending credibility to the charge that he was trying to obstruct justice. "When I decided to just do it," Trump told NBC News, "I said to myself...this Russia thing with Trump and Russia is a made-up story. It's an excuse by the Democrats for having lost an election that they should have won." Last week, after Comey cited that interview in his Senate testimony by way of explaining his dismissal, Trump returned to the theme. He told reporters that Russia's election meddling "was an excuse by the Democrats, who lost an election that some people think they shouldn't have lost." Trump is understandably upset about the unproven claim that his associates had something to do with the Russian operation. But what really gets his goat is the suggestion that he would not have won the election without Russian help. The president was annoyed when Comey publicly acknowledged in March that the FBI was looking at possible links between Russia and the Trump campaign. But he also was angry when the FBI director testified last month that felt "mildly nauseous" about the possibility that his investigation o[...]