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Preview: Jacob Sullum: Reason Magazine articles.

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Updated: 2017-09-19T00:00:00-04:00

 



Should You Tell the Cops You Have a Gun?

2017-09-16T06:00:00-04:00

(image) The fatal shooting of Philando Castile last year by a Minnesota police officer reinvigorated an old debate about how people who are licensed to carry a concealed weapon (CCW) should handle interactions with the cops. The officer, who was acquitted of manslaughter in June, panicked during a traffic stop after Castile, a CCW licensee, told him he was armed.

Some gun owners argue that disclosure is considerate and prudent, while others worry it will escalate a routine traffic stop into a tense, unpleasant, and possibly life-threatening encounter. But virtually everyone agrees it's important to know the relevant legal requirements, which vary from state to state.




If Democracy Is Doomed, Don’t Blame the Russians

2017-09-13T00:01:00-04:00

A week before Hillary Clinton published her campaign memoir, Facebook seemed to validate her complaint that Vladimir Putin helped Donald Trump defeat her. But the social media platform's announcement about suspicious online political ads also highlighted common misconceptions about the nature of Russian attempts to influence the presidential election. We often hear that Russia "hacked the election," "attacked our democracy," or "undermined the integrity of our electoral process." Yet so far all the anti-Clinton efforts blamed on Russia amount to attempts at persuasion, as opposed to interference in the casting and counting of votes. Our democracy probably can survive a few more voices in the cacophony of competing claims, especially if we cultivate habits of skepticism and critical thinking. Facebook said it had identified about 3,000 political ads purchased by 470 or so "inauthentic accounts" that "likely operated out of Russia" between June 2015 and May 2017. The $100,000 spent on those ads was not even a drop in the bucket of Facebook's ad revenue, which totaled $27 billion last year. Russian propaganda did not represent a significant share of political discussion on Facebook either. In a report published last April, Facebook estimated that "information operations," defined as "actions taken by governments or organized non-state actors to distort domestic or foreign political sentiment," accounted for "less than one-tenth of a percent of the total reach of civic content" during last year's presidential campaign. Facebook has not released examples of the fishy ads, but it said "the vast majority…didn't specifically reference the US presidential election, voting or a particular candidate." Rather, "the ads and accounts appeared to focus on amplifying divisive social and political messages across the ideological spectrum—touching on topics from LGBT matters to race issues to immigration to gun rights." Fake accounts—opened by Russians pretending to be Americans, say—violate Facebook's terms of service. But foreign-sponsored online issue ads are permitted by U.S. campaign finance laws, provided they do not explicitly advocate a candidate's election or defeat. Not that Russian operatives are necessarily careful to obey U.S. law. Last year's hacking of embarrassing emails from the Democratic National Committee and from Clinton campaign chairman John Podesta, for instance, was clearly illegal (and rightly so). Those hacks nevertheless generated newsworthy and arguably relevant information, as unauthorized leaks often do. Clinton was not happy about the resulting news coverage, but that was precisely because she believed it would interest voters. Although Democrats suffered, it is not at all clear that democracy did. In the end, voters had to decide for themselves whether it mattered that officials at the supposedly neutral DNC plotted to undermine Bernie Sanders, Clinton's rival for the Democratic nomination. They had to assess the significance of excerpts from Clinton's secret Wall Street speeches and a CNN contributor's tips to her campaign about debate questions. Facebook users likewise were free to accept or reject the "divisive social and political messages" sent by online ads, regardless of who sponsored them. A speaker's nationality or motivation is logically irrelevant to the merits of what he has to say. That remains true when what he has to say is verifiably false. In a presidential race where both major-party candidates had trouble with the truth, the fact that their supporters also trafficked in lies did not create a novel challenge for voters, even when those supporters were not Americans or were employed by a foreign government. Facebook describes the ads placed by "inauthentic accounts" as "Russian interference in the electoral process." It promises to remain alert to such shenanigans because "we believe in protecting the integrity of civic discourse." The integrity of civic discourse does not depend on verifying the citizenship of people who participate in it. I[...]



For Sex Offenders, Registration Is Punishment

2017-09-06T00:01:00-04:00

The three men who challenged Colorado's Sex Offender Registration Act were sentenced to probation. Two of them also served 90 days in jail. Their real punishment began later, when they found that appearing in the state's online registry of sex offenders made it impossible to lead a normal life. Last week a federal judge recognized what anyone dealing with the burdens, obstacles, and dangers of life on the registry knows: Its punitive impact far outweighs any value it might have in protecting the public. In fact, U.S. District Judge Richard Matsch concluded, registration can violate the Eighth Amendment by imposing what amounts to cruel and unusual punishment. On the face of it, that judgment contradicts the 2003 decision in which the Supreme Court described Alaska's Sex Offender Registration Act as a "civil regulatory scheme" that only incidentally resulted in humiliation and ostracism. Since Alaska's statute was not punitive, the Court reasoned, it could be applied retroactively without violating the Constitution's ban on ex post facto laws. Matsch argues that "the justices did not foresee the ubiquitous influence of social media," the proliferation of commercial websites peddling information from sex offender registries, or the cheap scare stories that local news outlets would produce based on that information. Those developments have magnified the life-disrupting potential of registration, as illustrated by the experiences of the plaintiffs in this case. David Millard, who pleaded guilty to second-degree sexual assault on a minor in 1999, has been employed by the Albertsons grocery chain since 2003. His job was jeopardized after a customer saw his name and photo on a sex offender website. Millard was forced to move repeatedly after his status as a registered sex offender was revealed, once by police and once by a local TV station. The second time, he had to fill out about 200 rental applications before finding an apartment he could rent. Millard later bought a house in Denver, which is periodically visited by police officers seeking to verify his address. "If he is not home when they visit," Matsch notes, "they leave prominent, brightly colored 'registered sex offender' tags on his front door notifying him that he must contact the DPD." As you might imagine, this public shaming makes things more than a little awkward with the neighbors. Millard has experienced name calling and vandalism, and he worries that worse may be coming. "Because of the fear and anxiety about his safety in public," Matsch writes, "Mr. Millard does little more than go to work, isolating himself at his home." Eugene Knight was convicted of attempted sexual assault on a child in 2006 based on a crime he committed when he was 18. A "full-time father" because he has been unable to find work that pays well enough to cover the cost of child care, Knight is not allowed on school grounds to drop off his kids or attend school events. Arturo Vega, who pleaded guilty to third-degree sexual assault as a juvenile but is listed in Colorado's public database because he failed to comply with registration requirements he did not understand, has tried twice to get off the registry. Both times his petitions were rejected by magistrates who insisted he prove a negative: that he was not likely to commit another sexual offense. These men completed their sentences and have stayed out of trouble for years—almost two decades in Millard's case. But because of the registry, Matsch notes, they face "a known, real, and serious threat of retaliation, violence, ostracism, shaming, and other unfair and irrational treatment from the public…regardless of any threat to public safety based on an objective determination of their specific offenses, circumstances, and personal attributes." By forcing sex offenders into this precarious situation, Matsch says, the state is punishing them. State or federal courts have reached the same conclusion in Alaska, Maine, Michigan, New Hampshire, Oklahoma, and Pennsylvania. M[...]



Trump, Sheriff Joe, and the Thrill of Arbitrary Power

2017-08-30T00:01:00-04:00

Three days before Donald Trump pardoned Joe Arpaio, he suggested that the former Maricopa County, Arizona, sheriff was "convicted for doing his job." In reality, Arpaio was convicted for doing someone else's job by enforcing federal immigration law. When a federal judge told him to cut it out, Arpaio openly defied the order. By giving a pass to Arpaio's criminal contempt, the president reveals the hollowness of his supposed commitment to law and order. Beginning in 2007, specially trained Maricopa County deputies had authority under Section 287(g) of the Immigration and Nationality Act to detain people they believed to be in the country illegally. But after Immigration and Customs Enforcement (ICE) revoked that authority in 2009, Arpaio's deputies could legally detain people only if they reasonably suspected they were involved in criminal activity, as opposed to a civil violation of federal immigration law. U.S. District Judge G. Murray Snow made that point clear in a 2011 preliminary injunction, ordering the Maricopa County Sheriff's Office (MCSO) to stop "detaining persons for further investigation without reasonable suspicion that a crime has been or is being committed." Responding to a lawsuit filed by the American Civil Liberties Union, Snow said "MCSO and all of its officers are hereby enjoined from detaining any person based only on knowledge or reasonable belief, without more, that the person is unlawfully present within the United States." It is clear that Arpaio understood the meaning of Snow's injunction. "If you just believe or you know that [someone] is in the country unlawfully," MCSO's lawyer explained to the sheriff, "you cannot detain him based on that alone. You either are to have an arrest based on state charges or you release. Those are the options." Arpaio, whose reputation, local popularity, and electoral success depended largely on his efforts to catch illegal immigrants, did not like those options. He therefore decided to ignore the injunction, and he made no secret of that decision. "I'm still going to arrest illegal aliens coming into this country," Arpaio said on PBS in 2012. "I'm going to continue to enforce state laws and federal laws," he told Fox News. "Nothing has changed," Arpaio told Univision. According to a 2012 MCSO press release, "Arpaio remains adamant about the fact that his office will continue to enforce both state and federal illegal immigration laws." The sheriff was true to his word. After Snow issued the preliminary injunction in December 2011 and before he made it permanent in May 2013, the MCSO's so-called Human Smuggling Unit (HSU) turned over to ICE 171 people who were not charged with a crime. It is not hard to see why another federal judge, Susan Bolton, concluded last month that Arpaio had "willfully violated" Snow's order, making him guilty of criminal contempt. He was scheduled to be sentenced in October until Trump's pardon let him off. Trump thinks Arpaio, an early supporter of his presidential campaign, is a "great law enforcement person" who "was treated unbelievably unfairly." The important thing for Trump is that Arpaio, like him, is "very strong on illegal immigration." A 2011 report from the Justice Department gives you a sense of what Arpaio's strength looked like in practice. Examining traffic stops by MCSO deputies, the DOJ found that Latino drivers were "four to nine times more likely to be stopped than similarly situated non-Latino drivers." According to the DOJ, about one-fifth of the HSU's reports on traffic stops, "almost all of which involved Latino drivers, contained information indicating that the stops were conducted in violation of the Fourth Amendment's prohibition against unreasonable seizures." Many of the people detained by Arpaio's deputies were, like the plaintiffs in the ACLU lawsuit, in the country legally but targeted for harassment because of their skin color or accents. Strong men like Arpaio and Trump believe enforcing the law may require bre[...]



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 [...]



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[...]



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, wh[...]



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 tren[...]



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,[...]






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 uncertai[...]



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[...]



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 tha[...]



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 T[...]



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, extirpat[...]