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Preview: Jacob Sullum: Reason Magazine articles.

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Updated: 2017-06-25T00:00:00-04:00

 



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 statement it made a year ago. You'd think "the nation's largest and oldest civil rights organization" would have more to say about an innocent man who was killed for exercising his Second Amendment rights. © Copyright 2017 by Creators Syndicate Inc. [...]



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 of Clinton's sloppy email practices as secretary of state helped tip the election to Trump. Both comments irked Trump because they cast doubt on the credit he deserves for the "landslide" that wasn't. If he cannot manage to contain those feelings, his presidency will be consumed by his own pettiness. © Copyright 2017 by Creato[...]



Trump's Travel Ban Is Security Theater

2017-06-07T00:01:00-04:00

Donald Trump is starting to sound like a critic of his own administration. "The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.," he tweeted on Monday, referring to the executive order currently before the Supreme Court. It was Trump, not the Justice Department, who decided to issue that revised order, based on the reasonable expectation that it would be easier to defend in court. And contrary to Trump's claim that his "smart, vigilant and tough" policy provides "an extra level of safety," there is little reason to think either version of the travel ban would reduce the average American's already tiny risk of being killed by a terrorist. Trump's original order, issued on January 27, imposed a 90-day ban on travel to the United States by citizens of seven Muslim-majority countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. It suspended admission of refugees for 120 days, indefinitely for Syrians. The revised order, issued on March 6 after the first version was blocked by the courts, removed Iraq from the list of targeted countries and eliminated the distinction between Syrians and other refugees. Two other changes were more legally significant. The revised order clarified that the travel ban does not apply to lawful permanent residents, who according to the Supreme Court have a right to due process when the government tries to exclude them, or current visa holders, whose American hosts might have standing to sue. Trump's lawyers also excised a preference for refugees from religious minorities (typically Christians), which critics cited as evidence of unconstitutional anti-Muslim bias. Trump, who approved those changes, now says they were a mistake. "The Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court," he tweeted on Monday, "& seek much tougher version!" That comment misconstrues the roles of the Justice Department, which is defending Trump's order, not rewriting it, and the Supreme Court, which can only review the order as it stands. And if Trump plans to revive the original ban after the second one passes muster, he will only prolong the litigation he claims is endangering national security. That claim is highly implausible. Trump says he picked the seven (now six) countries covered by the travel ban because they were on a list of nations excluded from the visa waiver program as sponsors of terrorism or havens for terrorists. But people from those countries seem to pose a much smaller terrorist threat than people from countries that were omitted from the order. Based on his count of domestic plots and attacks by foreign-born terrorists from 1975 through 2015, Cato Institute immigration analyst Alex Nowrasteh reports that 19 perpetrators came from Saudi Arabia, 14 from Pakistan, 11 from Egypt, and 11 from Cuba. Their combined death toll was 2,537. During the same period, Nowrasteh found, six foreign-born terrorists came from Iran, six from Sudan, two from Somalia, and one from Yemen. None came from Libya or Syria. The combined death toll for terrorists from those six countries was zero. University of North Carolina at Chapel Hill sociologist Charles Kurzman compiled information on Muslims who carried out or were accused of planning domestic attacks last year. Most (12 out of 23) were American-born converts. Just two, both Somalis who were shot and killed during nonfatal knife attacks, came from a country on Trump's list or had parents who did. Even if the list made sense, it is hard to imagine how the "extreme vetting" Trump promises could identify future terrorists. As an internal Department of Homeland Security report noted last March, "most foreign-born, US-based violent extremists likely radicalized several years after their entry to the United States, limiting the ability of screening and vetting officials to prevent their entry." The travel ban is security theater, des[...]



Government Hype Helps Terrorists

2017-05-31T00:01:00-04:00

John Kelly, the secretary of homeland security, seems to be moonlighting as a publicist for ISIS. How else to explain his fearmongering warnings about terrorism on Fox News last Friday? "I was telling Steve on the way in here," Kelly said, referring to Fox & Friends co-host Steve Doocy, "if he knew what I know about terrorism, he'd never leave the house in the morning." Kelly's remarks, which seemed designed to put a damper on everyone's plans for Memorial Day weekend, complemented the efforts of terrorists, who aim to provoke an emotional response that grossly exaggerates the threat they pose. "It's everywhere," Kelly said. "It's constant….It can happen almost here anytime." He probably meant it can happen here almost anytime, but you get the idea: The threat of terrorism is so severe and pervasive that it's foolhardy to venture past your front doorstep. Contrary to Kelly's claims, terrorism is not everywhere, and it is not constant. It is a rare event that is much less likely to kill you than myriad hazards that somehow do not deter us from leaving our homes in the morning. From 1970 through 2016, according to numbers from the Global Terrorism Database, terrorist attacks killed 3,662 people in the United States. Nearly 3,000 of those deaths, 82 percent of the total, resulted from the attacks of September 11, 2001. Counting 9/11, the average is 78 deaths a year, which makes the annual risk of dying in a terrorist attack within the United States 1 in 4.2 million for a random American. The lifetime risk, based on a life expectancy of 78.8 years, is roughly 1 in 53,000. Those risks pale beside many we face every day without being paralyzed by fear. If Steve Doocy is looking for reasons to stay home, he should worry less about a terrorist attack and more about a car crash, which according to the National Safety Council is about 465 times as likely to kill him. The odds that Doocy will be killed by assault with a firearm, drowning, or exposure to excessive natural heat are, respectively, 143, 45, and three times as high as the odds that he will be murdered by a terrorist. Not that taking Kelly's advice by cowering in his home will necessarily save Doocy. He still might fall down the stairs, a kind of mishap that each year kills nearly 30 times as many Americans as terrorists do. Some risks are smaller than the chance of dying in a terrorist attack. Based on terrorism deaths since 1970, you are less likely to be killed by lightning, a dog, or stinging insects. But that is true only if we include the 9/11 attacks, which were highly unusual and are unlikely to be repeated, in the calculations. If we limit the analysis to the years 2002 through 2016, the annual risk of dying in a terrorist attack is about 1 in 25 million, while the lifetime risk is 1 in 317,000. By that measure, lightning is twice as dangerous as terrorists. Why does Kelly seem determined to make us worry about terrorism far more than is rational? Perhaps because his budget depends on an inordinate fear of terrorism. In a 2014 Cato Institute policy analysis, John Mueller and Mark Stewart estimated that annual counterterrorism spending by federal, state, and local governments had risen by $75 billion since 9/11. Applying the usual standards for assessing the cost-effectiveness of regulations, they found that the additional spending could be justified only if it saved something like 11,000 lives a year. That is not remotely plausible, but Kelly is doing his best to convince us otherwise by magnifying the terrorist threat and alluding to secret knowledge of attacks averted. "The good news for us in America," he said on Fox News, "is we have amazing people protecting us every day." He mentioned several agencies, but his own got top billing. © Copyright 2017 by Creators Syndicate Inc. [...]



Did Trump Know Enough to Obstruct Justice?

2017-05-24T00:01:00-04:00

For almost a year, Donald Trump has been complaining that FBI Director James Comey gave Hillary Clinton "a free pass for many bad deeds," as the president recently put it on Twitter. Trump thinks his opponent in last year's presidential election should have been prosecuted for her loose email practices as secretary of state, even if she did not deliberately expose classified information. The president might want to reconsider that hardline attitude. The reason Comey cited for not recommending charges against Clinton—a lack of criminal intent—could prove crucial in rebutting the allegation that Trump obstructed justice by trying to impede the FBI's investigation of ties between his associates and the Russian government. When Comey announced the results of the Clinton investigation last July, he criticized her "extremely careless" handling of "very sensitive, highly classified information," saying she "should have known" the unsecured private email system she used "was no place" to discuss such matters. That description sounded like grounds for charging Clinton under 18 USC 793, which makes it a felony to "mishandle classified information either intentionally or in a grossly negligent way." But Comey argued that "no reasonable prosecutor" would pursue a case against Clinton based on gross negligence. He said he was aware of just one case where the government had used that standard in the century since the law was passed, which suggests federal prosecutors "have grave concerns about whether it's appropriate." While prosecuting Clinton might have been legally feasible, Comey told a congressional committee, it would have been unjust. "In our system of law, there's a thing called mens rea," he said, referring to the state of mind required for a conviction. "We don't want to put people in jail unless we prove that they knew they were doing something they shouldn't do." That brings us back to Trump, who has done (or allegedly done) several things that could be viewed as attempts to undermine the FBI's investigation of Russian meddling in last year's presidential election, including the hacking of embarrassing Clinton-related emails. The FBI probe, Comey confirmed during congressional testimony in March, encompasses possible collusion between Russia and the Trump campaign. After Comey said that, The Washington Post reported this week, Trump asked Daniel Coats, director of national intelligence, and Michael Rogers, director of the National Security Agency, to publicly say there was no evidence of such collusion. Both declined, deeming the request improper. The previous month, according to a Comey memo described by The New York Times, Trump interceded with the FBI director on behalf of former National Security Adviser Michael Flynn, one of the associates whose ties to Russia are of interest to the bureau. "I hope you can see your way clear to letting this go, to letting Flynn go," Trump reportedly told Comey. "He is a good guy. I hope you can let this go." A few months after that alleged encounter, Trump fired Comey. Two days later, Trump admitted that the Russia probe, which he had denounced as a "taxpayer-funded charade" on Twitter the day before he gave Comey the boot, was on his mind when he made the decision. Some Democrats are already calling for Trump's impeachment, arguing that his response to the FBI investigation amounts to obstruction of justice. But that crime requires proof of intent, and it is not at all clear that Trump knew he was doing something he shouldn't do—the standard that Comey applied to Clinton. If Trump was acting "corruptly," as the statute that seems most relevant requires, why would he approach three officials who were likely to make note of his requests? Why would he publicly condemn the Russia investigation before and after firing Comey? These do not seem like the actions of a man who is conscious of his own guilt. They seem like the actions of a m[...]



Jeff Sessions Is a Glutton for Punishment

2017-05-17T00:01:00-04:00

As a senator, Jeff Sessions helped kill bipartisan legislation that would have made federal drug penalties less mindlessly draconian. As attorney general, he seems determined to make those penalties as disproportionate as possible, instructing federal prosecutors to pursue the most serious provable charges without regard to culpability or dangerousness. That policy, announced in a memo last week, reverses a Justice Department initiative that sought to spare low-level, nonviolent drug offenders the five-, 10-, and 20-year minimum sentences that are supposedly aimed at ringleaders and kingpins. The shift signals a return to unfair, ineffective drug policies that have been rightly repudiated by politicians across the political spectrum. The current mandatory minimums sentences for drug offenses, which Congress enacted during the "Just Say No" era that Sessions remembers fondly, are tied to drug weight, which is often a poor indicator of a defendant's role in a criminal organization or the danger he poses. "Crafted purportedly for sharks, mandatory minimums catch lots of minnows," notes Families Against Mandatory Minimums, which points out that "93 percent of individuals who receive mandatory minimum sentences played no leadership role in their offense." In 2013 Attorney General Eric Holder tried to ameliorate this injustice by urging federal prosecutors to omit drug weight from charges against nonviolent offenders who did not have leadership roles, significant criminal histories, or significant ties to large-scale drug trafficking organizations. Largely thanks to that policy, the share of federal drug offenders facing mandatory minimums fell from 62 percent in fiscal year 2013 to less than 45 percent in fiscal year 2016. The upshot of that trend was substantially shorter prison sentences for thousands of minor drug offenders. During this same period, the bloated, over-capacity federal prison population, which grew steadily from 1980 through 2013, began to shrink, although that change had more to do with shorter crack cocaine sentences that Congress approved in 2010. How does Sessions, who supported the 2010 reforms, justify his belief that Holder went too easy on drug offenders? "Drugs and crime go hand in hand," he told a police group in New York City last Friday. "Drug trafficking is an inherently violent business." There is nothing inherently violent about the sale of psychoactive substances, as a trip to your local liquor store will confirm. Drug trafficking is violent only because the government makes it so by creating a black market in which there are no legal ways to resolve disputes. In any case, the observation that drug offenders are sometimes violent does not justify the assumption that any given defendant is. Holder's policy made sensible distinctions that Sessions pretends do not exist. Sen. Tom Cotton (R-Ark.), another prominent opponent of sentencing reform, is equally oblivious. Responding to Sessions' memo, Cotton said, "I agree with Attorney General Sessions that law enforcement should side with the victims of crime rather than its perpetrators." That stance obscures the difference between peaceful, consensual transactions that violate no one's rights, such as the exchange of drugs for money, and predatory crimes with specific, identifiable victims, such as robbery and murder. Even if you don't think this distinction makes drug prohibition inherently unjust, it is surely relevant in deciding what punishment someone deserves. The practical impact of Sessions' memo will depend on how federal prosecutors around the country respond to it. But by establishing a new default rule from which prosecutors are supposed to depart only with permission from their supervisors and a written justification, Sessions is pointing the way to longer prison sentences for many people who pose no real threat to you or me. True conservatives understand there [...]



Israel Decriminalizes Pot Possession

2017-05-13T06:00:00-04:00

"More and more citizens are demanding marijuana use be permitted," Yohanan Danino, then Israel's police chief, observed in 2015. "I think the time has come for the Israel police, together with the state, to re-examine their stance on cannabis. I think we must sit and study what's happening around the world."

If it was surprising to hear a sitting police chief talk about tolerating cannabis consumption, it was even more surprising when the country's right-wing government followed Danino's advice, although it didn't go quite as far as he suggested. In March, the Israeli cabinet approved a plan to replace criminal penalties for possessing small amounts of pot with civil fines.

Under the plan, which was endorsed by Public Security Minister Gilad Erdan, a member of the conservative Likud Party, people 18 or older caught with up to 15 grams (half an ounce) of marijuana would be subject to a fine of 1,000 shekels (about $275). The amount would be doubled for a second offense, while third-time offenders would receive probation, possibly coupled with treatment or additional sanctions, such as suspension of their driver's licenses. Criminal charges would be possible, at the discretion of police, only after a fourth offense.

Possession of 15 grams or less is currently punishable by up to three years in prison, although the consequences are usually much less severe. Under attorney general's directives issued in 1985 and 2003, people caught with small amounts of marijuana are not supposed to be arrested for a first offense. Police have discretion as to whether charges should be brought for subsequent offenses.

Arrests for marijuana possession fell 30 percent between 2010 and 2015, from 4,967 to 3,425, in a country with a population of 8.2 million. By comparison, police in the United States, which has a population 40 times as big, arrested about 575,000 people for marijuana possession in 2015, or 168 times as many.

"The current law enforcement policy may come across as arbitrary and draconian, or, alternatively, a dead letter that is no longer enforced," a committee appointed by Erdan concluded. Tamar Zandberg, a member of the left-wing Meretz Party who chairs the Knesset Special Committee on Drug and Alcohol Abuse, said the new approach "sends a message that a million Israelis who consume marijuana aren't criminals."

While recreational use remains illegal, about 25,000 Israelis legally use marijuana as a medicine. Last year, the government made medical marijuana more accessible by letting more doctors prescribe it and allowing ordinary pharmacies to dispense it. In January the government announced $2.1 million in funding for medical marijuana research, and 37 growers received preliminary permits in March, more than quintupling the number of cultivation sites.




The Tyranny of 'Reproductive Freedom'

2017-05-10T00:01:00-04:00

President Trump says an executive order he signed last Thursday protects religious freedom, while his critics say it undermines reproductive freedom. If both freedoms are understood as rights that must be respected, someone has to be wrong here, and for once it isn't Trump. The executive order tells federal officials to "consider issuing amended regulations" addressing "conscience-based objections" to an Obamacare mandate requiring employers to provide health coverage that includes all FDA-approved contraceptives. For religious reasons, some employers do not want to be implicated in subsidizing, encouraging, facilitating, or condoning either contraception in general or the methods they view as tantamount to abortion. Because of such concerns, the Obama administration exempted churches and related organizations involved in exclusively religious activity from the contraceptive mandate. But any religious organization that offers social services or engages in other nonsectarian activities has to notify its insurer if it objects to the contraception requirement, at which point the insurer is supposed to provide the coverage independently, at no additional cost to the employer or employee. For groups such as Little Sisters of the Poor, a Roman Catholic order that runs homes for low-income elderly people, that workaround is unacceptable, because they believe the form they must send to insurers makes them complicit in sin. Trump's order is largely aimed at addressing that complaint. The order could also help religious business owners. In the 2014 case Burwell v. Hobby Lobby, the Supreme Court said the Religious Freedom Restoration Act requires the government to accommodate the objections of "closely held for-profit corporations" whose owners balk at the contraceptive mandate for religious reasons. What might these religious accommodations look like? Last year a unanimous Supreme Court suggested one likely possibility in response to the legal challenges brought by Little Sisters of the Poor and other faith-based organizations. Instead of forcing employers to express their religious objections in forms filed with their insurers or the government, the Court proposed, why not treat their purchase of health plans that do not include contraceptives as the signal for insurers to provide that coverage separately? The Court, while sending the cases back to the appeals courts for further consideration, said such an approach, which both the plaintiffs and the government agreed was feasible, "accommodates petitioners' religious exercise while at the same time ensuring that women covered by petitioners' health plans 'receive full and equal health coverage, including contraceptive coverage.'" If Trump's order results in a solution along these lines, it will have no perceptible impact on women's contraceptive coverage, even if it includes businesses as well as religious organizations. But you could be forgiven for thinking otherwise if you saw the alarmist statements issued by the order's critics. "President Trump's executive order discriminates against women and robs them of essential preventive care," claimed Nancy Northup, president of the Center for Reproductive Rights. "Without health coverage of contraception under the ACA, countless women will lose their basic right to prevent pregnancy and plan when they have children." Donna Lieberman, executive director of the New York Civil Liberties Union, warned that the executive order will "encourage employers to use religion as a pretext to deny women the care they need." Amanda Klasing, a researcher at Human Rights Watch, said "this order will take away many women's access to affordable family planning options." Such comments not only grossly exaggerate the practical consequences of accommodating religious objections to the contraceptive mandate. They fundamentally m[...]



What America Taught a Murderous Drug Warrior

2017-05-03T00:01:00-04:00

The masked gunmen came for Paquito Mejos, a 53-year-old electrician and father of five, two days after he had surrendered to police in Manila, identifying himself as an occasional user of methamphetamine, known locally as shabu. Police, who arrived shortly after Mejos had been shot dead, later claimed he was a drug dealer who drew a gun on them. Relatives say the cops planted the gun, along with a packet of shabu. This is what 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 on Saturday. But Trump's chumminess with Duterte, while it fits a pattern of admiration for authoritarian leaders around the world, is a logical extension of prohibition 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 last week, 2,717 of the dead were described as "suspected drug personalities killed in police operations," a category that supposedly includes Paquito Mejos. Human Rights Watch (HRW), which investigated that case along with 31 other deaths, found "a damning pattern of unlawful police conduct in these killings, designed to paint a veneer of legality over summary executions." Peter Bouckaert, author of the HRW report, said "police routinely kill drug suspects in cold blood and then cover up their crime by planting drugs and guns at the scene." As of January 9, according to the PNP's numbers, another 3,603 people had died in "extrajudicial, vigilante-style, or unexplained killings." 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." Since his election he has publicly urged people to murder drug addicts, 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 told drug dealers last August. "I don't care about human rights, you better believe me." Trump's reaction to all this, according to the official summary of his call to Duterte, was to praise his Philippine counterpart for "fighting very hard to rid [his] country of drugs, a scourge that affects many countries throughout the world." The president also invited Duterte, who according to HRW could be "held liable for crimes against humanity," to visit him at the White House. Trump surely can be faulted for either not knowing or not caring what "fighting very hard" means in the Philippines. But Duterte's main sin is taking the rhetoric of American prohibitionists a little too seriously. Back in 1989, when he was running the Office of National Drug Control Policy, William J. Bennett, who has a Ph.D. in philosophy, cited his expertise in ethics while explaining to Larry King 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. His portrayal of meth addicts as subhuman and unworthy of life also has parallels in American propaganda. Like U.S. drug warriors, Duterte casts peaceful transactions—the exchange of money for psychoac[...]



The Bipartisan Urge to Suppress Dissent

2017-04-26T00:15:00-04:00

The University of California at Berkeley's inhospitality to conservative speakers, the subject of a federal lawsuit filed on Monday, prompted a Twitter rebuke from President Trump a few months ago. Yet his administration seems determined to demonstrate that suppression of opposing views is a bipartisan impulse. Berkeley College Republicans (BCR), which invited conservative commentator Ann Coulter to speak on campus this Thursday evening, and Young America's Foundation (YAF), which underwrote her visit, argue that Berkeley's vague, unwritten policy regarding "high-profile speakers" unconstitutionally discriminates against unpopular viewpoints. As a result of that policy, which was adopted after violent protests prompted the university to shut down a February 1 appearance by former Breitbart News editor Milo Yiannopoulos, Berkeley canceled Coulter's speech, then offered to reschedule it for next Tuesday afternoon, in the middle of the "dead week" between classes and exams. BCR says it felt compelled to cancel an April 12 talk by another conservative journalist, David Horowitz, after the university insisted that it take place at an inconvenient location and end by 3 p.m., meaning most students would be in class while Horowitz was speaking. BCR and YAF say the restrictions imposed by Berkeley in the name of public safety have not been applied to left-leaning speakers and amount to an "unlawful heckler's veto" that marginalizes conservative voices. After the Milo melee in February, Trump suggested on Twitter that Berkeley risks losing federal funds if it "does not allow free speech." If the president were sincerely committed to protecting First Amendment rights, he would issue similar warnings to the Department of Homeland Security (DHS), which recently demanded that Twitter reveal the identity of a DHS gadfly, and the Justice Department, which is considering criminal charges against people who share classified information leaked by others. Last month a special agent in charge at Customs and Border Protection (CBP), a division of DHS, issued a summons to Twitter seeking records that would unmask the person or persons behind @ALT_USCIS, an account that regularly criticizes the Trump administration's immigration policies. There did not seem to be any legal justification for the summons, which looked like a blatant attempt to intimidate critics. DHS dropped the summons the day after Twitter filed a lawsuit arguing that it threatened the First Amendment right to engage in pseudonymous political speech. Last week, in response to inquiries by Sen. Ron Wyden (D-Ore.), DHS Inspector General John Roth revealed that his office is investigating whether the CBP summons was "improper." The day before Roth expressed concern about government inquiries that might have "a chilling effect on individuals' free speech rights," CNN and The Washington Post reported that the Justice Department is once again looking for a way to prosecute WikiLeaks founder Julian Assange for sharing classified documents with the public. The Obama administration abandoned that project after concluding that charging Assange with violating the Espionage Act would create a precedent that could be used against any news organization that publishes stories based on "defense information" from sources who obtained or divulged it illegally—a very common journalistic practice. CIA Director Mike Pompeo says we shouldn't worry about that because Assange is not a real journalist, a debatable and constitutionally irrelevant point. The "freedom of the press" that is guaranteed by the First Amendment is not the freedom of people who work for officially recognized news outlets; it is the freedom to use technologies of mass communication. That freedom extends to everyone in the United States, whether o[...]



Does Legalization Boost Teen Marijuana Use?

2017-04-20T06:00:00-04:00

When the National Survey on Drug Use and Health (NSDUH) indicated that marijuana use by teenagers in Colorado rose after the state legalized the drug for recreational use in 2012, prohibitionists trumpeted the results, even though the change was not statistically significant. Drug warriors were notably quieter when subsequent NSDUH data indicated that adolescent consumption in Colorado fell after state-licensed marijuana stores began serving the recreational market.

That change was not statistically significant either, underlining the uncertainty about the impact of legalization on underage consumption. It is plausible that legalization would increase adolescent use by making marijuana more socially acceptable (although probably not cooler) or by making it available from legal buyers 21 or older. But so far there is little evidence that is happening.

The Colorado Department of Public Health and Environment says cannabis consumption by teenagers in the state "has not changed since legalization either in terms of the number of people using or the frequency of use among users." That conclusion is based on data from NSDUH and the Healthy Kids Colorado Survey, which has a much larger sample of Colorado teenagers.

A study published in the February 2017 issue of JAMA Pediatrics covered yet another survey, the Monitoring the Future Study. University of California, Davis, epidemiologist Magdalena Cerdá and her colleagues looked at past-month marijuana consumption among eighth-, 10th-, and 12th-graders in the three years preceding legalization (2010–12) and the three years following it (2013–15). They compared trends in Colorado and Washington, where voters also approved legalization in 2012, to trends in the 45 contiguous states that did not legalize marijuana for recreational use during this period.

Cerdá et al. found no significant differences in Colorado or among high school seniors in Washington. But Washington eighth- and 10th-graders deviated from the national trend. Although the incidence of past-month marijuana use by eighth-graders did not rise significantly in Washington, it fell significantly in the other states. Past-month use among 10th-graders did rise significantly in Washington, from 16.2 percent to 20.3 percent, while falling in the rest of the country.

Assuming that the deviations among eighth- and 10th-graders in the Evergreen State have something to do with legalization, Cerdá et al. say, the mechanism is unlikely to be diversion from adult buyers, since state-licensed pot shops did not open there until July 2014, halfway through the post-legalization study period. But they argue that legalization may have changed attitudes in a way that encouraged adolescent use.

If so, it's a bit of a mystery why there is no evidence of this phenomenon in Colorado. But with only a few years of data to consider, the only safe conclusion is that it's too early to draw any conclusions.




Gorsuch Is More Liberal Than Garland

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

Democrats are understandably bitter about the Republican intransigence that ultimately allowed Neil Gorsuch to take a seat on the U.S. Supreme Court this week. But for Democrats who care about civil liberties, Gorsuch is a better choice than Merrick Garland, the nominee Republican senators refused to consider after he was nominated by President Obama last year. Garland, who has served on the U.S. Court of Appeals for the D.C. Circuit since 1997, was frequently described as a "moderate" after Obama picked him to replace Justice Antonin Scalia, who died in February 2016. Garland earned that label mainly by siding with the government, sometimes in cases where conservatives liked the result and sometimes in cases where liberals did. Despite his reputation on the left as an authoritarian, Scalia defended the rights of the accused more consistently than some of his purportedly more liberal colleagues. And as SCOTUSBlog publisher Tom Goldstein noted, Garland is "to the right of Scalia on criminal justice issues." Gorsuch, who served for a decade on the U.S. Court of Appeals for the 10th Circuit, seems closer to Scalia in this area. Like Scalia, he is a critic of vague criminal statutes and a stickler when it comes to requiring that prosecutors prove all the elements of an offense. Both tendencies were apparent in a 2015 case involving merchants charged with violating the Controlled Substance Analogue Enforcement Act by selling "incense" containing a synthetic cannabinoid. Even without delving into the "vagueness concerns" raised by the Analogue Act, Gorsuch said, it was clear the defendants had been improperly convicted because the jury instructions "effectively relieve[d] the government of proving each essential element specified by Congress." Gorsuch's concern about the proper application of criminal statutes was also apparent when he dissented from a 2016 decision in which the 10th Circuit upheld the arrest of a New Mexico seventh-grader who burped up a storm during P.E. class, to the amusement of his peers and the annoyance of his gym teacher. According to the New Mexico Court of Appeals, Gorsuch pointed out, the law under which the boy was charged, which makes "interfering with the educational process" a misdemeanor, "does not criminalize 'noise[s] or diversion[s]' that merely 'disturb the peace or good order' of individual classes." Another 2016 dissent shows that Gorsuch shares Scalia's respect for the zone of privacy protected by the Fourth Amendment. When the 10th Circuit said it was constitutional for police to ignore multiple "No Trespassing" signs on the property of a suspected drug dealer, Gorsuch criticized his colleagues for endorsing "an irrevocable right to enter a home's curtilage to conduct a knock and talk." Although progressives may be willing to concede that Gorsuch is preferable to Garland on criminal justice, they tend to view another contrast between the two judges with alarm. Gorsuch is more inclined than Garland (or Scalia) to question the authority of administrative agencies. While Goldstein found that Garland has "strong views favoring deference to agency decisionmakers," Gorsuch is a prominent critic of the Chevron doctrine, which gives agencies wide authority to resolve ambiguities in the laws they are charged with enforcing. Gorsuch sees excessive deference to executive-branch agencies as a threat to the separation of powers. It is also a threat to individual freedom. Giving one agency the power to interpret and rewrite the law as well as enforce it poses a clear threat to people at the agency's mercy, including the obscure and vulnerable as well as the rich and powerful—a point that progressives who view Chevron as an essential bulwark of the regulatory state [...]



Officer Feelgood, Meet the Constitution

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

When Officer Cameron Burke pulled over Jenna Rodgers, a student at Warwick High School in Lititz, Pennsylvania, and told her she had exceeded the speed limit by 15 miles an hour, she was confused because she knew she hadn't. It turned out the traffic stop had been arranged by her boyfriend, Collin Kauffman, who approached her car holding a sign that said, "You're under arrest unless you say yes. Prom?" Whether Kauffman's promposal strikes you as charming or alarming will depend on your attitude toward police and the restrictions imposed on them by the Constitution. Although everyone involved thought it was all in good fun, Burke violated the Fourth Amendment by stopping Rodgers for no legal reason, and there are similar problems with other feel-good stunts involving cops and motorists. In a video posted last year by Halifax, Virginia, Police Chief Kevin Lands, a white cop walks up to a car he has just stopped and asks the driver, a black woman, "Are you aware of why I pulled you over today?" The puzzled driver replies, "No, sir." The cop asks her if she is "familiar with Vehicle Code 1739." She is not, so he explains that "it's actually against the law to drive on a hot day without an ice cream cone." The driver laughs, out of either relief or amusement. "Oh, my God!" she says repeatedly. Since viral videos of cops interacting with motorists usually involve abuses of power such as random searches, money grabs, bogus arrests, or the unjustified, occasionally fatal use of force, this episode may seem like a refreshing change. But it also involves an abuse of power, albeit one disguised by benign intentions. WSET, the ABC station in Lynchburg, reported that Halifax police stopped about 20 drivers in one day "to hand out ice cream instead of tickets." It made no mention of any traffic violations that might have justified the stops. Neither did the local CBS station. On Lands' Facebook page, where the video of the laughing motorist has been watched nearly 8 million times, he describes the drivers who got ice cream as "speeders," which suggests cops ended up ignoring traffic offenses that supposedly were serious enough to pull people over. In the video, there is no mention of any actual legal violation. Cops have wide latitude to stop vehicles, but that latitude is not unlimited. Such stops are "seizures" under the Fourth Amendment, and they must be "reasonable," which usually means there is reasonable suspicion of a traffic offense. A couple of years ago, the Macomb County, Michigan, sheriff's office pulled teenagers over and gave them gift cards as a reward for good driving. Those stops were clearly unconstitutional, since the teenagers were targeted for driving well—the opposite of a legal justification. In a 2014 video, a police officer in Lowell, Massachusetts, who gives a driver Christmas presents for her kids says he pulled her over for illegally tinted windows. In another video from the same year, a Covington, Louisiana, police officer gives a woman a $100 bill stamped "Secret Santa" after pulling her over, supposedly because she failed to stop completely at an intersection. The latter two examples would be deemed constitutional under the standard set by the Supreme Court, which says reasonable suspicion of a traffic violation makes a seizure legal even when it is not the real motivation for the stop. But these supposedly heartwarming interactions are still abuses of power. If police would not have stopped drivers for these minor violations unless they had gifts to hand out, they are deliberately inconveniencing people and causing them needless anxiety for the sake of a publicity stunt. The distribution of gifts is beneficent on the face of it, but it is a [...]



The Other Side of Legalized Theft

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

During a meeting with county sheriffs in February, Donald Trump was puzzled by criticism of civil asset forfeiture, which all the cops in the room viewed as an indispensable and unobjectionable law enforcement tool. "Do you even understand the other side of it?" the president asked. "No," one sheriff said, and that was that. Trump might get a more helpful answer if he asked Rep. Jim Sensenbrenner (R-Wis.), who last week reintroduced a bill aimed at curtailing civil forfeiture abuses. As Sensenbrenner observed, "These abuses threaten citizens' Constitutional rights, put unnecessary burdens on innocent Americans, and weaken our faith in law enforcement." Civil forfeiture lets the government confiscate property allegedly linked to crime without bringing charges against the owner. Since law enforcement agencies receive most or all of the proceeds from the forfeitures they initiate, they have a strong financial incentive to loot first and ask questions never, which explains why those sheriffs were not eager to enlighten the president about the downside of such legalized theft. A new report from the Justice Department's Office of the Inspector General (OIG) highlights the potential for abuse. Between fiscal years 2007 and 2016, the OIG found, the Drug Enforcement Administration (DEA) took $4.2 billion in cash, more than 80 percent of it through administrative forfeitures, meaning there was no judicial oversight because the owners did not challenge the seizures in court. Although the DEA would argue that the lack of challenges proves the owners were guilty, that is not true. The process for recovering seized property is daunting, complicated, time-consuming, and expensive, often costing more than the property is worth. Consider Charles Clarke, a college student who in 2014 lost $11,000 in savings to cops at the Cincinnati/Northern Kentucky International Airport who said his suitcase smelled of marijuana. No contraband was found, and as is typical in such cases the allegations in the federal seizure affidavit were absurdly vague, merely asserting that the money had something to do with illegal drugs. Clarke, who admitted smoking marijuana but denied selling it, ultimately got his money back with interest. But it took two years, and it was possible only because the Institute for Justice represented him for free. Sensenbrenner's bill—which has 15 cosponsors, including House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and six other Republicans—would help forfeiture victims like Clarke by allowing them to recover attorney's fees after a settlement and providing legal representation for those who cannot afford it. Instead of requiring owners to prove their innocence (as the law currently demands), the bill would require the government to disprove it (as in a criminal trial). The bill also would increase the burden of proof in forfeiture trials from "preponderance of the evidence" to "clear and convincing evidence." Although civil forfeiture's defenders argue that it helps destroy drug trafficking organizations, the OIG found that the Justice Department "does not measure how its asset seizure and forfeiture activities advance criminal investigations." Looking at a sample of 100 cases where the DEA seized cash unaccompanied by drugs without a warrant, the OIG found that only 44 led to arrests, advanced existing criminal investigations, or prompted new investigations. "Without fully evaluating the relationship between seizures and law enforcement efforts," the OIG warns, "the Department cannot effectively assess whether asset forfeiture is being appropriately used, and it risks creating the impression that its law enforcement officers pri[...]