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Updated: 2018-04-22T00:00:00-04:00


Trump Wages War Wherever and Whenever He Wants


The day before Donald Trump ordered a missile attack on three sites tied to chemical weapons production in Syria, House Speaker Paul Ryan made it clear that the president needn't worry about getting permission from Congress. "He has the authority under the existing AUMF," Ryan said, referring to the Authorization for the Use of Military Force against the perpetrators of "the terrorist attacks that occurred on September 11, 2001." That eyebrow-raising assertion—which seemed to suggest that Syrian President Bashar al-Assad had helped Al Qaeda, his archenemy, crash jetliners into the World Trade Center and the Pentagon—was striking evidence of Ryan's cognitive dissonance. He and most of his colleagues are happy to let the president do whatever he wants with the country's armed forces, as long as they can pretend that Congress is still ultimately in charge. As much as Ryan might like us to believe otherwise, last week's attack on Syria, which was a response to the Assad regime's use of chlorine (and possibly sarin) against rebels in Douma on April 7, had nothing to do with 9/11. By Trump's account, the 105 missiles fired from American, British, and French aircraft and ships were aimed at creating "a strong deterrent against the production, spread, and use of chemical weapons," which he declared "a vital national security interest of the United States." Members of Congress may or may not agree with that assessment. But under the Constitution, which gives Congress the power "to declare war," it was their call to make. That, at least, was the position taken by Donald Trump in 2013, when Barack Obama was weighing a missile attack on Syria in very similar circumstances. "Obama needs Congressional approval," Trump tweeted back then. It turns out Trump meant Obama specifically, not the president in general, certainly not when the president happens to be Trump. But that double standard seems only fair, since Obama played a similar trick. As a presidential candidate in 2007, Obama declared that "the President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation." As president, Obama did that very thing, repeatedly. Mike Pompeo, at the time a Republican congressman from Kansas, tried to curtail Obama's unilateralism, opposing his unauthorized intervention in Libya's civil war and urging legislators to play "our constitutional role" by voting on a resolution approving the use of military force against Assad. Pompeo, currently Trump's CIA director and his choice to replace Rex Tillerson as secretary of state, seems to take a different view of the president's military powers nowadays. "For a long time, multiple administrations have found that the president has authority to…take certain actions without first coming to Congress to seek approval," Pompeo said during his confirmation hearing last week. "I don't think that has been disputed by Republicans or Democrats." Sen. Rand Paul (R-Ky.)—one of the few legislators who has consistently demanded that the president, regardless of party, respect the constitutional limits on his powers—could not let that slide. "It was disputed mostly by our Founding Fathers, who believed they gave that authority to Congress," Paul told Pompeo. "The fact that we have in the past done this doesn't make it constitutional, and I would say that I take objection to the idea that the president can go to war when he wants, where he wants." Make no mistake: That is the power Trump is asserting. "As our commander in chief," Secretary of Defense James Mattis declared the day of the missile assault, "the president has the authority under Article II of the Constitution to use military force overseas to defend important U.S. national interests." Since the president alone defines those interests, this understanding of his authority as commander in chief effectively expurgates the War Powers Clause from the Constitution. Pusillanimous lawmakers like Ryan are supplying the correctio[...]

Handing Out Pamphlets Is Not a Crime


Brian Thiede, the prosecuting attorney for Mecosta County, Michigan, wants to put Keith Wood in jail for handing out pamphlets. Yet Thiede says the pamphlets are perfectly legal, and so is handing them out. The solution to this riddle lies in Thiede's interpretation of Michigan's jury tampering statute, which he says turns constitutionally protected speech into a crime. If the Michigan Court of Appeals agrees, it will be giving officials like Thiede a versatile tool to censor and punish people who offend them. The pamphlet at the center of this case, which Wood obtained from the Fully Informed Jury Association (FIJA) and distributed in front of the Mecosta County Courthouse on November 24, 2015, argues that jurors can and should judge the law as well as the facts, which may lead them to acquit a technically guilty defendant in the interest of justice. That principle, known as jury nullification, is venerable but controversial, especially among judges and prosecutors. The FIJA pamphlet "just says ignore the law, ignore the facts, do what your conscience wants," Thiede declared at a preliminary hearing. "I'm thinking, 'Oh my goodness, we could have the jury who thinks that jihad is righteous, and if the San Bernardino shooters had not been killed, they'd say, 'Let's acquit.'" Thiede believes FIJA is advocating lawlessness. "The jury's violation of their oath is illegal, even though we don't have a remedy for it," he said while opposing Wood's motion to dismiss. "The pamphlet was set up to instruct and encourage the jury to go in one direction and one direction only—to favor the defendant." Arguing against Wood's appeal, Thiede likewise complains that "the content of the pamphlet was clearly anti-government." Officially, however, Wood was not prosecuted for promoting a message Thiede considers dangerously subversive. He was prosecuted for promoting that message near the courthouse on the day when the trial of Andy Yoder, a local man accused of illegally filling wetlands on his own property, was scheduled to begin. Wood concedes he took an interest in Yoder's case and knew it was scheduled for trial that day. But he says he expected the case to end with a plea bargain (which it did) and picked that day because he thought the courthouse would be busy. Wood was convicted of violating a state law that says "a person who willfully attempts to influence the decision of a juror in any case by argument or persuasion, other than as part of the proceedings in open court in the trial of the case, is guilty of a misdemeanor." Yet Wood did not discuss the Yoder trial with anyone at the courthouse, and none of the people who received a FIJA pamphlet from him was a juror in that case or any other, since no jurors were selected that day and Yoder ended up pleading guilty. "Wood was charged with tampering with a jury that did not exist," says his attorney, David Kallman. "There is no such crime in Michigan." The Cato Institute, in a brief it filed last week on Wood's behalf, argues that his conviction "strikes at the core of the First Amendment." It notes that he was "convicted for engaging in classic political advocacy (peacefully distributing pamphlets) in the quintessential public forum (the sidewalk in front of a courthouse) on a matter of public concern more ancient than Magna Carta, and at the heart of Anglo-Saxon law (the rights, duties, and independence of citizen jurors)." If the jury tampering law is understood to cover Wood's leafleting, the American Civil Liberties Union of Michigan warns in another brief filed last week, "it would criminalize a vast amount of protected speech." That might include, for example, holding rallies or passing out literature in support of tort reform, women's rights, or drug decriminalization, depending on whether those causes were arguably related to a pending case. Thiede, in other words, may be inadvertently strengthening the case for jury nullification. © Copyright 2018 by Creators Syndicate Inc. [...]

Court to Cops: Shoot First and Think Later


"Why'd you shoot me?" Amy Hughes, screaming and bleeding, asked Officer Andrew Kisela after he fired four rounds at her through a chain link fence. Thanks to the Supreme Court, a jury will not get a chance to consider that question. In a case that illustrates how hard it is to hold police officers responsible for using excessive force, the Court on Monday ruled that Kisela is protected by "qualified immunity" from civil liability for the injuries he inflicted on Hughes in May 2010. The decision, as Justice Sonia Sotomayor observed in a dissent joined by Justice Ruth Bader Ginsburg, "tells officers that they can shoot first and think later." Kisela, an officer with the University of Arizona Police Department in Tucson, was responding to a "check welfare" call about a woman who was hacking at a tree with a kitchen knife. Arriving at the home that Hughes shared with Sharon Chadwick, he saw Hughes emerge from the house with a kitchen knife in her hand and approach Chadwick, stopping about six feet from her. Hughes, who talked to Chadwick but did not seem angry, was holding the knife at her side, with the blade pointing away from her housemate. Chadwick, who later described Hughes as "composed and content," said she never felt she was in any danger. Kisela and the two other officers with him nevertheless drew their guns and ordered Hughes to drop the knife. It is not clear whether she heard the commands. Chadwick said it seemed to her that Hughes did not understand what was happening, an impression shared by Kisela's colleagues. The cops, although in uniform, never verbally identified themselves as police officers, and the whole encounter was over within a minute. Kisela, who later said he was trying to protect Chadwick, opened fire immediately and without warning, hitting Hughes with all four bullets. She survived but easily could have been killed. Neither of the two other officers at the scene resorted to deadly force. Kisela could have used his Taser instead of his gun. He could have repeated the command to drop the knife. He could have at least warned Hughes that if she did not comply he would fire. At the moment she was shot, Hughes had committed no crime and was not menacing anyone. After Hughes sued Kisela under a federal law that allows people to recover damages for violations of their constitutional rights, the U.S. Court of Appeals for the 9th Circuit concluded that "a rational jury…could find that she had a constitutional right to walk down her driveway holding a knife without being shot." Kisela appealed to the Supreme Court, which did not address the question of whether he had used excessive force. Even if he did, seven justices agreed, Kisela cannot be held liable because the 9th Circuit's precedents, as of May 2010, had not clearly established that shooting Hughes violated her rights. While none of the 9th Circuit's cases addressing excessive force involved circumstances exactly like these, that does not mean Kisela had no way of knowing that what he did was unlawful. "Because Kisela plainly lacked any legitimate interest justifying the use of deadly force against a woman who posed no objective threat of harm to officers or others, had committed no crime, and appeared calm and collected during the police encounter," Sotomayor writes, "he was not entitled to qualified immunity." The Supreme Court's conclusion to the contrary is part of a pattern. In a recent California Law Review article, University of Chicago law professor William Baude notes that the Court almost always sides with government officials in qualified immunity cases, which makes judges less likely to let people sue them. As illustrated by criminal cases in which juries let cops off the hook for outrageous conduct, giving victims of excessive force their day in court hardly guarantees justice. But preventing juries from hearing cases like these guarantees injustice. © Copyright 2018 by Creators Syndicate Inc. [...]

Young Anti-Gun Demagogues Copy Their Elders


David Hogg began his speech at the March for Our Lives rally in Washington, D.C., on Saturday by accusing Marco Rubio, Florida's Republican senator, of exchanging students' lives for donations from the National Rifle Association. Dividing the $3 million or so that Rubio has received from the NRA over the years by the number of primary and secondary students in Florida, Hogg figured that the senator had charged $1.05 for each of the 14 teenagers killed in the February 14 massacre at Marjory Stoneman Douglas High School in Parkland, where Hogg is a senior. Hogg and the other young activists who attended demonstrations across the country on Saturday to demand legislation aimed at preventing school shootings may have energized the debate about gun control, but they certainly have not elevated it. Taking their cues from the grownups they say have failed them, Hogg and his compatriots assume their opponents are motivated by greed, cowardice, and crass political considerations—anything but honest disagreement. "School safety is not a political issue," the March for Our Lives website insists. "There cannot be two sides to doing everything in our power to ensure the lives and futures of children who are at risk of dying when they should be learning, playing, and growing." There cannot be two sides. That sort of logic practically demands contempt for anyone who does not share your policy preferences, as illustrated by Hogg's comments about legislators who do not vote the way he thinks they should. "They're pathetic fuckers that want to keep killing our children," Hogg said in an interview with The Outline. "They could have blood from children spattered all over their faces, and they wouldn't take action, because they all still see those dollar signs." Hogg is only 17, but comments from older, supposedly wiser advocates of gun control reflect a similar attitude. "If you're a political leader doing nothing about this slaughter," Sen. Chris Murphy (D-Conn.) tweeted after the Parkland attack, "you're an accomplice." Sen. Dianne Feinstein (D-Calif.), who is five times as old as David Hogg, shares his assumptions about people who disagree with her, although she expresses them in more temperate terms. "The students protesting inaction on gun safety," she tweeted on March 14, "have the courage to stand up to the NRA and lawmakers would do well to follow their example." If fear of the NRA is the only conceivable reason why people would fail to support the legislation favored by Hogg, Murphy, and Feinstein, there is no point in debating whether, say, an "assault weapon" ban, a limit on the capacity of magazines, or background checks for every gun transfer can reasonably be expected to have a meaningful impact on the frequency or lethality of mass shootings. The only sensible course is to shame or scare people into doing what everyone knows is the right thing—whatever that happens to be at any given moment. "Our lives are more important than your guns," said a sign held by a teenager at the D.C. rally. Similar slogans, presumably written by adults, could be seen on signs held by preschoolers. The implicit message—that Americans must surrender their firearms and their Second Amendment rights in the name of protecting children—was not exactly designed to provoke a fruitful dialogue. But that approach makes sense if you think all the relevant issues have already been settled. Lara Vance, a middle-aged Kentucky woman who was interviewed at the D.C. rally, said she was "rather shocked that this is even an issue." After all, "This is something that can be solved. It doesn't take a lot of thought. We know what the problems are, and we need Congress to get their act together and get this problem solved." I disagree with pretty much every part of that, but I have no doubt that Vance sincerely believes it. I wish she would extend me the same courtesy. © Copyright 2018 by Creators Syndicate Inc. [...]

Trump’s ‘Tough’ Drug Policies Are Not Smart


During a visit to New Hampshire on Monday, Donald Trump gave a 19-minute speech about opioid abuse in which he used the word tough or variations on it 19 times, more than four times as often as he used the word smart. That ratio seems about right, given the details of the president's plan to end "this scourge of drug addiction in America" and "raise a drug-free generation of American children." Trump's plan is heavy on tactics that have already failed. For instance, he favors "spending a lot of money" on "very, very bad commercials" that will "scare" kids away from drugs by depicting "pretty unsavory situations." Trump does not seem to realize that the federal government already tried that, and the results were disappointing. Evaluations found that the taxpayer-financed propaganda did not make teenagers less likely to try drugs and may even have had the opposite effect. Trump's supply-side ideas are equally innovative. "We have got to get tough," he said, and toughness requires "the death penalty for the really bad pushers and abusers." The president's fixation on killing drug dealers is little more than a bloodthirsty fantasy. Congress approved execution of large-scale drug traffickers back in 1994, but the provision has never been carried out and probably never will, since the Supreme Court has said the Eighth Amendment requires that the death penalty be reserved for "crimes that take the life of the victim." Trump also wants to reduce the weight thresholds for mandatory minimum sentences in opioid cases, which is more constitutionally feasible than copying Iran's drug penalties but no more likely to affect the drug supply. As every tough drug warrior who has preceded Trump during the last century has discovered, the economic incentives created by prohibition mean there are always more dealers to replace the ones behind bars. Those same incentives spell doom for Trump's plan to "keep the damn drugs out" by building a "big, beautiful wall" along the border with Mexico. Drug smugglers attracted by prohibition profits will always find ways around, over, under, or through any wall, no matter how big or beautiful. Trump bragged that U.S. Customs and Border Protection "seized nearly 1,500 pounds of fentanyl last year, nearly three times the amount seized in 2016." Since CBP will never manage to intercept more than a small percentage of incoming drugs, rising seizures are a sign of failure, not success, especially when they are accompanied by falling retail prices. The government has more control over the supply of legally produced opioids, which are subject to quotas set by the Drug Enforcement Administration and regulation of the doctors who prescribe them. "We're going to cut nationwide opioid prescriptions by one-third over the next three years," Trump said. That strategy does not seem very promising, given that opioid-related deaths mainly involve heroin and illegally produced fentanyl. According to the U.S. Centers for Disease Control and Prevention (CDC), the number of opioid prescriptions fell by 16 percent from 2012 to 2016, while the number of opioid-related deaths rose by 82 percent. Restricting the supply of pain pills contributes to that death toll by driving nonmedical users into the black market, where the drugs are more dangerous because purity and potency are unpredictable. The pressure to reduce prescriptions also hurts legitimate pain patients, who are left in agony when their doctors arbitrarily decrease their doses or cut them off entirely. The Trump administration reportedly wants to impose the CDC's opioid prescribing guidelines, which encourage doctors to be as stingy as possible with pain pills, on patients covered by Medicaid or Medicare. That will mean more unnecessary suffering for innocent people deprived of the medication they need to have a decent quality of life. Attorney General Jeff Sessions thinks victims of the crackdown on pain pills should "take some aspirin" and "toug[...]

5 Reasons Not to Feed the Russian Troll Hysteria


Federal prosecutors have filed charges against 13 Russians who allegedly sought to "sow discord in the U.S. political system" through social media posts, ads, and videos falsely presented as the work of Americans. After the indictment was unveiled in February, The New York Times reported that Donald Trump's "admirers and detractors" both agree with him that "the Russians intended to sow chaos" and "have succeeded beyond their wildest dreams." But Reason Senior Editor Jacob Sullum says a close look at the indictment tells a different story. Here are "5 Reasons Not to Feed the Russian Troll Hysteria:" 1) Russian trolling was a drop in the bucket. According to the indictment, Russian trolls associated with the so-called Internet Research Agency (IRA) in Saint Petersburg spent "thousands of U.S. dollars every month" on social media ads, which is a minuscule fraction of online ad revenue. Facebook alone reported advertising revenue of $9.16 billion in the second quarter of 2017. The Russians are said to be responsible for producing 43 hours of YouTube videos, but that doesn't seem like very much when you consider that 400 hours of content are uploaded to the site every minute. 2) Russian trolls were not very sophisticated. Russian trolls supposedly had the Machiavellian know-how to infiltrate the American political system, but their social media posts don't look very sophisticated. The posts often featured broken English and puzzling topic choices. A post promoting a "buff" Bernie Sanders coloring book, for instance, noted that "the coloring is something that suits for all people." Another post showed Jesus and Satan in an arm wrestling match under this caption: "SATAN: IF I WIN CLINTON WINS! JESUS: NOT IF I CAN HELP IT!" The post generated very few clicks and shares. 3) Russian troll rallies apparently did not attract many participants. The indictment makes much of pro-Trump and anti-Clinton rallies instigated by Russian trolls, but it does not say how many people participated. The New York Times reported that a Russian-organized rally in Texas opposing Shariah law attracted a dozen people. An anti-immigrant, anti-Muslim rally in Idaho drew four people. Attendance at other rallies was similarly sparse. 4) Russian trolling probably didn't change anyone's mind. Broken English aside, the social media posts were not qualitatively different from content created by American activists, and they seemed to be aimed mainly at reinforcing pre-existing beliefs and divisions. The Russians might have gotten a few Trump supporters to show up at anti-Clinton rallies, but that does not mean they had an impact on the election. 5) Russian troll hysteria depicts free speech as a kind of violence. The Justice Department describes the messages posted by Russians pretending to be Americans as "information warfare." But while the posts may have been sophomoric, inaccurate, and illogical, that does not distinguish them from most of what passes for online political discussion among actual Americans. The integrity of civic discourse does not depend on verifying the citizenship of people who participate in it. It depends on the ability to weigh what they say, checking it against our own values and information from other sources. If voters cannot do that, maybe democracy is doomed. But if so, it's not the Russians' fault. Produced and edited by Paul Detrick. Camera by Alex Manning. Ghost Dance by Kevin MacLeod is licensed under a Creative Commons Attribution license ( Source: Artist: Russian Folk Dance by Sam Bikov is licensed under a Attribution-NonCommercial-NoDerivatives ( Source: Artist: Subscribe to[...]

Don’t Deny Young Adults the Right to Self-Defense


After last month's mass shooting at a high school in Parkland, Florida, Donald Trump said he favored raising the minimum age for buying rifles or shotguns from federally licensed dealers, currently 18, to 21. On Monday he backed away from that position, saying the decision should be left to the states. The president was immediately criticized for kowtowing to the National Rifle Association. But there are sound reasons, aside from crass political considerations, for questioning the effectiveness and fairness of new restrictions on young adults' access to firearms. Since the Parkland massacre was perpetrated by a 19-year-old with a Smith & Wesson M&P 15 rifle that he legally purchased from a gun store, the idea of banning such sales is superficially appealing. But there is little reason to think it would have a measurable impact on mass shootings. Of the 23 deadliest shootings in modern U.S. history, three were perpetrated by killers younger than 21 who used rifles. In addition to Parkland, there was the 1999 attack at Columbine High School in Colorado and the 2012 massacre at Sandy Hook Elementary School in Newtown, Connecticut. The Sandy Hook shooter, who was 20, used a Bushmaster XM-15 bought by his mother, so a higher purchase age clearly would not have thwarted him. The Columbine killers, who were both younger than 18 when they started collecting weapons, illegally obtained two shotguns, a Hi-Point 995 carbine, and an Intratec TEC-DC9 pistol through older third parties. If the policy that Trump initially endorsed had been in place, the Parkland perpetrator would not have been allowed to buy a rifle from a gun store. But he still could have legally bought one in a private transaction, where the minimum age would have been 18. The bill that Florida Gov. Rick Scott signed into law last week goes further, making it a felony, punishable by up to five years in prison, for anyone younger than 21 to buy any kind of firearm from anyone. Florida is now one of just three states with such a rule, which still leaves would-be mass murderers with indirect or illegal options, as illustrated by the Sandy Hook and Columbine attacks. While the public safety benefits of banning gun purchases by 18-to-20-year-olds are doubtful, the burdens on millions of law-abiding adults are clear. At 18, the NRA notes in a lawsuit challenging Florida's new law, Americans "are considered adults for almost all purposes," and it seems anomalous to deny them the constitutional right of armed self-defense, which is also a fundamental human right. Sen. Dianne Feinstein (D-Calif.), a longtime gun controller who wants to raise the minimum federal age for buying long guns, thinks the existing policy is the real anomaly. "Under current law," she says, "licensed gun dealers cannot sell a handgun to anyone under 21, but they are allowed to sell assault rifles like the AR-15 to anyone over 18. This policy is dangerous and makes absolutely no sense....If you can't buy a handgun or a bottle of beer, you shouldn't be able to buy an AR-15." The AR-15, a semiautomatic that fires just once per trigger pull, is not, strictly speaking, an assault rifle, which is capable of automatic or burst fire. Furthermore, Feinstein favors giving actual assault rifles to 18-, 19-, and 20-year-olds—provided they are members of the armed forces. Florida's law likewise makes an exception for a "servicemember," which highlights an inconsistency that is logically and morally indefensible. As the NRA notes, adults younger than 21 are considered old enough to lay down their lives in defense of the country—old enough, in fact, to be conscripted into that role whenever Congress deems it necessary. Out of uniform, however, these same young adults not only can't legally buy a beer; under Florida's new policy, they can't legally buy firearms to defend themselves, their homes, and their families. To borrow a phrase from F[...]

America's War on Pain Pills Is Killing Addicts and Leaving Patients in Agony


Craig, a middle-aged banking consultant who was on his school's lacrosse team in college and played professionally for half a dozen years after graduating, began developing back problems in his early 30s. "Degenerative disc disease runs in my family, and the constant pounding on AstroTurf probably did not help," he says. One day, he recalls, "I was lifting a railroad tie out of the ground with a pick ax, straddled it, and felt the pop. That was my first herniation." After struggling with herniated discs and neuropathy, Craig consulted with "about 10 different surgeons" and decided to have his bottom three vertebrae fused. He continued to suffer from severe lower back pain, which he successfully treated for years with OxyContin, a timed-release version of the opioid analgesic oxycodone. He would take a 30-milligram OxyContin tablet twice a day, supplemented by immediate-release oxycodone for breakthrough pain when he needed it. Then one day last May, Craig's pain clinic called him in for a pill count, a precaution designed to detect abuse of narcotics or diversion to nonpatients. The count was off by a week's worth of pills because Craig had just returned from a business trip and forgot that he had packed some medication in his briefcase. He tried to explain the discrepancy and offered to bring in the missing pills, to no avail. Because the pill count came up short, Craig's doctor would no longer prescribe opioids for him, and neither would any other pain specialist in town. "I have lived my life by the rules," says Craig (whose name I've changed at his request). "I made one mistake, and they condemned me for it. They were basically saying that I'm a druggie when I have been fine for four years. My first pill count ever, and they boot me." He says a nurse at the practice told him "the doctors were getting tired of all the scrutiny, so they were booting all the opioid patients." Without the OxyContin, Craig says, "every morning is a challenge to get out of bed." Even with liberal use of ice packs and Biofreeze, he says, "It's horrible. I can't expect to live a life like this. I'm not a junkie. I'm not a threat to society. I'm not a threat to myself. I simply want to live my life without pain." Like other patients across the country, Craig is a victim of the recent crackdown on prescription opioids, which is based on a narrative that mistakenly blames pain treatment for a plague of addiction and death. Most Americans believe we are in the midst of an "opioid crisis" that began in the 1990s with the introduction of OxyContin. According to the generally accepted account, deceptive marketing encouraged reckless prescribing, which led to widespread addiction among patients and record numbers of opioid-related fatalities—a situation President Donald Trump has declared a public health emergency. Former New Jersey Gov. Chris Christie, who chaired the President's Commission on Combating Drug Addiction and the Opioid Crisis, invokes that narrative when he talks about "the injured student-athlete who becomes addicted after [his] first prescription" or remembers the law school classmate who died of an overdose after getting hooked on the oxycodone he was taking for back pain. Such examples are misleading because they are rare, accounting for only a small percentage of opioid-related deaths. Contrary to the impression left by most press coverage of the issue, opioid-related deaths do not usually involve drug-naive patients who accidentally get hooked while being treated for pain. Instead, they usually involve people with histories of substance abuse and psychological problems who use multiple drugs, not just opioids. Conflating those two groups results in policies like the pill count that left Craig without the pain medication he needed to get out of bed in the morning, go to work, and lead a normal life. The rationale is that cutti[...]

Trump, Slayer of Pushers


The president wants to kill drug dealers, which he thinks would be a legal, moral, and effective way to prevent opioid-related deaths. He is wrong on all three counts. "Some countries have a very, very tough penalty—the ultimate penalty—and by the way, they have much less of a drug problem than we do," Donald Trump said during a White House summit on opioid abuse last Thursday. The remark was consistent with reports of private conversations in which Trump has said drug dealers deserve the death penalty. Federal law already authorizes execution for certain drug traffickers. Offenders subject to "the ultimate penalty" include leaders of criminal enterprises that sell 60,000 kilograms of marijuana, 60 kilograms of heroin, 17 kilograms of crack cocaine, or 600 grams of LSD. That provision has been on the books since 1994, but it has never been carried out. It probably never will, since it seems to be unconstitutional under a 2008 decision in which the Supreme Court said the Eighth Amendment requires that the death penalty be reserved for "crimes that take the life of the victim." Trump thinks drug dealing falls into that category. "We have pushers and drugs dealers [who] are killing hundreds and hundreds of people," he said on Thursday. "If you shoot one person, they give you life, they give you the death penalty. These people can kill 2,000, 3,000 people, and nothing happens to them." That way of characterizing the situation is rather misleading, since drugs do not fly up the noses or flow into the veins of anyone without assistance. People who choose to take drugs surely bear some responsibility for what happens afterward, especially if they combine different substances, as people who die from drug poisoning typically do. There is nothing inherently criminal, let alone homicidal, about exchanging psychoactive substances for money, even if some of your customers die after consuming them. The U.S. Centers for Disease Control and Prevention, which counted about 15,500 heroin-related deaths in 2016, attributes some 88,000 deaths each year to alcohol and 480,000 to cigarettes. If heroin dealers are murderers, what about bartenders and tobacconists? There is one important way in which illegal drugs differ from legal ones: Their composition and potency are much harder to predict. A vodka buyer knows he is getting a beverage with an alcoholic strength of 40 percent, while a heroin buyer has no idea what he is getting, which makes consuming it much riskier. That uncertainty has been magnified in recent years by the increased use of fentanyl as a heroin adulterant and substitute. Since fentanyl is much stronger than heroin, it makes potency even more variable, multiplying the chances of lethal error. You might think that a drug dealer who passes fentanyl off as heroin, leading to a fatal overdose, is guilty of something akin to negligent manslaughter. But when it comes to the content of the powder they are selling, dealers may be just as much in the dark as their customers. Treating such deaths as homicides is not only unjust; it may have the perverse effect of making opioid-related fatalities more likely. The people who face prosecution tend to be relatives, friends, and acquaintances—the same people who are best positioned to seek medical assistance in the event of an overdose but who might be deterred by the possibility of a homicide charge should rescue attempts fail. As that example illustrates, the government's role in all of this is usually to make drug use deadlier. Prohibition created a black market in which purity and potency are inconsistent. Drug warriors drove nonmedical users of prescription opioids into that market by cracking down on pain pills and made the illicit substitutes more dangerous by trying to cut off the heroin supply, which fostered the proliferation of fentanyl. If drug [...]

Will Hawaiians Who Use Medical Pot Lose Their Right to Own a Gun?


Hawaii is one of 29 states that allow medical use of marijuana. It's also the only state that requires registration of all firearms. If you are familiar with the criteria that bar people from owning guns under federal law, you can probably surmise what the conjunction of these two facts means for patients who use cannabis as a medicine, which Hawaii allows them to do only if they register with the state.

"Your medical marijuana use disqualifies you from ownership of firearms and ammunition," Honolulu Police Chief Susan Ballard said in a November 13 letter received by about 30 people on Oahu. "If you currently own or have any firearms, you have 30 days upon receipt of this letter to voluntarily surrender your firearms, permit, and ammunition to the Honolulu Police Department (HPD) or otherwise transfer ownership."

Hawaii legalized medical marijuana in 2000. It's not clear what prompted the letters now, but the opening of the state's first dispensary last August may have had something to do with it. Ballard cited a state law that says "no person who is…prohibited from possessing firearms or ammunition under federal law shall own, possess, or control any firearm or ammunition." Federal law forbids possession of firearms by any "unlawful user" of a controlled substance and, unlike Hawaii law, does not recognize any legitimate reason for consuming cannabis.

In 2016, the U.S. Court of Appeals for the 9th Circuit, which includes Hawaii, upheld a ban on gun sales to people with medical marijuana cards, even if they do not consume cannabis. The appeals court reasoned that possessing such a card is a good if imperfect indicator of illegal drug use, which it said is associated with violence, "impaired mental states," and "negative interactions with law enforcement officers." The court concluded that there is a "reasonable fit" between the ban and a substantial government objective, which means it passes "intermediate scrutiny" and is therefore consistent with the constitutional right to keep and bear arms.

Disarming medical marijuana patients nevertheless proved controversial in Hawaii, where local criticism led Ballard to backpedal in December. Although the HPD will continue to reject gun permit applications from patients on the state's registry, she said, for the time being it will not try to take firearms away from those who already own them.

"This is a new area of concern for cities across the country, and we in Honolulu want to develop a policy that's legally sound and serves our community," the police chief said in a press release. "Formulating the policy will take time, but we want to do it right."

Supreme Court’s Silence Clouds Gun Control Debate


This month's mass shooting at a high school in Florida has predictably provoked demands for new restrictions on guns, most of which are dubious on practical grounds, constitutional grounds, or both. But while logic and experience can help us figure out which measures are likely to be effective, the debate about which ones are consistent with the Second Amendment occurs in a shadowland only partly illuminated by the Supreme Court. In the decade since the Court officially recognized the individual right to armed self-defense, it has passed up one opportunity after another to clarify the boundaries of that right. "The right to keep and bear arms is apparently this Court's constitutional orphan," Justice Clarence Thomas observed last week as the Court declined to hear yet another Second Amendment case. That case involved California's 10-day waiting period for buying firearms, which applies even when state and federal background checks take less time and even when the buyer has previously been cleared and already owns a gun. In 2014 a federal judge ruled that the waiting period violates the Second Amendment rights of people who are buying additional firearms or who hold concealed-carry licenses. When the U.S. Court of Appeals for the 9th Circuit overturned that decision in 2016, Thomas noted, "it did so without requiring California to submit relevant evidence, without addressing petitioners' arguments to the contrary, and without ac­knowledging the District Court's factual findings." That highly deferential approach, he said, was clearly inappropriate for an enumerated constitutional right and inconsistent with the Court's Second Amendment precedents. Thomas suggested that his colleagues would have been keen to correct such a blatant error if the case had implicated a different amendment. "Our continued refusal to hear Second Amendment cases only enables this kind of defiance," he wrote. It was not the first time Thomas had complained about the Court's neglect of the Second Amendment. Last year he and Justice Neil Gorsuch strenuously objected when the Court declined to review a 9th Circuit decision upholding California's requirement that concealed-carry licenses be issued only for "good cause," which gives local officials broad discretion to reject applicants. Thomas called the 9th Circuit's focus on concealed guns, as opposed to the more general right to armed self-defense outside the home, "untenable" and "indefensible." He noted that the Second Amendment protects the right to "bear" as well as "keep" weapons, adding, "I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen." In 2015 Thomas was similarly skeptical of the idea that guns arbitrarily identified as "assault weapons" are beyond the scope of the Second Amendment. He wrote that the Court should have reviewed a decision in which the U.S. Court of Appeals for the 7th Circuit upheld an "assault weapon" ban imposed by the city of Highland Park, Illinois, which covered "many of the most commonly owned semiautomatic firearms." The Supreme Court's 2008 decision overturning the District of Columbia's handgun ban made it clear, Thomas said, that the Second Amendment encompasses "firearms that millions of Americans commonly own for lawful purposes." Yet the 7th Circuit upheld Highland Park's ban based on little more than "speculation about the law's potential policy benefits," including the possibility that it "may increase the public's sense of safety." The illusion of safety is the main thing such laws have to offer, since they target features that make guns look scarier without making them more lethal. "If a broad ban on firearms can be upheld based on conjecture that the public might feel sa[...]

Don’t Feed the Russian Troll Hysteria


According to a federal indictment unveiled on Friday, Russians who pretended to be Americans while participating in online political discourse during the last few years committed a bunch of felonies. Whether they accomplished anything else of significance is by no means clear, notwithstanding all the scary talk about "information warfare" that supposedly undermined our democratic institutions and interfered with the electoral process. The crimes described in the indictment, which names 13 Russians associated with the so-called Internet Research Agency (IRA) in Saint Petersburg, include fraud and identity theft as well as violations of immigration law, campaign finance rules, and the Foreign Agents Registration Act. But everyone knows the real crime was, as Facebook General Counsel Colin Stretch put it in Senate testimony last fall, conspiring to "sow division and discord" and "undermine our election process" by committing "an assault on democracy" that "violates all of our values." The New York Times, which last year breathlessly claimed that "Russia Harvested American Rage to Reshape U.S. Politics," reports that Donald Trump's "admirers and detractors" both agree with him that "the Russians intended to sow chaos" and "have succeeded beyond their wildest dreams." A Times editorial assures skeptics that "the Russian subversion effort" was "sophisticated" and "breathtaking" in scope. That analysis is at odds with the paper's own reporting, which describes Russian trolls as "sloppy" and "amateurish" bumblers who sounded suspiciously like foreigners while posing as Americans, left a trail that made it easy to catch them, and produced crude propaganda that amounted to a drop in the raging river of online political speech. The only thing breathtaking about this influence campaign is the hyperventilation of the alarmists who talk as if we are just a few angry tweets from the abyss. According to the indictment, the IRA 13 and their co-conspirators were so sophisticated that they had to learn the importance of targeting "purple states like Colorado, Virginia & Florida" in the context of the presidential election from an activist "affiliated with a Texas-based grassroots organization." They thought a $150 million donation to Hillary Clinton's campaign from the conservative Bradley Foundation would be a plausible hoax, and they created a Facebook ad showing Satan arm wrestling Jesus while proclaiming, "If I win, Clinton wins." It generated 71 impressions and 14 clicks. The indictment makes much of the rallies instigated by IRA operatives but never says how many people participated in them. In 2016, the Times reports, "a dozen people" attended an IRA-orchestrated "Stop the Islamization of Texas" rally in Houston, while a simultaneous counterprotest, also organized by the Russians, attracted "a far larger crowd." Two dozen? The indictment says the IRA spent "thousands of U.S. dollars every month" on social media ads. That's roughly one-millionth of the ad revenue that Facebook alone receives each month. According to Facebook, ads bought by the IRA, most of which weighed in on contentious social issues rather than endorsing or opposing candidates, represented "four-thousandths of one percent (0.004%) of content in News Feed." Twitter Acting General Counsel Sean Edgett testified in October that "the 1.4 million election-related Tweets that we identified through our retrospective review as generated by Russian-linked, automated accounts constituted less than three-quarters of a percent (0.74%) of the overall election-related Tweets on Twitter at the time." Richard Salgado, Google's senior counsel on law enforcement and information security, testified that the company found 18 YouTube channels offering about 1,100 videos with poli[...]

Jeff Sessions’ Cruel Prescription for Pain


When Attorney General Jeff Sessions advised people in pain to "take some aspirin" and "tough it out" during a speech in Tampa last week, the federal prosecutors in his audience laughed. Mitzie Katzen, who has suffered from complex regional pain syndrome since she was a teenager, had a different reaction. "I was just floored," Katzen says. "I could not believe what I was reading, and I thought that has to be somebody who has never experienced really severe pain for any length of time." Katzen's perspective on Sessions' remarks illuminates the depravity of a policy that sacrifices the interests of patients like her in the name of fighting the "opioid epidemic." Saying "this country prescribes too many opioids," Sessions cited the stoic example set by White House Chief of Staff John Kelly, a former Marine general who refused to take pain medication while recovering from hand surgery. Although "it did hurt," Sessions said, "you can get through these things." It's not clear why people would choose to suffer postsurgical pain that could be easily relieved by an opioid analgesic, especially since the risks associated with medical use of such drugs are minimal. A large study reported last month in The BMJ found that just 1 percent of people who took prescription analgesics after surgery showed signs of "opioid misuse." The risk of a fatal overdose among people who take opioids for pain is even lower—something like 0.02 percent annually, judging from 2015 study reported in the journal Pain Medicine. The attorney general's medical advice is not just senseless but cruel, especially if it is applied to chronic pain patients like Katzen. A 55-year-old mother of three who lives in Fort Worth, Texas, Katzen began experiencing nerve pain after a bout of Rocky Mountain spotted fever when she was 15. The pain became disabling after she caught mononucleosis while working as a child life specialist at a hospital in New Mexico, spreading from her torso to her legs, knees, feet, and face. Katzen has tried a bewildering array of treatments, including acupuncture, acupressure, biofeedback, physical therapy, nerve blocks, trigger point injections, cognitive behavioral therapy, physical therapy, ultrasound, transcutaneous electrical nerve stimulation, and "a whole list of medications." The one thing that kept the agony at bay was opioids. Katzen currently takes methadone and oxycodone, occasionally supplemented by injections of Demerol (meperidine) when the pain gets really bad. "Without medication, I really can't function," she says. "It's hard to move my arms. It's hard to walk." Katzen knows that because a doctor who disapproved of the drugs she was taking once cut her dosage in half, leaving her essentially bedridden. That is the sort of indignity that an indiscriminate drive to reduce opioid use inflicts on people with severe chronic pain, who are often treated like drug-seeking criminals instead of patients. Thanks to an arbitrary cap that took effect at the beginning of this year, Katzen's insurer is now covering just a fraction of the pain medication she takes. She worries that regulatory pressure will discourage doctors like hers from prescribing opioids, that "they'll decide it's just too great a risk." That fear is well-founded. "There are many pain clinics flooded with patients who have been treated previously by their primary care physician," says Jianguo Cheng, president-elect of the American Academy of Pain Medicine. He says these refugees include patients who "have been functional" and "responding well" to opioids for "many years." Some have been driven to suicide. If Sessions talked to people like her, Katzen says, maybe he could "see what it looks like to live with pain all the time." Then he [...]

There’s Still No Big ‘There’ in the Russia Probe


Peter Strzok, an FBI agent who called Donald Trump an "idiot" and rooted against him in 2016, was nevertheless reluctant to join the investigation of possible ties between the Trump campaign and Russians who sought to influence the presidential election. Strzok, who was removed from the probe after his anti-Trump comments came to light, expressed his qualms in a May 19 text message to FBI lawyer Lisa Page, his girlfriend at the time: "I hesitate in part because of my gut sense and concern there's no big 'there' there." It is looking more and more like Strzok's gut was right. The FBI's surveillance of former Trump campaign adviser Carter Page, which Republicans on the House Intelligence Committee criticize in a memo that was declassified last week, shows investigators putting a lot of time and effort into a line of inquiry that apparently led nowhere. Given the low legal bar for wiretapping suspected foreign agents, it seems likely that the FBI could have obtained permission to wiretap Page even without the evidence that the memo portrays as questionable and tainted by partisan bias. But that does not mean the bureau's investigation of Page, an oil industry consultant known for his pro-Russian views, was fruitful. The FBI questioned Page in 2013 about his encounter with a Russian intelligence agent (who he apparently did not realize was a spy) and reportedly monitored his conversations in 2014. In October 2016, after press coverage of Page's chumminess with the Russian government led him to part ways with the Trump campaign, the FBI obtained a new warrant, which lasted 90 days and was renewed three times, meaning he was under FBI surveillance for a full year. Despite all this interest in Page, a peripheral figure in the Trump campaign who served as a foreign policy adviser for half a year, he was never charged with a crime. Two other Trump associates, former National Security Adviser Michael Flynn and former campaign consultant George Papadopoulos, have admitted lying to the FBI about direct or indirect contacts with Russian officials. But the contacts themselves were not illegal. Neither was Donald Trump Jr.'s June 2016 meeting at Trump Tower with Natalia Veselnitskaya, a Russian lawyer who claimed to have dirt on Hillary Clinton. Although former Trump strategist Stephen Bannon called that meeting "treasonous," it clearly did not meet the legal definition of treason, which involves giving aid and comfort to an enemy at war with the United States. Some of President Trump's opponents argue that by agreeing to the meeting, Donald Jr. knowingly solicited a campaign contribution from a foreigner, which would be illegal. That seems like quite a stretch. It is even harder to see how the president's role in crafting a misleading public statement about the meeting with Veselnitskaya—a subject in which Special Counsel Robert Mueller reportedly has shown a keen interest—violated any laws. If lying to the public were a crime, Trump would be eligible for a life sentence. Lying to federal investigators is a different matter, as Lynch and Papadopoulos discovered. That explains why several of Trump's lawyers are advising him against agreeing to an open-ended interview with Mueller, which would give the president ample opportunity to commit a felony, even if only to deny knowledge of contacts that look shady but were not actually criminal. It is less clear whether a president can commit obstruction of justice by doing things he has undisputed legal authority to do, such as firing the FBI director. In practice, since it is doubtful whether a sitting president can be indicted, a president's obstruction of justice, which figured prominently in the impeachment of Richard Nixon [...]

Don't Blame Pain Pills for the Opioid Crisis


Chris Christie, the outgoing governor of New Jersey, has repeatedly told the story of a law school classmate who died of an overdose after getting hooked on oxycodone prescribed for back pain. A recently released final report from the President's Commission on Combating Drug Addiction and the Opioid Crisis, which Christie chaired, wrongly implies that such cases are typical. "A widely held and supportable view is that the modern opioid crisis originated within the healthcare system," the report says; the problem began with "a growing compulsion to detect and treat pain." According to this narrative, doctors in the late 1990s began to underestimate the risk of addiction and overdose among patients prescribed narcotics for pain. Responding to advocacy on behalf of pain patients and deceptive marketing by drug companies, they supposedly began prescribing opioids left and right, leading to a surge in "iatrogenic addiction" (addiction caused by treatment) and overdose deaths. To correct that disastrous mistake, the Christie commission says, doctors need to worry less about the suffering caused by untreated pain and more about the dangers posed by painkillers. But that conclusion is fundamentally misguided, because the commission's explanation is wrong in several crucial ways. Opioid addiction and opioid-related deaths typically involve multi-drug users with histories of substance abuse and psychological problems, not drug-naive patients who accidentally get hooked while being treated for pain. Attempts to prevent overdoses by closing off access to legally produced narcotics make matters worse for both groups, depriving pain patients of the analgesics they need to make their lives bearable while driving nonmedical users into a black market where the drugs are more variable and therefore more dangerous. As Nora Volkow, director of the National Institute on Drug Abuse, noted in a 2016 New England Journal of Medicine article, "addiction occurs in only a small percentage of persons who are exposed to opioids—even among those with preexisting vulnerabilities." A 2010 review found that less than 1 percent of patients taking opioids for chronic pain experienced addiction. A 2012 review likewise concluded that "opioid analgesics for chronic pain conditions are not associated with a major risk for developing dependence." Volkow found that "rates of carefully diagnosed addiction have averaged less than 8% in published studies." The risk of fatal overdose is even lower. A 2015 study that had followed pain patients treated with narcotics for up to 13 years found that one in 550 died from an opioid-related overdose, which is a risk of less than 0.2 percent. A study of opioid-related deaths in North Carolina found 478 fatalities among 2.2 million residents who were prescribed opioids in 2010, making the annual rate 0.022 percent. The risk of addiction and overdose is not random. A 2012 study of opioid-related fatalities in Utah found that 61 percent of the decedents had used illegal drugs, 80 percent had been hospitalized for substance abuse (including abuse of alcohol and illegal drugs as well as prescription medications), 56 percent had a history of mental illness, and 45 percent had been hospitalized for psychiatric reasons other than substance abuse. The vast majority of opioid-related deaths—more than 90 percent, according to data from New York City—involve combinations of substances. For the most part, people are not dying simply by taking too many pain pills. Even Christie's friend washed down his Percocet with vodka. If the aim is reducing deaths from drug poisoning, there is not much logic to making prescription analgesics even harder to obt[...]