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Preview: Jacob Sullum: Reason Magazine articles.

Jacob Sullum: Reason.com articles.





Updated: 2018-02-17T00:00:00-05:00

 



Jeff Sessions’ Cruel Prescription for Pain

2018-02-14T00:01:00-05:00

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 might understand how the conviction that "this country prescribes too many opioids" can lead to policies that hurt innocent people. "I'm very afraid of what's happening in our country," Katzen says. "I'm concerned that I will not have a functional life any longer if I'm not allowed to have what treats my pain." © Copyright 20[...]



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

2018-02-07T00:01:00-05:00

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 and Bill Clinton, is whatever Congress says it is. The current Congress, controlled by the president's party, has shown little interest in exploring the matter. That's unlikely to change unless Mueller finds a "there"—something more than the meta-crimes he has already revealed or might trick Trump into committing. © Copyri[...]



Don't Blame Pain Pills for the Opioid Crisis

2018-02-01T12:00:00-05:00

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 obtain, as the Christie commission recommends. According to a 2016 analysis of opioid-related fatalities in Massachusetts, just 8 percent of the decedents "had an opioid prescription in the same months as their deaths." Prescription opioids were the deadliest drug in just 5 percent of the cases, while 85 percent involved heroin a[...]



Poland’s Holocaust Bill Is a Hate Speech Ban

2018-01-31T00:01:00-05:00

In Poland, as in several other European countries, it is a crime to deny the Holocaust. Soon, thanks to a bill that was approved by the lower house of the Polish parliament on Friday, it may also be a crime to discuss the Holocaust too frankly. The pending ban on references to Polish complicity in Nazi genocide, which has provoked outrage in Israel and around the world, may seem inconsistent with the ban on Holocaust denial. But the two taboos are of a piece with each other and with Poland's prohibition of ethnic insults—a fact that should give pause to American fans of European-style speech regulation. The Polish bill makes it a crime, punishable by fines and up to three years in prison, to accuse "the Polish nation, or the Polish state, of being responsible or complicit in the Nazi crimes committed by the Third German Reich." The legislation was motivated largely by anger at the common use of phrases like "Polish death camps," which could be read to mean that the war crimes committed by Germans in occupied Poland were a project of the Polish government. "German Nazi crimes are attributed to Poles," Deputy Justice Minister Patryk Jaki complained last week. "And so far the Polish state has not been able to effectively fight these types of insults to the Polish nation." Some of these "insults" happen to be true, since part of "the Polish nation" was "complicit in the Nazi crimes." Poles saved Jews, but Poles also murdered Jews, under Nazi instruction and on their own initiative. Acknowledging that complicated and troubling reality could expose people to criminal liability under the proposed law, notwithstanding its focus on statements "contrary to fact" and its exemption for people engaged in "artistic or scientific activities." The bill, which applies to mistakes as well as deliberate misrepresentations, charges the government with determining what is true and whose motives are elevated enough to shield them from prosecution. The impact of such a system goes far beyond the people who are actually fined or imprisoned, since the possibility of an investigation encourages self-censorship. The result—people afraid to speak their minds, lest they attract unwanted attention from the government—hardly seems consistent with the "freedom to express opinions" and "disseminate information" guaranteed by the Polish constitution. The same could be said of the Polish laws that make a criminal out of anyone who minimizes or denies Nazi war crimes or who insults or incites hatred against people based on their nationality, ethnicity, race, or religion. These are fuzzy categories that invite arbitrary and unpredictable enforcement, chilling speech that might offend the sensibilities of protected groups. The proposed ban on charges of Polish complicity in the Holocaust is similar in logic as well as impact, since it criminalizes "insults to the Polish nation," a kind of group defamation. The same principle that is aimed at protecting minorities from verbal oppression can be easily adapted by majorities seeking to suppress speech that makes them uncomfortable. We need not look abroad to see how slippery the concept of hate speech can be. Last year Howard Dean, former governor of Vermont and former chairman of the Democratic National Committee, argued that the University of California at Berkeley's decision to cancel a speech by conservative commentator Ann Coulter did not raise any constitutional issues because "hate speech is not protected by the First Amendment." Dean was wrong about that, since "hate speech" is not a legally relevant category in the United States, and his loose use of the phrase demonstrated why making it so would be dangerous. Why bother to argue with your opponents when you can have them arrested? The Polish legislators who want to criminalize speech that offends them are trying the same shortcut. The only way to close it off is by rejecting, once and for all, the illiberal idea that people have a right not to be offende[...]



E-Cigarettes Can Be Lifesavers

2018-01-24T00:01:00-05:00

This week the National Academies of Sciences, Engineering, and Medicine (NASEM) weighed in on the question of whether e-cigarettes are a public health menace or a public health boon. The answer is yes, according to a NASEM report published on Tuesday. The report, which was sponsored by the Food and Drug Administration (FDA), concludes that "e-cigarettes cannot be simply categorized as either beneficial or harmful to health." While that is true in principle, the report gives too much weight to scenarios in which these products could be harmful, even while confirming that they dramatically reduce exposure to toxins and carcinogens for smokers who switch to them. NASEM's advice is important because it will guide the FDA as the agency decides how to regulate the vaping industry, which last year got a four-year reprieve from rules that threatened to drive the vast majority of companies out of business. The demands that the FDA ultimately imposes on manufacturers of vaping equipment and liquids will affect the options available to consumers and their knowledge of them, which in turn will determine the extent to which they take advantage of products that could save their lives. The NASEM report, which is the work of a committee chaired by University of Washington toxicologist David Eaton, acknowledges the harm-reducing potential of e-cigarettes. "E-cigarette aerosol contains fewer numbers and lower levels of most toxicants than smoke from combustible tobacco cigarettes does," Eaton et al. say. "Laboratory tests of e-cigarette ingredients, in vitro toxicological tests, and short-term human studies suggest that e-cigarettes are likely to be far less harmful than combustible tobacco cigarettes." When people who otherwise would be smoking use e-cigarettes instead, that represents an unambiguous gain from a public health perspective, which seeks to minimize disease and preventable death. "If e-cigarette use by adult smokers leads to long-term abstinence from combustible tobacco cigarettes," the report says, "the benefit to public health could be considerable." But Eaton and his colleagues worry that e-cigarettes also could increase tobacco-related morbidity and mortality if they encourage teenagers to smoke. Depending on how big that effect is, they say, it might even outweigh the benefit from smoking cessation among adults. That concern seems wildly implausible in light of current trends. Cigarette smoking by teenagers has continued to fall despite a surge in experimentation with vaping, and last year it reached the lowest level ever recorded by the Monitoring the Future Study, which began surveying high school students in 1975. Two other factors make it unlikely that significant numbers of teenagers become smokers after getting hooked on nicotine in e-cigarettes. The vast majority of nonsmoking teenagers who vape do so only occasionally, and most of them use nicotine-free e-liquids. Against these facts, the NASEM report cites studies that find teenagers who try vaping are more likely than those who don't to subsequently try smoking. According to Eaton et al., these studies amount to "substantial evidence that e-cigarette use increases risk of ever using combustible tobacco cigarettes among youth and young adults." As the report acknowledges, however, these observational studies do not distinguish between correlation and causation. They may simply show that teenagers who are inclined to try vaping are also inclined to try smoking. Such research cannot tell us how many of these teenagers become regular smokers or whether they would have experimented with tobacco even if e-cigarettes did not exist. Under the collectivist calculus prescribed by the Family Smoking Prevention and Tobacco Control Act, Eaton et al. note, it is not enough to show that e-cigarettes are much less hazardous than the conventional kind and therefore offer a big benefit to smokers who might want to switch. The FDA also must be persuaded that [...]



Stop Warrantless Snooping on Americans

2018-01-17T00:01:00-05:00

Over the course of two hours last Thursday morning, Donald Trump offered two diametrically opposed takes on a surveillance bill making its way through Congress. Both were wrong. The FISA Amendments Reauthorization Act of 2017, which the House approved last week and the Senate is considering this week, has nothing to do with purported wiretapping at Trump Tower or any other direct surveillance of the Trump campaign, as the president initially suggested. But neither is its impact limited to "foreign bad guys on foreign land," as Trump said in a corrective tweet after alarmed advisers explained his administration's position to him. The bill would renew for six years Section 702 of the Foreign Intelligence Surveillance Act (FISA), which authorizes warrantless collection of communications between people in the United States and people in other countries when "a significant purpose" of the snooping is obtaining "foreign intelligence information." Although the official target is supposed to be a "non-U.S. person" (i.e., neither a U.S. citizen nor a legal permanent resident) who is believed to be located in a foreign country, the National Security Agency "incidentally" gathers a great deal of information about Americans, including their international emails, chat sessions, and phone calls. Once the information has been collected, the FBI can peruse it at will, looking for evidence of crimes that may have nothing to do with foreign intelligence (itself a very broad category), let alone terrorism or national security. Section 702 thus gives the FBI and other law enforcement agencies a way to dodge the Fourth Amendment's ban on unreasonable searches and seizures, which is generally understood to require a warrant based on probable cause for surveillance that reveals the content of private conversations. The bill that the House approved implicitly acknowledges this problem by requiring a warrant to search Section 702 data about Americans—but only when the FBI is looking for information about someone who is already the target of a criminal investigation (and only when the investigation is not related to national security). Criminal suspects, in other words, would receive more privacy protection than people who the government has no reason to believe have broken the law. The FISA Amendments Reauthorization Act also opens the door to reviving a suspended program that collected international communications "about" a foreign intelligence target. That kind of surveillance can pick up exchanges where neither party is the target and, due to technical problems in screening out domestic internet traffic, even when both parties are in the United States. Last week, by a vote of 233 to 183, the House rejected an amendment that would have required a warrant for searches of Section 702 data and for surveillance partly motivated by a desire to collect information about Americans. That amendment, known as the USA RIGHTS Act, also would have explicitly banned "about" surveillance and limited the use of Section 702 information to cases involving foreign intelligence or national security. The legislators who supported the USA RIGHTS Act included conservative Republicans such as James Sensenbrenner (Wis.) and Ted Poe (Texas) as well as progressive Democrats such as Jared Polis (Colo.) and Barbara Lee (Calif.). They were united by a belief that constitutional rights must be respected even when they inconvenience people who think invoking national security should be the end of the argument. "Our Founders gave us the Fourth Amendment to prevent a tyrannical government from invading our privacy, and we are fools to relinquish that hard-won right because of fear," writes Sen. Rand Paul (R-Ky.), who cosponsored the USA RIGHTS Act in the Senate and has vowed to fight reauthorization of Section 702 without reforms. "The Founders did not include the Fourth Amendment in the Bill of Rights as a suggestion." When the[...]



Federalists Can’t Support a Cannabis Crackdown

2018-01-10T00:01:00-05:00

Before last Thursday, state-licensed marijuana merchants operated in a highly uncertain legal environment, subject to the whims of federal prosecutors who could at any moment decide to shut them down, take their property, and send them to prison. Now that Attorney General Jeff Sessions has clarified the Justice Department's policy regarding the cannabis industry, state-licensed marijuana merchants operate in a highly uncertain legal environment, subject to the whims of federal prosecutors who could at any moment decide to shut them down, take their property, and send them to prison. Sessions calls this "a return to the rule of law." The description is dubious, not only because the situation for state-legal marijuana growers and distributors is fundamentally unchanged but also because the cannabis crackdown threatened by Sessions offends a basic principle of constitutional law: The federal government may not exercise powers it was never granted. U.S. attorneys prosecute a minuscule percentage of marijuana violations, and they have very broad discretion to decide which ones are worth their time. Sessions rescinded Justice Department guidelines that said a violator's compliance with state law was one factor prosecutors should consider. The reasoning, as explained in a 2013 memo from James Cole, then the deputy attorney general, was that state-regulated marijuana businesses are less likely to impinge on "federal enforcement priorities" such as stopping interstate smuggling and sales to minors. Cole did not tell U.S. attorneys to leave state-legal cannabusinesses alone, but since 2013 they generally have. It's not clear whether Sessions' memo will change that. Sessions called the marijuana-specific guidelines "unnecessary" and said prosecutors should be guided by "the Department's well-established general principles." Last week the interim U.S. attorneys in Colorado and the Southern District of California, both Sessions appointees, said they would continue as before. But given Sessions' well-known opposition to marijuana legalization, his memo was widely seen as portending more aggressive enforcement of the federal ban. That prospect provoked bipartisan criticism from state officials and members of Congress, uniting Democrats who support drug policy reform with Republicans who support federalism. Sessions' boss counts himself in the latter group, and he has repeatedly applied the principle of state autonomy to marijuana. In July 2016, for instance, a TV reporter in Colorado Springs asked Donald Trump what he thought about using federal power to shut down the state-authorized cannabis industry in states such as Colorado. "I wouldn't do that, no," Trump replied. "I'm a states person. I think it should be up to the states, absolutely." That position is broadly popular. Last summer a Quinnipiac University poll found that 75 percent of Americans, including 59 percent of Republicans, opposed "enforcing federal laws against marijuana" in the 29 states that "have already legalized medical or recreational marijuana." Refraining from such interference also happens to be what the Constitution requires. Under the 10th Amendment, "the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." Unlike alcohol prohibition, the national marijuana ban was never authorized by a constitutional amendment. Its purported legitimacy instead relies on reading the power to regulate interstate commerce so broadly that it accommodates nearly anything Congress wants to do. In 2005 the Supreme Court said the Commerce Clause covers every last speck of cannabis in the country, even if it never crosses state lines, down to the plant in a cancer patient's closet or the bag of buds in her nightstand. "If Congress can regulate this under the Commerce Clause," noted dissenting Justice Claren[...]



Stop Pretending Sober Drivers Are Stoned

2018-01-03T00:01:00-05:00

Last year Kali Su Schram was sentenced to six months in jail because of a fatal traffic accident she did not cause, thanks to Michigan's unjust and unscientific definition of drugged driving. Schram had the right of way when a bicyclist suddenly appeared in front of her at an intersection, but she was blamed anyway because she had a detectable amount of THC in her blood. California, where state-licensed marijuana stores began serving recreational consumers on Monday, takes a more rational approach to driving under the influence of cannabis, requiring evidence of impairment. But three of the eight states where marijuana is legal for nonmedical use have adopted versions of the Michigan model, falsely equating impairment with arbitrary levels of THC in the blood. In Michigan any amount of THC suffices for a DUI conviction. The cutoff in Nevada, where legal recreational sales began last year, is two nanograms per milliliter, which is not quite as strict but still criminalizes driving by many marijuana users who pose no threat to the public. Because THC is absorbed by fatty tissue, it can be detected in the blood of frequent cannabis consumers as long as a month after last use. In a 2009 study, a frequent pot smoker had a THC level of seven nanograms on the first day of abstinence, then between two and four nanograms during the next six days. A 2015 study found that a cannabis consumer tested at or above five nanograms as long as five days after last use. Five nanograms is the legal cutoff in Washington, where any driver who hits that level is automatically guilty of DUI. Colorado allows juries to infer impairment at a THC level of five nanograms or more but lets defendants rebut that inference. In 2015 Melanie Brinegar, a medical marijuana patient who tested at 19 nanograms after she was pulled over for driving with an expired tag, used the latter provision to win an acquittal. Even though Brinegar's THC concentration was nearly four times the level that Colorado treats as presumptively equivalent to driving under the influence, she persuaded a jury that she wasn't. In 2013 KIRO-TV, the CBS station in Seattle, found that regular cannabis consumers could pass driving tests at even higher THC levels. Nor does a five-nanogram rule make sense for less frequent users. According to experiments at the National Advanced Driving Simulator in Iowa City, occasional cannabis consumers with THC levels exceeding 13 nanograms, more than twice Washington's cutoff, show lane weaving similar to drinkers with a blood alcohol concentration of 0.08 percent, the usual DUI threshold. "Per se" rules that define stoned driving based on THC in the blood appeal to politicians and the general public because they look similar to state laws that define drunk driving based on alcohol in the blood. But the latter policy, while problematic because of individual variability, has a much stronger scientific basis. "Whereas the impairment effects for various concentration levels of alcohol in the blood or breath are well understood," the National Highway Traffic Safety Administration notes, "there is little evidence available to link concentrations of other drugs to driver performance." Hence "specific drug concentration levels cannot be reliably equated with a specific degree of driver impairment." A 2016 report from the AAA Foundation for Traffic Safety noted that THC blood levels do not predict performance on roadside sobriety tests. It said "there is no evidence from the data collected…that any objective threshold exists that established impairment." As Staci Hoff, research director at the Washington Traffic Safety Commission, noted in a TV interview last summer, "More and more research is coming out debunking this mythical link between THC level in the blood and level of impairment." Instead of adopting pseudoscientific DUI standards that unfairly and ir[...]



The Buck Stops Over There

2017-12-27T00:01:00-05:00

After he won what he erroneously described as an Electoral College "landslide," Donald Trump explained away his failure to attract the support of most voters by conjuring "millions of people who voted illegally"—a massive fraud that somehow went completely undetected by election officials throughout the country. A few days after taking office, Trump revived that fantastical claim, setting a pattern for the excuse making and blame shifting that would mark the first year of his presidency. Here are some of the highlights. Smooth talk. A hasty, half-baked executive order that Trump issued on January 27 immediately blocked entry by travelers from seven Muslim-majority countries, including legal permanent residents of the United States and people who had already received visas. Despite the ensuing chaos as hundreds of people were detained at airports around the country, Trump insisted that "we had a very smooth rollout of the travel ban," blaming any problems on the judges who blocked its enforcement. Who's the boss? After the first travel ban got bogged down in the courts, Trump issued a revised version that was designed to be more legally defensible. Then he acted as if he had nothing to do with the executive order he had signed, tweeting, "The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version." Secretarial oversight. "It is so pathetic that the Dems have still not approved my full Cabinet," Trump complained on March 3. At that point the White House still had not sent the Republican-controlled Senate the nomination paperwork for the two Cabinet jobs that remained vacant. Tax dodge. After making an issue of his tax returns by repeatedly promising to release them but never actually doing so, Trump blamed the news media for creating a phony controversy. "Nobody cares about my tax return except for the reporters," he said on May 4, contradicting polls finding that most Americans think he should make the information public. Comey cover. When Trump fired FBI Director James Comey in May, the White House said he did so at the recommendation of Deputy Attorney General Rod Rosenstein, who argued that Comey deserved to be sacked because he had treated Hillary Clinton unfairly while investigating her email practices as secretary of state. Trump, who had long complained that Comey went too easy on Clinton, later admitted the Rosenstein memo was nothing more than window dressing for a decision he had already made. 'They lost Ryan.' After a Navy SEAL, William Ryan Owens, was killed during a raid in Yemen on January 29, Trump made it clear that his role as commander in chief did not mean he bore any responsibility for the operation. "This was a mission that was started before I got here," Trump said on Fox News a month later. "This was something that…they wanted to do. They came to see me, and they explained what they wanted to do, the generals, who are very respected….and they lost Ryan." 'They have decision-making ability.' Even after Trump had been on the job more than eight months, he was not prepared to accept responsibility for military mishaps on his watch. He emphasized that he did "not specifically" authorize an October 4 mission in Niger that ended with four American soldiers dead, because "my generals and my military, they have decision-making ability." Careless condolence. When Trump called the widow of Sgt. La David Johnson, one of the soldiers killed in Niger, his awkward attempt at condolences, which included a statement to the effect that Johnson "knew what he signed up for," offended her. Instead of apologizing, Trump blamed the controversy on a congresswoman who was present during the call and accurately reported the widow's reaction. Trump is hardly the first president to blame other people for his failures, but he does so mor[...]



Trump's Phony Postcard Tax Return

2017-12-20T00:01:00-05:00

At a meeting with congressional leaders last month, Donald Trump kissed a postcard-sized tax form, expressing his commitment to simplification of the hideously complex Internal Revenue Code. "Over 90 percent of Americans are going to fill out taxes on that postcard," Treasury Secretary Steve Mnuchin promised on Sunday. That's not really true, because the bill that emerged from Congress this week does little to simplify the tax code and in some ways makes it even more complicated. The tax return on a postcard, originally a symbol of radical reform, has become a gimmick aimed at distracting the public from a revenue collection system that is just as confusing, frustrating, intrusive, and manipulative as ever. Hoover Institution economists Robert Hall and Alvin Rabushka promoted the idea of a "postcard tax return" in their 1985 book The Flat Tax, tying it to the elimination of deductions, credits, and every tax bracket but one. Under Hall and Rabushka's plan, everyone would pay a single rate on all forms of income after subtracting a "personal allowance" aimed at maintaining progressivity. The postcard tax return touted by Trump and Mnuchin, by contrast, is tied to a tax bill that retains seven income brackets (while redefining them and fiddling with the rates) and all the major tax breaks, including the ones for charitable donations, mortgage interest, and state and local taxes. The limits that the bill imposes on the latter two deductions will make tax preparation more rather than less complicated, since filers will have to figure out how much of those expenditures can be subtracted from their taxable income. The Trump administration's postcard promise is based on a trick that the Tax Policy Center's Roberton Williams highlighted last year: shifting the figuring off the main form. Most of the items on the "Simple, Fair 'Postcard' Tax Filing" that the president kissed, such as "wage and compensation income," "contributions to specified savings plans," "earned income credit," and child credits (doubled under the tax bill but still phased out as income rises), require additional consultation, consideration, and calculation. The main rationale for the claim that the tax bill simplifies returns is the near-doubling of the standard deduction (which is coupled with the elimination of personal and dependent exemptions). That change is expected to reduce the share of filers who itemize from 30 percent to 6 percent. The problem is that taxpayers still won't know whether the standard deduction exceeds their potential itemized deductions unless they go to the trouble of documenting the latter throughout the year and running the numbers when they prepare their returns. That work also does not show up on the postcard return. The tax bill introduces new wrinkles, including a 20-percent deduction for "pass-through" income from businesses such as partnerships and sole proprietorships, which is reported on individual returns. The upshot is that the tax rate for pass-through income will be lower than the individual income rate (but higher than the new, lower corporate rate), inviting new forms of tax gamesmanship. The last thing our tax system needs is more complexity. According to the Tax Foundation, the Internal Revenue Code, which totals 2.4 million words, is nearly six times as long as it was in 1955 and almost twice as long as it was in 1985. That's not including 7.7 million words of tax regulations or 60,000 pages of relevant case law. The Tax Foundation says complying with IRS filing requirements consumed nearly 9 billion hours last year, at a cost of more than $400 billion. That's not including billions of dollars in costs resulting from suboptimal economic decisions encouraged by the tax code, or the damage done to principles of fairness when the law is so complicated that the a[...]



Scared Cops Are Scary

2017-12-13T00:01:00-05:00

The jurors who acquitted Philip Brailsford of second-degree murder last week were told to judge him based on "how a reasonable officer would act, versus a regular person with no police training," as The Arizona Republic put it. That distinction was crucial, because a "regular person" would never get away with shooting an unarmed man who was crawling on the floor, sobbing, and begging for his life. Like other recent cases in which jurors failed to hold police officers accountable for the unnecessary use of deadly force, Brailsford's acquittal shows that cops benefit from a double standard. Unlike ordinary citizens, they can kill with impunity as long as they say they were afraid, whether or not their fear was justified. Daniel Shaver got drunk and did something stupid. But he did not deserve or need to die for it. On January 18, 2016, Shaver, who was 26 and lived in Granbury, Texas, was staying at a La Quinta Inn in Mesa, a Phoenix suburb, while working on a job for his father-in-law's pest control company. After inviting two other hotel guests to his room for a drink, he showed them an air rifle he used for work, at one point sticking it out a window to demonstrate the scope's range. Alarmed by the rifle's silhouette, a couple who had been using the hotel's hot tub informed the staff. That's how Brailsford and five other Mesa officers ended up confronting Shaver in a fifth-floor hallway. The bodycam video of the encounter, which was not publicly released until after the verdict, shows that Shaver, who according to the autopsy had a blood alcohol concentration more than three times the legal threshold for driving under the influence, was confused by the strange and contradictory orders that Sgt. Charles Langley barked at him. Instead of simply handcuffing Shaver as he lay face down with his hands behind his head, under the guns of three officers, Langley inexplicably told the terrified and intoxicated man to crawl toward him. While crawling, eyes on the floor, Shaver paused and reached toward his waistband, apparently to pull up the athletic shorts that had slipped down as he moved. That is when Brailsford fired five rounds from his AR-15 rifle. "He could have easily and quickly drawn a weapon down on us and fired without aiming," Brailsford said later. Yet neither of the other two officers who had guns drawn on Shaver perceived the threat that Brailsford did. One of those officers testified that he would not fire based purely on the "draw stroke" Brailsford thought he saw. He would also consider the context, such as whether a suspect is belligerent and threatening or, like Shaver, compliant, apologetic, and tearful. Brailsford said he was trained to ignore context. "We're not trained necessarily to pay attention to what a suspect is saying," he testified. "We're supposed to watch their actions and what they do with their hands." The jury apparently accepted the counterintuitive argument that police, because of their special training, are apt to be less careful with guns than the average citizen would be. A similar dispensation seemed to be at work last June, when Minnesota jurors acquitted former St. Anthony police officer Jeronimo Yanez of manslaughter after he panicked during a traffic stop and shot a driver who was reaching for his license. Even more astonishing was the failure of South Carolina jurors to reach a verdict in the trial of former North Charleston police officer Michael Slager, who shot an unarmed motorist in the back as he ran away. Last May, five months after that mistrial, Slager signed a federal plea agreement in which he admitted the shooting was not justified. All three of these officers said they were afraid, but that is not enough to justify the use of deadly force. When juries fail to ask whether police have good re[...]



Chris Christie’s Situational Federalism

2017-12-06T00:01:00-05:00

As a candidate for the 2016 Republican presidential nomination, Chris Christie promised to stop states such as Colorado from legalizing marijuana. As governor of New Jersey, Christie insists that the federal government has no business stopping his state from legalizing sports betting—an argument that got a mostly friendly reception at the Supreme Court on Monday. The most likely explanation for Christie's situational federalism is that he does not mind if people bet on sports but cannot abide pot smoking. But there is a legal rationale for Christie's apparent inconsistency, and it says a lot about the extent to which the federal government has usurped powers that the 10th Amendment reserves to the states. Christie is challenging the Professional and Amateur Sports Protection Act (PASPA), a 1992 statute that says states may not "authorize by law" any form of betting on athletic contests. PASPA, which was intended to "stop the spread of legalized gambling on sports events," exempted Nevada, which had legalized sports betting in 1949, and three states with sports lotteries. PASPA also allowed New Jersey to establish a system of regulated sports betting in Atlantic City, provided state legislators acted within a year. They missed that deadline, but they finally passed such a law in 2012, the year after New Jersey voters overwhelmingly approved a constitutional amendment authorizing it. Several sports leagues and the National Collegiate Athletic Association successfully challenged New Jersey's law under PASPA. In 2014 the state legislature tried again, selectively repealing New Jersey's ban on sports betting so that it no longer applied at casinos and racetracks. The U.S. Court of Appeals for the 3rd Circuit said the selective repeal was tantamount to licensing and therefore violated PASPA. The appeals court rejected New Jersey's argument that requiring it to maintain the ban on sports betting amounts to unconstitutional "commandeering" of state officials in the service of a federal policy goal. The Supreme Court was much more receptive to that claim on Monday, when at least five justices seemed inclined to agree that PASPA impermissibly intrudes on state prerogatives. It is well established that Congress has no authority to dictate the content of state laws. Still, as New Jersey's lawyer, Theodore Olson, was forced to concede, a valid federal law "preempts" any state law that's inconsistent with it. PASPA does not preempt state law, Olson said, because it is "a direct command to the states without any effort to regulate sports wagering." In other words, Congress could have imposed its own ban on sports betting, just as it imposed its own ban on marijuana, in which case any state law inconsistent with that prohibition would be preempted. As Olson noted, the issue of preemption is "in play right now" because marijuana has been legalized for medical use in 29 states, eight of which also allow recreational use. While merely eliminating state penalties for marijuana offenses does not violate the Controlled Substances Act, licensing marijuana suppliers arguably does. That might be what Christie had in mind when he promised to "crack down and not permit" marijuana legalization if elected president. "Marijuana is an illegal drug under federal law," Christie told radio host Hugh Hewitt in 2015, "and the states should not be permitted to sell it and profit from it." Can it really be true that the Constitution allows federal interference with state policy as long as Congress frames it as preemption rather than a "direct command"? Only if you accept the Supreme Court's implausible understanding of the power to "regulate commerce…among the several states," which supposedly authorizes Congress to prohibit sports betting, cannab[...]



The FDA Warms to Vaping

2017-12-01T12:00:00-05:00

In July, the Food and Drug Administration (FDA) extended the deadline for e-cigarette manufacturers to seek regulatory approval of their products. On the face of it, the change was merely a four-year stay of execution. But the agency also signaled a new receptiveness to vaping as a harm-reducing alternative to smoking, which suggests the reprieve could turn into a commutation.

That would be good news for smokers who want to quit. For too long, American public health officials have been unreasonably hostile to e-cigarettes, which deliver nicotine in an aerosol that is far less hazardous than tobacco smoke and offers a closer simulation of the real thing than nicotine gum or patches do.

FDA Commissioner Scott Gottlieb seems to appreciate the public health potential of this innovation. "The overwhelming amount of death and disease attributable to tobacco is caused by addiction to cigarettes," he said in a press release. "Envisioning a world where cigarettes would no longer create or sustain addiction, and where adults who still need or want nicotine could get it from alternative and less harmful sources, needs to be the cornerstone of our efforts."

The FDA said "a key piece" of its new approach is "demonstrating a greater awareness that nicotine—while highly addictive—is delivered through products that represent a continuum of risk and is most harmful when delivered through smoke particles in combustible cigarettes." The agency wants to strike "an appropriate balance between regulation and encouraging development of innovative tobacco products that may be less dangerous than cigarettes."

Toward that end, the FDA is giving e-cigarette companies until August 8, 2022, to apply for permission to keep their products on the market under regulations published last year. The agency says it will use the extra time to seek additional public comment and develop clearer guidance for the industry.

The regulations require manufacturers of vaping equipment and e-liquids to demonstrate that approval of their products "would be appropriate for the protection of the public health." It is not clear what that means in practice, but the FDA projected that applications would cost hundreds of thousands of dollars per product, and many observers thought that was an underestimate. The burden was expected to drive most companies out of business.

If the FDA is serious about promoting "less harmful sources" of nicotine, it will develop transparent, straightforward, and practical criteria for approving current and new vaping products. Standing between smokers and products that can save their lives is surely not "appropriate for the protection of the public health."




Your Secrets Are Not Safe With Anyone

2017-11-29T00:01:00-05:00

Timothy Carpenter specialized in stealing cellphones, the same devices that betrayed him. Based on four months of cellphone location data from the companies that provided Carpenter's mobile phone service, the FBI placed him near four stores while they were being robbed. Carpenter argues that the FBI should have obtained a warrant before looking at those records. His case, which the Supreme Court will hear today, gives the justices a chance to reconsider a misbegotten and increasingly obsolete rule that threatens everyone's privacy in an age when people routinely store large volumes of sensitive personal information outside their homes. That rule, as summarized by the Court in a 1976 case dealing with bank records, holds that "the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose." The "third-party doctrine" means the Fourth Amendment's ban on unreasonable searches and seizures imposes no restrictions whatsoever on the government's power to examine the most intimate details of your life should you be foolhardy enough to entrust them to someone else. On its face, this license applies not just to cellphone records, which given modern habits can show where you are and where you've been at almost any given moment, but to remotely stored email, text messages, calendars, browsing and shopping histories, documents, photographs, videos, and audio recordings. Under the third-party doctrine, all of this material receives only as much protection as legislators decide to give it. No wonder that Justice Sonia Sotomayor was moved to suggest in 2012 that "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties." As Sotomayor noted, "This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks." The Court decided that case, which involved a suspected drug dealer whose movements police monitored for a month via a GPS tracker attached to his car, based on the trespass required to plant the device. But five justices endorsed the view that tracking someone for as long as a month reveals so much personal information that it qualifies as a search under the Fourth Amendment even if it does not involve a physical intrusion. While that position makes considerable sense as far as expectations of privacy go, defining a search based on the length of surveillance or the quantity of information collected requires distinctions that are bound to be fuzzy, arbitrary, or both. A brief that the Institute for Justice filed in Carpenter's case suggests a more promising approach. Drawing on the work of law professors William Baude (University of Chicago) and James Stern (William & Mary), the I.J. brief recommends a "positive law model" based on the principle that "when government officials use their power to obtain information in a manner that would be prohibited for private actors, those officials must demonstrate the reasonableness of their actions under the Fourth Amendment." That approach, I.J. notes, "is far more protective of an individual's privately shared information than the current Third Party Doctrine." Since federal law prohibits cellphone companies from disclosing location records to private parties "without the express prior authorization of the customer," a police demand for that information would clearly implicate the Fourth Amendment, and in all likelihood require a warrant, under[...]



When Good-Faith Medicine Raises ‘Red Flags’

2017-11-22T00:01:00-05:00

Forest Tennant, who has been treating and researching pain at his clinic in West Covina, California, since 1975, is well-known as an expert in the field, having published more than 200 articles in medical journals and given more than 130 presentations at professional conferences. According to the Drug Enforcement Administration (DEA), all of that was an elaborate cover for drug trafficking. Or so you would have to surmise from the affidavit supporting the search warrant that the DEA served on Tennant's offices and home last week, which describes "invalid prescriptions," "red flags of diversion and fraud," and "combinations of drugs that are consistent with 'pill mill' prescribing practices." The allegations and insinuations show how the DEA has tried to criminalize differences of opinion about pain treatment, encouraging doctors to think about their legal exposure first and their patients second. Tennant says the "red flags" perceived by the DEA are consistent with a practice like his, which specializes in treating severe, intractable pain caused by conditions such as arachnoiditis, Ehlers-Danlos syndrome, reflex sympathetic dystrophy, and post-viral neuropathy. "We only take people who have failed the standard treatments," he says. Tennant's willingness to take hard cases explains why some of his patients live in other states, a fact the DEA considers suspicious. "We only see them in conjunction with their local doctors," he says. In addition to severe pain, Tennant's patients often have metabolic abnormalities that make them less sensitive to opioids and have developed tolerance after years of pain treatment. Those factors explain the doses that struck the DEA as suspiciously high and the drug combinations it deemed reckless. By the time Tennant starts treating them, his patients are already taking large doses of opioids, often in combination with muscle relaxants and benzodiazepines. "We didn't start anybody on high dosages," Tennant says. "We took them to study them to figure out how to get them off of high dosages, and that has remained our goal." In nine out of 10 cases, Tennant says, he has been able to reduce patients' opioid doses substantially, by as much as 80 percent. At the same time, he defends the use of high doses for patients who need them, a stance that bothers the DEA. The search warrant affidavit cites a 2009 article in which Tennant and two other doctors defended the prescription of "ultra-high opioid doses" for certain patients with severe chronic pain. The affidavit also notes that Tennant championed the California Pain Patient's Bill of Rights, a 1997 law affirming that "opiates can be an accepted treatment" for "severe intractable pain." The DEA seems to be arguing that Tennant's sincere medical opinions and advocacy on behalf of pain patients should be considered evidence of criminal activity. The DEA suggests that speaking fees Tennant received from Insys, which makes the oral fentanyl spray Subsys, amounted to kickbacks. The DEA also implies that it's improper to prescribe Subsys for anything other than cancer pain, the application for which it was approved by the Food and Drug Administration. Tennant notes that it's common practice for doctors who have experience with a drug to get paid for training colleagues to use it. He says Subsys "turned out to be somewhat disappointing," but he prescribes it for half a dozen patients who find it useful for breakthrough pain, including a few who do not have cancer—"off-label" uses that are perfectly legal. Tennant, who has testified against "pill mills," says his clinic looks quite different: It has a six-hour intake process, sees a maximum of 10 people a day, and[...]