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Preview: Jacob Sullum: Reason Magazine articles.

Jacob Sullum: Reason.com articles.





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

 



Obama's Belated Drug War Retreat

2017-01-14T07:00:00-05:00

Before moving into the White House, Barack Obama described the war on drugs as "an utter failure," candidly discussed his own youthful drug use, criticized our excessively punitive criminal justice system, called for the decriminalization of marijuana, and rejected federal interference with state-authorized medical use of the plant. But with the exception of a crack sentencing reform bill he signed in 2010, Obama's first term was a big disappointment for those who expected him to de-escalate the war on drugs.

Some reformers held out hope that once Obama was safely re-elected, he would finally act on his avowed belief that the war on drugs is unjust and ineffective. To some extent, those optimists were proven right. During his second term, Obama tolerated state-level legalization of marijuana, talked honestly about the relative hazards of alcohol and marijuana, removed barriers to medical marijuana research, shortened more than 1,000 drug offenders' sentences, and spoke out against draconian drug penalties.

During Obama's first term, the promises to respect state policy choices were contradicted by medical marijuana raids, prosecutions, and forfeiture actions. But the 2012 elections, when voters in Colorado and Washington approved initiatives that legalized marijuana for recreational use, presented him with a moment of truth: He could try to stop legalization, or he could step back and let states go their own way. By choosing the latter route, he hastened the collapse of pot prohibition instead of wasting resources on a doomed effort to prevent it.

Obama further undermined prohibition by publicly conceding that marijuana is less dangerous than alcohol. But he was not prepared to change marijuana's legal status at the federal level, whether through administrative action or by urging Congress to act. Although marijuana remains in Schedule I, the most restrictive category under the Controlled Substances Act, the Obama administration did take steps to facilitate studies of the plant's medical applications, removing an extra level of bureaucratic review and allowing independent production of cannabis for research.

After issuing just one commutation during his first term and a total of 20 in 2013 and 2014, Obama tried to make up for lost time by approving a lot more in his last two years. As of December 1, his total was 1,024, almost all involving nonviolent drug offenders, many of whom had received life sentences. He emphasized that Congress had the power to help thousands more by approving retroactive sentencing reforms, a bipartisan effort that fizzled in 2016 amid legislators' pre-election anxieties.

The Obama administration's crackdown on painkiller prescriptions hurt bona fide patients and fed the demand for heroin. But its response to the "opioid epidemic" emphasized treatment and harm reduction rather than punishment. As with marijuana legalization, it's what Obama didn't do that mattered most.




Hate Crime Laws Codify Inequality

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

The victim of the depraved crime captured in a Facebook Live video last week, a mentally disabled 18-year-old bound and gagged by tape, seemed confused and terrified as his assailants, at least one of whom he regarded as a friend, gleefully humiliated and tortured him. They cut off part of his scalp with a knife, punched and kicked him in the head, and forced him to drink toilet water, laughing all the while. According to Chicago police, the ordeal went on for hours. Responding to an incident that was appalling in many ways, conservative commentators focused on skin color: The white victim's black attackers could be heard cursing white people, prompting demands that they be charged with a hate crime. That reaction illustrates how hate crime laws politicize criminal justice and foment social discord. "If this had been done to an African-American by four whites," former House Speaker Newt Gingrich said on Fox News, "every liberal in the country would be outraged, and there'd be no question but that it's a hate crime." Glenn Beck bizarrely blamed the Black Lives Matter movement, tweeting, "Stand up with me and demand justice in Chicago for the beating of a disabled Trump supporter by BLM." That claim, which gave rise to the Twitter hashtag #BLMKidnapping, apparently was based on the fact that the assailants repeatedly exclaimed, "Fuck Donald Trump! Fuck white people!" But it's not clear that the victim, who has not been publicly identified, actually supported Trump, and there is no evidence of any BLM connection. Attacking someone because of his political beliefs does not qualify as a hate crime under Illinois law. But doing so "by reason of" the victim's race or disability does, and last Thursday four people—18-year-olds Jordan Hill, Tesfaye Cooper, and Brittany Covington, plus Covington's 24-year-old sister, Tanishia—were charged with a hate crime in connection with the Facebook Live assault. Hate crime laws typically enhance penalties for crimes that target members of certain groups. They therefore can have the effect of punishing offenders for their bigoted beliefs, since a defendant's statements about his victim's group may be cited as evidence of his motivation. In this case, however, the hate crime charge is unlikely to affect the punishment Hill et al. receive, since they are also charged with aggravated kidnapping, aggravated unlawful restraint, and aggravated battery. The kidnapping charge alone is punishable by six to 30 years in prison, compared to a maximum of three years for a hate crime in Illinois. The hate crime charge may not satisfy critics like Gingrich and Beck, who perceive a racial double standard in the way crimes motivated by bigotry are handled. The Chicago Tribune reports that "investigators believe the man was targeted because he had special needs, not because he was white." If so, this "hate crime" might have nothing to do with hate. Perhaps the attackers picked their victim because they thought he was an easy target, not because they had any particular animus against people with disabilities. Such speculation about motives probably gives the assailants, who were impulsively cruel and stupid enough to stream their crime live, too much credit. Trying to parse the role that the victim's race or disability played in this senseless display of sadism seems like a vain exercise—unless you are trying to score political points or advance your group's claim to special treatment. Because hate crime laws elevate some victims above others, their scope tends to expand over time. If race and religion are covered, doesn't fairness demand that disability, sex, sexual orientation, and gender identity be included as well? A Louisiana law that took effect last summer classifies attacks on police officers, firefighters, or paramedics as hate crimes too. Similar "Blue Lives Matter" bills have been introduced in several other states. This unseemly competition, in which interest groups vie for recognition and status, has very little to do with justice, which requires equal[...]



'Election Hacking' or Voter Education?

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

Last week President Obama announced sanctions against Russia in retaliation for "data theft and disclosure activities" that were intended to "interfere with the U.S. election process." Hillary Clinton calls those activities, which revealed purloined emails that made her look bad during her unsuccessful presidential campaign, "an attack against our country" and "our electoral system" that undermined "the integrity of our democracy." These overheated descriptions misleadingly equate information that guides voters' choices with nullification of those choices. A calmer, less partisan perspective suggests that what Clinton and Obama view as interference with the election process might more accurately be described as voter education, which strengthens democracy by helping its participants make better-informed choices. News reports routinely describe the leaking of emails stolen from the Democratic National Committee (DNC) and John Podesta, Clinton's campaign chairman, as "election hacking." John McCain, the GOP's 2008 presidential nominee, seems to agree with that characterization. In a CNN interview last month, the Arizona senator, a harsh critic of Donald Trump who denounced him, endorsed him, and then withdrew his endorsement, complained that by leaking information helpful to the Republican nominee "the Russians...have been able to interfere with our electoral process." He warned that "if they are able to harm the electoral process, then they destroy democracy, which is based on free and fair elections." That take seems pretty hysterical in light of what actually happened. True election hacking, aimed at perpetrating voting fraud, obviously would be a threat to the democratic process. But there is no evidence of such interference, and it's not even clear that the DNC and Podesta emails had an impact on the election results—or why it would be so terrible if they did. The New York Times reports that hackers gained access to the emails through standard phishing techniques, tricking Podesta and at least one DNC employee into revealing their passwords by pretending to be from Google. The Times notes that "every major publication, including The Times, published multiple stories citing the D.N.C. and Podesta emails posted by WikiLeaks, becoming a de facto instrument of Russian intelligence." Those news organizations did that because much of the information in the emails— including DNC officials' disdain for Clinton rival Bernie Sanders, excerpts from her secret Wall Street speeches, and observations about her weaknesses as a candidate—concerned matters of legitimate public interest. It was information that voters might rationally want to consider before deciding which candidate to support. Valuable journalism is often based on information that was obtained or divulged illegally by people with axes to grind. It is hard to see how this case is different in principle. Is it the nationality of the informants that matters? If the emails that embarrassed Clinton had been swiped by Americans, would she still be talking about a democracy-threatening attack on our electoral process? Last fall the Times "obtained" parts of Donald Trump's 1995 tax return and shared them with the public. If that information had come from a foreign source, would publishing it have undermined democracy? Suppose German hackers had managed to obtain complete copies of Trump's recent tax returns—a subject of intense journalistic interest—and shared them with news outlets, either directly or through an intermediary like Wikileaks. Would Clinton have perceived the resulting exposés as undermining the electoral process or assisting it? Cybersecurity is a serious concern, especially when it comes to systems that control important functions such as vote counting, banking, and the distribution of electricity. Helping politicians conceal facts that might alienate voters probably does not belong in the same category. Judging from the account in the Times, both the FBI and the DNC were remarkably[...]



Is Kratom the New Marijuana?

2016-12-30T21:00:00-05:00

After the Drug Enforcement Administration (DEA) announced an "emergency" ban on kratom at the end of August, a spokesman for the agency said "our goal is to make sure this is available."

In case that was not confusing enough, the spokesman, Melvin Patterson, also told The Washington Post that kratom, a pain-relieving leaf from Southeast Asia, does not belong in Schedule I, the most restrictive category under the Controlled Substances Act, even though that is where the DEA had just put it. He added that kratom, which the DEA says has "no currently accepted medical use," is "at a point where it needs to be recognized as medicine."

The DEA apparently was surprised by the backlash against its ban notice, which included angry calls to Capitol Hill, a demonstration near the White House, and letters from members of Congress. In October the agency withdrew the notice, saying it would delay a decision on kratom to allow time for public comments and input from the Food and Drug Administration. Patterson said criticism of the ban "was eye-opening for me personally," adding that "I want the kratom community to know that the DEA does hear them."

That attitude was quite a contrast to the deaf arrogance the DEA displayed when it announced it was temporarily placing the drug in Schedule I, a classification that lasts at least two years and could become permanent. Saying a ban was "necessary to avoid an imminent hazard to the public safety," the DEA summarily dismissed kratom's benefits while exaggerating its dangers.

Kratom, which acts as a stimulant or a sedative, depending on the dose, has been used for centuries in Southeast Asia to ease pain, boost work performance, and wean people from opiate addiction. But the DEA views all kratom use as "abuse."

Since the DEA assumed there was no legitimate reason to use kratom, it did not need to muster much evidence that the drug is intolerably dangerous. It claimed there have been "numerous deaths associated with kratom," by which it meant 30. In the whole world. Ever.

"Deaths associated with kratom" are not necessarily caused by kratom. "Kratom is considered minimally toxic," noted a 2015 literature review. "Although death has been attributed to kratom use, there is no solid evidence that kratom was the sole contributor to an individual's death."

As further proof of kratom's dangers, the DEA noted that "U.S. poison centers received 660 calls related to kratom exposure" from 2010 through 2015, an average of 110 a year. By comparison, exposures involving analgesics accounted for nearly 300,000 calls in 2014, while antidepressants and antihistamines each accounted for more than 100,000.




2016: The Year in Blame Shifting

2016-12-28T00:01:00-05:00

Hillary Clinton blames FBI Director James Comey for her humiliating loss in last month's presidential election. If only Comey had not reminded voters about her sloppy email practices as secretary of state a week before the election, Clinton thinks, she would be taking the oath of office on January 20 instead of Donald Trump. That argument overlooks Clinton's role in triggering an FBI investigation by flouting State Department rules and lying about it, not to mention her remarkable weakness as a candidate. Clinton's self-exonerating explanation for her defeat was one of the year's most striking attempts to dodge responsibility. Here are some of the others: Billy Bush made him do it. When a 2005 recording in which Donald Trump brags about kissing and groping beautiful women without their consent surfaced in October, the Republican nominee described his vulgar boasts as "locker-room banter," and his wife blamed the other party to the conversation, Access Hollywood anchor Billy Bush, for encouraging her husband "to say dirty and bad stuff." But a review of the video shows that Trump, who broached the subject of uninvited snogging and grabbing, did not need any encouragement. Plummet on, punks. When rock star Ted Nugent posted a dozen photos showing "who is really behind gun control" on Facebook in February, describing the people in the pictures as "punks" who "hate freedom" and "would deny us the basic human right to self defense," even fans of the Motor City Madman and the Second Amendment were startled by the array's blatant anti-Semitism: All of the gun control supporters were Jews, as indicated by little Israeli flags, and the pictures included captions such as "ISRAEL FIRSTER" (Alan Dershowitz) and "911 Israeli agent"(Michael Bloomberg). Nugent was outraged by the outrage, blaming "dishonest…superFreaks" for misconstruing his message. "Freaks have plummeted to whole new low," he complained. "Plummet on, punks." Volunteer vilification. Last March the Justice Department blamed the slow pace of President Obama's commutations on Clemency Project 2014, the network of volunteer lawyers who were doing the DOJ's work by sorting through thousands of cases, looking for petitioners who met the department's criteria. The criteria were so strict that only 7 percent of the 36,000 or so prisoners who contacted the project qualified for DOJ consideration. Tough on crime, easy on himself. When the 1994 crime bill championed by Bill Clinton became an issue in his wife's presidential campaign, the former president blamed the excessively punitive aspects of the law on Republican legislators. Clinton said Joe Biden, then chairman of the Senate Judiciary Committee, told him, "You can't pass this bill, and the Republicans will kill it, if you don't put more sentencing in." Yet as first lady Hillary Clinton cited tougher penalties as one of the bill's main advantages, and her husband bragged about them. Marijuana misdirection. In recent interviews, Obama has called continued enforcement of the federal ban on marijuana "untenable" while blaming the Drug Enforcement Administration (DEA) and Congress for keeping the drug in the most restrictive category of the Controlled Substances Act. Yet Obama has never urged Congress to change marijuana's legal status, and he appointed a hardline holdover from the Bush administration to run the DEA. When she resigned, he did not appoint a replacement more receptive to reclassification of cannabis. Blame the victim. Michael Slager, the former North Charleston police officer who was caught on video shooting a fleeing, unarmed motorist in the back last year, testified at his trial last month that he acted out of "total fear" after the man, Walter Scott, grabbed his Taser during an altercation. "Mr. Scott was shot because of what he did," Slager's lawyer told the jury. But the video, shot by a witness who said Scott never had control of the stun gun, shows Slager picking up the Taser after k[...]



Trump's 'Tough Cookie' Is a Dangerous Warmonger

2016-12-21T00:01:00-05:00

Donald Trump began to express doubts about the wisdom of overthrowing Saddam Hussein soon after the 2003 invasion of Iraq and by 2004 was criticizing the war as senseless and counterproductive—or, as he put it more recently, "a big, fat mistake." Hillary Clinton, by contrast, did not admit the war was a mistake until more than a decade after she voted for it. John Bolton, the former U.N. ambassador whom Trump reportedly plans to nominate as deputy secretary of state, has Clinton beat: He still thinks the war was a good idea. Bolton's stubborn defense of a disastrous war he helped engineer, which by itself should be enough to disqualify him from any position related to foreign policy, reflects interventionist instincts that are glaringly inconsistent with Trump's critique of reckless regime change and naïve nation building. In a recent speech, Trump reaffirmed his "commitment to only engage the use of military forces when it's in the vital national security interest of the United States." He said "we will stop racing to topple foreign regimes…that we know nothing about," promised that his administration will instead be "guided by the lessons of history and a desire to promote stability," and declared that "the destructive cycle of intervention and chaos must finally…come to an end." It is hard to think of a worse candidate to help implement that vision than Bolton. As undersecretary of state for arms control and international security affairs, he was largely responsible for the deception used to justify the invasion of Iraq, a stratagem that Trump has condemned in no uncertain terms. "They lied," Trump said during a debate last February. "They said there were weapons of mass destruction. There were none, and they knew there were none." Bolton is not only a liar, according to Trump himself, but a liar who does not learn from his big, fat mistakes. "I still think the decision to overthrow Saddam was correct," he told The Washington Examiner last year. Undaunted by the results of that intervention, which according to Trump created chaotic conditions conducive to terrorism, Bolton supported overthrowing Libyan strongman Muammar Gaddafi, which according to Trump continued "the destructive cycle of intervention and chaos." More recently Bolton has advocated bombing Iran and argued that the U.S. should have intervened earlier and more decisively in Syria's civil war. Rand Paul, the Kentucky senator who briefly vied with Trump for the Republican presidential nomination and who sits on the Senate Foreign Relations Committee, is dismayed by the gap between Bolton's belligerence and Trump's criticism of wanton war making. "I want Trump to pick somebody who agrees with what he said on the stump," Paul told Reason last week. "The fact that the administration would consider Bolton makes one wonder how deeply felt or deeply held those beliefs are." In a Rare essay explaining why he will oppose any nomination of Bolton for a State Department position, Paul describes him as "a longtime member of the failed Washington elite that Trump vowed to oppose, hell-bent on repeating virtually every foreign policy mistake the U.S. has made in the last 15 years—particularly those Trump promised to avoid as president." Paul notes that Bolton "more often stood with Hillary Clinton and against what Donald Trump has advised." Trump's puzzling fondness for Bolton, whom he calls "a tough cookie," is of a piece with his promise to "build up" a military that already receives more money than its seven closest competitors combined. "I'm a very militaristic person," Trump bragged during a debate last year, even as he criticized the Iraq war. Trump says he aims, like Ronald Reagan, to achieve "peace through strength." But a military buildup hardly seems consistent with Trump's complaint that "we're all over the place, fighting in areas that we just shouldn't be fighting in." An outsized military budget invi[...]



The Illogic of Indiscriminate Incarceration

2016-12-14T00:01:00-05:00

Seychelles, a group of 115 islands off the east coast of Africa with 92,000 residents, does not figure prominently on many lists, but it leads the world in locking people up. It is the only country with a higher incarceration rate than the United States. If the reforms recommended in a new report from the Brennan Center for Justice were fully implemented, the U.S. would fall from second to fourth place on that list—behind Seychelles, St. Kitts and Nevis, and Turkmenistan, but still far ahead of every other liberal democracy, not to mention Iran, Saudi Arabia, and Zimbabwe. The report is nevertheless an admirable effort to grapple with the morally and fiscally pressing question of who belongs behind bars and who doesn't. Between 1974 and 2007, the U.S. imprisonment rate (excluding people in local jails) soared from 102 to 506 per 100,000, thanks to changes in sentencing (including mandatory minimums and "three strikes" laws), parole (including "truth in sentencing" laws), and prosecutorial practices (including an increased tendency to bring charges). Since 2007 the imprisonment rate has declined a bit, but it is still more than four times as high as in the mid-1970s. This imprisonment binge was largely a response to crime rates, which rose dramatically from the 1960s until the early '90s, when they began a long slide. Today the violent and property crime rates are half what they were in 1991. Although "it is tempting to look at these data and assume that mass incarceration caused this decline in crime," the Brennan Center says, research suggests imprisonment played a modest role that shrank over time. It turns out that increases in the number of people behind bars and the amount of time they spend there yield diminishing returns. In recent years, states such as California, Texas, New York, and New Jersey have seen crime rates continue to fall while substantially reducing their prison populations. The trick is figuring out which offenders can remain free and which prisoners can be released without compromising public safety. Prison should be reserved for the most serious offenders, and longer sentences are not necessarily better, especially in light of evidence that they do not enhance deterrence and may actually increase recidivism. The Brennan Center argues that alternatives to incarceration, such as community service, electronic monitoring, restitution, and drug treatment, are generally appropriate for "lower-level crimes" such as minor drug offenses, minor property crimes, simple assault, and "lesser burglary" (involving unoccupied structures and no direct contact with victims). About 364,000 current prisoners fall into this category. The report also recommends default sentences for half a dozen more serious crimes that are 25 percent shorter than current sentences. That change would reduce the average sentence for "serious burglary" from 1.7 to 1.3 years, for aggravated assault and nonviolent weapon offenses from 3 to 2.3 years, for drug trafficking from 3.4 to 2.6 years, for robbery from 4.2 to 3.1 years, and for murder from 11.7 to 8.8 years. Since average time served in state prisons rose by 33 percent between 1993 and 2009, a 25 percent reduction would make state sentences about as long as they were in the early 1990s. Applying the reduction to current prisoners would allow 212,000 to petition for release. The Brennan Centers recommends that judges decide who should be freed on a case-by-case basis, taken into account the expected impact on public safety. It costs taxpayers $31,000 a year to keep someone in prison. Releasing the 576,000 prisoners in the two categories identified by the Brennan Center, who represent two-fifths of the prison population, therefore would save about $18 billion a year, a quarter of state and local spending on corrections. Indiscriminate incarceration and disproportionate penalties cost more than taxpayer money.[...]



Fighting Anti-Semitism With Intolerance

2016-12-12T00:01:00-05:00

A couple of weeks ago, the Anti-Semitism Awareness Act of 2016, a.k.a. S. 10, was introduced in the Senate, read three times, and approved by unanimous consent without debate or amendment—all on the same day. That sort of bipartisan consensus, which suggests a bill is so obviously unobjectionable that no discussion of its merits is necessary, usually means trouble, and this case is no exception. In the name of protecting Jewish students from discrimination, S. 10, if approved by the House, will encourage universities to suppress dissenting political opinions and have a chilling effect on constitutionally protected speech. S. 10, which was introduced by Sens. Tim Scott (R-S.C.) and Robert P. Casey Jr. (D-Pa.), codifies a controversial State Department definition of anti-Semitism that includes one-sided criticism of Israel and opposition to Zionism. Last year the University of California declined to adopt that definition based on concerns that it would violate the First Amendment by deterring pro-Palestinian activism. S. 10 would have the same effect on a national scale, notwithstanding its assurance that "nothing in this Act…shall be construed to diminish or infringe upon any right protected under the First Amendment." The Anti-Semitism Awareness Act is supposed to help the Education Department enforce Title VI of the Civil Rights Act of 1964, which bans discrimination on the basis of race, color, or national origin by educational institutions that receive federal money. Although Judaism is not a race, color, or national origin, the Justice Department says "discrimination against Jews, Muslims, Sikhs, and members of other groups violates Title VI when that discrimination is based on the group's actual or perceived shared ancestry or ethnic characteristics." Furthermore, discrimination can include a "hostile environment" that interferes with a student's education, and a hostile environment can be created by things other people say. Given this legal context, the official definition of anti-Semitism has clear First Amendment ramifications. If on-campus speech is viewed as anti-Semitic, it may prompt an investigation by the Education Department, which could conclude that a university has violated Title VI by tolerating anti-Jewish harassment. Awareness of that possibility encourages administrators to regulate and punish speech, which makes students reluctant to express opinions that could be deemed anti-Semitic. The looser the definition of anti-Semitism, the greater the potential for censorship. Even the clearest expression of anti-Semitism is protected by the First Amendment, provided it does not rise to the level of harassment or assault. It should be possible for a student to question the Holocaust or claim that Jews control the media—two examples mentioned in the State Department's definition—without triggering a federal investigation. The right response to bigoted misconceptions is refutation, not censorship, especially at an educational institution that values free inquiry and open debate. S. 10 increases the tension between freedom of speech and antidiscrimination law by stretching the definition of anti-Semitism to cover opinions about Israel and its conflict with Palestinians. The examples cited by the State Department include "drawing comparisons of contemporary Israeli policy to that of the Nazis," "blaming Israel for all inter-religious or political tensions," "applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation," "focusing on Israel only for peace or human rights investigations," and "denying the Jewish people their right to self-determination" or "denying Israel the right to exist." These positions strike many Jews (including me) as grossly unfair, but they are not necessarily motivated by anti-Semitism, let alone synonymous with it. They raise[...]



Trump's Problem With Free Speech

2016-12-07T00:01:00-05:00

Last week Donald Trump had a nice telephone chat with Nursultan Nazarbayev, the autocrat who has ruled Kazakhstan since 1989, two years before it broke away from the Soviet Union. According to the Kazakh government, the president-elect "stressed that under the leadership of Nursultan Nazarbayev, our country over the years of independence had achieved fantastic success that can be called a 'miracle.'" One aspect of the Kazakh miracle that Trump surely admires is Nazarbayev's ability to make criticism (and critics) disappear. As Trump's constitutionally contemptuous comments about flag burning illustrate, he supports free speech the same way he supports free trade: with preferential exceptions designed to protect the people he cares about most. Trump thinks "nobody should be allowed to burn the American flag," notwithstanding two Supreme Court decisions saying such expressive activity is protected by the First Amendment. Both rulings were joined by Antonin Scalia, the late justice whom Trump says he wants to replace with someone similar. Trump's call for jailing flag burners or stripping them of their citizenship may sound like the sort of knee-jerk patriotism that elevates a piece of cloth above the principles it represents. But in light of the fact that anti-Trump protesters in several cities burned flags after his election, attributing his position to mindless jingoism probably gives him too much credit. Trump has a long, astonishingly petty history of using the legal system to punish people who offend him. In 1984, for instance, he sued Chicago Tribune architecture critic Paul Gapp for calling a Manhattan skyscraper proposed by Trump "aesthetically lousy" and "one of the silliest things anyone could inflict on New York or any other city." The thin-skinned developer demanded $500 million in compensation for those insults, which seemed like a lot until he sought 10 times as much—$5 billion—in a 2006 lawsuit against Tim O'Brien, a financial journalist who had dared suggest that Trump was not worth as much as he claimed. Although Trump lost both of those cases, he recently told The Washington Post he got what he wanted from his suit against O'Brien: "I did it to make his life miserable, which I'm happy about." Trump nevertheless thinks it should be easier for him to win lawsuits against people who say things he does not like. "We're going to open up those libel laws," he promised at a rally in February, "so when The New York Times writes a hit piece which is a total disgrace or when The Washington Post…writes a hit piece, we can sue them and win money instead of having no chance of winning because they're totally protected." The president actually has nothing to do with writing libel law, which is done at the state level and is any case constrained by the First Amendment—the source of the protection that frustrates Trump. His buddy Nursultan Nazarbayev has no such problem. In Kazakhstan, the State Department notes, libel is a crime as well as a tort, defendants are required to prove the accuracy of any challenged statement, and "the law provides enhanced penalties for libel against senior government officials," who use the threat of defamation claims "to restrict media outlets from publishing unflattering information." Another aspect of Kazakh law that should appeal to the notoriously sensitive and secretive Trump: "The law prohibits insulting the president or the president's family" and "criminalizes the release of information regarding the health, finances, or private life of the president." Trump, who argues that "it is not 'freedom of the press' when newspapers and others are allowed to say and write whatever they want even if it is completely false," might also be intrigued by the Kazakh law that makes "intentionally spreading false information" a crime punishable by stiff fines and [...]



The Cannabis Exception to the Second Amendment

2016-11-30T00:01:00-05:00

If you want to buy a gun from a federally licensed dealer, you have to fill out Form 4473, which is aimed at determining whether you are legally allowed to own a firearm. A recent revision to the form by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) underlines how blithely the federal government strips Americans of their Second Amendment rights. "Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?" asks Question 11(e). In the latest version of Form 4473, which dealers are required to start using on January 16, that question is followed by a warning in bold type: "The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside." If you are one of the 68 million Americans who live in a state that has decided to allow recreational use of marijuana, or one of the 186 million who live in a state that recognizes marijuana as a medicine, you may have been under the impression that legalization makes cannabis consumption lawful. The ATF wants to disabuse you of that notion; hence the warning. "We were concerned that some buyers who use marijuana may read the 2012 language asking if they were an 'unlawful user of, or addicted to, marijuana' and erroneously say no because in that particular state, marijuana has been legalized," an ATF spokeswoman told The Denver Post last week. "Most dealers recognize that marijuana use prohibits people from purchasing firearms under federal law, but many members of the general public may not be as familiar with the Gun Control Act." Under that law, a cannabis consumer who possesses a gun (no matter where he got it) is guilty of a felony punishable by up to 10 years in prison. Likewise anyone who sells him a gun if has reason to know the buyer is a cannabis consumer. Falsely denying marijuana use on Form 4473 can get you up to five years. The rationale for this rule is risible. Last August the U.S. Court of Appeals for the 9th Circuit ruled that banning gun sales to people who have medical marijuana cards is consistent with the Second Amendment because "empirical data and legislative determinations support a strong link between drug use and violence." The court did not actually cite any such evidence, but it did observe that "illegal drug users, including marijuana users, are likely as a consequence of that use to experience altered or impaired mental states that affect their judgment and that can lead to irrational or unpredictable behavior." The same could be said of drinkers, but it seems unlikely that the 9th Circuit would uphold a law that restricted the Second Amendment to teetotalers. The appeals court also argued that cannabis consumers are "more likely to have negative interactions with law enforcement officers because they engage in criminal activity." It added that "they frequently make their purchases through black market sources who themselves frequently resort to violence." Both of those risks are byproducts of prohibition, and they do not apply to people who grow, buy, or consume marijuana in accordance with state law. The fact that those activities are still prohibited by the federal government does not mean the average cannabis consumer is apt to get into a shootout with DEA agents, let alone with the state-licensed retailer who sells him marijuana. The idea that marijuana makes people violent is a relic of the 1930s that has no relevance in determining who deserves to exercise the fundamental right of armed self-defense—a point the president-elect should recognize. Donald Trump's choice for attorney general may believe that "good people don't smoke marijuana," but Trump himself has repeatedly[...]



Official Hypocrisy

2016-11-25T12:00:00-05:00

As part of a recent child pornography investigation disconcertingly known as Operation Pacifier, the FBI ran a website that distributed photographs and videos of children being sexually abused.

Last year, according to The Seattle Times, "after arresting the North Carolina administrator of The Playpen, a 'dark web' child-pornography internet bulletin board, agents seized the site's server and moved it to an FBI warehouse in Virginia." The bureau used the website to run "a sting and computer-hacking operation of unparalleled scope that has thus far led to criminal charges against 186 people," mostly for receiving or possessing child pornography.

In other words, the government became a major distributor of illegal images in an attempt to catch people who look at them, thereby committing a more serious crime than those arrested.

As attorneys representing the people busted by the FBI have pointed out, the government's position is that children are revictimized every time images of their sexual abuse are viewed or shared. That argument is one of the main rationales for punishing mere possession of child pornography, which under federal law and the laws of some states can be treated more harshly than violent crimes—more harshly even than actual abuse of children.

"Distributing" such an image is a federal crime punishable by a mandatory minimum sentence of five years and a maximum sentence of 20 years. If such actions merit criminal prosecution because they are inherently harmful, there is no logical reason why the federal agents who ran The Playpen should escape the penalties they want to impose on the people who visited the site.




Putin's Biggest Fan

2016-11-25T12:00:00-05:00

Hillary Clinton and her running mate, Tim Kaine, used the same word to describe Donald Trump's praise of Russian President Vladimir Putin: "unpatriotic." Satisfying as it may be for Democrats to deploy that adjective against the nominee of a party known for its flag-waving jingoism, it is neither accurate nor adequate in describing what's truly alarming about Trump's admiration of the Russian strongman. "He is really very much of a leader," Trump told NBC's Matt Lauer in September. "The man has very strong control over a country." Trump, who also cited Putin's "82 percent approval rating," allowed that Russia has "a very different system" of government, and "I don't happen to like the system." Nevertheless, he said, "in that system, he's been a leader, far more than our president has been a leader." Clinton slammed the GOP nominee for "taking the astonishing step of suggesting that he preferred the Russian president to our American president," which she called "unpatriotic and insulting." Kaine said the "irrational hostility toward President Obama, which started the very first day of his term from some of these people, is unpatriotic, and we've got to call it out." Note how Clinton and Kaine equated Trump's insult to Obama with an insult to the nation. If you hate Obama, they suggested, you hate America. Teddy Roosevelt, no stranger to jingoism, thought conflating love of country with love of the president is the opposite of patriotism. "To announce that there must be no criticism of the President, or that we are to stand by the President, right or wrong," he wrote in 1918, "is not only unpatriotic and servile, but is morally treasonable to the American public." Patriotism is in any case a dubious virtue at best. An emotional attachment to the land in which you happened to be born is natural, but when elevated to a moral principle it can easily morph into state worship and warmongering. The problem with Trump's comments was not that they showed a lack of patriotism. The problem was that they reflected authoritarian instincts no president of a liberal democracy should have. Trump cannot credibly claim to dislike Russia's system of government while admiring Putin's strong leadership, because that system is what makes his strong leadership possible. In Russia's "highly centralized, authoritarian political system," the State Department notes, the executive branch dominates the legislature, pressures the judiciary, and routinely flouts notional guarantees of civil liberties. According to the department's 2015 report on human rights in Russia, during the previous year "the government increasingly instituted a range of measures to suppress dissent," including politically motivated arrests and prosecutions; discriminated against sexual, religious, and ethnic minorities; and "failed to take adequate steps to prosecute or punish most officials who committed abuses, resulting in a climate of impunity." The report also says torture by police was common, there were "numerous extrajudicial killings," and "corruption was widespread" in the executive, legislative, and judicial branches. Freedom House, which classifies Russia as "not free," reports that Putin's regime last year "intensified its tight grip on the media, saturating the information landscape with nationalist propaganda while suppressing the most popular alternative voices." The report also notes that "the judiciary lacks independence from the executive branch," "there is little transparency and accountability in the day-to-day workings of the government," and "vague laws on extremism grant the authorities great discretion to crack down on any speech, organization, or activity that lacks official support." Trump's Putin partiality is of a piece with his praise for the[...]



Is Trump's Pot Tolerance Fading?

2016-11-23T00:01:00-05:00

On the same day Donald Trump was elected president, four states legalized marijuana for recreational use, while four others legalized or expanded access to medical marijuana. As a result of those ballot initiatives, most states now recognize marijuana as a medicine, and one in five Americans lives in a state that has decided to tolerate cannabis consumption without a doctor's note. During his campaign Trump said he supports medical marijuana but has concerns about broader legalization, a policy he nevertheless said states should be free to adopt. Trump's recently announced choice for attorney general, Sen. Jeff Sessions, casts doubt on those commitments. The Alabama Republican, a former U.S. attorney and state attorney general, is an old-fashioned drug warrior who pines for the days when Nancy Reagan's Just Say No campaign helped "create a hostility to drug use." He was outraged when President Obama conceded that marijuana is less dangerous than alcohol, and he recently claimed that "good people don't smoke marijuana." Sessions has repeatedly criticized the Obama administration's policy of tolerating state-authorized marijuana suppliers. During a 2009 Senate hearing, he complained that "Attorney General Holder has said federal authorities will no longer raid medical marijuana facilities in California, which is against U.S. law" and "contrary to the position taken by the Drug Enforcement Administration." At a hearing last April, Sessions bemoaned the message sent by marijuana legalization, which he said implies that "marijuana is not dangerous" and encourages teenagers to use it. "We need grownups in charge in Washington to say marijuana is not the kind of thing to be legalized," he said. "The Department of Justice needs to be clear, and the president needs to assert some leadership." Now that Trump has picked Sessions to head the Justice Department, we may get a clearer idea of how far Sessions wants to go in pressing the point that "marijuana is not the kind of thing to be legalized." While medical marijuana suppliers are protected from the feds by a spending rider that is likely to be renewed, if given free rein Sessions could easily wreak havoc in the recreational industry. Every state-licensed marijuana business remains a criminal enterprise under federal law, subjecting its owners to the risk of prosecution and forfeiture. An anti-pot crusader at the helm of the Justice Department could make that risk salient again by raiding growers, manufacturers, and retailers, or just by threatening to do so. Sessions also could challenge state legalization in federal court, although he might not like the results even if he wins. While the DOJ might prevail in arguing that state licensing and regulation of cannabusinesses conflicts with federal law, it cannot force states to recriminalize what those businesses do, so the upshot of a successful lawsuit could be less government oversight of the industry. Any such interference by the DOJ would contradict Trump's commitment to marijuana federalism. "I really believe you should leave it up to the states," he said at a rally in Reno last year. "It should be a state situation…In terms of marijuana and legalization, I think that should be a state issue, state by state." Most Americans agree with that approach. Recent national polls indicate that most Americans (60 percent, according to Gallup) think marijuana should be legal, while most Republicans continue to oppose legalization. But even among Republicans, most—70 percent, according to a CBS News poll conducted last April—think the feds should not try to override state decisions in this area. In other words, marijuana legalization is considerably more popular than Trump, who received less than 4[...]



What Trump Can Do for Us

2016-11-16T00:01:00-05:00

"Not my president" is the theme of the protests that have been staged in dozens of cities across the country since Donald Trump was elected last week. I share the sentiment. Trump will not be my president. But neither is Barack Obama, and neither were any of the eight other men who have occupied the White House since I was born. The phrase "my president" smacks of subservience, as in "my liege," "my lord," or "mein führer." In our constitutional republic, the person selected for the job that Trump will assume on January 20 presides over the executive branch of the U.S. government, not over you or me. If there is an advantage to electing a preening, petty, thin-skinned, whiny, vindictive, vacuous, mendacious, boorish bully to that office, it may be that he prompts a reconsideration of the absurd hopes and cultish veneration that surround the presidency. Perhaps a ridiculous president will encourage Americans to take the presidency less seriously. Then again, the deference that is reflexively given the office could rub off on Trump, who is no less buffoonish today than he was on the morning of November 8. Already we see signs of strange new respect, as harsh critics of the authoritarian huckster swallow their revulsion and wish him well. Chicago Now blogger Brian C. Thomas confesses that "there is a large part of me that wants to drop my pants and flip the double bird to much of the national Republican Party and the people who voted for Donald Trump." But he argues that "being an American demands we respect the office of the President." How so? "I don't want this country to fail," Thomas explains. "Rooting against Donald Trump—now that he's president—would be like rooting against the country." But Trump is not the country, and depending on the policies he pursues he can do more damage by succeeding than by failing. When it comes to disrupting trade and immigration, for instance, I will unabashedly root against him. That does not make me less American. Trump, an open admirer of foreign dictators, presented himself as a strongman riding to the nation's rescue. "When I take the oath of office next year, I will restore law and order to our country," he said at the Republican convention. "Beginning on January 20, 2017, safety will be restored." That promise is delusional not just because it requires impossibly quick and effective action but because crime control is not a federal function. It is not the president's job to police neighborhoods or arrest criminals. Nor is it the president's job to "run the economy," a task for which Trump declared Hillary Clinton unsuited. He has no such qualms about his own abilities. "I can tell you this, and I can say it with certainty," he said in a campaign video. "I will be the greatest jobs-producing president that God ever created." While promises of crime control and job creation are staples of presidential campaigns, Trump's persona highlights how ludicrous they are. The guy who brags about sexually assaulting women is going to restore safety? The guy who brought us Trump Steaks, Trump Vodka, Trump: The Game, Trump Mortgage, Trump University, Trump Airlines, and three bankrupt casinos is going to foster successful businesses? When it comes to fiscal policy (an area where the president does have some influence), it is hard to put much faith in a guy who promises to cut a $78 billion expense by $300 billion and to eliminate the $19 trillion national debt in eight years while increasing spending. Even when it comes to foreign intervention, one area where Trump promised more restraint than Clinton, it is hard to trust a man who falsely insists he was always against the war in Iraq. For those who see the president as a savior w[...]



Vaping Is a Gateway to Quitting

2016-11-09T00:01:00-05:00

Survey data indicate that millions of Americans have used electronic cigarettes to quit smoking, thereby dramatically reducing the health risks they face. Thomas Frieden, director of the U.S. Centers for Disease Control and Prevention, is unimpressed. "The plural of anecdote is not data," Frieden recently told The New York Times. But when it comes to the dangers that vaping poses, he abandons his scientific stance, claiming without evidence that "many kids are starting out with e-cigarettes and then going on to smoke conventional cigarettes." No doubt Frieden and other e-cigarette alarmists will latch onto a new study that supposedly shows "Flavored E-Cigarettes May Entice Teens to Smoke," as one of the predictable headlines put it. But that is not what the study, reported this week in the journal Pediatrics, actually shows. Looking at data from the 2014 National Youth Tobacco Survey, biostatistician Hongying Dai and economist Jianqiang Hao found that nonsmokers who had used an e-cigarette in the previous month were less likely than other nonsmokers to rule out trying tobacco cigarettes in the future. That is not terribly surprising, since just 3 percent of teenagers who had never smoked reported past-month e-cigarette use, a small minority that is apt to differ from the remaining 97 percent in traits, such as rebelliousness, risk aversion, and sensation seeking, that might affect the propensity to experiment with smoking. Correlation is not causation. The fact that teenagers who vape are less inclined to say they will never smoke does not mean the experience of vaping made them that way. As Dai and Hao note, "we were unable to establish causal inferences" because "the data are cross-sectional." The idea that vaping promotes smoking seems implausible in light of the fact that smoking has fallen to record lows among teenagers even as experimentation with vaping has risen dramatically. Furthermore, teenagers who vape typically use nicotine-free e-liquids, and nonsmokers rarely vape often enough to develop a nicotine habit. According to the Monitoring the Future Study, nearly two-thirds of teenagers who have tried vaping consumed "just flavoring" the last time they did it. In the same survey, less than 1 percent of never-smokers had vaped on 20 or more days in the previous month. Dai and Hao seem to view flavored e-liquids, whether or not they contain nicotine, as a menace to the youth of America. "Flavored e-cigarette use is associated with increased risks of smoking among youth," they conclude. "Comprehensive tobacco control and prevention strategies that address flavored e-cigarette products are critically needed to reduce tobacco use among youth." It is pretty clear what "address[ing] flavored e-cigarette products" means to Dai and Ho, who repeatedly note that the Food and Drug Administration does not plan to ban flavors as part of its otherwise onerous e-cigarette regulations. They worry that "widespread availability of flavored e-cigarettes will increase the use of e-cigarette products by youth" and that "the normalization of e-cigarette use among youth could also lead to e-cigarettes becoming a gateway for future smoking, marking a setback in the decades-long antismoking battle." While there is little reason to think anything like that is happening, banning flavored e-liquids would make vaping less attractive to smokers, thereby discouraging them from making a switch that could save their lives. Contrary to the claims of politicians and activists who insist that candy and fruit flavors could not possibly appeal to anyone older than 17, adults who switch to vaping overwhelmingly prefer supposedly kid-friendly e-liquids. In a 2014 [...]