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Updated: 2017-02-28T00:00:00-05:00


The NEA Today, Entitlements Tomorrow


Robert Redford says an Office of Management and Budget memo suggesting the Trump administration might try to eliminate the National Endowment for the Arts is "another example of our democracy being threatened." The actor, director, and independent-film booster explains that "arts are essential" because "they describe and critique our society." Democracy probably would survive the demise of the NEA, which was created in 1965 and accounts for a tiny share of arts funding in the United States. But by the same token, getting rid of the NEA would have a negligible impact on federal spending, and there are strong reasons to doubt that the president's commitment to fiscal restraint goes beyond such gestures. Grants from the NEA and every other federal agency that funds the arts account for about 1 percent of revenue received by not-for-profit museums and performing arts groups in the U.S. So even if we arbitrarily exclude money-making enterprises from "the arts," the describing and critiquing of society that Redford values hardly depend on federal largess—a good thing, since it seems unwise to make this subversive function contingent on the good will of politicians. The NEA's fiscal significance is even slighter: Its $146 million budget amounts to 0.004 percent of federal spending. If we throw in the National Endowment for the Humanities and the Corporation for Public Broadcasting—two other culture-related targets on the OMB's hit list that are favorite targets of conservatives—we are talking about 0.02 percent of federal spending, a barely perceptible bit of skin from a small potato. According to The New York Times, which reported the highlights of the OMB memo last week, most of the targets have budgets of less than $500 million, "a pittance for a government that is projected to spend about $4 trillion this year." But judging from the examples cited by the Times, the programs on the OMB's list deserve to be zeroed out, since they are either unnecessary (e.g., AmeriCorps, Bill Clinton's attempt to co-opt and take credit for local volunteer work) or positively pernicious (e.g., the Export-Import Bank, which subsidizes deals by big corporations like Boeing, and the Office of National Drug Control Policy, which tries to put a happy face on the government's immoral war against consumers of arbitrarily proscribed intoxicants). Whether these proposed cuts are a sign of seriousness or the opposite will depend on the Trump administration's approach to big-ticket items. Fortunately, the newly confirmed director of the OMB, former South Carolina congressman Mick Mulvaney, is a fiscal conservative who understands the need for entitlement reform, favors restraint on military spending, and takes a dim view of the grand infrastructure initiatives that Democrats tend to push. Unfortunately, Mulvaney's boss disagrees with him on each of these points. During his presidential campaign, Donald Trump promised to leave Medicare and Social Security alone, expand an already bloated military budget, and spend as much as $1 trillion on infrastructure improvements. "I have to imagine that the president knew what he was getting when he asked me to fill this role," Mulvaney told the Senate Budget Committee during a confirmation hearing last month. But he added that "I have no reason to believe that the president has changed his mind from the statements he made during the campaign." Will Mulvaney go along with the fiscal recklessness signaled by Trump's campaign promises, or will he persuade the president to change his positions? The response to Mulvaney's nomination from supporters of Trump's gratuitous military buildup (which seems inconsistent with the president's complaint that our armed forces already do too much) does not bode well. Sen. John McCain (R-Ariz.), who has never met a military intervention he did not like, voted against Mulvaney's confirmation, calling him "anti-defense" and accusing him of "pitting the national debt against our military." But no other Republican in the Senate, including hawks such as Lindsey Graham (R-[...]

Study Confirms Health Advantages of Vaping


The first surgeon general's report on e-cigarettes, published in December, describes them as "an emerging public health threat." A "tip sheet for parents" that accompanied the report recommends evasion in response to the question, "Aren't e-cigarettes safer than conventional cigarettes?" Curious teenagers (and adults) will have to look for an answer elsewhere, such as a study reported last week in the Annals of Internal Medicine. It confirmed that e-cigarettes are much less dangerous than the traditional, combustible sort, a fact that may come as a surprise to Americans who get their health information from government officials. The researchers, led by Lion Shahab, a health psychologist at a University College London, tested the saliva and urine of 181 volunteers representing five groups: current smokers, current smokers who also use e-cigarettes, current smokers who also use nicotine replacement therapy (NRT) products such as gum or patches, former smokers who have switched to e-cigarettes, and former smokers who have switched to NRT. Shahab et al. found all five groups were receiving similar amounts of nicotine, but the switchers showed "substantially reduced levels of measured carcinogens and toxins." The differences between vapers and smokers were dramatic, ranging from 57 percent reductions in three volatile organic compounds (ethylene oxide, acrylonitrile, and vinyl chloride) to 97 percent reductions in acrylonitrile (another VOC) and in a tobacco-specific nitrosamine, a potent carcinogen. The levels for vapers were at least as low as those for NRT users and in some cases lower, which is striking because NRT is widely accepted as a safe alternative to cigarettes. This study, which involved long-term e-cigarette users, reinforces the results of a 2016 study finding large reductions in toxins and carcinogens among smokers who switched to vaping during a two-week experiment. Shahab et al.'s findings also jibe with chemical analyses of e-cigarette liquids and the aerosol they produce, work that led Public Health England to endorse an estimate that vaping is something like 95 percent safer than smoking. The huge difference in risk between vaping and smoking is hardly surprising, since the former involves inhaling an aerosol that typically consists of propylene glycol, glycerin, water, flavoring, and nicotine, while the latter involves inhaling tobacco smoke, which contains thousands of chemicals, hundreds of which are toxic or carcinogenic. Yet misconceptions about the hazards of vaping are widespread, thanks to public health officials and anti-tobacco activists who seem intent on obscuring the truth. In a recent survey of American adults by Vanderbilt Law School professor W. Kip Viscusi, 48 percent of respondents erroneously said e-cigarettes are either just as hazardous as the conventional kind or even more hazardous. Thirty-eight percent said e-cigarettes are less hazardous, but only 14 percent correctly said they are much less hazardous. It's no wonder the public is confused, when the surgeon general, the Food and Drug Administration, and the U.S. Centers for Disease Control and Prevention portray e-cigarettes as a menace to public health instead of an opportunity to reduce smoking-related disease. All three inaccurately describe e-cigarettes as "tobacco products," falsely implying that the risks posed by vaping are similar to the risks posed by smoking. Writing in the Philadelphia Inquirer a few weeks after Surgeon General Vivek Murthy's report came out, a local physician took her cue from him, dodging a straightforward question about the relative hazards of vaping and smoking with an irrelevant litany of speculative warnings. Such efforts to scare people away from e-cigarettes are positively pernicious and potentially lethal to the extent that they deter smokers from making a switch that could save their lives. For Donald Trump, who was elected on promises of disruption and deregulation, an obvious target is the FDA's onerous new e-cigarette rules, which threaten to ruin tho[...]

Trump's SCOTUS Nominee Is No Rubber Stamp


Donald Trump's Twitter temper tantrum over the legal challenge to his immigration order suggests he does not appreciate the role of an independent judiciary. Fortunately, Trump's lack of interest in such matters has given us a Supreme Court nominee who takes that role seriously and can be expected to resist presidential power grabs. Last Friday, James Robart, a federal judge in Seattle, issued a temporary restraining order that blocked enforcement of Trump's 90-day ban on travelers from seven Muslim-majority countries and 120-day suspension of the U.S. Refugee Admissions Program. The next morning, Trump slammed Robart on Twitter: "The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!" Trump followed that up on Sunday with a tweet that castigated Robart for exposing Americans to the risk of a terrorist attack: "Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!" It is hardly surprising that a president would disagree with a ruling that stops him from doing what he wants to do. But by condemning a "so-called judge" and the "court system" for daring to frustrate his will, Trump cast doubt on the judicial branch's authority to do what it is supposed to do: check the other branches of government when they violate the law. Alarmed by a president who sounds like a tin-pot dictator, Trump's critics understandably worried that his choice to replace the late Supreme Court Justice Antonin Scalia would be someone with authoritarian instincts who would bend over backward to accommodate the president's agenda. But judging from his record on the U.S. Court of Appeals for the 10th Circuit, Neil Gorsuch is not that guy. The same progressives who claim Gorsuch would be a "rubber stamp" for Trump are troubled by his criticism of the Chevron doctrine, which says judges should defer to bureaucrats' interpretations of the laws they enforce. But Gorsuch's skepticism of that principle, which is based on his respect for the separation of powers, shows he is not shy about challenging the executive branch when it exceeds its bounds. Gorsuch's concern about overweening executive power is illustrated by two 2016 opinions in which he rejected the retroactive application of an agency's legal interpretation. One case involved an unauthorized immigrant seeking legalization, the other a home health service provider whose Medicare reimbursements were deemed improper based on regulations announced years after the claims were filed. Gorsuch, like Scalia, is a critic of vague criminal statutes and a stickler when it comes to requiring that prosecutors prove all the elements of an offense. Both tendencies are apparent in a 2015 opinion that overturned the Analogue Act convictions of two convenience store owners because the government had not proved they knew enough about the psychoactive "incense" they sold to be guilty of violating that law. Gorsuch's respect for the zone of privacy protected by the Fourth Amendment is also reminiscent of Scalia. Last year, dissenting from a 10th Circuit ruling that allowed police officers to ignore multiple "No Trespassing" signs on the property of a suspected drug dealer, Gorsuch faulted his colleagues for endorsing "an irrevocable right to enter a home's curtilage to conduct a knock and talk." In another 2016 decision that surely would offend Trump's "law and order" sensibilities, Gorsuch sided with a man convicted of possessing child pornography. His majority opinion agreed that the National Center for Missing and Exploited Children qualifies as a governmental actor under the Fourth Amendment, meaning its warrantless search of the defendant's email was presumptively unconstitutional. Why would Trump pick a Supreme Court justice with the backbone to oppose his excesses? By most accounts, he farmed out the selection process to the Federalist Society and the Heritage Foundation as a sop to [...]

Trump's Irrational Immigration Crackdown


Give Donald Trump credit where it's due: He promised an irrational crackdown on immigrants, and he delivered it the first week of his administration. Trump began his presidential campaign with a speech in which he described most Mexican immigrants as rapists, drug dealers, and other criminals, adding that "some, I assume, are good people." During his campaign, he repeatedly said that as president he would deport all 11 million people who live in the United States without the government's permission. Last August, Trump signaled what he described as a "softening" of that position. "We are not looking to hurt people," he told Sean Hannity on Fox News. "We have some great people in this country." Trump suggested he was open to legalizing unauthorized immigrants, a policy supported by most Americans. If they "pay back taxes," he said, he would be willing to "work with them," although there would be "no citizenship" and "no amnesty as such." Less than a week after he was elected president, Trump again indicated he did not plan to carry out the sort of mass deportation he had advocated during the campaign. "After the border is secured and after everything gets normalized," he told Lesley Stahl on 60 Minutes, "we're going to make a determination on the people that you're talking about, who are terrific people." An executive order that Trump signed last week contradicts these assurances. The order instructs the Department of Homeland Security to "prioritize for removal" not only unauthorized residents who "have been convicted of any criminal offense" (including misdemeanors and nonviolent drug offenses) but also those who "have committed acts that constitute a chargeable criminal offense" (meaning a conviction is not required) and those who "have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency." That last category includes anyone who has falsely claimed to be a legal resident on an official form or used a fake Social Security number to obtain a job. For good measure, the order also approves removal of anyone else whom an immigration officer deems "a risk to public safety or national security." The order thus lays the ground for ejecting virtually all illegal residents, regardless of how long they have lived in the United States, how peaceful and productive they have been, or how much they have paid in taxes. Trump seems bent on deporting millions of "terrific people." Another immigration-related executive order that Trump signed last week suspended admission of all refugees for 120 days, blocked Syrian refugees indefinitely, cut this year's refugee cap in half, and banned travelers with passports from any of seven Muslim-majority countries for 90 days. It fell short of Trump's 2015 recommendation urging "a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on." But what the order lacked in scope it made up for in casual cruelty, arbitrarily disrupting and endangering thousands of lives. It separated parents from children, kept students from returning to school, put the kibosh to new jobs, stopped patients from obtaining treatment, and blocked war refugees from settling in the United States. It even prevented legal permanent residents from returning to their homes, until the Trump administration reversed that part of the policy. The official justification for Trump's half-baked order—protecting Americans from terrorists—is hard to take seriously. Refugees and green-card holders are already subject to extensive screening, refugees very rarely carry out terrorist attacks in the United States, and since 2001 no American has been killed in the U.S. by a terrorist from any of the seven countries covered by Trump's order. As in the speech that launched his presidential bid, Trump is scapegoating people based on their national origin (and, implicitly, their religion). Given the weakn[...]

In Sentencing, Tough Is Not Necessarily Smart


Barack Obama, who shortened more prison sentences than any other president in U.S. history, has been replaced by a man who views that record of mercy as evidence of dangerous laxity. Donald Trump's criticism of Obama's commutations not only suggests he will be much less inclined to use his clemency power but also casts doubt on the prospects for much-needed federal sentencing reforms that not long ago seemed to be on the verge of passing with bipartisan support. After a very slow start, Obama ultimately commuted the sentences of 1,715 federal prisoners, more than his 13 most recent predecessors combined. Almost all of the prisoners who received commutations were nonviolent drug offenders, 568 of whom had been sentenced to life. Many of these prisoners were serving sentences longer than they would have received under current law. Even with the commutations, they will end up spending long stretches behind bars: 20 years instead of life, for example, or 13 years instead of 25. Trump nevertheless took a dim view of Obama's commutations while running for president. At a rally in Kissimmee, Florida, last August, Trump scornfully held up a bar graph that the White House had cited with pride, comparing Obama's commutations to those of recent presidents. "Some of these people are bad dudes," Trump said. "These are people that are out; they're walking the streets. Sleep tight, folks." Trump's pick for attorney general, Sen. Jeff Sessions (R-Ala.), criticized Obama's commutations in even stronger terms, calling them an "unprecedented" and "reckless" abuse of executive power. Sessions, who is expected to be confirmed soon, said Obama was "playing a dangerous game to advance his political ideology." Like Trump, Sessions conflates drug offenders with violent criminals. As Alabama's attorney general in 1996, he supported a mandatory death penalty for people convicted twice of drug trafficking, which would have been clearly unconstitutional. During his confirmation hearing on January 10, he said he no longer favors that policy. But Sessions still argues that "drug trafficking can in no way be considered a 'non-violent' crime," even when it does not involve violence. Sessions thus rejects a central point of agreement underlying bipartisan support for sentencing reform: that there is an important distinction between violent criminals and offenders who engage in peaceful activities arbitrarily proscribed by Congress. He was a leading opponent of the Sentencing Reform and Corrections Act, which would have made the shorter crack sentences that Congress approved in 2010 retroactive, reduced various other drug penalties, tightened the criteria for certain enhanced punishments, and broadened the criteria for the "safety valve" that lets some drug offenders escape mandatory minimums. Sessions himself supported the crack sentencing reforms enacted in 2010, along with every other senator, reflecting a broad recognition that the existing penalties were excessively severe. Yet he has steadfastly opposed extending the benefit of the new rules to current prisoners, whether through legislation or through clemency. Trump, who ran on a "law and order" platform and at his inauguration last week promised to end the "carnage" caused by "crime and gangs and drugs," seems inclined to take his cues on criminal justice from his attorney general. That would be a mistake, because an indiscriminately punitive approach is not only unjust but inefficient, undermining public safety by wasting resources on imprisoning people who pose no real threat. Paul Fields, who was included in Obama's final batch of commutations last week, received a sentence of nearly 16 years after police found 256 marijuana plants at his home in Jonesborough, Tennessee. Obama reduced his sentence to 10 years. It is hard to believe that Fields deserves a 10-year prison sentence for doing something that violated no one's rights, something that is now legal in eight states. It[...]

Offensive Trademarks Are Free Speech


In 2004 the U.S. Patent and Trademark Office agreed to register Heeb as the name of a magazine covering Jewish culture. Four years later, the PTO refused to register Heeb as the name of a clothing line conceived by the magazine's publishers, because the term is "a highly disparaging reference to the Jewish people." Such puzzling inconsistency is par for the course at the PTO, which since 1946 has been charged with blocking registration of trademarks that "may disparage...persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." A case the Supreme Court will hear today could put an end to that vain, vague, and highly subjective enterprise, which sacrifices freedom of speech on the altar of political correctness. The case involves an Asian-American dance rock band called The Slants, a name that self-consciously repurposes a racial slur. In 2011 the band's founder, Simon Tam, tried to register the name but was rejected by a PTO examiner who deemed it disparaging to "persons of Asian descent." An administrative appeals board affirmed that decision, even while conceding that the band's name was "an attempt not to disparage, but rather to wrest 'ownership' of the term from those who might use it with the intent to disparage." The board said "the fact that applicant has good intentions underlying the use of the term does not obviate the fact that a substantial composite of the referenced group find the term objectionable." In 2015 a federal appeals court agreed that Tam "may offend members of his community with his use of the mark" but noted that "the First Amendment protects even hurtful speech." The court ruled that the ban on registration of disparaging trademarks amounts to viewpoint-based speech regulation, which the Supreme Court has said is constitutional only if it is narrowly tailored to serve a compelling government interest. The interest in this case—protecting the feelings of people who might be offended by an outré trademark—does not even qualify as legitimate, let alone compelling. The PTO maintains that it's not really regulating speech, since Tam is free to call his band whatever he wants. But denying him the trademark-protecting benefits of registration clearly imposes a burden on his speech, analogous to denying copyright registration for a book that bothers a bureaucrat. The PTO also argues that trademark registration should be viewed as government speech, similar to messages on license plates. But as the Cato Institute notes in a friend-of-the-court brief (which was joined by the Reason Foundation, publisher of this website), that contention is pretty implausible when the list of registered trademarks "includes such hallowed brands as 'Capitalism Sucks Donkey Balls' and 'Take Yo Panties Off.'" Those examples also appear in a brief filed by the corporate owner of the Washington Redskins, which is engaged in its own legal battle over an allegedly disparaging trademark. The brief lists hundreds of arguably disparaging registered trademarks, including band names such as N.W.A., White Trash Cowboys, Whores From Hell, Cholos on Acid, The Pricks, Barenaked Ladies, and The Roast Beef Curtains. Since disparagement is in the eye of the beholder, registration decisions vary with the moods and sensibilities of the PTO's examiners. It is therefore not surprising that "the PTO's record of trademark registrations and denials often appears arbitrary and is rife with inconsistency," as the appeals court found. Among other examples, the court noted that "the PTO denied the mark HAVE YOU HEARD SATAN IS A REPUBLICAN because it disparaged the Republican Party…but did not find the mark THE DEVIL IS A DEMOCRAT disparaging." The PTO "registered the mark FAGDOG three times and refused it twice." Uncertainty about the PTO's decisions has a chilling effect on applicants' choices, encouraging them to steer wide of trademarks tha[...]

Obama's Belated Drug War Retreat


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


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 i[...]

'Election Hacking' or Voter Education?


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 con[...]

Is Kratom the New Marijuana?


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


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 [...]

Trump's 'Tough Cookie' Is a Dangerous Warmonger


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 hardl[...]

The Illogic of Indiscriminate Incarceration


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 [...]

Fighting Anti-Semitism With Intolerance


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." T[...]

Trump's Problem With Free Speech


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[...]