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Preview: Jacob Sullum: Reason Magazine articles.

Jacob Sullum: Reason.com articles.





Updated: 2017-05-28T00:00:00-04:00

 



Did Trump Know Enough to Obstruct Justice?

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

For almost a year, Donald Trump has been complaining that FBI Director James Comey gave Hillary Clinton "a free pass for many bad deeds," as the president recently put it on Twitter. Trump thinks his opponent in last year's presidential election should have been prosecuted for her loose email practices as secretary of state, even if she did not deliberately expose classified information. The president might want to reconsider that hardline attitude. The reason Comey cited for not recommending charges against Clinton—a lack of criminal intent—could prove crucial in rebutting the allegation that Trump obstructed justice by trying to impede the FBI's investigation of ties between his associates and the Russian government. When Comey announced the results of the Clinton investigation last July, he criticized her "extremely careless" handling of "very sensitive, highly classified information," saying she "should have known" the unsecured private email system she used "was no place" to discuss such matters. That description sounded like grounds for charging Clinton under 18 USC 793, which makes it a felony to "mishandle classified information either intentionally or in a grossly negligent way." But Comey argued that "no reasonable prosecutor" would pursue a case against Clinton based on gross negligence. He said he was aware of just one case where the government had used that standard in the century since the law was passed, which suggests federal prosecutors "have grave concerns about whether it's appropriate." While prosecuting Clinton might have been legally feasible, Comey told a congressional committee, it would have been unjust. "In our system of law, there's a thing called mens rea," he said, referring to the state of mind required for a conviction. "We don't want to put people in jail unless we prove that they knew they were doing something they shouldn't do." That brings us back to Trump, who has done (or allegedly done) several things that could be viewed as attempts to undermine the FBI's investigation of Russian meddling in last year's presidential election, including the hacking of embarrassing Clinton-related emails. The FBI probe, Comey confirmed during congressional testimony in March, encompasses possible collusion between Russia and the Trump campaign. After Comey said that, The Washington Post reported this week, Trump asked Daniel Coats, director of national intelligence, and Michael Rogers, director of the National Security Agency, to publicly say there was no evidence of such collusion. Both declined, deeming the request improper. The previous month, according to a Comey memo described by The New York Times, Trump interceded with the FBI director on behalf of former National Security Adviser Michael Flynn, one of the associates whose ties to Russia are of interest to the bureau. "I hope you can see your way clear to letting this go, to letting Flynn go," Trump reportedly told Comey. "He is a good guy. I hope you can let this go." A few months after that alleged encounter, Trump fired Comey. Two days later, Trump admitted that the Russia probe, which he had denounced as a "taxpayer-funded charade" on Twitter the day before he gave Comey the boot, was on his mind when he made the decision. Some Democrats are already calling for Trump's impeachment, arguing that his response to the FBI investigation amounts to obstruction of justice. But that crime requires proof of intent, and it is not at all clear that Trump knew he was doing something he shouldn't do—the standard that Comey applied to Clinton. If Trump was acting "corruptly," as the statute that seems most relevant requires, why would he approach three officials who were likely to make note of his requests? Why would he publicly condemn the Russia investigation before and after firing Comey? These do not seem like the actions of a man who is conscious of his own guilt. They seem like the actions of a man who is only beginning to figure out how a president is supposed to behave. © Copyright 2017 by Creators Syndicate Inc. [...]



Jeff Sessions Is a Glutton for Punishment

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

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



Israel Decriminalizes Pot Possession

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

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

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

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

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

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

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

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




The Tyranny of 'Reproductive Freedom'

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

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



What America Taught a Murderous Drug Warrior

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

The masked gunmen came for Paquito Mejos, a 53-year-old electrician and father of five, two days after he had surrendered to police in Manila, identifying himself as an occasional user of methamphetamine, known locally as shabu. Police, who arrived shortly after Mejos had been shot dead, later claimed he was a drug dealer who drew a gun on them. Relatives say the cops planted the gun, along with a packet of shabu. This is what Rodrigo Duterte's murderous war on drugs looks like, which is why his critics were dismayed that Donald Trump seemed to bless it during a "very friendly" telephone conversation with the Philippine president on Saturday. But Trump's chumminess with Duterte, while it fits a pattern of admiration for authoritarian leaders around the world, is a logical extension of prohibition policies the U.S. government has been pushing for more than a century. According to the Philippine National Police (PNP), more than 7,000 people have been killed by officers, vigilantes, or other unidentified gunmen since Duterte took office last summer. As of last week, 2,717 of the dead were described as "suspected drug personalities killed in police operations," a category that supposedly includes Paquito Mejos. Human Rights Watch (HRW), which investigated that case along with 31 other deaths, found "a damning pattern of unlawful police conduct in these killings, designed to paint a veneer of legality over summary executions." Peter Bouckaert, author of the HRW report, said "police routinely kill drug suspects in cold blood and then cover up their crime by planting drugs and guns at the scene." As of January 9, according to the PNP's numbers, another 3,603 people had died in "extrajudicial, vigilante-style, or unexplained killings." HRW says many of these homicides "are in fact death-squad-style extrajudicial executions by police and police agents." The carnage, which has drawn international condemnation, is only a down payment on Duterte's campaign promise to "kill them all." Since his election he has publicly urged people to murder drug addicts, likened his own bloodthirstiness to Adolf Hitler's, and told police they needn't worry about being investigated for excessive use of force. "My order is shoot to kill you," Duterte told drug dealers last August. "I don't care about human rights, you better believe me." Trump's reaction to all this, according to the official summary of his call to Duterte, was to praise his Philippine counterpart for "fighting very hard to rid [his] country of drugs, a scourge that affects many countries throughout the world." The president also invited Duterte, who according to HRW could be "held liable for crimes against humanity," to visit him at the White House. Trump surely can be faulted for either not knowing or not caring what "fighting very hard" means in the Philippines. But Duterte's main sin is taking the rhetoric of American prohibitionists a little too seriously. Back in 1989, when he was running the Office of National Drug Control Policy, William J. Bennett, who has a Ph.D. in philosophy, cited his expertise in ethics while explaining to Larry King on CNN that "there's no moral problem" with beheading drug dealers, since the penalty is "proportional to the nature of the offense." The following year, Los Angeles Police Chief Daryl Gates took Bennett's reasoning a step further, telling a Senate committee that casual drug users "ought to be taken out and shot" as traitors in the war on drugs. Duterte is implementing the program outlined by Bennett and Gates, extirpating anyone who dares to flout the government's pharmacological taboos. His portrayal of meth addicts as subhuman and unworthy of life also has parallels in American propaganda. Like U.S. drug warriors, Duterte casts peaceful transactions—the exchange of money for psychoactive substances—as acts of aggression that pose an existential threat to the nation. Drug prohibition by its nature requires unjustifi[...]



The Bipartisan Urge to Suppress Dissent

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

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



Does Legalization Boost Teen Marijuana Use?

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

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

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

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

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

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

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

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




Gorsuch Is More Liberal Than Garland

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

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



Officer Feelgood, Meet the Constitution

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

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



The Other Side of Legalized Theft

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

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



Partially Informed Juries Convict the Innocent

2017-03-29T00:01:00-04:00

Early in the evening on October 1, 1984, Catherine Fuller, a 48-year-old mother of six, was robbed, sodomized with a foreign object, and beaten to death in a garage off an alley in Washington, D.C. After police concluded that Fuller had been attacked by a group of young men, prosecutors obtained two guilty pleas and eight convictions. Today the Supreme Court will hear an appeal by seven of those men, who argue that prosecutors violated their right to due process by withholding evidence that would have cast doubt on the government's allegations. The case shows why, more than half a century after the Court told prosecutors they have a constitutional duty to share evidence that might help defendants, prosecutors have little incentive to take that duty seriously. In the 1963 case Brady v. Maryland, the Court held that "suppression by the prosecution of evidence favorable to an accused…violates due process where the evidence is material either to guilt or to punishment." The Court later explained that evidence is "material" when there is "any reasonable likelihood that it could have affected the judgment of the jury." It seems clear that the evidence withheld from the men accused of attacking Catherine Fuller meets that standard. The suppressed evidence included, for example, information that would have further undermined the credibility of purported eyewitnesses who implicated the defendants. The jury, which deliberated for a week and acquitted two of the 10 defendants, evidently had trouble believing the government's witnesses, who contradicted themselves, each other, and the physical evidence. It is hardly a stretch for the defendants' lawyers to suggest that the jurors would have been even more skeptical if they had known one of the witnesses "was high on PCP while she met with investigators and identified photographs and suspects," that the same witness had asked a friend to lie about hearing a defendant's confession, or that the aunt of another witness contradicted his claim that he had told her about seeing the crime. Prosecutors also kept jurors from hearing the accounts of witnesses who were in the alley at the time of the attack but did not see a group of men. Even more egregiously, the government suppressed information about two plausible alternative suspects, including one who was convicted of robbing and assaulting two other middle-aged women in the same neighborhood within weeks of Fuller's murder. In 1992 that man "forcibly sodomized and beat to death a woman in an alley three blocks from where Mrs. Fuller had been found." By 2010 all but one of the surviving prosecution witnesses had recanted, saying they had been pressured into falsely implicating the defendants. A District of Columbia Superior Court judge nevertheless rejected the defendants' motion to vacate their convictions, a decision the District of Columbia Court of Appeals upheld in 2015. Amazingly, both courts concluded that the suppressed evidence, although favorable, was not material, which suggests how permissive that standard can be in practice. In a brief supporting the defendants' appeal, the Texas Public Policy Foundation argues that the "materiality" standard should be replaced with a presumption that withholding favorable evidence violates due process unless the government can show beyond a reasonable doubt that the omission did not affect the outcome. "For an unethical or indifferent prosecutor," the brief says, "a pretrial materiality requirement is an invitation to withhold favorable evidence." Even assuming the suppressed evidence later comes to light, the government in all likelihood will prevail on appeal: A 2014 study of "145 decisions in which prosecutors were found to have withheld favorable information" found that 86 percent deemed the evidence not [...]



Trump Can't Stop Marijuana Legalization

2017-03-23T13:30:00-04:00

"The Trump administration can slow down marijuana legalization, but they can't stop it," says Reason senior editor Jacob Sullum.

Trump already endorsed medical marijuana on the campaign trail, and said that states should be free to legalize it, but his appointment of old school drug warrior Jeff Sessions as U.S. Attorney General is cause for concern.

"First of all, the federal government doesn't have the power to force states to make marijuana legal again," explains Sullum. While the Trump administration could sue to knock down state regulations, that would simply leave behind a legal but unregulated market. According to Sullum, the feds don't have the manpower to crack down on the local level, and there's very little upside for the administration to roll back legalization. "They can create a lot of chaos, but ultimately they're not going to reverse legalization and bring back prohibition."

Produced by Austin Bragg and Meredith Bragg
Edited by Austin Bragg

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Jeff Sessions' Terrible Truth About Drugs Is a Lie

2017-03-22T00:01:00-04:00

"Our nation needs to say clearly once again that using drugs will destroy your life," Attorney General Jeff Sessions declared last week. The main problem with that message: It isn't true. Yes, using drugs, both legal and illegal ones, can destroy your life, but typically it doesn't. By arguing that drug education should proceed from a false premise, Sessions reminds us what was wrong with the Just Say No propaganda he would like to revive. Sessions, a former senator who was the U.S. attorney for the Southern District of Alabama in the 1980s, looks back proudly at his efforts, alongside Nancy Reagan, to "create a hostility to drug use." For Sessions as for Reagan, tolerance is a dirty word. "We must create an atmosphere of intolerance for drug use in this country," the first lady wrote in a 1986 Washington Post op-ed piece. "Each of us has a responsibility to be intolerant of drug use anywhere, anytime, by anybody." Sessions likewise emphasizes the importance of "preventing people from ever taking drugs in the first place," even if "this may be an unfashionable belief in a time of growing tolerance of drug use." The "prevention" Sessions favors is not simply unfashionable; it is fundamentally dishonest. Among other things, Sessions said at a Senate hearing last April, prevention aims to teach teenagers that "good people don't smoke marijuana." According to the National Survey on Drug Use and Health, something like 118 million Americans have used marijuana, 36 million of them in the last year. Does Sessions honestly think all those people are bad, or that anyone would believe they are? "Educating people and telling them the terrible truth about drugs and addiction will result in better choices," Sessions says. But his terrible truth sounds a lot like a lie. Sessions claims marijuana is "only slightly less awful" than heroin, and in 2014 he strenuously objected after President Obama conceded that marijuana is less dangerous than alcohol. "I'm heartbroken," Sessions said. "It's stunning to me. I find it beyond comprehension." Judging from his response, Sessions literally did not comprehend Obama's point. Sessions tried to rebut Obama's statement about the relative hazards of marijuana and alcohol by declaring that "Lady Gaga says she's addicted to [marijuana] and it is not harmless." Let's put aside the merits of treating Lady Gaga as an expert on the effects of marijuana, or of extrapolating from this sample of one to the experiences of cannabis consumers generally. The most disturbing aspect of Sessions' argument was his failure to grasp that one substance can be less dangerous than another without being harmless. Saying marijuana is less hazardous than alcohol by several important measures—including impairment of driving ability, the risk of a fatal overdose, and the long-term damage caused by heavy use—is not the same as saying marijuana is 100 percent safe. Sessions not only has no patience for such nuance; he considers it a menace to the youth of America. Sessions is especially offended by the suggestion that marijuana legalization could reduce opioid-related harm by providing a safer alternative. "Give me a break," he said in a recent speech to the National Association of Attorneys General. "It's just almost a desperate attempt to defend the harmlessness of marijuana or even its benefits." Uncharacteristically, Sessions conceded that "maybe science will prove I'm wrong." If he bothered to research the subject, he would discover that several studies have found an association between medical marijuana laws and reductions in opioid prescriptions, opioid-related deaths, and fatally injured drivers testing positive for opioids. Sessions plainly is not interested in what the evidence sh[...]






The Unjust, Irrational, and Unconstitutional Consequences of Pedophilia Panic

2017-03-15T06:00:00-04:00

"Sounds like you enjoy sex with kids," a reader tweeted at me after seeing a blog post I wrote about former Subway pitchman Jared Fogle. It was 2015, and Fogle had just signed a plea agreement in which he admitted to looking at child pornography and having sex with two 16-year-old prostitutes. "You also look like [a] pervert," the reader added. That's the sort of response you can expect if you write about the broad category known as "sex offenders" and suggest that not all of them are the same or that some of them are punished too severely. In this case, I had noted that the decision to prosecute Fogle under federal law, which had been justified by factors that had little or nothing to do with the gravity of his offenses, had a dramatic impact on the penalty he was likely to receive. Fogle ultimately was sentenced to nearly 16 years in prison, a penalty that was upheld by a federal appeals court in June. Had he been prosecuted under state law for the same actions, his sentence could have been as short as six months (the minimum penalty for possessing child pornography in Indiana, where Fogle lived) or as long as four years (the maximum penalty for an adult 21 or older who has sex with a 16-year-old in New York, where Fogle met the prostitutes). The arbitrariness of Fogle's punishment should trouble anyone who thinks fairness, consistency, and proportionality are essential to a criminal justice system worthy of the name. But the conjunction of two fraught topics—children and sex—makes it hard for people to think clearly about such matters. The fear and disgust triggered by this subject help explain why laws dealing with sex offenses involving minors frequently lead to bizarre results, including wildly disproportionate sentences, punishment disguised as regulation or treatment, and penalties for committing unintentional crimes, recording your own legal behavior, or looking at pictures of nonexistent children. Hidden Cameras Unlike Russell Taylor, who ran Fogle's charitable foundation, Fogle was not accused of producing child pornography. He was instead charged with looking at photographs and video of "minors as young as approximately 13–14 years" who were "secretly filmed in Taylor's current and former residences." According to the government's statement of charges, Taylor produced that material "using multiple hidden cameras concealed in clock radios positioned so that they would capture the minors changing clothes, showering, bathing, or engaging in other activities." He also gave Fogle a thumb drive containing "commercial child pornography" featuring minors as young as 6. Fogle "on one occasion" showed this material to "another person." That became the basis for a distribution charge, which was dropped as part of Fogle's plea agreement. Fogle's lawyers say that incident involved "one individual with whom [he] was then involved romantically, and it occurred in the confines of a locked hotel room." The voyeuristic material that Taylor produced did not involve sexual abuse of children. According to the charges, the guests caught on Taylor's cameras "did not know that they were being secretly filmed." Taylor's actions, which earned him a 27-year prison sentence, were obviously an outrageous invasion of privacy and breach of trust, and Fogle bears responsibility, at the very least, for allowing the secret recordings to continue by failing to report him. (Taylor, seeking leniency, claimed Fogle had actually encouraged him to install the cameras.) But what Taylor did is not the same as forcing children to engage in sexual activity, and what Fogle did is even further removed from such abuse. Under federal law, however, looking at chil[...]