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Preview: Jacob Sullum: Reason Magazine articles.

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


Scared Cops Are Scary


The jurors who acquitted Philip Brailsford of second-degree murder last week were told to judge him based on "how a reasonable officer would act, versus a regular person with no police training," as The Arizona Republic put it. That distinction was crucial, because a "regular person" would never get away with shooting an unarmed man who was crawling on the floor, sobbing, and begging for his life. Like other recent cases in which jurors failed to hold police officers accountable for the unnecessary use of deadly force, Brailsford's acquittal shows that cops benefit from a double standard. Unlike ordinary citizens, they can kill with impunity as long as they say they were afraid, whether or not their fear was justified. Daniel Shaver got drunk and did something stupid. But he did not deserve or need to die for it. On January 18, 2016, Shaver, who was 26 and lived in Granbury, Texas, was staying at a La Quinta Inn in Mesa, a Phoenix suburb, while working on a job for his father-in-law's pest control company. After inviting two other hotel guests to his room for a drink, he showed them an air rifle he used for work, at one point sticking it out a window to demonstrate the scope's range. Alarmed by the rifle's silhouette, a couple who had been using the hotel's hot tub informed the staff. That's how Brailsford and five other Mesa officers ended up confronting Shaver in a fifth-floor hallway. The bodycam video of the encounter, which was not publicly released until after the verdict, shows that Shaver, who according to the autopsy had a blood alcohol concentration more than three times the legal threshold for driving under the influence, was confused by the strange and contradictory orders that Sgt. Charles Langley barked at him. Instead of simply handcuffing Shaver as he lay face down with his hands behind his head, under the guns of three officers, Langley inexplicably told the terrified and intoxicated man to crawl toward him. While crawling, eyes on the floor, Shaver paused and reached toward his waistband, apparently to pull up the athletic shorts that had slipped down as he moved. That is when Brailsford fired five rounds from his AR-15 rifle. "He could have easily and quickly drawn a weapon down on us and fired without aiming," Brailsford said later. Yet neither of the other two officers who had guns drawn on Shaver perceived the threat that Brailsford did. One of those officers testified that he would not fire based purely on the "draw stroke" Brailsford thought he saw. He would also consider the context, such as whether a suspect is belligerent and threatening or, like Shaver, compliant, apologetic, and tearful. Brailsford said he was trained to ignore context. "We're not trained necessarily to pay attention to what a suspect is saying," he testified. "We're supposed to watch their actions and what they do with their hands." The jury apparently accepted the counterintuitive argument that police, because of their special training, are apt to be less careful with guns than the average citizen would be. A similar dispensation seemed to be at work last June, when Minnesota jurors acquitted former St. Anthony police officer Jeronimo Yanez of manslaughter after he panicked during a traffic stop and shot a driver who was reaching for his license. Even more astonishing was the failure of South Carolina jurors to reach a verdict in the trial of former North Charleston police officer Michael Slager, who shot an unarmed motorist in the back as he ran away. Last May, five months after that mistrial, Slager signed a federal plea agreement in which he admitted the shooting was not justified. All three of these officers said they were afraid, but that is not enough to justify the use of deadly force. When juries fail to ask whether police have good reason to fear the people they kill, regular people have good reason to fear police. © Copyright 2017 by Creators Syndicate Inc. [...]

Chris Christie’s Situational Federalism


As a candidate for the 2016 Republican presidential nomination, Chris Christie promised to stop states such as Colorado from legalizing marijuana. As governor of New Jersey, Christie insists that the federal government has no business stopping his state from legalizing sports betting—an argument that got a mostly friendly reception at the Supreme Court on Monday. The most likely explanation for Christie's situational federalism is that he does not mind if people bet on sports but cannot abide pot smoking. But there is a legal rationale for Christie's apparent inconsistency, and it says a lot about the extent to which the federal government has usurped powers that the 10th Amendment reserves to the states. Christie is challenging the Professional and Amateur Sports Protection Act (PASPA), a 1992 statute that says states may not "authorize by law" any form of betting on athletic contests. PASPA, which was intended to "stop the spread of legalized gambling on sports events," exempted Nevada, which had legalized sports betting in 1949, and three states with sports lotteries. PASPA also allowed New Jersey to establish a system of regulated sports betting in Atlantic City, provided state legislators acted within a year. They missed that deadline, but they finally passed such a law in 2012, the year after New Jersey voters overwhelmingly approved a constitutional amendment authorizing it. Several sports leagues and the National Collegiate Athletic Association successfully challenged New Jersey's law under PASPA. In 2014 the state legislature tried again, selectively repealing New Jersey's ban on sports betting so that it no longer applied at casinos and racetracks. The U.S. Court of Appeals for the 3rd Circuit said the selective repeal was tantamount to licensing and therefore violated PASPA. The appeals court rejected New Jersey's argument that requiring it to maintain the ban on sports betting amounts to unconstitutional "commandeering" of state officials in the service of a federal policy goal. The Supreme Court was much more receptive to that claim on Monday, when at least five justices seemed inclined to agree that PASPA impermissibly intrudes on state prerogatives. It is well established that Congress has no authority to dictate the content of state laws. Still, as New Jersey's lawyer, Theodore Olson, was forced to concede, a valid federal law "preempts" any state law that's inconsistent with it. PASPA does not preempt state law, Olson said, because it is "a direct command to the states without any effort to regulate sports wagering." In other words, Congress could have imposed its own ban on sports betting, just as it imposed its own ban on marijuana, in which case any state law inconsistent with that prohibition would be preempted. As Olson noted, the issue of preemption is "in play right now" because marijuana has been legalized for medical use in 29 states, eight of which also allow recreational use. While merely eliminating state penalties for marijuana offenses does not violate the Controlled Substances Act, licensing marijuana suppliers arguably does. That might be what Christie had in mind when he promised to "crack down and not permit" marijuana legalization if elected president. "Marijuana is an illegal drug under federal law," Christie told radio host Hugh Hewitt in 2015, "and the states should not be permitted to sell it and profit from it." Can it really be true that the Constitution allows federal interference with state policy as long as Congress frames it as preemption rather than a "direct command"? Only if you accept the Supreme Court's implausible understanding of the power to "regulate commerce…among the several states," which supposedly authorizes Congress to prohibit sports betting, cannabis consumption, and pretty much anything else it does not like, even if those activities never cross state lines. A properly constrained federal government would leave sports betting in New Jersey to New Jersey and cannabis consumption in Colorado to Colorado. As it is, we[...]

The FDA Warms to Vaping


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

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

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

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

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

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

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

Your Secrets Are Not Safe With Anyone


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

When Good-Faith Medicine Raises ‘Red Flags’


Forest Tennant, who has been treating and researching pain at his clinic in West Covina, California, since 1975, is well-known as an expert in the field, having published more than 200 articles in medical journals and given more than 130 presentations at professional conferences. According to the Drug Enforcement Administration (DEA), all of that was an elaborate cover for drug trafficking. Or so you would have to surmise from the affidavit supporting the search warrant that the DEA served on Tennant's offices and home last week, which describes "invalid prescriptions," "red flags of diversion and fraud," and "combinations of drugs that are consistent with 'pill mill' prescribing practices." The allegations and insinuations show how the DEA has tried to criminalize differences of opinion about pain treatment, encouraging doctors to think about their legal exposure first and their patients second. Tennant says the "red flags" perceived by the DEA are consistent with a practice like his, which specializes in treating severe, intractable pain caused by conditions such as arachnoiditis, Ehlers-Danlos syndrome, reflex sympathetic dystrophy, and post-viral neuropathy. "We only take people who have failed the standard treatments," he says. Tennant's willingness to take hard cases explains why some of his patients live in other states, a fact the DEA considers suspicious. "We only see them in conjunction with their local doctors," he says. In addition to severe pain, Tennant's patients often have metabolic abnormalities that make them less sensitive to opioids and have developed tolerance after years of pain treatment. Those factors explain the doses that struck the DEA as suspiciously high and the drug combinations it deemed reckless. By the time Tennant starts treating them, his patients are already taking large doses of opioids, often in combination with muscle relaxants and benzodiazepines. "We didn't start anybody on high dosages," Tennant says. "We took them to study them to figure out how to get them off of high dosages, and that has remained our goal." In nine out of 10 cases, Tennant says, he has been able to reduce patients' opioid doses substantially, by as much as 80 percent. At the same time, he defends the use of high doses for patients who need them, a stance that bothers the DEA. The search warrant affidavit cites a 2009 article in which Tennant and two other doctors defended the prescription of "ultra-high opioid doses" for certain patients with severe chronic pain. The affidavit also notes that Tennant championed the California Pain Patient's Bill of Rights, a 1997 law affirming that "opiates can be an accepted treatment" for "severe intractable pain." The DEA seems to be arguing that Tennant's sincere medical opinions and advocacy on behalf of pain patients should be considered evidence of criminal activity. The DEA suggests that speaking fees Tennant received from Insys, which makes the oral fentanyl spray Subsys, amounted to kickbacks. The DEA also implies that it's improper to prescribe Subsys for anything other than cancer pain, the application for which it was approved by the Food and Drug Administration. Tennant notes that it's common practice for doctors who have experience with a drug to get paid for training colleagues to use it. He says Subsys "turned out to be somewhat disappointing," but he prescribes it for half a dozen patients who find it useful for breakthrough pain, including a few who do not have cancer—"off-label" uses that are perfectly legal. Tennant, who has testified against "pill mills," says his clinic looks quite different: It has a six-hour intake process, sees a maximum of 10 people a day, and has "big thick charts" for its patients, who come with their families and tend to be middle-aged. He adds that his practice, which treats about 150 patients, has never had any overdoses, suicides, or diversion problems. "I invite anybody to come in and see what we do, tal[...]

Trump’s ‘Great Relationship’ With a Vicious Drug Warrior


When Maximo Garcia heard that he was on a list of local drug suspects in Mayombo, he tried to clear his name with the police chief, explaining that he no longer used drugs and had never sold them. Four days later, the Philippine news site Rappler reports, a masked gunman shot up Garcia's house as he and his family were eating lunch, wounding him and killing his 5-year-old granddaughter. So it goes in Philippine President Rodrigo Duterte's war on drugs, which has claimed somewhere between 7,000 and 13,000 lives since he took office in June 2016. Although Duterte's bloody crusade has drawn international criticism, Donald Trump evidently did not think the subject was worth broaching during his meeting with Duterte in Manila on Monday. Trump, who this week bragged about his "great relationship" with Duterte, had previously praised his Philippine counterpart's "unbelievable job on the drug problem." Trump meant that as a compliment, but the viciousness of Duterte's anti-drug campaign does beggar belief. "If you know any addicts," Duterte told a crowd of supporters after taking office, "go ahead and kill them yourself, as getting their parents to do it would be too painful." A few months later, he likened himself to Hitler, saying "there's 3 million drug addicts" in the Philippines, and "I'd be happy to slaughter them." Police officers and vigilantes have taken Duterte at his word, assassinating people identified, rightly or wrongly, as drug users or dealers. Duterte says the carnage is not really a human rights issue, because drug users are not really human. "Crime against humanity?" Duterte said during an August 2016 speech to soldiers. "Are they humans? What is your definition of a human being?" He dismisses the deaths of children killed by bullets intended for drug suspects—children like Maximo Garcia's granddaughter—as "collateral damage." Even while endorsing murder as a morally legitimate response to drug abuse, Duterte periodically insists that he does not condone lawbreaking. Yet he has created an atmosphere of impunity by promising to pardon police officers accused of using unnecessary deadly force. The thousands of drug suspects killed by police officers in the last 16 months supposedly offered violent resistance. But investigations by Amnesty International, Human Rights Watch, and news outlets such as Rappler and The New York Times have found that police routinely plant drugs and weapons to justify what amount to summary executions. Last August police in Manila shot and killed 17-year-old Kian delos Santos, claiming he had fired a gun at them. A police photo showed a pistol and two packets of methamphetamine next to his body. But witnesses contradicted the official account, and video from a neighborhood security camera showed police dragging the boy, still alive, into the alley where his body was found. That incident sparked public outrage in the Philippines, leading to charges against the officers who killed the teenager. We may never know how many innocent people have been killed in similar circumstances, but without surveillance footage to prove it. The U.S. State Department notes that "extrajudicial killings" in the Philippines "increased sharply" last year, amid "numerous reports that the [Philippine National Police] committed arbitrary or unlawful killings in connection with a government-directed campaign against illegal drugs." In a November 2 letter to President Trump, Reps. Randy Hultgren (R-Ill.) and James McGovern (D-Mass.), who co-chair the Tom Lantos Human Rights Commission, urged him to "impress upon President Duterte the United States' profound concern over reported extra-judicial killings associated with the Philippine government's 'war on drugs.'" This week's meeting was Trump's chance to qualify his earlier praise for Duterte's "great job" as a drug warrior. White House Press Secretary Sarah Huckabee Sanders said "human rights briefly came up in t[...]

Murderers Slip Through the Screen


Last week Sayfullo Saipov, who was approved as an immigrant in 2010, used a pickup truck to murder eight people on a bike path in Manhattan. This week Devin Kelley, who was repeatedly approved as a gun buyer in recent years, used a rifle to murder 26 people at a church in a small Texas town. The deadliest terrorist attack in New York City since 9/11 and the deadliest mass shooting in Texas history illustrate the limits of screening as a defense against violence. We would like to think that the right combination of exclusion criteria and background checks can reliably prevent mass murder, but experience tells us otherwise. Responding to Saipov's attack, Donald Trump promised on Twitter that "the United States will be immediately implementing much tougher Extreme Vetting Procedures," because "the safety of our citizens comes first!" But it is hard to imagine what procedure could have predicted Saipov's seven-year journey from eager immigrant to Islamic terrorist. According to the Uzbek government, Saipov was raised in Tashkent by an affluent family and never had any trouble with the law or gave any indication of extremism. As the winner of a diversity lottery visa, he underwent background checks, security screening, and interviews before entering the United States. Saipov, who had worked as an accountant for a hotel in Tashkent, hoped to get a job in the hospitality industry despite his limited English skills. Instead he ended up working as a truck driver, moved around a lot, and became increasingly embittered and alienated over the years. Although Saipov was not very observant at first and did not know much about his religion (according to a local imam), he was drawn to Islamic extremism. The path he followed was shaped by his post-immigration experience, and he might never have been radicalized if he had landed the sort of job he wanted or if the trucking businesses he started had been more successful. Kelley, by contrast, showed clear signs of violent tendencies years before he opened fire on parishioners at the First Baptist Church in Sutherland Springs. As an airman in 2012, he was convicted of beating his wife and son by a general court martial, which punished him with 12 months of confinement, a reduction in rank, and a bad conduct discharge. Under federal law, Kelley was triply disqualified from buying a gun: His assault on his wife was the equivalent of a misdemeanor involving domestic violence, his aggravated assault on his son was the equivalent of a felony, and his separation from the Air Force, since it was ordered by a general court martial, was the equivalent of a dishonorable discharge. But the Air Force did not report Kelley's convictions to the National Crime Information Center, so they did not show up in the FBI's background checks when he bought his weapons. The Air Force is investigating what went wrong in this case and promises to improve its reporting, which until now seems to have been limited almost entirely to dishonorable discharges. But even an improved database cannot be expected to have much of an impact on mass shootings, since the perpetrators of such crimes typically do not have disqualifying criminal or psychiatric records. The idea that screening can prevent mass shootings is nevertheless powerfully appealing. After the October 1 shooting that left 58 dead in Las Vegas, Sen. Christopher Murphy (D-Conn.), who argues that Congress is complicit in gun violence because of its failure to "do something," told CNN's Jake Tapper "the most important intervention is background checks." Murphy wants to require background checks for all gun transfers, not just those involving federally licensed dealers. But as Tapper pointed out, the Las Vegas shooter "passed his background checks" because "there didn't seem to be any reason to prevent him from purchasing firearms." Even when screening demonstrably fails to stop mass murder, it[...]

Can You Go to Jail for Handing Out Pamphlets?


A pamphlet from the Fully Informed Jury Association (FIJA) argues that jurors have a right and a responsibility to judge the law as well as the facts, which might lead them to acquit a technically guilty defendant in the interest of justice. Although that position is controversial, especially among judges and prosecutors, the pamphlet is indisputably a form of speech protected by the First Amendment—unless you try to distribute it in front of a courthouse.

Or so say prosecutors in Mecosta County, Michigan. Last summer they persuaded a jury to convict local activist Keith Wood, who was arrested in 2015 for handing out FIJA flyers near the county courthouse, of a misdemeanor. District Judge Kimberly Booher sentenced him to eight weekends in jail, $545 in fines, 120 hours of community service, and six months of probation.

The law under which Wood was convicted applies to "a person who willfully attempts to influence the decision of a juror in any case by argument or persuasion, other than as part of the proceedings in open court in the trial of the case." Wood, who is free while he appeals his conviction, argues that there was no decision to influence. The only case pending at the courthouse on the day he distributed the flyers involved a man accused of illegally filling a wetland on his own property, and it was settled by a guilty plea.

Wood's lawyer, David Kallman, also argues that none of the passers-by who received pamphlets qualified as a juror. "We argued, and the Michigan Supreme Court has agreed in earlier case precedent, that a person is not a juror until sworn in to serve on a jury in a case," he says. Since no jury was ever chosen in the wetland case, Kallman argues, there were no jurors to persuade.

During his trial, Wood testified that he had ordered the FIJA flyers after taking an interest in that case. But Kallman emphasized that Wood never discussed the case with the people who took pamphlets, which contained only general information about juror rights.

"By prosecuting Mr. Wood," Kallman said in a 2015 motion, "the State is engaged in nothing less than tyranny and oppression. Few legal principles are more clear than the one stating that 'handing out leaflets in the advocacy of a politically controversial viewpoint…is the essence of First Amendment expression.'" After refusing to dismiss the charge against Wood, Judge Booher told Kallman he could not mention the First Amendment during the trial.

Scarlet-Letter Passports Are Unjust and Irrational


The notice, which will appear on the second-to-last page of U.S. passports, is officially known as an "endorsement," but it is more like a badge of shame. "The bearer was convicted of a sex offense against a minor," it says, "and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(l)." The scary notation, which was revealed this week, is the State Department's response to a 2016 law requiring that the passports of certain registered sex offenders include a "unique identifier" to help maintain their status as pariahs wherever they travel. Although the warning is supposedly aimed at stopping sexual predators from abusing children in other countries, it will mark the passports of many people who pose no such threat. The "unique identifier" is mandated by the International Megan's Law (IML), which purports to prevent "child sex tourism," a crime that seems to be pretty rare. From 2003 through 2009, according to an earlier version of the bill, the Justice Department "obtained 73 convictions of individuals from the United States charged with committing sexual crimes against minors in other countries"—an average of about 10 per year. Instead of focusing on people who have demonstrated a propensity to commit such crimes, the IML casts a wide net that covers offenders who have never assaulted a child, let alone traveled to another country for that purpose. The Americans whose passports will brand them as international child molesters include people convicted of misdemeanors as well as felonies, people who committed their offenses as minors, people who were convicted decades ago and have never reoffended, people who as teenagers had consensual sex with other teenagers, and people who committed noncontact offenses such as sexting, streaking, public urination, and looking at child pornography. At a party 15 years ago, when she was 19, Shawna Clouatre hooked up with a boy who turned out to be 14. As a result, she was forced to register as a sex offender for life, which among other things means she has trouble keeping jobs and is not allowed to take her own children to the park. In a heartbreaking interview with documentarian David Feige, the young Oklahoma mother talks wistfully about her dreams of traveling the world, rendered impractical by the lifetime probation imposed after her youthful mistake. Even if she managed to overcome that obstacle, the passport notation required by the IML would ensure that she was viewed with unjustified fear and suspicion wherever she might go. Last year four sex offenders challenged the IML in federal court, claiming it violates their Fifth Amendment right to due process and the constitutional ban on retroactive punishment. The plaintiffs argued that the "Scarlet Letter" and "international travel blacklist" created by the IML will expose them and their traveling companions to harassment, impinging on their freedom to travel, to earn a living, and to visit relatives in other countries. One plaintiff, who "was convicted of a felony sex offense involving a minor over twenty-five years ago," is "an officer of a corporation with facilities and customers in Europe and Asia, and routinely travels to various countries within Europe and Asia for business purposes." Another plaintiff, who committed a crime minor enough that he was sentenced only to probation and was initially told he would not have to register as a sex offender, will nevertheless have to carry a special passport. A federal judge dismissed the lawsuit, saying the IML easily passes the "rational basis" test. "Under rational basis review," she explained, "a law 'may be overinclusive, underinclusive, illogical, and unscientific and yet pass constitutional muster.'" Stigmatizing someone like Shawna Clouatre as a threat to children everywhere for the rest of her life may seem irrational, but that[...]

Enlisting Marijuana and MDMA to Fight PTSD


After deploying to Iraq for a seven-month tour of duty in 2004, Nigel McCourry recalls, "I was engaged in a fight every day, whether it was gunshots or bombs blowing up next to me or land mines. It was the most intense experience of my life." That experience did not end when McCourry, a U.S. Marine, returned to the United States. "It didn't matter if it was a year or four years or six years after coming back from Iraq," he says. "There was no sense of separation of time. The experience was so fresh that I was constantly reliving it. I was alive in it." Separation was also elusive for Roberto Pickering, another Marine, who arrived in Iraq a year before McCourry and served nine months there. "We saw a lot of heavy combat during the initial invasion of Iraq," he says, and "I lost a few very close friends who were in my unit." After he got back to the U.S., he "lost another couple of friends in further deployments of the unit." Finding it impossible to achieve emotional distance from their experiences in Iraq, both men struggled to make new connections or renew old ones. Even getting a decent night's sleep was a challenge. "I ended up drinking a lot, basically as a way of forcing myself to pass out at night," McCourry says. Pickering was "self-medicating heavily with alcohol and severely suffering a depression." Years of anxiety and alienation left McCourry despondent. "I had this war inside of me that would flare up without warning," he says. "I couldn't live with it anymore. I got to the point where the thought of living day in and day out like that for the rest of my life was so miserable I wanted absolutely nothing to do with it." Pickering could not hold a job. "I was incapacitated," he says. "I was a zombie." For both men, the journey back to the land of the living began with illegal drugs. McCourry enrolled in a study of MDMA-assisted psychotherapy and was amazed by how quickly it made a difference. After years of insomnia and nightmares, he was suddenly able to sleep through the night. Within two years he felt like this "huge healing event had taken place," because he finally "had this sense of separation from the experiences of Marine combat." Pickering used marijuana to replace alcohol and the "kamikaze cocktail" of prescription drugs—sleeping pills, anti-anxiety meds, mood stabilizers—that had previously left him foggy. "It got my head back on straight," he says. "I still struggle sometimes, but I'm leaps and bounds beyond where I was." Psychiatrists call the problems Pickering and McCourry encountered after serving in Iraq post-traumatic stress disorder (PTSD). People who qualify for that diagnosis find themselves re-experiencing a traumatic event (through nightmares or flashbacks, for example); avoiding trauma-related thoughts, feelings, or reminders; and experiencing negative emotions that may include depression, isolation, and excessive guilt or blame. They are also prone to "fight or flight" symptoms such as hypervigilance, a heightened startle reaction, irritability, and difficulty sleeping or concentrating. Research suggests about 30 percent of Vietnam War veterans experience PTSD at some point in their lives. In the late 1980s, the National Vietnam Veterans Readjustment Study found that 15 percent were at that point diagnosed with the disorder. Annual rates for veterans of the Gulf War and the wars in Iraq and Afghanistan seem to be in the same ballpark: somewhere between 11 percent and 20 percent, according to studies cited by the Department of Veterans Affairs (V.A.). By comparison, the annual incidence of PTSD among adults in the general population is about 3 percent. Nearly 1 million veterans are receiving compensation for disabilities that are at least partly due to PTSD, according to V.A. records. The age-adjusted suicide rate is also higher a[...]

Presidents Are Reckless With Soldiers’ Lives


The widow of Sgt. La David Johnson, one of four U.S. soldiers killed in Niger on October 4, says she was "very angry" when Donald Trump told her during a condolence call last week that her husband "knew what he signed up for." The president's critics say that remark was insensitive, but the more important point is that it was not true. How can any member of the armed forces know what he is signing up for when presidents of both parties deploy the military so promiscuously, usually for reasons that have little or nothing to do with defending the country? The problem is not that Trump is tactless about soldiers' deaths but that he and his predecessors have been reckless with their lives. "I didn't know there was 1,000 troops in Niger," Sen. Lindsey Graham (R-S.C.), a member of the Senate Armed Services Committee, confessed on Sunday. With U.S. special forces operating in so many countries—138 last year—it can be hard to keep track. Last week Defense Secretary Jim Mattis explained that the U.S. troops in Niger are "supporting the French-led and the African troops, in the campaign to throw ISIS and the terrorists, the radicals, those who foment instability and murder and mayhem, off their stride." He did not mention that a previous U.S. intervention, against Libyan dictator Moammar Gadhafi, had contributed to the instability by sowing chaos in a neighboring country and sending arms and extremists across the border. Is the mission that killed La David Johnson and three of his comrades, which began nearly five years ago, making Americans safer? Is anyone in the Trump administration or Congress even asking that question? By now the cost of military inertia should be painfully clear to anyone who is paying attention. The war in Afghanistan, which unlike the operation in Niger was initially a response to an attack on the United States, has dragged on for 16 years now, claiming the lives of more than 2,400 American military personnel. Luke Coffey, director of the Douglas and Sarah Allison Center for Foreign Policy at the Heritage Foundation, notes that the two main goals of that war—denying Al Qaeda a safe haven and punishing the Taliban regime for harboring terrorists—were accomplished "by the summer of 2002." Yet Coffey predicts that the United States will have a military presence in Afghanistan for "at least" another 16 years, which he argues is justified by the need to shore up the country's rickety government. More than 4,500 American service members have died in Iraq since the 2003 invasion, which was based on a purported threat from weapons of mass destruction that did not exist. As the RAND Corporation's Brian Michael Jenkins noted several years ago, "the costly removal of a brutal tyrant who threatened his own citizens and neighboring countries won no applause, earned no gratitude, established no reliable ally, and produced no lasting strategic benefit." These death tolls do not include the thousands of Afghans and Iraqis killed in those wars, the 50,000 or so Americans who were wounded, or the cost to U.S. taxpayers, which may ultimately total as much as $6 trillion. These burdens are all the more appalling in light of the fact that the Iraq war from its inception and something like 97 percent of the war in Afghanistan had nothing to do with national defense. Before he was elected president, Trump decried the senselessness of these wars. "We should have never been in Iraq," he said, while he described the war in Afghanistan as "a total and complete disaster" that "wasted an enormous amount of blood and treasure." Now that he lives in the White House, Trump is committed to continuing both of those disastrous mistakes. As commander in chief of troops that were active in more than 70 percent of the world's countries last year, he will [...]

The NRA’s Dangerous Alternative to a Bump Stock Ban


Thomas Massie, the Kentucky Republican who leads the Congressional Second Amendment Caucus, and Dianne Feinstein, the California Democrat who is one of the Senate's most persistent gun controllers, do not agree on much. But the congressman and the senator both see the folly of the National Rifle Association's position on bump stocks, the firearm accessories that Stephen Paddock used in his deadly October 1 attack on country music fans in Las Vegas. The NRA opposes a legislative ban on bump stocks but wants the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to reconsider the question of whether they are legal. The administrative approach favored by the NRA invites unelected bureaucrats to rewrite a statute for political purposes, undermining the rule of law and the separation of powers. A bump stock increases a semiautomatic rifle's rate of fire by harnessing recoil energy to help the shooter slide the weapon back and forth against his trigger finger. Since this technique is notoriously inaccurate and prone to misfiring, it is not clear that bump stocks made the Las Vegas shooting any deadlier than it otherwise would have been. Previous mass shooters have not needed bump stocks to kill dozens of people, and there is no reason to think future mass shooters will be deterred if the government takes them off the market. Banning bump stocks is nevertheless the go-to response for people who insist that Congress "do something" in response to the Las Vegas massacre. The NRA has tried to divert that response by urging the ATF to "immediately review whether these devices comply with federal law." On Face the Nation last week, NRA Executive Vice President Wayne LaPierre noted that "it's illegal to convert a semiautomatic to a fully automatic," adding, "We think ATF ought to do its job, look at this, and draw a bright line." But the ATF already has "drawn a bright line." To be more precise, it has applied the bright line drawn by Congress in the National Firearms Act, which defines a "machinegun" as a weapon that fires more than once "by a single function of the trigger." A rifle equipped with a bump stock does not fit that definition, since it still fires just once per trigger pull. The ATF has repeatedly affirmed the legality of bump stocks—in a 2010 letter to Slide Fire Solutions, which makes one version; a 2012 letter to a competing company, Bump Fire Systems; and a 2013 response to an inquiry from Rep. Ed Perlmutter (D-Colo.). As the agency explained to Perlmutter, "Bump-fire stocks (such as the Slide Fire Solutions stock) that ATF determined to be unable to convert a weapon to shoot automatically were not classified as machineguns." Asking the ATF to revisit this question means asking it to ignore the law. Last week House Speaker Paul Ryan (R-Wis.), following the NRA's lead, claimed "the regulatory fix is the smartest, quickest fix." But as Feinstein noted, "The ATF lacks authority under the law to ban bump-fire stocks." Massie agrees. "It is the height of legislative malpractice to ask the executive branch to legislate," he tells me. "We're asking the ATF and the president to do our job." That does not mean Massie supports Feinstein's proposed ban or the House version, which he thinks would have "zero effect" on mass shootings. Both bills would cover a wide, vaguely defined range of products and turn innocent people into felons if they failed to surrender retroactively banned accessories or tinkered with their guns in newly prohibited ways. Massie nevertheless argues that consistent constitutionalists cannot support the supposed regulatory alternative. "I think it's a well-intended but ill-advised strategy to keep this out of the political realm and to save members of Congress from having to weigh in on th[...]

Does Reproductive Freedom Mean Forcing People to Sin?


Last Friday the Trump administration unveiled regulations that let a wider range of employers claim a religious exemption from the Obamacare mandate requiring health plans to cover birth control. Rep. Nita Lowey (D-N.Y.) responded by invoking The Handmaid's Tale, the Margaret Atwood novel, now a Hulu series, set in a patriarchal dystopia where the government controls women's bodies and forbids them to read, write, or work outside the home. Lowey is not the only critic of the new regulations who conflates freedom from coercion with a right to forcibly extracted subsidies. Such overwrought reactions obscure the real issue raised by religious exceptions to the contraceptive mandate: When does respect for religious freedom require relieving some people of the obligation to obey rules that everyone else has to follow? Never, according to the Supreme Court, which in 1990 ruled against Alfred Smith and Galen Black, who were denied unemployment benefits after being fired from their jobs as drug rehabilitation counselors because they used peyote in Native American Church ceremonies. Writing for the majority, Justice Antonin Scalia said letting the First Amendment's guarantee of religious freedom trump a "neutral, generally applicable law" such as Oregon's peyote ban would create "a system in which each conscience is a law unto itself." That decision rejected the approach that the Court had taken in earlier cases, which required the government to justify substantial burdens on religious freedom by showing that they were the least restrictive means of serving a compelling state interest. The peyote ruling provoked strong criticism from across the political spectrum and inspired the Religious Freedom Restoration Act (RFRA), which Congress passed nearly unanimously in 1993. RFRA restored the compelling-interest test that the Supreme Court used until 1990. Although the Court ruled in 1997 that RFRA cannot be constitutionally applied to state and local laws, it is still binding on the federal government, and it was the main basis for legal challenges to the contraceptive mandate. The American Civil Liberties Union, which immediately filed a lawsuit against the new, broader religious exemption, supported RFRA. Later the ACLU, whose Oregon chapter helped represent Smith and Black, successfully argued that RFRA required religious exceptions to the federal ban on the psychedelic dimethyltryptamine and the U.S. Army's dress and grooming rules. More recently, however, the ACLU has soured on RFRA, which it describes as "a sword to discriminate against women, gay and transgender people, and others." The organization's birth control lawsuit, which argues that the new rules "give employers license to discriminate against women," does not even mention RFRA. When it comes to religious liberty, it seems, the ACLU draws the line at beliefs that offend progressive sensibilities. The ACLU claims the new birth control regulations let businesses, nonprofit organizations, and universities "impose their religious beliefs on their employees and students." New York Times columnist Gail Collins likewise thinks beneficiaries of the exemption "are trying to impose their own personal theology on Americans who don't share it." Contrary to these formulations, employers who do not want to be complicit in what they believe to be sin are not trying to impose anything on anyone. They are trying to avoid the government's imposition of a legal obligation that violates their religious beliefs. It is hard to see how that imposition can be justified as the least restrictive means of serving a compelling state interest, as RFRA requires. In fact, the Supreme Court already has ruled that it can't, at least with respect to "closely held" pri[...]

A Massacre Is Not an Argument


The morning after a gunman murdered nearly 60 people in Las Vegas, Hillary Clinton tweeted that "we can and must put politics aside, stand up to the NRA, and work together to try to stop this from happening again." The former Democratic presidential nominee's commitment to putting politics aside disappeared in the middle of that sentence, and her implicit claim that she knows how to "stop this from happening again" was equally empty. Gun controllers like Clinton habitually seize upon mass shootings as evidence in favor of the policies they have always supported. But there is rarely any logical connection between the two, because in this debate showing you are on the right side is more important than persuading anyone. Clinton, for example, argued that the Las Vegas attack demonstrated the folly of the NRA-backed Hearing Protection Act, which would loosen federal restrictions on suppressors, a.k.a. silencers. She suggested the death toll in Las Vegas could have been higher "if the shooter had a silencer," since "the crowd fled at the sound of gunshots." But as firearms experts immediately pointed out, so-called silencers do not actually eliminate the sound of gunfire; they merely reduce the noise level. Even with a suppressor, the hundreds of shots fired from the 32nd floor of the Mandalay Resort and Casino would have been clearly audible. By the time Clinton was tweeting irrelevantly about silencers, New York Times columnist Nicholas Kristof had already published a column in which he listed eight gun control proposals, all supposedly aimed at "preventing mass shootings like the Vegas Strip attack." Most of them, including a minimum gun purchase age of 21, safe storage requirements, microstamping of cartridges, and promotion of "smart guns," plainly had nothing to do with mass shootings like the Vegas Strip attack. Even the most plausible-sounding of Kristof's ideas, "universal background checks," would have made no difference in this case, since the Las Vegas shooter, identified by police as a 64-year-old retired accountant named Stephen Paddock, was repeatedly cleared by the FBI when he bought his guns. As is typical of mass shooters, Paddock did not have a disqualifying criminal or psychiatric record. After presenting his list of new gun controls, framed as responses to the previous day's attack, Kristof conceded that "it's too soon to know what, if anything, might have prevented the shooting in Las Vegas, and it may be that nothing could have prevented it." His column, in other words, was a 20-paragraph non sequitur. That's par for the course in the wake of mass shootings, which gun controllers use to create a sense of urgency they hope will translate into new restrictions. It does not matter whether the restrictions would or could have prevented the horrifying event that supposedly justifies them. If you are truly outraged by crimes like the Las Vegas massacre, gun controllers argue, you must agree with them that some unspecified piece of legislation is long overdue. Otherwise you are a heartless ideologue or an NRA stooge. That is Hillary Clinton's idea of putting politics aside: blindly assenting to a proposal you have not seen as a way of proving your courage and compassion. "It's time for Congress to get off its ass and do something," Sen. Chris Murphy (D-Conn.) declared on Monday. "There's no excuse for inaction," tweeted former Vice President Joe Biden. As CNN observed, "Democrats are desperate to do something—anything—on gun control." The White House is not so eager. "Before we start trying to talk about the preventions of what took place last night," presidential press secretary Sarah Huckabee Sanders said on Monday, "we need to know more facts.[...]

Jeff Sessions, Glutton for Punishment


Eric Holder, who as Barack Obama's attorney general declared that "too many Americans go to too many prisons for far too long," encouraged federal prosecutors to be more judicious in bringing drug charges that carry mandatory minimum sentences. Jeff Sessions, who faults the previous administration for not locking up enough Americans, was quick to rescind Holder's policy after Donald Trump appointed him to run the Department of Justice (DOJ). If prosecutors follow his lead, more drug offenders will be facing long stretches in federal prison.

In a 2010 memo, Holder emphasized the importance of "individualized assessment" in deciding how to charge defendants. Three years later, he went further, telling prosecutors they should omit drug weight, which is what triggers mandatory minimums, from charges against nonviolent drug offenders without leadership roles, significant criminal histories, or significant ties to large-scale drug trafficking organizations.

A recent survey of assistant U.S. attorneys by the DOJ's inspector general found that nearly half said they had changed their charging practices in response to Holder's directives. From fiscal year 2010 to fiscal year 2016, according to the U.S. Sentencing Commission, the share of federal defendants convicted of crimes carrying mandatory minimums fell by nearly a fifth, from 27 percent to 22 percent.

The makeup of that group also changed during this period. Drug trafficking defendants facing mandatory minimums in FY 2016 were more likely to be violent, to have significant criminal histories, and to have played high-level roles—all factors that would have disqualified them from the prosecutorial forbearance urged by Holder. These trends suggest that prosecutors became more discriminating in their use of mandatory minimums, feeding a decline in the federal prison population that began in 2014 after more than three decades of steady growth.

Sessions, who argues that low-level, nonviolent offenders are essentially nonexistent in the federal system, wants prosecutors to be less discriminating. In a May 10 memo reversing Holder's policy, he allowed for the possibility of leniency in extraordinary cases but said such decisions would have to be justified in writing and approved by supervisors. Sessions is trying to establish a strong presumption in favor of bringing the most serious provable charge, leaving little room for individualized assessment.

"The tone/attitude of DOJ ultimately matters even more than the particulars of the memo," says Douglas Berman, a sentencing expert at The Ohio State University Moritz College of Law. "Things got a lot more lenient during Obama's second term.…Things are likely to get tougher during Trump's first term, but how much tougher is going to depend on whether others formally and informally jump on the toughness bandwagon."