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Preview: Jacob Sullum: Reason Magazine articles.

Jacob Sullum: Reason.com articles.





Updated: 2016-12-03T00:00:00-05:00

 



The Cannabis Exception to the Second Amendment

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

If you want to buy a gun from a federally licensed dealer, you have to fill out Form 4473, which is aimed at determining whether you are legally allowed to own a firearm. A recent revision to the form by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) underlines how blithely the federal government strips Americans of their Second Amendment rights. "Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?" asks Question 11(e). In the latest version of Form 4473, which dealers are required to start using on January 16, that question is followed by a warning in bold type: "The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside." If you are one of the 68 million Americans who live in a state that has decided to allow recreational use of marijuana, or one of the 186 million who live in a state that recognizes marijuana as a medicine, you may have been under the impression that legalization makes cannabis consumption lawful. The ATF wants to disabuse you of that notion; hence the warning. "We were concerned that some buyers who use marijuana may read the 2012 language asking if they were an 'unlawful user of, or addicted to, marijuana' and erroneously say no because in that particular state, marijuana has been legalized," an ATF spokeswoman told The Denver Post last week. "Most dealers recognize that marijuana use prohibits people from purchasing firearms under federal law, but many members of the general public may not be as familiar with the Gun Control Act." Under that law, a cannabis consumer who possesses a gun (no matter where he got it) is guilty of a felony punishable by up to 10 years in prison. Likewise anyone who sells him a gun if has reason to know the buyer is a cannabis consumer. Falsely denying marijuana use on Form 4473 can get you up to five years. The rationale for this rule is risible. Last August the U.S. Court of Appeals for the 9th Circuit ruled that banning gun sales to people who have medical marijuana cards is consistent with the Second Amendment because "empirical data and legislative determinations support a strong link between drug use and violence." The court did not actually cite any such evidence, but it did observe that "illegal drug users, including marijuana users, are likely as a consequence of that use to experience altered or impaired mental states that affect their judgment and that can lead to irrational or unpredictable behavior." The same could be said of drinkers, but it seems unlikely that the 9th Circuit would uphold a law that restricted the Second Amendment to teetotalers. The appeals court also argued that cannabis consumers are "more likely to have negative interactions with law enforcement officers because they engage in criminal activity." It added that "they frequently make their purchases through black market sources who themselves frequently resort to violence." Both of those risks are byproducts of prohibition, and they do not apply to people who grow, buy, or consume marijuana in accordance with state law. The fact that those activities are still prohibited by the federal government does not mean the average cannabis consumer is apt to get into a shootout with DEA agents, let alone with the state-licensed retailer who sells him marijuana. The idea that marijuana makes people violent is a relic of the 1930s that has no relevance in determining who deserves to exercise the fundamental right of armed self-defense—a point the president-elect should recognize. Donald Trump's choice for attorney general may believe that "good people don't smoke marijuana," but Trump himself has repeatedly expressed a devotion to the Second Amendment that is inconsistent with disarming Americans based on such frivolous falsehoods. © Copyright 2016 by Creators Syndicate Inc. [...]



Official Hypocrisy

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

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

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

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

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

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




Putin's Biggest Fan

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

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



Is Trump's Pot Tolerance Fading?

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

On the same day Donald Trump was elected president, four states legalized marijuana for recreational use, while four others legalized or expanded access to medical marijuana. As a result of those ballot initiatives, most states now recognize marijuana as a medicine, and one in five Americans lives in a state that has decided to tolerate cannabis consumption without a doctor's note. During his campaign Trump said he supports medical marijuana but has concerns about broader legalization, a policy he nevertheless said states should be free to adopt. Trump's recently announced choice for attorney general, Sen. Jeff Sessions, casts doubt on those commitments. The Alabama Republican, a former U.S. attorney and state attorney general, is an old-fashioned drug warrior who pines for the days when Nancy Reagan's Just Say No campaign helped "create a hostility to drug use." He was outraged when President Obama conceded that marijuana is less dangerous than alcohol, and he recently claimed that "good people don't smoke marijuana." Sessions has repeatedly criticized the Obama administration's policy of tolerating state-authorized marijuana suppliers. During a 2009 Senate hearing, he complained that "Attorney General Holder has said federal authorities will no longer raid medical marijuana facilities in California, which is against U.S. law" and "contrary to the position taken by the Drug Enforcement Administration." At a hearing last April, Sessions bemoaned the message sent by marijuana legalization, which he said implies that "marijuana is not dangerous" and encourages teenagers to use it. "We need grownups in charge in Washington to say marijuana is not the kind of thing to be legalized," he said. "The Department of Justice needs to be clear, and the president needs to assert some leadership." Now that Trump has picked Sessions to head the Justice Department, we may get a clearer idea of how far Sessions wants to go in pressing the point that "marijuana is not the kind of thing to be legalized." While medical marijuana suppliers are protected from the feds by a spending rider that is likely to be renewed, if given free rein Sessions could easily wreak havoc in the recreational industry. Every state-licensed marijuana business remains a criminal enterprise under federal law, subjecting its owners to the risk of prosecution and forfeiture. An anti-pot crusader at the helm of the Justice Department could make that risk salient again by raiding growers, manufacturers, and retailers, or just by threatening to do so. Sessions also could challenge state legalization in federal court, although he might not like the results even if he wins. While the DOJ might prevail in arguing that state licensing and regulation of cannabusinesses conflicts with federal law, it cannot force states to recriminalize what those businesses do, so the upshot of a successful lawsuit could be less government oversight of the industry. Any such interference by the DOJ would contradict Trump's commitment to marijuana federalism. "I really believe you should leave it up to the states," he said at a rally in Reno last year. "It should be a state situation…In terms of marijuana and legalization, I think that should be a state issue, state by state." Most Americans agree with that approach. Recent national polls indicate that most Americans (60 percent, according to Gallup) think marijuana should be legal, while most Republicans continue to oppose legalization. But even among Republicans, most—70 percent, according to a CBS News poll conducted last April—think the feds should not try to override state decisions in this area. In other words, marijuana legalization is considerably more popular than Trump, who received less than 47 percent of the vote. Marijuana federalism is more popular still, and it is firmly rooted in conservative constitutional principles. Many conservatives are skeptical of Trump, who until his recent political makeover was known as a liberal New Yo[...]



What Trump Can Do for Us

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

"Not my president" is the theme of the protests that have been staged in dozens of cities across the country since Donald Trump was elected last week. I share the sentiment. Trump will not be my president. But neither is Barack Obama, and neither were any of the eight other men who have occupied the White House since I was born. The phrase "my president" smacks of subservience, as in "my liege," "my lord," or "mein führer." In our constitutional republic, the person selected for the job that Trump will assume on January 20 presides over the executive branch of the U.S. government, not over you or me. If there is an advantage to electing a preening, petty, thin-skinned, whiny, vindictive, vacuous, mendacious, boorish bully to that office, it may be that he prompts a reconsideration of the absurd hopes and cultish veneration that surround the presidency. Perhaps a ridiculous president will encourage Americans to take the presidency less seriously. Then again, the deference that is reflexively given the office could rub off on Trump, who is no less buffoonish today than he was on the morning of November 8. Already we see signs of strange new respect, as harsh critics of the authoritarian huckster swallow their revulsion and wish him well. Chicago Now blogger Brian C. Thomas confesses that "there is a large part of me that wants to drop my pants and flip the double bird to much of the national Republican Party and the people who voted for Donald Trump." But he argues that "being an American demands we respect the office of the President." How so? "I don't want this country to fail," Thomas explains. "Rooting against Donald Trump—now that he's president—would be like rooting against the country." But Trump is not the country, and depending on the policies he pursues he can do more damage by succeeding than by failing. When it comes to disrupting trade and immigration, for instance, I will unabashedly root against him. That does not make me less American. Trump, an open admirer of foreign dictators, presented himself as a strongman riding to the nation's rescue. "When I take the oath of office next year, I will restore law and order to our country," he said at the Republican convention. "Beginning on January 20, 2017, safety will be restored." That promise is delusional not just because it requires impossibly quick and effective action but because crime control is not a federal function. It is not the president's job to police neighborhoods or arrest criminals. Nor is it the president's job to "run the economy," a task for which Trump declared Hillary Clinton unsuited. He has no such qualms about his own abilities. "I can tell you this, and I can say it with certainty," he said in a campaign video. "I will be the greatest jobs-producing president that God ever created." While promises of crime control and job creation are staples of presidential campaigns, Trump's persona highlights how ludicrous they are. The guy who brags about sexually assaulting women is going to restore safety? The guy who brought us Trump Steaks, Trump Vodka, Trump: The Game, Trump Mortgage, Trump University, Trump Airlines, and three bankrupt casinos is going to foster successful businesses? When it comes to fiscal policy (an area where the president does have some influence), it is hard to put much faith in a guy who promises to cut a $78 billion expense by $300 billion and to eliminate the $19 trillion national debt in eight years while increasing spending. Even when it comes to foreign intervention, one area where Trump promised more restraint than Clinton, it is hard to trust a man who falsely insists he was always against the war in Iraq. For those who see the president as a savior with the power to Make America Great Again, Trump's presidency will deliver a salutary lesson: Lower your expectations. © Copyright 2016 by Creators Syndicate Inc. [...]



Vaping Is a Gateway to Quitting

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

Survey data indicate that millions of Americans have used electronic cigarettes to quit smoking, thereby dramatically reducing the health risks they face. Thomas Frieden, director of the U.S. Centers for Disease Control and Prevention, is unimpressed. "The plural of anecdote is not data," Frieden recently told The New York Times. But when it comes to the dangers that vaping poses, he abandons his scientific stance, claiming without evidence that "many kids are starting out with e-cigarettes and then going on to smoke conventional cigarettes." No doubt Frieden and other e-cigarette alarmists will latch onto a new study that supposedly shows "Flavored E-Cigarettes May Entice Teens to Smoke," as one of the predictable headlines put it. But that is not what the study, reported this week in the journal Pediatrics, actually shows. Looking at data from the 2014 National Youth Tobacco Survey, biostatistician Hongying Dai and economist Jianqiang Hao found that nonsmokers who had used an e-cigarette in the previous month were less likely than other nonsmokers to rule out trying tobacco cigarettes in the future. That is not terribly surprising, since just 3 percent of teenagers who had never smoked reported past-month e-cigarette use, a small minority that is apt to differ from the remaining 97 percent in traits, such as rebelliousness, risk aversion, and sensation seeking, that might affect the propensity to experiment with smoking. Correlation is not causation. The fact that teenagers who vape are less inclined to say they will never smoke does not mean the experience of vaping made them that way. As Dai and Hao note, "we were unable to establish causal inferences" because "the data are cross-sectional." The idea that vaping promotes smoking seems implausible in light of the fact that smoking has fallen to record lows among teenagers even as experimentation with vaping has risen dramatically. Furthermore, teenagers who vape typically use nicotine-free e-liquids, and nonsmokers rarely vape often enough to develop a nicotine habit. According to the Monitoring the Future Study, nearly two-thirds of teenagers who have tried vaping consumed "just flavoring" the last time they did it. In the same survey, less than 1 percent of never-smokers had vaped on 20 or more days in the previous month. Dai and Hao seem to view flavored e-liquids, whether or not they contain nicotine, as a menace to the youth of America. "Flavored e-cigarette use is associated with increased risks of smoking among youth," they conclude. "Comprehensive tobacco control and prevention strategies that address flavored e-cigarette products are critically needed to reduce tobacco use among youth." It is pretty clear what "address[ing] flavored e-cigarette products" means to Dai and Ho, who repeatedly note that the Food and Drug Administration does not plan to ban flavors as part of its otherwise onerous e-cigarette regulations. They worry that "widespread availability of flavored e-cigarettes will increase the use of e-cigarette products by youth" and that "the normalization of e-cigarette use among youth could also lead to e-cigarettes becoming a gateway for future smoking, marking a setback in the decades-long antismoking battle." While there is little reason to think anything like that is happening, banning flavored e-liquids would make vaping less attractive to smokers, thereby discouraging them from making a switch that could save their lives. Contrary to the claims of politicians and activists who insist that candy and fruit flavors could not possibly appeal to anyone older than 17, adults who switch to vaping overwhelmingly prefer supposedly kid-friendly e-liquids. In a 2014 survey by E-Cigarette Forum, three-quarters of adult vapers who had quit smoking or cut back said they favored flavors other than tobacco. A 2013 study likewise found that flavor variety is important for smokers who switch to vaping. Dai and Ho a[...]



Clinton Lies About Lying About Her Lies

2016-11-02T00:01:00-04:00

According to a Fox News poll conducted last week, 67 percent of likely voters do not think Hillary Clinton is "honest and trustworthy." That is five percentage points more than said the same thing about Donald Trump—an amazing accomplishment, since the blowhard billionaire can barely open his mouth without lying. Clinton's credibility with voters may be even weaker than that poll suggests, since it was completed before FBI Director James Comey disclosed that agents had stumbled across another trove of emails that crossed the unsecured private server she improperly used as secretary of state. Whether or not the FBI finds any previously unidentified messages containing classified material, the discovery reminded everyone of Clinton's tendency to pile lie upon lie instead of coming clean about her mistakes. "I'm not making excuses," Clinton said at a rally in Ohio on Monday. "I've said it was a mistake and I regret it." Clinton did not manage to describe what Comey later called her "extremely careless" handling of "very sensitive, highly classified information" as a mistake until six months after The New York Times revealed her reliance on a personal email system during her tenure at the State Department. Until that interview, she did nothing but make excuses, and even afterward she continued to offer false assurances aimed at minimizing her misbehavior. Clinton claimed that "what I did was allowed," that she "fully complied with every rule," that "there is no classified material" in the emails she sent and received, and that she "went above and beyond what I was requested to do." She also said she "opted for convenience to use my personal email account, which was allowed by the State Department, because I thought it would be easier to carry just one device for my work and for my personal emails instead of two." As investigations by the State Department's inspector general and the FBI later showed, none of that was true. Clinton did not comply with every rule, she did not turn over all her work-related email to the State Department or do so in a timely fashion, the email did include classified material, her use of a private account was contrary to State Department policy, and she carried multiple devices despite saying she sought to avoid them. Notwithstanding these manifest misrepresentations, Clinton falsely claimed Comey had verified the truthfulness of her public statements about the email controversy when he said he did not have any basis to charge her with lying to the FBI. Then she said that whopper was based on a misunderstanding, which clearly was not true. In other words, she lied about lying about her lies. "After a year-long investigation," Clinton said during her second debate with Trump last month, "there is no evidence that anyone hacked the server I was using." As Comey pointed out in July, the fact that the FBI did not find evidence of hacking does not mean it did not happen, since cyber spies are good at covering their tracks. Clinton also said "there is no evidence…that any classified material ended up in the wrong hands." Whether or not classified material in Clinton's email actually "ended up in the wrong hands," she recklessly took that risk, which is enough to charge her with violating federal law. Explaining his decision not to recommend criminal charges against Clinton, Comey said such a prosecution would be unjust without evidence that she had knowingly broken the law. But he conceded that the statute criminalizing the removal of classified information "from its proper place of custody" allows prosecutions based on "gross negligence." After the FBI examines the newly unearthed emails, Clinton said on Monday, "I am sure they will reach the same conclusion they did when they looked at my emails for the last year: There is no case there." That may not be true even in the narrow legal sense, and it certainly is not true of th[...]



When Is Daddy Coming Home?

2016-11-01T12:00:00-04:00

The first time Paul Fields was sentenced for a marijuana offense, he got probation. The second time, he got 100 days in jail. The third time, he got more than 15 years in prison. That astonishing escalation was caused by a federal sentencing provision aimed at "career offenders," defined as people with two prior convictions for felonies involving drugs or violence who are convicted of a third such felony. Without that enhancement, Fields, who never hurt anyone and never even got to sell any of the marijuana from the 256 plants police found at his home in Jonesborough, Tennessee, would have faced a minimum sentence of five years. A recent report from the U.S. Sentencing Commission (USSC) recommends that Congress revise the career-offender provision to focus on violent criminals, which would avoid injustices like the one suffered by Fields. "The career offender directive fails to meaningfully distinguish among career offenders with different types of criminal records and has resulted in overly severe penalties for some offenders," the commission concludes. "The career offender directive should be amended to differentiate between career offenders with different types of criminal records, and is best focused on those offenders who have committed at least one 'crime of violence.'" The USSC found that career offenders, who account for 11 percent of the federal prison population, "are sentenced to long terms of incarceration, receiving an average sentence of more than 12 years (147 months)." That's more than three times the average federal sentence imposed in fiscal year 2015. Most career offenders—74 percent in fiscal year 2014—are serving time for drug trafficking. Even federal prosecutors seem to be questioning the justice of these sentences. The commission notes that "career offenders are increasingly receiving sentences below the guideline range, often at the request of the government." Focusing on violent criminals makes sense in terms of public safety. The USSC notes that "career offenders who have committed a violent instant offense or a violent prior offense generally have a more serious and extensive criminal history, recidivate at a higher rate than drug trafficking only career offenders, and are more likely to commit another violent offense in the future." The current definition of "career offender" leads to anomalous results like the 188-month sentence received by Fields, which is substantially longer than the average federal sentence for sexual abuse (134 months in fiscal year 2015), robbery (78 months), arson (62 months), or manslaughter (54 months). Despite the possibility that he would be sentenced as a career offender, Fields pleaded guilty to avoid charges against his wife. Now in his early 50s, Fields has spent six and a half years in prison and has not seen his daughter outside a prison visitors' room since she was a baby. "My relationship with my daughter is the most important thing in my life," he says in a statement posted by Families Against Mandatory Minimums. "I keep a daily journal for her—every day I write a short little note to her, talking about my day, and what I know about hers. When a notebook is full, I mail it home and my wife saves them all together to give to her someday. I want her to always know how much I love and miss her, and that I think of her EVERY day." Fields has asked President Obama to reunite him with his family by commuting his sentence. In a letter to Obama, Fields' wife, Pari, says, "Paul needs to be home to resume his most important job: being a full-time father to our 7-year-old daughter, Corrina, who has no memory of her father living at home and keeps asking, 'When is Daddy coming home?'" On the face of it, Fields seems like an excellent candidate for clemency. But Obama is giving priority to prisoners who meet certain criteria, which include serving at least 10 ye[...]



Clinton's Constitutional Contempt

2016-10-26T00:01:00-04:00

Donald Trump claims he has read the Constitution. If so, he did not retain much. As a Yale Law School graduate, Hillary Clinton presumably has a better idea of what the Constitution says. But as she showed in her debate with Trump last week, that does not mean she cares. Clinton promised her Supreme Court nominees "will stand up and say no" to Citizens United v. Federal Election Commission. As usual when she discusses the case, Clinton neglected to mention that it involved suppression of a movie that made her look bad. In Citizens United, the Supreme Court concluded that a conservative group organized as a nonprofit corporation had a First Amendment right to present Hillary: The Movie on pay-per-view TV while Clinton was seeking the Democratic presidential nomination in 2008. Her determination to overturn that decision by appointing justices who agree with her that blocking the movie was consistent with freedom of speech—or, failing that, by pushing a constitutional amendment that blesses such self-serving censorship—looks no less petty and constitutionally insensitive than Trump's ambition to "open up our libel laws" so he can more easily use the legal system to punish and silence his critics. Clinton's eagerness to suppress speech that offends her is also apparent in her history of supporting laws that the Supreme Court later found to be inconsistent with the First Amendment, including the Communications Decency Act, the Child Online Protection Act, and restrictions on the sale of violent video games. She even tried to ban flag burning after the Court had deemed such laws unconstitutional. More recently, Clinton has joined Trump in pre-emptively dismissing First Amendment concerns about efforts to eliminate online speech that encourages terrorism. "You're going to hear all of the usual complaints—you know, 'freedom of speech,' etc.," Clinton said after the terrorist attack in San Bernardino last December. She was right. As the American Civil Liberties Union notes in a report on Clinton's positions, "Further restricting content that is potentially terrorism-related would not only lead to arbitrary, haphazard enforcement, but it also would inevitably sweep in speech that reflects beliefs, expressive activity, and innocent associations with others that are protected by the First Amendment." Unlike Trump, Clinton is hostile to the Second Amendment as well as the First, notwithstanding her assurances to the contrary. During last week's debate, she said the Supreme Court should not have overturned a District of Columbia law that she described as a "reasonable regulation" aimed at protecting "toddlers" from gun accidents by promoting safe firearm storage. Clinton did not mention that the D.C. law banned ownership of handguns, the most popular weapons for self-defense, and required that long guns in the home be kept unloaded and either disassembled or disabled by a trigger lock at all times, making it impossible to legally use them for self-defense. Apparently the "individual right to bear arms" that Clinton claims to support does not include the right to own a handgun or the right to use a rifle or shotgun for self-defense in the home, which the Court recognized as a "core lawful purpose" under the Second Amendment. When it comes to the Fourth Amendment, Clinton's support for the PATRIOT Act and encryption limits illustrates her tendency to sacrifice privacy in the name of security. Clinton's warmongering, including her advocacy of President Obama's illegal and disastrous intervention in Libya's civil war, shows she has little respect for the Constitution's limits on executive power, just as her belief in a federal government that has a solution for every problem shows she has no regard for the principle that Congress may not exercise powers the Constitution does not grant. Trump's blatantly u[...]



Gary Johnson's Refreshing Foreign Policy Skepticism

2016-10-19T00:01:00-04:00

One of the few appealing aspects of Donald Trump's presidential campaign has been his criticism of Hillary Clinton's reckless interventionism. But the bellicose billionaire combines that criticism with promises of a gratuitous military buildup, a casual attitude toward the use of American weapons, and a disturbing tendency to view trade and immigration as acts of war. To get a sense of what a more disciplined, consistent, and thoughtful critique of Clintonian warmongering sounds like, listen to Gary Johnson, the Libertarian nominee for president. Notwithstanding the popular portrayal of Johnson as a foreign policy ignoramus based on his embarrassing "Aleppo moments," the former New Mexico governor offers a bracing alternative to Clinton's supposedly sophisticated yet consistently careless embrace of violence as a tool for reshaping the world. Again and again as first lady, senator, and secretary of state, from Serbia to Syria, Clinton has supported military interventions that had nothing to do with national defense. Mindful of the damage done by the promiscuous use of America's armed forces, Johnson promises a different approach: When in doubt, stay out. "As president," Johnson said in a recent speech at the University of Chicago, "I would not need to be talked out of dropping bombs and sending young men and women into harm's way. I would be the president who would have to be convinced it is absolutely necessary to protect the American people or clear U.S. interests. I will be the skeptic in the room." Like Trump, Johnson bemoans the disastrous consequences, in squandered lives and resources as well as instability conducive to terrorism, of the Clinton-supported war in Iraq. The fact that Clinton voted for that war and took more than a decade to admit it was a mistake—a mistake from which she apparently learned nothing, given her subsequent support for regime change in Libya and Syria—demonstrates that foreign policy knowledge is not synonymous with wisdom. Johnson's criticism of unnecessary foreign entanglements goes beyond Trump's by highlighting the folly of the never-ending war in Afghanistan. "We were attacked, and we attacked back," he says. "But seven months after we sent our troops to Afghanistan, Al Qaeda had scattered to the winds and the Taliban had been removed from power. Al Qaeda was gone, but we stayed." Fourteen years later, thousands of U.S. troops remain in Afghanistan. While Trump thinks the U.S. should be reimbursed for the cost of defending other countries, Johnson argues that defending other countries is not the U.S. military's job. "The U.S. military exists, first and foremost, to defend the United States and U.S. vital interests," he says. "We should expect other countries to defend themselves and their interests." Unlike Trump, Johnson does not think the U.S. government spends too little on the military. "U.S. military spending accounts for roughly one-third of total military spending of the entire world, exceeding the combined total of the next seven largest military budgets," he notes. That bloated budget, which Johnson wants to cut, reflects and reinforces an excessively broad vision of the U.S. military's role in the world. "Our foreign policy and military actions must support clear U.S. interests," Johnson says, as opposed to "a desire to shape the world in our own image or to pick winners and losers in civil wars on the other side of the globe." Congress encourages intervention not only by keeping so-called defense spending unjustifiably high but by abdicating its constitutional responsibility to decide when the use of military force is appropriate. "As president," Johnson says, "I will honor the War Powers Act without hiding behind dubious legal opinions from my own lawyers." That's a reference to President Obama's laughable argumen[...]



Drug Sentences Will Never Be Fair

2016-10-12T00:01:00-04:00

When President Obama issued his latest batch of commutations last week, the White House called them "102 second chances." Obama, who shortened just one sentence during his first term, is finally taking advantage of his second chance by issuing more commutations "than the previous 11 presidents combined" (as the White House puts it), 97 percent of them in the second half of his second term. While Obama deserves credit for his belated but numerically impressive mercy, it should not obscure the fact that most of the people whose petitions he has granted did not belong in prison to begin with. Thousands more like them are still behind bars thanks to the moral travesty known as the war on drugs. Almost all of the 774 prisoners whose sentences Obama has shortened so far are nonviolent drug offenders, 282 of whom received life sentences. One of them is Ricky Minor, a Florida carpet installer who in 2000 was caught with a little more than a gram of methamphetamine, plus supplies for making more: pseudoephedrine pills, acetone, matches, and lighter fluid. Minor, who had a long history of drug problems, said the meth was intended for himself and his wife. To avoid charges against her that could have left their children without parents, he pleaded guilty to attempted manufacture of methamphetamine. Under state law, Minor probably would have received a sentence of two or three years. But under federal law, he qualified as a "career offender," which triggered a mandatory life sentence. That designation was based on a string of convictions for nonviolent drug offenses, none of which resulted in prison time. Minor had also been involved in some minor altercations that led to convictions for assault, trespass, battery, breach of peace, and resisting arrest. Minor's criminal history hardly marked him as a violent predator who needed to be locked away for life. The judge who sentenced him acknowledged that a life term "far exceeds whatever punishment would be appropriate" while noting that he had no choice but to impose it. "I was sitting in the courtroom when it happened," Minor's mother recalled in an interview with the American Civil Liberties Union, "and it was all I could do to stay seated in my chair. I was so shocked. I just couldn't believe they could do that to him." Recognizing this miscarriage of justice, Obama last week shortened Minor's sentence from life to 262 months—almost 22 years. Minor already has been behind bars for 15 years, which is 15 years too many for someone whose crime consisted of mixing together some common household chemicals. Although 22 years is less outrageous than a life term as a punishment for that offense, it can hardly be called fair. Yet this is what counts as progress in a criminal justice system that routinely locks people up for doing things that violate no one's rights. In that context, the Fair Sentencing Act, which Obama signed in 2010, was a major improvement. While it used to take 100 times as much cocaine powder to trigger the same penalty as a given amount of crack, it now takes only 18 times as much. The distinction between the snorted and smoked forms of cocaine is arbitrary and unscientific, so the new scheme is just as nonsensical as the old one. But it is less onerous for crack offenders, who happen to be overwhelmingly black. Because the change did not apply retroactively, thousands of crack offenders continue to serve sentences that nearly everyone now agrees are too long. While Obama's commutations have helped some of them, at his current pace the vast majority will get no relief. Congress could do more. But what seemed like bipartisan enthusiasm for sentencing reform fizzled this year in the face of pre-election anxieties about looking soft on crime. If fair sentencing is the goal, what's really ne[...]



The DEA's Contrived Kratom Crisis

2016-10-05T00:01:00-04:00

After the Drug Enforcement Administration (DEA) announced an "emergency" ban on kratom at the end of August, a spokesman for the agency said "our goal is to make sure this is available." The spokesman, Melvin Patterson, also told The Washington Post kratom does not belong in Schedule I of the Controlled Substances Act, the law's most restrictive category, even though that is where the DEA had just put it. Patterson added that kratom, which the DEA says has "no currently accepted medical use," is "at a point where it needs to be recognized as medicine." Confused? You're not alone. The DEA's ban on kratom, a pain-relieving leaf from Southeast Asia, shows how blithely and arbitrarily the government interferes with our freedom to control our own brains and bloodstreams. Kratom, which acts as a stimulant or a sedative, depending on the dose, has been used for centuries in countries such as Thailand, Malaysia, and Indonesia to ease pain, boost work performance, and wean people from opiate addiction. In recent years the drug has gained a following in the United States, sold by online merchants and head shops as an herbal medicine, dietary supplement, or legal high. That situation offended the DEA, which noted in the explanation of its ban that kratom had never been approved by the government for any use. If a psychoactive substance is not explicitly permitted, the DEA figures, it should be prohibited. The agency apparently was surprised by the backlash against its kratom ban, which included angry phone calls to Capitol Hill, a demonstration near the White House, and letters from members of Congress. The DEA still intends to finalize the ban, although it did not take effect last Friday as expected. Patterson, the DEA spokesman, said the reaction to the ban "was eye-opening for me personally." He added that "I want the kratom community to know that the DEA does hear them." That attitude is quite a contrast to the deaf arrogance the DEA displayed when it announced that it was temporarily placing kratom in Schedule I, a classification that lasts at least two years and could become permanent. Declaring that a ban was necessary "to avoid an imminent hazard to public safety," the DEA summarily dismissed kratom's benefits while exaggerating its dangers. The DEA describes all kratom use as "abuse." It was therefore easy for the agency to conclude that the plant has "a high potential for abuse," one of the criteria for Schedule I. Since the DEA assumed there was no rational, morally acceptable reason to use kratom, it did not need to muster much evidence that the drug is intolerably dangerous. It claimed there have been "numerous deaths associated with kratom," by which it meant 30. In the whole world. Ever. According to the U.S. Centers for Disease Control and Prevention, alcohol causes about 88,000 deaths a year in this country, while 28,000 deaths were attributed to heroin and opioid painkillers in 2014. Kratom looks pretty benign by comparison. Another point to keep in mind: "Deaths associated with kratom" are not necessarily caused by kratom. "Kratom is considered minimally toxic," noted a 2015 literature review in the International Journal of Legal Medicine. "Although death has been attributed to kratom use, there is no solid evidence that kratom was the sole contributor to an individual's death." As further proof of kratom's dangers, the DEA noted that "U.S. poison centers received 660 calls related to kratom exposure" from 2010 through 2015, an average of 110 a year. By comparison, exposures involving analgesics accounted for nearly 300,000 calls in 2014, while antidepressants and antihistamines each accounted for more than 100,000. As the DEA's contrived kratom crisis shows, there is little rhyme or reason to the governme[...]



Arrest Numbers Reflect Growing Pot Tolerance

2016-10-03T00:01:00-04:00

FBI statistics released last week show that the number of marijuana arrests in the United States, after rising slightly in 2014, fell by 8 percent last year, reaching the lowest level in two decades. The total was nevertheless more than twice the number in 1991, before a nationwide cannabis crackdown that peaked in 2007. The number of marijuana arrests has fallen more or less steadily since then, reflecting a growing consensus that cannabis consumers should not be treated as criminals. The FBI's numbers indicate that police across the country made 643,121 marijuana arrests in 2015, 26 percent fewer than the 2007 total of 872,720. As usual, the vast majority of pot arrests—almost nine out of 10—were for possession, as opposed to sale or cultivation. A 2006 analysis by the Sentencing Project's Ryan King and Marc Mauer found that less than 6 percent of marijuana arrests lead to a felony conviction. It's not clear exactly why police started targeting cannabis consumers with renewed zeal in the early 1990s. Changes in marijuana use do not account for the surge in arrests. To the contrary, the risk of arrest for the average cannabis consumer rose substantially between 1991 and 2007, when the number of marijuana arrests tripled. Marijuana accounted for 52 percent of all drug arrests by 2010, up from less than 29 percent in 1991. "Since 1990," King and Mauer noted, "the primary focus of the war on drugs has shifted to low-level marijuana offenses. During the study period [1990 through 2002], 82% of the increase in drug arrests nationally (450,000) was for marijuana offenses, and virtually all of that increase was in possession offenses." Last year the lion's share of drug arrests—43 percent—still involved marijuana. But that percentage has been dropping since 2010. In some jurisdictions, police no longer have the option of arresting adults for possessing small amounts of marijuana. Colorado's 2012 legalization initiative eliminated all penalties for possession of up to an ounce by adults 21 or older, which was previously a petty offense. The Drug Policy Alliance found that the number of marijuana possession cases in Colorado fell by 84 percent between 2010 and 2014, from 9,011 to 1,464. The change in Washington state, where voters also approved legalization in 2012, was even more dramatic. According to the ACLU of Washington, marijuana possession cases fell from 6,879 in 2011 to 120 in 2013—a 98 percent drop. Oregon, where voters approved legalization in 2014, decriminalized possession of an ounce or less back in 1973, making it a violation subject to a fine rather than an offense for which someone can be arrested. Data from the Oregon State Police nevertheless show a big drop in pot busts after legalization took effect, from 4,273 in 2014 to 1,129 in 2015. Alaska, the other state where a legalization initiative passed in 2014, also decriminalized possession in the '70s. According to the Alaska Department of Public Safety, marijuana-related arrests fell from 716 in 2014 to 290 in 2015. Washington, D.C., decriminalized possession in 2014 and legalized possession, home cultivation, and sharing in 2015 (as a result of an initiative approved the previous year). Possession arrestsplunged from more than 2,000 in 2011 to fewer than 10 last year. A ballot initiative approved by Massachusetts voters in 2008 made possession of less than an ounce a citable offense punishable by a $100 fine. According to the National Organization for the Reform of Marijuana Laws, marijuana arrests fell precipitously, from 10,260 in 2008 to 2,748 in 2009. By contrast, after Maine's legislature made possession of up to two-and-a-half ounces a civil infraction in 2009, arrests fell only slightly. California and New [...]



No More Accidental Criminals

2016-10-01T12:00:00-04:00

Hillary Clinton supporters should have a new appreciation for the legal concept of mens rea—usually translated as "guilty mind"—because it saved her from federal prosecution for using a personal email server as secretary of state. In recommending that the Justice Department not bring charges against the former first lady, FBI Director James Comey differentiated her "extremely careless" handling of "very sensitive, highly classified information" from other cases involving "intentional and willful mishandling." Not everyone gets the benefit of such distinctions. Consider the retiree on a snowmobile outing in Colorado who got lost in a blizzard and unwittingly crossed into a National Forest Wilderness Area; the Native Alaskan trapper who sold 10 sea otters to a buyer he mistakenly believed was also a Native Alaskan; and the 11-year-old Virginia girl who rescued a baby woodpecker from her cat. The first two incidents resulted in misdemeanor and felony convictions, respectively, while the third led to a fine (later rescinded) and threats of prosecution. All three qualify as federal crimes, even though the perpetrators had no idea they were breaking the law. The federal code contains something like 5,000 criminal statutes and describes an estimated 30,000 regulatory violations that can be treated as crimes. The fact that no one knows the precise numbers is itself a scandal, compounded by the fact that many of these provisions include minimal or no mens rea requirements, which ask prosecutors to demonstrate that an offender knew he was doing something wrong. The upshot is that innocent acts, honest mistakes, and simple accidents can lead to criminal convictions that deprive people of their liberty and property, ruin their reputations, and carry lifelong collateral consequences ranging from impaired occupational opportunities to the loss of constitutional rights. That's a serious problem, which is why mens rea reform has garnered bipartisan support in the House of Representatives. Yet Senate Democrats dismiss the proposed changes as "corporate protection." Their chief complaint is that requiring the government to prove a defendant knew he was breaking the law will make it harder to convict people. No kidding. The same could be said of many safeguards widely supported by civil libertarians, including the presumption of innocence, the requirement of proof beyond a reasonable doubt, and the ban on double jeopardy. Guilty people, including violent criminals, surely escape conviction because of these rules. Likewise, if Congress beefed up federal mens rea requirements, some white-collar malefactors and felonious fat cats probably would escape criminal punishment as a result. But that prospect should not deter Congress from doing what's right. "They're saying, 'It would be a terrible thing, because the people we don't like—corporate executives—they will be able to get off by arguing that there's absolutely no criminal intent on their part,'" attorney Harvey Silverglate, a leading critic of overcriminalization, told Reason TV. "So you want absolute criminal liability for people you don't like. However, when they come at you, suddenly you say, 'Well, I didn't intend to break the law.'" That defense is deeply rooted in our moral intuitions and legal traditions. As the Supreme Court observed in 1952, "The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil." To impose criminal penalties on people for inadvertent violati[...]



Trump's Phony Crime Crisis

2016-09-28T00:01:00-04:00

Donald Trump, who is modeling himself after Richard Nixon, used the phrase "law and order" seven times during his debate with Hillary Clinton on Monday night. He said blacks and Latinos in America's inner cities "are living in hell because it's so dangerous" and that "some really bad things" are happening in "so many different places." FBI numbers released the day of the debate refute Trump's portrait of a nation besieged by violent criminals. While murders did rise by 11 percent in 2015, that increase was driven mainly by a small number of cities, and the violent crime rate is still much lower than it was in the early 1990s—lower, in fact, than in all but two years since 1971. The homicide rate in 2015 was 4.9 per 100,000, half the rate in 1991. The violent crime rate was 372.6 per 100,000 last year, up 3.1 percent from 2014 but still half the 1991 rate. The property crime rate, which fell 3.4 percent last year, was twice as high in 1991. Of the country's 100 largest cities, 25 saw significant increases in homicides last year, and just seven of them—Baltimore, Chicago, Cleveland, Houston, Milwaukee, Nashville, and Washington, D.C.—accounted for half of the national increase. It's not clear whether violence will continue to rise in those cities, let alone whether it signals a broader trend. Homicides are down so far this year in Baltimore and Washington, for instance, after rising in 2015. While the jump in the murder rate should not be lightly dismissed, it hardly shows that the nation is experiencing "a moment of crisis" caused by "violence in our streets" and "chaos in our communities," as Trump claimed at the Republican National Convention in July, or that "crime is out of control, and rapidly getting worse," as he declared on Twitter around the same time. Judging from the FBI's statistics, crime is less "out of control" than it has been in all but a handful of years during the last half-century. Nor does Trump's favored solution, "stop and frisk," make sense even in the cities where violence is on the rise. Promiscuous use of that tactic, which involves detaining and patting down pedestrians who strike police as suspicious, causes understandable resentment among the young black and Latino men who bear the brunt of it, and there's little evidence that it curtails violent crime. Trump credited the New York Police Department's stop-and-frisk program with reducing the number of homicides in that city from 2,245 in 1990 to 540 in 2005. Yet homicides continued to fall even after the program was sharply curtailed in 2012, and they are down again so far this year after rising in 2015. Meanwhile, the annual number of stops has fallen by 97 percent from the 2011 peak of more than 685,000. Trump does not seem to care about the reason stop-and-frisk encounters fell so dramatically in New York. They were challenged on constitutional grounds, and a federal judge ultimately concluded that police were routinely violating the Fourth Amendment by stopping and frisking people without reasonable suspicion. Trump nevertheless thinks a similar program would do wonders in violence-plagued Chicago, apparently not realizing police there already tried that. In 2014, the American Civil Liberties Union of Illinois reports, "Chicagoans were stopped more than four times as often as New Yorkers at the height of New York City's stop and frisk practice." As in New York, stops in Chicago overwhelmingly targeted blacks and often lacked a constitutional basis. Stops in Chicago are down sharply this year in response to criticism and new legislation, but that happened after the city's 2015 increase in homicides. Even if the local police tactics Trump advocates[...]