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Preview: Jacob Sullum: Reason Magazine articles.

Jacob Sullum: Reason.com articles.





Updated: 2017-03-26T00:00:00-04:00

 



Trump Can't Stop Marijuana Legalization

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

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

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

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

Produced by Austin Bragg and Meredith Bragg
Edited by Austin Bragg

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Jeff Sessions' Terrible Truth About Drugs Is a Lie

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

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






The Unjust, Irrational, and Unconstitutional Consequences of Pedophilia Panic

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

"Sounds like you enjoy sex with kids," a reader tweeted at me after seeing a blog post I wrote about former Subway pitchman Jared Fogle. It was 2015, and Fogle had just signed a plea agreement in which he admitted to looking at child pornography and having sex with two 16-year-old prostitutes. "You also look like [a] pervert," the reader added. That's the sort of response you can expect if you write about the broad category known as "sex offenders" and suggest that not all of them are the same or that some of them are punished too severely. In this case, I had noted that the decision to prosecute Fogle under federal law, which had been justified by factors that had little or nothing to do with the gravity of his offenses, had a dramatic impact on the penalty he was likely to receive. Fogle ultimately was sentenced to nearly 16 years in prison, a penalty that was upheld by a federal appeals court in June. Had he been prosecuted under state law for the same actions, his sentence could have been as short as six months (the minimum penalty for possessing child pornography in Indiana, where Fogle lived) or as long as four years (the maximum penalty for an adult 21 or older who has sex with a 16-year-old in New York, where Fogle met the prostitutes). The arbitrariness of Fogle's punishment should trouble anyone who thinks fairness, consistency, and proportionality are essential to a criminal justice system worthy of the name. But the conjunction of two fraught topics—children and sex—makes it hard for people to think clearly about such matters. The fear and disgust triggered by this subject help explain why laws dealing with sex offenses involving minors frequently lead to bizarre results, including wildly disproportionate sentences, punishment disguised as regulation or treatment, and penalties for committing unintentional crimes, recording your own legal behavior, or looking at pictures of nonexistent children. Hidden Cameras Unlike Russell Taylor, who ran Fogle's charitable foundation, Fogle was not accused of producing child pornography. He was instead charged with looking at photographs and video of "minors as young as approximately 13–14 years" who were "secretly filmed in Taylor's current and former residences." According to the government's statement of charges, Taylor produced that material "using multiple hidden cameras concealed in clock radios positioned so that they would capture the minors changing clothes, showering, bathing, or engaging in other activities." He also gave Fogle a thumb drive containing "commercial child pornography" featuring minors as young as 6. Fogle "on one occasion" showed this material to "another person." That became the basis for a distribution charge, which was dropped as part of Fogle's plea agreement. Fogle's lawyers say that incident involved "one individual with whom [he] was then involved romantically, and it occurred in the confines of a locked hotel room." The voyeuristic material that Taylor produced did not involve sexual abuse of children. According to the charges, the guests caught on Taylor's cameras "did not know that they were being secretly filmed." Taylor's actions, which earned him a 27-year prison sentence, were obviously an outrageous invasion of privacy and breach of trust, and Fogle bears responsibility, at the very least, for allowing the secret recordings to continue by failing to report him. (Taylor, seeking leniency, claimed Fogle had actually encouraged him to install the cameras.) But what Taylor did is not the same as forcing children to engage in sexual activity, and what Fogle did is even further removed from such abuse. Under federal law, however, looking at child pornography can be punished as severely as sexually assaulting a child. Receiving child pornography, which could mean viewing a single image, triggers a mandatory minimum sentence of five years. The maximum penalty for receiving or distributing child pornography is 20 years, and federal sentencing [...]



Another Blow Against the Petty Tyranny of Blue Laws

2017-03-15T00:01:00-04:00

I am in Austin this week for the South by Southwest conferences, and I had planned to pick up some whiskey this Sunday before flying back home to Jerusalem, where brown spirits cost much more. Then a friend pointed out that my plan was not feasible in Texas, which is one of 11 states that still prohibit liquor sales on Sunday. Until recently there were 12 such states, but last week Minnesota Gov. Mark Dayton signed a bill allowing liquor stores to operate on Sundays. He thereby eliminated an arbitrary inconvenience that over the years has been justified in the name of piety, paternalism, and protectionism, none of which is a morally acceptable reason to use force against peaceful people. Minnesota's new law, which follows similar moves by 16 other states since 2002, takes effect on July 1. But Jim Surdyk, proprietor of Surdyk's Liquor & Cheese Shop in Minneapolis, did not wait to exercise his new freedom. He was open for business last Sunday, prompting a $3,500 fine and threats against his license. It is not hard to understand Surdyk's impatience. In the 159 years since Minnesota became the 32nd state, it has never deigned to let people buy packaged beer, wine, or liquor on Sunday. Minnesotans who wanted to have drinks at home on the Christian Sabbath had to plan ahead or make a run to neighboring Wisconsin, which has allowed Sunday sales since 1874. You might wonder whether it is constitutional to foist a religious day of rest on people who choose not to observe it. According to the Supreme Court, it is. The Court's reasoning highlights the petty tyranny of blue laws. In the 1961 case McGowan v. Maryland, seven department store employees challenged their criminal convictions for daring to sell people "a loose-leaf binder, a can of floor wax, a stapler, staples and a toy" on a Sunday. The Court rejected their argument that Maryland's blue law violated the First Amendment's ban on "an establishment of religion." "There is no dispute that the original laws which dealt with Sunday labor were motivated by religious forces," Chief Justice Earl Warren wrote in the majority opinion. But he added that "as presently written and administered, most of them, at least, are of a secular rather than of a religious character." Warren's secularization of Maryland's blue law was a bit of a stretch, given that the statute explicitly addressed "Sabbath Breaking" and repeatedly referred to the "Lord's day," demanding that people not "profane" it through inappropriate activities. But the chief justice argued that the state had a legitimate interest in promoting "the health, safety, recreation and general well-being" of its residents by mandating not only "a periodic respite from work" but "a general cessation of activity, a special atmosphere of tranquility, a day which all members of the family or friends and relatives might spend together." More recently this pious paternalism has given way to a nakedly protectionist argument. The main opponents of Sunday sales nowadays are independent liquor stores whose owners worry that competition will force them to work harder without guaranteeing a commensurate increase in revenue. "Small-business owners argued that allowing Sunday sales would stretch six days of purchases over seven days and increase their operating costs," the St. Paul Pioneer Press reports. "They also worried it would bring more chain and big-box stores," which "can undercut smaller stores on pricing." The point of banning Sunday sales, in other words, is not to protect consumers from themselves but to protect merchants from their competitors. High-handed promotion of "the general well-being" has been replaced by an open conspiracy against consumers. Jim Surdyk, the Minneapolis liquor retailer who dismayed city and state officials by selling on Sunday before he was legally permitted to do so, has a more customer-friendly attitude. "You have to be on top of the game or get out of the game," he says. "I'm just try[...]



Trump Defends Due Process

2017-03-08T00:01:00-05:00

What do you call a regulation that summarily deprives law-abiding Americans of their Second Amendment rights without any evidence that they pose a danger to others? If you are a New York Times editorialist, you call it "sensible." That was the newspaper's take on a Social Security Administration (SSA) rule that Congress canceled with a bill President Trump signed last week. The objections aroused by the rule's demise show that its supporters do not understand it, do not value the constitutional right to arms, or both. The SSA rule would have blocked gun purchases by anyone who receives Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) benefits and who, because of a mental impairment, has been assigned a representative payee to handle the money. According to the SSA, such an individual has been "adjudicated as a mental defective" and is therefore prohibited from owning firearms by the Gun Control Act of 1968. But as the American Civil Liberties Union (ACLU) pointed out, "the determination by SSA line staff that a beneficiary needs a representative payee to manage their money benefit is simply not an 'adjudication' in any ordinary meaning of the word." The beneficiary has no right to a hearing where he could contest that determination with the help of a lawyer, as he would if a court were deciding whether he is legally competent or whether he should be committed to a psychiatric facility (another disqualifying criterion under the Gun Control Act). Furthermore, the ACLU noted, "the rule automatically conflates one disability-related characteristic, that is, difficulty managing money, with the inability to safely possess a firearm." In doing so, "it advances and reinforces the harmful stereotype that people with mental disabilities, a vast and diverse group of citizens, are violent." There is no evidence that the SSI and SSDI beneficiaries covered by the rule are especially prone to violence. The SSA conceded as much, saying, "We are not attempting to imply a connection between mental illness and a propensity for violence, particularly gun violence." Supporters of the SSA rule glided over the lack of due process, noting that beneficiaries could appeal the loss of their constitutional rights after the fact by trying to show they pose no threat to public safety. In other words, they would be presumed guilty unless they could prove themselves innocent, and in the meantime they would be deprived of the basic human right to armed self-defense. The rule's defenders also ignored its weak empirical basis. The Times simply asserted that letting disabled people with representative payees buy guns "poses an inordinate and needless risk to public safety," while a Bloomberg View editorial said "America's tragic experience with mentally ill gunmen―from Virginia Tech in 2007 to Newtown, Connecticut, in 2012—shows the folly of simply dismissing the danger." Neither of those killers would have been covered by the SSA rule. Many press reports misrepresented the rule's scope, saying it would affect a total of 75,000 people. The Obama administration estimated that the rule, applied prospectively, would have affected about 75,000 people each year. The SSA rule, which was finalized in December, never actually took effect, so withdrawing it merely maintains the status quo. Yet editorials and news stories implied that the congressional override would expose Americans to new dangers. A New York Daily News editorial (tactfully titled "Gun Crazy") claimed the vote against the SSA rule would "liberalize access to weapons," "making it easier for the mentally troubled to get guns." Bloomberg said it would "weaken" background checks for gun owners, while BBC News said it would "loosen" them. NBC News said Congress was "revoking Obama-era gun checks for people with mental illnesses." Legal restrictions on gun ownership in the United States already disqualify millions of peop[...]



Trump's Troubling Attorney General Pick

2017-03-01T12:00:00-05:00

When Jeff Sessions, Donald Trump's choice for attorney general, was nominated as a federal judge in 1986, one comment that got him into trouble was a joke about the Ku Klux Klan. A federal prosecutor testified that Sessions, when he was the U.S. attorney for the Southern District of Alabama, had said he thought the KKK "was OK until I found out they smoked pot."

In light of the Alabama senator's longtime obsession with the evils of marijuana, the anecdote reads like a joke about him. After all, this is the same man who thinks "good people don't smoke marijuana" and who was outraged when President Barack Obama conceded that cannabis is less dangerous than alcohol. Sessions' retrograde opinions about marijuana cast doubt on Donald Trump's commitment to respect state laws allowing production, distribution, and consumption of the drug.

Trump has said he supports medical marijuana but has concerns about broader legalization, a policy he nevertheless thinks states should be free to adopt. "I really believe you should leave it up to the states," he said at a rally in 2015. "I think that should be a state issue, state by state."

Sessions, 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," seems to disagree. During a 2009 Senate hearing, he complained that "Attorney General [Eric] Holder has said federal authorities will no longer raid medical marijuana facilities in California." At a hearing last April, he declared that "marijuana is not the kind of thing that ought to be legalized," saying "the Department of Justice needs to be clear."

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 by going after growers, manufacturers, and retailers, or just by threatening to do so.

Sessions also could challenge state marijuana laws in federal court, although he might not like the result. While judges might agree that state regulation of marijuana suppliers conflicts with federal law, the Justice Department cannot force states to recriminalize what those businesses do.

Such federal interference would be inconsistent with public opinion as well as Trump's promises. Recent polls indicate that most Americans think pot should be legal, although 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.




The Marijuana Exception to Federalism

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

Last week White House Press Secretary Sean Spicer predicted "greater enforcement" of the federal ban on marijuana in the eight states that have legalized the drug for recreational use. This week Attorney General Jeff Sessions, an old-fashioned drug warrior who thinks "good people don't smoke marijuana," seemed to confirm Spicer's warning, telling reporters, "We're going to look at it...and try to adopt responsible policies." If those "responsible policies" involve legal action aimed at shutting down state-licensed marijuana businesses, they will be contrary to public opinion, President Trump's campaign promises, and Sessions' own avowed support for federalism. As most Republicans seem to recognize, attempts to force marijuana prohibition on states that have opted out of it are inconsistent with the decentralized system of government established by the Constitution. According to a recent Quinnipiac University survey, 59 percent of Americans think marijuana "should be made legal in the United States," while 71 percent "oppose the government enforcing federal laws against marijuana in states that have already legalized medical or recreational marijuana." Among Republicans, only 35 percent favored legalization, but 55 percent opposed federal interference with it. Last April a CBS News poll found even stronger Republican opposition to federal meddling. Asked if "laws regarding whether the use of marijuana is legal" should be "determined by the federal government" or "left to each individual state government to decide," 70 percent of Republicans said the latter, compared to 55 percent of Democrats (who as usual were more likely to favor legalization). These results suggest many conservatives, whatever they think of marijuana, take seriously their commitment to federalism, which Trump also claims to support. At the Conservative Political Action Conference in 2015, Trump said he favored medical marijuana but had concerns about broader legalization, a decision he nevertheless said should be left to the states. "In terms of marijuana and legalization," he said at a 2015 rally in Nevada, "I think that should be a state issue, state by state." Sessions, a former Alabama senator, also claims to believe in federalism. After the death of William Rehnquist in 2005, Sessions gave a floor speech in which he praised the chief justice for "reestablish[ing] a respect for state law and state sovereignty." Sessions noted that the federal government, under its authority to regulate interstate commerce, "has broad power, but there are limits to the reach of the Commerce Clause." When it comes to marijuana, however, Sessions has little patience for those limits. "It does remain a violation of federal law to distribute marijuana throughout any place in the United States," he observed on Monday, "whether a state legalizes it or not." In 2005 the Supreme Court upheld continued enforcement of the federal ban on marijuana in states that have legalized the drug. But the Court did so based on a very broad reading of the Commerce Clause—the sort of interpretation that usually irks conservative constitutionalists. The case involved homegrown marijuana used by patients in states that recognize the plant as a medicine. "If Congress can regulate this under the Commerce Clause," observed dissenting Justice Clarence Thomas, "then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers." In relying on an understanding of the Commerce Clause that lets Congress do pretty much whatever it wants, Sessions outdoes one of the most famous anti-marijuana crusaders in U.S. history. Harry Anslinger, head of the Federal Bureau of Narcotics from 1930 to 1962, pushed states to ban marijuana by claiming the plant turned people into rapists and murderers. But even Anslinger did not go so far as to claim the federal g[...]



The NEA Today, Entitlements Tomorrow

2017-02-22T00:01:00-05:00

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



Study Confirms Health Advantages of Vaping

2017-02-15T00:01:00-05:00

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



Trump's SCOTUS Nominee Is No Rubber Stamp

2017-02-08T00:01:00-05:00

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



Trump's Irrational Immigration Crackdown

2017-02-01T00:01:00-05:00

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



In Sentencing, Tough Is Not Necessarily Smart

2017-01-25T00:01:00-05:00

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



Offensive Trademarks Are Free Speech

2017-01-18T00:01:00-05:00

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



Obama's Belated Drug War Retreat

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

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

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

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

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

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

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