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Preview: Jacob Sullum: Reason Magazine articles.

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Updated: 2017-10-18T00:00:00-04:00


The NRA’s Dangerous Alternative to a Bump Stock Ban


Thomas Massie, the Kentucky Republican who leads the Congressional Second Amendment Caucus, and Dianne Feinstein, the California Democrat who is one of the Senate's most persistent gun controllers, do not agree on much. But the congressman and the senator both see the folly of the National Rifle Association's position on bump stocks, the firearm accessories that Stephen Paddock used in his deadly October 1 attack on country music fans in Las Vegas. The NRA opposes a legislative ban on bump stocks but wants the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to reconsider the question of whether they are legal. The administrative approach favored by the NRA invites unelected bureaucrats to rewrite a statute for political purposes, undermining the rule of law and the separation of powers. A bump stock increases a semiautomatic rifle's rate of fire by harnessing recoil energy to help the shooter slide the weapon back and forth against his trigger finger. Since this technique is notoriously inaccurate and prone to misfiring, it is not clear that bump stocks made the Las Vegas shooting any deadlier than it otherwise would have been. Previous mass shooters have not needed bump stocks to kill dozens of people, and there is no reason to think future mass shooters will be deterred if the government takes them off the market. Banning bump stocks is nevertheless the go-to response for people who insist that Congress "do something" in response to the Las Vegas massacre. The NRA has tried to divert that response by urging the ATF to "immediately review whether these devices comply with federal law." On Face the Nation last week, NRA Executive Vice President Wayne LaPierre noted that "it's illegal to convert a semiautomatic to a fully automatic," adding, "We think ATF ought to do its job, look at this, and draw a bright line." But the ATF already has "drawn a bright line." To be more precise, it has applied the bright line drawn by Congress in the National Firearms Act, which defines a "machinegun" as a weapon that fires more than once "by a single function of the trigger." A rifle equipped with a bump stock does not fit that definition, since it still fires just once per trigger pull. The ATF has repeatedly affirmed the legality of bump stocks—in a 2010 letter to Slide Fire Solutions, which makes one version; a 2012 letter to a competing company, Bump Fire Systems; and a 2013 response to an inquiry from Rep. Ed Perlmutter (D-Colo.). As the agency explained to Perlmutter, "Bump-fire stocks (such as the Slide Fire Solutions stock) that ATF determined to be unable to convert a weapon to shoot automatically were not classified as machineguns." Asking the ATF to revisit this question means asking it to ignore the law. Last week House Speaker Paul Ryan (R-Wis.), following the NRA's lead, claimed "the regulatory fix is the smartest, quickest fix." But as Feinstein noted, "The ATF lacks authority under the law to ban bump-fire stocks." Massie agrees. "It is the height of legislative malpractice to ask the executive branch to legislate," he tells me. "We're asking the ATF and the president to do our job." That does not mean Massie supports Feinstein's proposed ban or the House version, which he thinks would have "zero effect" on mass shootings. Both bills would cover a wide, vaguely defined range of products and turn innocent people into felons if they failed to surrender retroactively banned accessories or tinkered with their guns in newly prohibited ways. Massie nevertheless argues that consistent constitutionalists cannot support the supposed regulatory alternative. "I think it's a well-intended but ill-advised strategy to keep this out of the political realm and to save members of Congress from having to weigh in on this," he says. "But it will come back to bite us, and it erodes the system of government that the Founding Fathers intended to set up." © Copyright 2017 by Creators Syndicte Inc. [...]

Does Reproductive Freedom Mean Forcing People to Sin?


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

A Massacre Is Not an Argument


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

Jeff Sessions, Glutton for Punishment


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

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

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

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

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

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

Will SCOTUS Let Fear of Sex Offenders Trump Justice?


According to the U.S. Supreme Court, locking up sex offenders after they have completed their sentences is not punishment, and neither is branding them as dangerous outcasts for the rest of their lives. Two cases the Court could soon agree to hear give it an opportunity to reconsider, or at least qualify, those counterintuitive conclusions. Karsjens v. Piper is a challenge to the Minnesota Sex Offender Program (MSOP), which since 1994 has confined more than 700 people who were deemed too "sexually dangerous" to release after serving their prison terms. Although these detainees are supposedly patients rather than inmates, in more than two decades only one of them has ever been judged well enough to regain his freedom. The Supreme Court has upheld post-prison commitment of sex offenders, accepting the pseudoscientific claim that a propensity to commit a certain type of crime is an illness that mental health professionals can cure (in this case, an illness defined by state legislators rather than psychiatrists). But the Court has warned that imposing punishment in the guise of treatment may be unconstitutional. The detainees challenging the MSOP, some of whom have completed treatment yet remain behind bars, argue that the program's track record and lack of regular risk assessments show it is punitive rather than therapeutic. "The MSOP is a regime of indefinite detention that provides no hope of release," say the Cato Institute and the Reason Foundation (my employer) in a brief siding with the petitioners. "It is functionally impossible to distinguish between Minnesota's civil commitment for sex offenders and imprisonment." In upholding the MSOP, the U.S. Court of Appeals for the 8th Circuit said the right not to be locked in a cage does not count as a "fundamental liberty interest" for "persons who pose a significant danger to themselves or others." Yet the main issue in this case is Minnesota's lack of interest in whether the plaintiffs actually fall into that category. The state admits at least some of them don't. Another case pending before the Supreme Court, Snyder v. Doe, is an appeal of a 2016 decision in which the U.S. Court of Appeals for the 6th Circuit ruled that Michigan's Sex Offender Registration Act, ostensibly a form of civil regulation aimed at protecting public safety, is so punitive that its requirements cannot be applied retroactively without violating the constitutional ban on ex post facto laws. The 6th Circuit noted that the law "has grown into a byzantine code governing in minute detail the lives of the state's sex offenders," including onerous restrictions on where they may live, work, and "loiter." Like Minnesota's preventive detention, Michigan's restrictions are imposed without regard to the current threat posed by any given sex offender, and there is little evidence that they make recidivism less likely. If anything, the appeals court noted, the opposite seems to be true. The 6th Circuit also pointed out that claims of "frightening and high" recidivism rates among sex offenders, although endorsed by the Supreme Court, have little basis in fact. The original source of the estimate cited by the Court calls it "absolutely incorrect" and says he is "appalled" that it has played an important role in upholding laws aimed at sex offenders. The Michigan case gives the Supreme Court a chance to reconsider its reliance on bogus recidivism numbers as well as its conclusion that the punitive effects of registries are merely incidental. As the 6th Circuit noted, that position becomes increasingly hard to maintain as states heap additional burdens on registered sex offenders, making it impossible for them to live normal lives without making the public measurably safer. The Supreme Court has let fear of sex offenders, a despised minority that includes many people who pose no real danger to their fellow citizens, trump traditional concerns about due process and just punishment. By hearing the[...]

Congress Does Not Want Its War Power


The short-lived CBS series Brain Dead, now available on Netflix, is a science-fiction satire about an invasion of Washington, D.C., by extraterrestrial bugs that crawl into people's ears and hijack their minds as part of a plot to conquer the world. But the most implausible aspect of the story is a dramatic Senate committee vote on whether to authorize military action in Syria. In the real world, of course, no such vote is necessary, because the president does whatever he wants with the armed forces he controls while Congress abdicates its constitutional responsibility to decide when the country should go to war. Last week 61 senators showed they are happy with that situation by tabling an amendment that would have forced a debate about endless, metastasizing wars that cost trillions of dollars and thousands of lives without making Americans any safer. The amendment, introduced by Sen. Rand Paul (R-Ky.), would have repealed the 2001 authorization for the use of military force (AUMF) against the perpetrators of the 9/11 attacks and the 2002 resolution approving the war in Iraq. The repeal would have taken effect in six months, giving Congress time to consider the justification for continued U.S. military involvement in Afghanistan, Iraq, and the various other countries supposedly covered by those resolutions. "The war in Afghanistan has gone on 16 years now," Paul said before the vote on his amendment. "We have people who will be fighting in the war…in the next year or so who were not yet born on 9/11. We have long since killed the people who perpetrated 9/11." For years Donald Trump opposed what has become America's longest war, calling it "a total and complete disaster" that has "wasted an enormous amount of blood and treasure." After becoming president, he changed his mind, reaffirming the U.S. commitment to remain in a country where by his own account "we don't know what we are doing." But as far as 61 senators are concerned, there is nothing to debate here. Barack Obama said the 2001 AUMF should be repealed because it was dangerously obsolete. He nevertheless claimed it authorized military action against ISIS, which did not exist when the resolution was passed. Obama belatedly sought congressional permission for that war while insisting he did not need it. But as far as 61 senators are concerned, there is nothing to debate here. Paul notes that Congress never approved U.S. intervention in Libya, Syria, Yemen, Nigeria, or Somalia. As a presidential candidate, Trump criticized such ham-handed meddling in foreign civil wars. As president, not so much. But as far as 61 senators are concerned, there is nothing to debate here. Obama opposed the war in Iraq. So did Trump, although not until after it started. Even Hillary Clinton, who as a senator voted for the war, eventually conceded it was a mistake. "For years now," Paul noted last week, "some senators and candidates have lamented that they voted for the Iraq war." But as far as 61 senators are concerned, there is nothing to debate here. Those 61 senators include every Republican aside from Paul, Mike Lee (Utah), and Dean Heller (Nev.), who opposed tabling Paul's amendment, and Marco Rubio (Fla.), who did not vote. Opponents of the amendment also included 13 Democrats, several of whom have publicly questioned Trump's fitness for office. Sen. Claire McCaskill (D-Mo.) thinks Trump is a "buffoon." Sen. Sheldon Whitehouse (D-R.I.) says Trump is attacking "basic institutions of government…in unprecedented ways." Sen. Jeanne Shaheen (D-N.H.), who last year remarked that Trump "doesn't seem to know what's happening outside of Trump Tower," recently worried that he "tries to make national security policy or foreign policy through tweeting." In July a hot mic caught Sen. Jack Reed (D-R.I.) calling Trump "crazy." These senators view the president as ill-informed and reckless, if not mentally unbalanced. That they are nevertheless [...]

Should You Tell the Cops You Have a Gun?


(image) The fatal shooting of Philando Castile last year by a Minnesota police officer reinvigorated an old debate about how people who are licensed to carry a concealed weapon (CCW) should handle interactions with the cops. The officer, who was acquitted of manslaughter in June, panicked during a traffic stop after Castile, a CCW licensee, told him he was armed.

Some gun owners argue that disclosure is considerate and prudent, while others worry it will escalate a routine traffic stop into a tense, unpleasant, and possibly life-threatening encounter. But virtually everyone agrees it's important to know the relevant legal requirements, which vary from state to state.

If Democracy Is Doomed, Don’t Blame the Russians


A week before Hillary Clinton published her campaign memoir, Facebook seemed to validate her complaint that Vladimir Putin helped Donald Trump defeat her. But the social media platform's announcement about suspicious online political ads also highlighted common misconceptions about the nature of Russian attempts to influence the presidential election. We often hear that Russia "hacked the election," "attacked our democracy," or "undermined the integrity of our electoral process." Yet so far all the anti-Clinton efforts blamed on Russia amount to attempts at persuasion, as opposed to interference in the casting and counting of votes. Our democracy probably can survive a few more voices in the cacophony of competing claims, especially if we cultivate habits of skepticism and critical thinking. Facebook said it had identified about 3,000 political ads purchased by 470 or so "inauthentic accounts" that "likely operated out of Russia" between June 2015 and May 2017. The $100,000 spent on those ads was not even a drop in the bucket of Facebook's ad revenue, which totaled $27 billion last year. Russian propaganda did not represent a significant share of political discussion on Facebook either. In a report published last April, Facebook estimated that "information operations," defined as "actions taken by governments or organized non-state actors to distort domestic or foreign political sentiment," accounted for "less than one-tenth of a percent of the total reach of civic content" during last year's presidential campaign. Facebook has not released examples of the fishy ads, but it said "the vast majority…didn't specifically reference the US presidential election, voting or a particular candidate." Rather, "the ads and accounts appeared to focus on amplifying divisive social and political messages across the ideological spectrum—touching on topics from LGBT matters to race issues to immigration to gun rights." Fake accounts—opened by Russians pretending to be Americans, say—violate Facebook's terms of service. But foreign-sponsored online issue ads are permitted by U.S. campaign finance laws, provided they do not explicitly advocate a candidate's election or defeat. Not that Russian operatives are necessarily careful to obey U.S. law. Last year's hacking of embarrassing emails from the Democratic National Committee and from Clinton campaign chairman John Podesta, for instance, was clearly illegal (and rightly so). Those hacks nevertheless generated newsworthy and arguably relevant information, as unauthorized leaks often do. Clinton was not happy about the resulting news coverage, but that was precisely because she believed it would interest voters. Although Democrats suffered, it is not at all clear that democracy did. In the end, voters had to decide for themselves whether it mattered that officials at the supposedly neutral DNC plotted to undermine Bernie Sanders, Clinton's rival for the Democratic nomination. They had to assess the significance of excerpts from Clinton's secret Wall Street speeches and a CNN contributor's tips to her campaign about debate questions. Facebook users likewise were free to accept or reject the "divisive social and political messages" sent by online ads, regardless of who sponsored them. A speaker's nationality or motivation is logically irrelevant to the merits of what he has to say. That remains true when what he has to say is verifiably false. In a presidential race where both major-party candidates had trouble with the truth, the fact that their supporters also trafficked in lies did not create a novel challenge for voters, even when those supporters were not Americans or were employed by a foreign government. Facebook describes the ads placed by "inauthentic accounts" as "Russian interference in the electoral process." It promises to remain alert to such shenanigans because "we belie[...]

For Sex Offenders, Registration Is Punishment


The three men who challenged Colorado's Sex Offender Registration Act were sentenced to probation. Two of them also served 90 days in jail. Their real punishment began later, when they found that appearing in the state's online registry of sex offenders made it impossible to lead a normal life. Last week a federal judge recognized what anyone dealing with the burdens, obstacles, and dangers of life on the registry knows: Its punitive impact far outweighs any value it might have in protecting the public. In fact, U.S. District Judge Richard Matsch concluded, registration can violate the Eighth Amendment by imposing what amounts to cruel and unusual punishment. On the face of it, that judgment contradicts the 2003 decision in which the Supreme Court described Alaska's Sex Offender Registration Act as a "civil regulatory scheme" that only incidentally resulted in humiliation and ostracism. Since Alaska's statute was not punitive, the Court reasoned, it could be applied retroactively without violating the Constitution's ban on ex post facto laws. Matsch argues that "the justices did not foresee the ubiquitous influence of social media," the proliferation of commercial websites peddling information from sex offender registries, or the cheap scare stories that local news outlets would produce based on that information. Those developments have magnified the life-disrupting potential of registration, as illustrated by the experiences of the plaintiffs in this case. David Millard, who pleaded guilty to second-degree sexual assault on a minor in 1999, has been employed by the Albertsons grocery chain since 2003. His job was jeopardized after a customer saw his name and photo on a sex offender website. Millard was forced to move repeatedly after his status as a registered sex offender was revealed, once by police and once by a local TV station. The second time, he had to fill out about 200 rental applications before finding an apartment he could rent. Millard later bought a house in Denver, which is periodically visited by police officers seeking to verify his address. "If he is not home when they visit," Matsch notes, "they leave prominent, brightly colored 'registered sex offender' tags on his front door notifying him that he must contact the DPD." As you might imagine, this public shaming makes things more than a little awkward with the neighbors. Millard has experienced name calling and vandalism, and he worries that worse may be coming. "Because of the fear and anxiety about his safety in public," Matsch writes, "Mr. Millard does little more than go to work, isolating himself at his home." Eugene Knight was convicted of attempted sexual assault on a child in 2006 based on a crime he committed when he was 18. A "full-time father" because he has been unable to find work that pays well enough to cover the cost of child care, Knight is not allowed on school grounds to drop off his kids or attend school events. Arturo Vega, who pleaded guilty to third-degree sexual assault as a juvenile but is listed in Colorado's public database because he failed to comply with registration requirements he did not understand, has tried twice to get off the registry. Both times his petitions were rejected by magistrates who insisted he prove a negative: that he was not likely to commit another sexual offense. These men completed their sentences and have stayed out of trouble for years—almost two decades in Millard's case. But because of the registry, Matsch notes, they face "a known, real, and serious threat of retaliation, violence, ostracism, shaming, and other unfair and irrational treatment from the public…regardless of any threat to public safety based on an objective determination of their specific offenses, circumstances, and personal attributes." By forcing sex offenders into this precarious situation, Matsch [...]

Trump, Sheriff Joe, and the Thrill of Arbitrary Power


Three days before Donald Trump pardoned Joe Arpaio, he suggested that the former Maricopa County, Arizona, sheriff was "convicted for doing his job." In reality, Arpaio was convicted for doing someone else's job by enforcing federal immigration law. When a federal judge told him to cut it out, Arpaio openly defied the order. By giving a pass to Arpaio's criminal contempt, the president reveals the hollowness of his supposed commitment to law and order. Beginning in 2007, specially trained Maricopa County deputies had authority under Section 287(g) of the Immigration and Nationality Act to detain people they believed to be in the country illegally. But after Immigration and Customs Enforcement (ICE) revoked that authority in 2009, Arpaio's deputies could legally detain people only if they reasonably suspected they were involved in criminal activity, as opposed to a civil violation of federal immigration law. U.S. District Judge G. Murray Snow made that point clear in a 2011 preliminary injunction, ordering the Maricopa County Sheriff's Office (MCSO) to stop "detaining persons for further investigation without reasonable suspicion that a crime has been or is being committed." Responding to a lawsuit filed by the American Civil Liberties Union, Snow said "MCSO and all of its officers are hereby enjoined from detaining any person based only on knowledge or reasonable belief, without more, that the person is unlawfully present within the United States." It is clear that Arpaio understood the meaning of Snow's injunction. "If you just believe or you know that [someone] is in the country unlawfully," MCSO's lawyer explained to the sheriff, "you cannot detain him based on that alone. You either are to have an arrest based on state charges or you release. Those are the options." Arpaio, whose reputation, local popularity, and electoral success depended largely on his efforts to catch illegal immigrants, did not like those options. He therefore decided to ignore the injunction, and he made no secret of that decision. "I'm still going to arrest illegal aliens coming into this country," Arpaio said on PBS in 2012. "I'm going to continue to enforce state laws and federal laws," he told Fox News. "Nothing has changed," Arpaio told Univision. According to a 2012 MCSO press release, "Arpaio remains adamant about the fact that his office will continue to enforce both state and federal illegal immigration laws." The sheriff was true to his word. After Snow issued the preliminary injunction in December 2011 and before he made it permanent in May 2013, the MCSO's so-called Human Smuggling Unit (HSU) turned over to ICE 171 people who were not charged with a crime. It is not hard to see why another federal judge, Susan Bolton, concluded last month that Arpaio had "willfully violated" Snow's order, making him guilty of criminal contempt. He was scheduled to be sentenced in October until Trump's pardon let him off. Trump thinks Arpaio, an early supporter of his presidential campaign, is a "great law enforcement person" who "was treated unbelievably unfairly." The important thing for Trump is that Arpaio, like him, is "very strong on illegal immigration." A 2011 report from the Justice Department gives you a sense of what Arpaio's strength looked like in practice. Examining traffic stops by MCSO deputies, the DOJ found that Latino drivers were "four to nine times more likely to be stopped than similarly situated non-Latino drivers." According to the DOJ, about one-fifth of the HSU's reports on traffic stops, "almost all of which involved Latino drivers, contained information indicating that the stops were conducted in violation of the Fourth Amendment's prohibition against unreasonable seizures." Many of the people detained by Arpaio's deputies were, like the plaintiffs in the ACLU lawsuit, i[...]

Forfeiture Loot Corrupts Justice


In Ohio during the 1920s, people caught with "intoxicating liquors" could be tried by rural mayors, who were paid for each conviction and authorized to impose fines that were split between the village and the state. Four decades later, mayor's courts in Ohio were handling traffic cases, which did not reward the mayors directly but generated substantial income for their villages. According to the U.S. Supreme Court, both of these arrangements violated the right to due process, since the judges had a financial incentive to find people guilty. Civil asset forfeiture creates a similar problem, encouraging police and prosecutors to take property from innocent owners and turn a deaf ear to their objections. That is what happened to Rhonda Cox, whose pickup truck was seized in 2013 by Pinal County, Arizona, sheriff's deputies when they arrested her son for installing stolen parts in it. Cox argues that the forfeiture violated her right to due process, and last week a federal judge refused to dismiss her lawsuit, recognizing the constitutional concerns raised by a system that lets law enforcement agencies make money by confiscating assets they say are linked to crime. In Arizona, U.S. District Judge Diane Humetewa noted, the law enforcement agencies that initiate and complete a forfeiture get to keep all of the proceeds. Some agencies, such as the Arizona Department of Public Safety's bomb squad, SWAT team, and hazardous materials unit, are funded entirely by forfeitures, while others rely on them to pay for vehicles, equipment, overtime, retirement fund contributions, and image-building donations to local civic groups. According to Cox's complaint, Lando Voyles, who as Pinal County attorney approved the confiscation of her truck, even used forfeiture loot to pay for his home security system. This financial interest tends to make cops and prosecutors less than sympathetic to the rights of innocent property owners like Cox, who did not know her son had borrowed her truck, let alone that he was doing anything illegal with it. The deputies who took the truck said there was no way she'd ever get it back, and Voyles' office rejected her "petition for mitigation" out of hand, claiming (incorrectly) that she was not entitled to relief because she had purchased the truck for family use. Deputy Pinal County Attorney Craig Cameron also claimed, inconsistently, inaccurately, and irrelevantly, that Cox was a "straw buyer" for her son. "Rhonda was caught in a Kafkaesque predicament where, bizarrely, she bore the burden of proving that she was entitled to get the Truck back," her complaint notes. "The State did not have to prove that Rhonda did anything wrong—let alone criminal—in order to keep the Truck." Cox could not afford to take her challenge further, especially since the cost of a lawyer could easily have exceeded the $6,000 she paid for the truck. Under state law at the time, she also would have been on the hook for the government's legal expenses if she lost. The American Civil Liberties Union, which is representing Cox, notes that forfeitures in Pinal County frequently involve property worth less than $1,000, making legal challenges prohibitively expensive. That effectively means the agencies that stand to profit from a forfeiture are the first and final arbiters of whether it's justified. Even prosecutors understand the potential for corruption in this situation. A training presentation from the Arizona Prosecuting Attorneys Advisory Council, which Judge Humetewa quotes in her ruling, warns that "when your bosses can't find any money in their budget they get depressed," and "when they get depressed they tell you to start doing forfeiture cases." Playing off those jokey Direct TV ads about the hazards of cable, the downward spiral continues until c[...]

Trump’s Opioid Emergency Response


Last week Donald Trump promised to "spend a lot of time, a lot of effort, and a lot of money on the opioid crisis," which he declared a "national emergency." Judging from the president's campaign rhetoric and his comments since taking office, which have focused on building a border wall to "stop the drugs," much of that time, effort, and money will be devoted to erecting barriers between Americans and the intoxicants they want. That supply-side approach has been failing for more than a century, and it seems doubtful that Trump will be the man to finally make it work. But he may very well succeed in exacerbating the problem he is trying to solve. To understand how, consider recent trends in opioid use. Since 2010 or so, heroin use has been rising while nonmedical use of narcotic painkillers has been falling. Many of those new heroin users are former prescription opioid users driven to a black-market alternative by the government's crackdown on painkiller prescriptions. That switch exposed them to much higher risks. The U.S. Centers for Disease Control and Prevention (CDC) attributed 18,893 deaths to opioid analgesics in 2014. It attributed 10,574 to heroin, which was used by less than a tenth as many people. By that measure, heroin was more than five time as dangerous. "I used to take just the pills, and then I started doing dope, the heroin, only when I could get it, when it was cheaper," said an opioid user interviewed for a study recently reported in the International Journal of Drug Policy. "But I don't prefer it because you never know what you're getting. It's scary." In recent years the unpredictable potency of heroin has been magnified by increased adulteration with fentanyl, a synthetic narcotic that is roughly 40 times as potent. "Heroin fluctuation in purity is a known overdose risk," notes another study in the same journal, "and the presence of illicit synthetic opioids contaminating the heroin supply has led to a particularly erratic 'street dope' market that multiplies this risk." These two developments—novice heroin users accustomed to the reliable doses of prescription opioids, plus greater variability in potency thanks to more use of fentanyl and its analogues—may help explain the strikingly disproportionate increase in heroin-related deaths during the last decade. Between 2007 and 2015, the number of heroin users (as measured by the National Survey on Drug Use and Health) more than doubled, while heroin-related deaths more than quintupled, from about 2,400 to nearly 13,000. The government has contributed to these deaths in several ways. It created a black market in which drug users do not know what they are getting, encouraged traffickers to move toward increasingly compact and potent products (such as fentanyl), and reduced access to less dangerous alternatives (such as prescription painkillers). Carrie DeLone, Pennsylvania's former physician general, recently confessed that "we knew that this was going to be an issue, that we were going to push addicts in a direction that was going to be more deadly." Her justification: "You have to start somewhere." Why not start with policies that might save lives instead of killing people? In addition to lifting restrictions on buprenorphine-based treatment and increasing access to the overdose-reversing opioid antagonist naloxone, the government can shield bystanders from criminal charges when they call for help in response to an overdose, provide honest information about ways to reduce the hazards of drug use (such as not taking opioids in combination with other depressants), promote drug testing services that can alert heroin users to the presence of adulterants such as fentanyl, and tolerate safe injection facilities where people can use drugs in a san[...]

Sessions Stays Off the Grass


Attorney General Jeff Sessions has moved swiftly to encourage the use of mandatory minimum sentences and civil asset forfeiture, two major weapons of a war on drugs he seems bent on escalating. But six months after taking office, Sessions, despite his well-known anti-pot prejudices, has not challenged the legalization of marijuana in any serious way, and it is starting to look like he may never do so. Last week the Associated Press reported that an advisory panel Sessions charged with studying the issue "has come up with no new policy recommendations to advance the attorney general's aggressively anti-marijuana views." While that may seem surprising, there are sound practical and political reasons for Sessions to think twice before trying to shut down the state-licensed marijuana businesses that blatantly violate federal law every day. Sessions has made no secret of his displeasure at the ongoing collapse of marijuana prohibition. But so far his concerns have not resulted in any prosecutions, forfeitures, or even threatening letters. Nor has he tried to challenge state marijuana laws in federal court. Instead Sessions has been waiting for advice from the Justice Department's Task Force on Crime Reduction and Public Safety. According to the A.P., which obtained parts of the task force's unpublished interim report, that advice is "vague" and "tepid," recommending a wait-and-see approach little different from the Obama administration's. The report does say the Justice Department "should evaluate whether to maintain, revise or rescind" the 2013 memo from Deputy Attorney General James Cole that established a policy of prosecutorial restraint regarding state-legal cannabusinesses. But the task force does not advocate any of those options, and Sessions does not seem inclined to scrap the Cole memo, which he has called "truly valuable in evaluating cases." The memo leaves lots of leeway for more vigorous enforcement of the federal ban on marijuana. It lists eight "enforcement priorities" that could justify federal action against state-licensed marijuana producers and distributors, several of which are so ambitious (e.g., preventing marijuana from crossing state lines) or so broad (e.g., preventing "adverse public health consequences") that they could always be used as a pretext for prosecution. Sessions, who as a senator complained that the Obama administration was not taking the memo's conditions seriously enough, recently sent Washington Gov. Jay Inslee and Attorney General Bob Ferguson a letter asking how they plan to address several concerns related to the enforcement priorities, including interstate smuggling, stoned driving, and underage consumption. If he is not satisfied by their response, Sessions theoretically could take matters into his own hands, but a cannabis crackdown would not necessarily deliver results he likes. Since all but one of the eight states that have legalized marijuana for recreational use allow home cultivation, shutting down state-licensed cannabusinesses would undermine federal enforcement priorities by making production and distribution less visible and harder to monitor. So would a lawsuit that successfully challenged state licensing and regulation of marijuana merchants as contrary to the Controlled Substances Act. Sessions also may be reluctant to further irk a boss who has been publicly castigating him for weeks over his handling of the investigation into Russian meddling in the presidential election. While running for president, Donald Trump repeatedly said he favors allowing medical use of marijuana, as 29 states now do. Trump was less keen on legalizing recreational use but said the decision should be left to the states. Abandoning that commitment to mariju[...]

The FDA Warms to Vaping


On the face of it, the decision that the Food and Drug Administration (FDA) announced on Friday, extending by four years a crucial deadline for e-cigarette manufacturers to seek approval of their products, was no more than a stay of execution. But the FDA also signaled a new receptiveness to vaping as a harm-reducing alternative to smoking, which suggests this reprieve could turn into a commutation. That would be good news for smokers who want to quit and for anyone sincerely interested in helping them. For too long American public health officials have been unreasonably hostile to e-cigarettes, which are far less hazardous than the conventional kind and offer a closer simulation of the real thing than nicotine gum or patches do. Scott Gottlieb, the new FDA commissioner, seems to appreciate the public health potential of this innovation. "The overwhelming amount of death and disease attributable to tobacco is caused by addiction to cigarettes," he says. "Envisioning a world where cigarettes would no longer create or sustain addiction, and where adults who still need or want nicotine could get it from alternative and less harmful sources, needs to be the cornerstone of our efforts—and we believe it's vital that we pursue this common ground." Gottlieb's vision of nonaddictive cigarettes involves mandating a gradual reduction in nicotine content, which would increase the risks that smokers face by forcing them to absorb more toxins and carcinogens for the same dose of nicotine. But his interest in less dangerous alternatives to cigarettes is encouraging. The FDA says "a key piece" of its new approach is "demonstrating a greater awareness that nicotine—while highly addictive—is delivered through products that represent a continuum of risk and is most harmful when delivered through smoke particles in combustible cigarettes." The agency wants to strike "an appropriate balance between regulation and encouraging development of innovative tobacco products that may be less dangerous than cigarettes." Toward that end, the FDA is giving e-cigarette companies until August 8, 2022, to apply for permission to keep their products on the market under regulations published last year, rather than the original deadline of November 8, 2018. The agency says it will use the extra time to seek additional public comment and develop clearer guidance for the industry. The 2016 regulations require manufacturers of vaping equipment and e-liquids to demonstrate that approval of their products "would be appropriate for the protection of the public health." It is not clear what that means in practice, but the FDA projected that applications would cost hundreds of thousands of dollars per product, and many observers thought that was an underestimate. To give you a sense of how expensive and burdensome the process was expected to be, the FDA anticipated that it would receive applications for just a tiny percentage of existing products. The implication was that the regulations would drive the vast majority of companies out of business. If the FDA is serious about making "less harmful sources" of nicotine "the cornerstone of our efforts," it will develop transparent, straightforward, and practical criteria for approval of current and new vaping products. Standing between smokers and products that can save their lives is surely not "appropriate for the protection of the public health." Nor is making those products less appealing by arbitrarily restricting flavors. Since supposedly "kid-friendly" e-liquids are very popular among adults who switch from smoking to vaping, it's a bit worrisome that the FDA plans to solicit public comment on regulation of flavors, which it acknowledges may be "he[...]

Jeff Sessions Lets Cops Be Robbers


Donald Trump made two things abundantly clear during a meeting with county sheriffs last February: He did not know what civil asset forfeiture was, and he wanted to see more of it. The president will get his wish thanks to a directive issued last week by Attorney General Jeff Sessions, who has a clearer idea of what civil forfeiture entails but is only slightly more sensitive to its potential for abuse. That potential is built into the very concept of civil forfeiture, which allows police to take property allegedly tied to crime without charging the owner. Worse, law enforcement agencies get to keep revenue generated by forfeitures they initiate, which gives them a financial incentive to target people based on the assets they own rather than the threat they pose. In theory, the government can forfeit a seized asset only after proving it is a tool or fruit of crime, typically drug trafficking. But the burden of proof is much lighter than in a criminal case, and it applies only if the owner challenges the seizure in court, which often costs more than the asset is worth. Recognizing how easily innocent people can lose cash, cars, and homes to money-hungry cops, two dozen states and the District of Columbia have reformed their forfeiture laws since 2014. The changes include mandating data collection and reporting, strengthening standards of proof, and requiring a criminal conviction before some or all forfeitures. By reviving federal "adoption" of forfeitures initiated by state or local agencies, Sessions is offering cops who chafe at these restrictions the option of ignoring them. Adoption, which Attorney General Eric Holder mostly eliminated in 2015, lets police and prosecutors evade state limits on forfeiture and keep up to 80 percent of the proceeds. Seven states prohibit or restrict such circumvention. But in the rest, cops who do not like reforms aimed at protecting innocent property owners from legalized theft can once again easily dodge them with help from the Justice Department. Although Sessions pays lip service to the need for safeguards, he argues that innocent owners are rare. "Over the last decade," he says, "four out of five administrative civil asset forfeitures filed by federal law enforcement agencies were never challenged in court." According to Sessions, that means only a "small minority of cases" involve people whose property was seized for questionable reasons. But since challenging a forfeiture is difficult and may be prohibitively expensive, the failure to do so is hardly an admission of guilt. Sessions says a state or local agency seeking federal adoption of a forfeiture will have to provide "information demonstrating that the seizure was justified by probable cause." But in practice probable cause may be little more than a hunch—e.g., you've got a lot of cash, so you must be a drug dealer. And given the obstacles to recovering seized property, such vague, unsubstantiated suspicions may be all the government needs to keep it. The Fifth Amendment Integrity Restoration (FAIR) Act, reintroduced by Sen. Rand Paul (R-Ky.) in March, would withdraw Sessions' invitation to forfeiture abuse by abolishing federal adoption along with the rest of the Justice Department's so-called Equitable Sharing Program, which includes loot grabbed in the course of joint operations. The FAIR Act, which has bipartisan support, also would strengthen the standard of proof in federal forfeiture cases, require the government to show that the owner of seized property consented or was willfully blind to its illegal use, give indigent owners a right to counsel, and assign forfeiture revenue to the general fund instead of the Justice Department.[...]