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Published: Thu, 08 Dec 2016 00:00:00 -0500

Last Build Date: Thu, 08 Dec 2016 16:53:56 -0500


On His Way Out the Door, Obama Suggests Marijuana Should Be Legal

Wed, 30 Nov 2016 06:30:00 -0500

In a new interview with Rolling Stone, President Obama comes as close as he ever has to endorsing marijuana legalization, saying, "I am not somebody who believes that legalization is a panacea. But I do believe that treating this as a public-health issue, the same way we do with cigarettes or alcohol, is the much smarter way to deal with it." Tobacco and alcohol, of course, are not prohibited by state or federal law, so the implication is that marijuana shouldn't be either. But Obama apparently is waiting until he leaves office to say so explicitly: I will have the opportunity as a private citizen to describe where I think we need to go. But in light of these referenda passing, including in California, I've already said...that it is untenable over the long term for the Justice Department or the DEA to be enforcing a patchwork of laws, where something that's legal in one state could get you a 20-year prison sentence in another. So this is a debate that is now ripe, much in the same way that we ended up making progress on same-sex marriage. There's something to this whole states being laboratories of democracy and an evolutionary approach. You now have about a fifth of the country where this is legal. It sounds like Obama plans to push marijuana reform "as a private citizen." It's too bad he did not do more to advance the debate as president. To his credit, Obama has declined to interfere with legalization, saying "it's important" that states be free to try a different approach. He has conceded that marijuana is less hazardous than alcohol, to the consternation of old-timey drug warriors like the man Donald Trump has chosen to be his attorney general. Last year Obama even allowed that "if enough states end up decriminalizing, Congress may then reschedule marijuana"—a step he described as "progress." But he has resolutely refused to encourage such progress through administrative rescheduling or by urging Congress to accommodate state marijuana laws. Legislation making the national ban on marijuana inapplicable in states that have legalized it, as Rep. Dana Rohrabacher (R-Calif.) has proposed, would remove the threat of prosecution and forfeiture that hangs over state-licensed cannabis suppliers, give them unimpeded access to banking, and allow them to take the same tax deductions as any other business. Such legislation has the potential to attract support on the right as well as the left because it embodies the federalism that Republicans claim to revere. While Obama's endorsement would not have guaranteed passage, it would have elevated the issue, encouraged conservative constitutionalists to take a position, and left the cause of marijuana federalism in better shape to prevail under a new president who claims to support it but has chosen an attorney general who is dismayed by the ongoing collapse of pot prohibition. In Obama's view, he has done all that could reasonably have been expected. When Rolling Stone publisher Jann Wenner asks why he did not take a stronger position on marijuana legalization, Obama implies that it was not politically feasible: One of the things that I think it's important for progressives to do when we're in a reflective mode after an election like this is, we can't have it both ways. We can't say, "Why aren't you reaching out to the folks who voted against us? And by the way, why aren't you maximizing getting 100 percent for the things that those of us, you know, who are already progressive and living on the coasts think should be done right away?" The point is that politics in a big, diverse country like this requires us to move the ball forward not in one long Hail Mary to the end zone, but to, you know, systemically make progress. It is weird to portray marijuana reform as a cause that only "progressives" support when most Americans—60 percent, according to the latest Gallup poll—think marijuana should be legal and an even larger majority—including 70 percent of Republicans, according to a recent CBS News survey—think state decisions to legalize should be respected. Far from a po[...]

Is Trump's Pot Tolerance Fading?

Wed, 23 Nov 2016 00:01:00 -0500

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

Victories for Eight of Nine Marijuana Initiatives Hasten the Collapse of Prohibition

Wed, 09 Nov 2016 06:30:00 -0500

Donald Trump's defeat of Hillary Clinton was not the only big surprise produced by yesterday's elections. Even those of us who were rooting for the nine marijuana initiatives on state ballots this year did not expect so many of them to pass. Yesterday voters made marijuana legal for recreational use in four states (California, Maine, Massachusetts, and Nevada) and approved or expanded medical access in four more (Arkansas, Florida, Montana, and North Dakota). The only loss was in Arizona, where voters who very narrowly approved medical use in 2010 declined to take the further step of making marijuana legal just for fun. The margins of victory were also surprising. After falling short just two years ago, a constitutional amendment legalizing medical marijuana got 71 percent of the vote in Florida, 11 points more than the supermajority it needed. In California, where legalization lost by seven points in 2010, the yeas beat the nays by almost 12 points. The difference in Nevada was more than eight points, which was especially delightful in the home state of casino magnate Sheldon Adelson, who provided 97 percent of the $3.5 million raised by the opposition campaign and spent another $140 million on the Las Vegas Review-Journal, a longtime opponent of marijuana prohibition that switched sides under its new ownership. In North Dakota, where the last known survey on the question found that 47 percent of likely voters thought marijuana should be legal for medical use, an initiative allowing patients with "debilitating medical conditions" to obtain cannabis from "compassion centers" seemed like a good idea to 64 percent of the electorate. The consequences of this nearly complete sweep were dramatic. Prior to yesterday, four states with a combined population of 17 million (Alaska, Colorado, Oregon, and Washington) were willing to allow cannabis consumption without a doctor's note. Now the number of pot-tolerant states has doubled, while their population has nearly quadrupled and includes one in five Americans. The long overdue conversion of California, which by itself accounts for 12 percent of the country's population and 15 percent of its economic output, carries special political and cultural weight. We now have a continuous weed-friendly zone on the West Coast and the first two oases of tolerance in the East. Yesterday's elections also gave us the first two medical marijuana states in the South and increased the number of states with such laws from 25 to 28, meaning states that refuse to let patients have whatever relief cannabis can give them are now in the minority. These changes reflect growing popular support for legalizing marijuana, which according to Gallup hit a record level of 60 percent this year. That trend, in turn, reflects wide and growing familiarity with a plant that Americans generally have found to be much less scary than their government portrayed it. The next step is for that government to go beyond the uncertain forbearance the Obama administration has offered by actively accommodating states that have rejected marijuana prohibition. Among other things, that means changing federal law so that it no longer threatens or obstructs state-legal marijuana businesses, as legislators such as Rep. Dana Rohrabacher (R-Calif.) have been urging for years. President-Elect Trump (God help us) has suggested he is open to such accommodation. While personally frowning on legal pot (and disavowing his previous support for legalizing all drugs), Trump says marijuana policy "should be a state issue," which also happens to be what the Constitution requires. "Trump has clearly and repeatedly pledged to respect state marijuana laws," says Marijuana Majority Chairman Tom Angell, "and we fully expect him to follow through on those promises, not only because it is the right thing to do but also because these reforms are broadly supported by a growing majority of voters. Reversing course and going against the tide of history would present huge political problems that the new ad[...]

Evan McMullin on Federalism, Spending, War, Edward Snowden, and 'the Bigotry of Donald Trump'

Mon, 07 Nov 2016 09:30:00 -0500

In a just world, every left-leaning commentator who made a joke in 2012 about Mitt Romney's "binders full of women" would be teleported to Utah for the waning moments of Evan McMullin's Quixotic campaign to become the first third-party presidential candidate to win a state since George Wallace in 1968. There on the trail, from his hometown of Provo to Richfield to Cedar City, those who sneered at the atavistic gender values of Mormons would be startled to discover a 40-year-old candidate and his 36-year-old female vice presidential partner drawing enthusiastic applause for their repeated insistence that, contra the values embraced by Donald Trump, "all men and women are created equal." At a brisk rally Saturday night attended by around 250 people in the southwestern Utah city of St. George, McMullin and his running mate, Mindy Finn, repeatedly quoted and referenced the Declaration of Independence while stressing that their proposed "new conservative moment" would be centered on "liberty and equality." Along with a strong emphasis on states' rights—always a crowd-pleaser in a religiously idiosyncratic state in constant conflict with the federal government over land use—the McMullin/Finn defense of pluralistic values against the degradations of Trump was by far the biggest emphasis, dwarfing treatment of such issues as national security and abortion. "We should never have a religious test in this country," McMullin said from the stage, with a note of exasperation. "An attack on one an attack on all of us." Both candidates reserved some of their sharpest outrage for politicians who lacked the courage to defy Trump's collectivist vulgarity. "We need to stop relying on leaders that didn't have the courage to stand up for us," he said, in one of the biggest applause lines of the night. In their campaign RV after the speech, I caught up with McMullin and Finn to hear their sales pitch to voters skeptical of government power. While the conversation started with discussion of federalism, reforming entitlements, and more strictly interpreting the Commerce Clause of the Constitution, and continued into some perhaps-surprising territories of opposing bulk metadata collection and the Iraq War (the latter at least in retrospect), the subject kept returning to the intolerable outrages of a Trumpified GOP. "A lot of the people in the party, people like us, people who are gravitating toward our campaign," Finn said, "they don't want any part of a party that normalizes bigotry." McMullin and Finn are both Marco Rubio conservatives—each supported the Florida senator in the primaries, citing his positions on national security and inclusiveness. But they have a more circumspect approach toward government power than many of the Washington neoconservatives who have championed their campaign. Whether they have put themselves in position to influence a post-Trump Republican Party is still very much an open question, but compared to the statism of the major-party candidates, theirs is a welcome addition to a dreary if interesting political season. The following is an edited transcript of our conversation: Q: Make the positive case for you and your ticket, on liberty-movement grounds. Make the pitch to people who want to reduce the size and the scope of government. Evan McMullin: Well, Mindy and I are very committed to returning power to the states. We want to decrease the size of the federal government. You have to reform entitlement programs in order to do that. In 2014, I think, the federal government spent $3.7 trillion, and the states combined spent $1.4–1.5 trillion. It just shows you how lopsided state power versus federal power is. Q: It was amazing to me here...the extent to which that was about the most popular message. Has that been pretty consistent going through Utah? EM: Yeah, no, that's all across the state, that is consistent. And that's a great thing, because I do see it as that returning power to the states, shrinking the size o[...]

USDA Wrongly Targets Wyoming's Food Freedom Act

Sat, 08 Oct 2016 07:31:00 -0400

Earlier this week, in one of several related announcements, the USDA proudly declared that its MyPlate, MyState program, which the agency bills as "an effort to celebrate homegrown pride, foods and recipes and bring communities together around healthy eating," was entering a new phase. "Through MyPlate, MyState, USDA is working to make the connection between healthy eating and more than 160,000 farmers and ranchers nationwide that are selling into local markets through... farmers markets, farm stands and community supported agriculture (CSA) programs," reads an agency release the USDA emailed to me and others this week. You'd have to forgive some folks who sell their food at a small farmers market in Wyoming if this USDA self-promotion rings a bit hollow. That's because late last month, agents from the USDA's Food Safety Inspection Service (FSIS) showed up at a farmers market in Gillette, Wyoming, and ordered a food vendor at the market to destroy his food. Specifically, the FSIS agents ordered John Thompson, who makes Big John's Chili and sells it at the market, to dump out all of his jars of chicken green chili. Thompson complied, despite the fact the inspectors failed to respond to at least one request to identify themselves, and ordered at least one person at the farmers market who was taping the raid to cease filming, lest FSIS cite him for intimidating federal agents. What's the big deal with a guy selling jars of chili? In short, nothing. While details of the raid are still fuzzy, I'm not aware of any legal justification for the FSIS action. To be certain, if Thompson hadn't been selling the chili but had been donating it, or making it for friends to serve at home, or serving it at a church dinner, the USDA food-safety inspectors would never have gotten on their high horse and traveled (rumors say all the way from Colorado) to Wyoming. But because an impossibly small vendor decided to can and label the chili, it appears the USDA felt compelled to act. But that doesn't mean the agency had the authority to act. "In my opinion the FSIS didn't have the authority to inspect that food because it didn't involve interstate commerce," Wyoming State Rep. Tyler Lindholm told County 17, a local news site. He's right. While federal law doesn't empower FSIS to act as it did, it's also true that Wyoming state law protects Thompson's right to sell his chicken chili at a farmers market, thanks to the state's Food Freedom Act. State Rep. Lindholm knows a thing or two about the Wyoming Food Freedom Act. He co-sponsored the bi-partisan bill, which breezed through the state senate on its way to becoming law. It "allow[s] for the sale and consumption of homemade foods and to encourage the expansion of agricultural sales by farmers markets, ranches, farms and home based producers" who produce and sell food and drink agricultural products—including produce and poultry, but not pork, lamb, or beef—wholly within the state of Wyoming, and only for home consumption. The reason pork, lamb, and beef aren't sales aren't protected under the Wyoming law is that Congress, in the late1960s, prohibited the commercial sale of those meats unless they were processed in a USDA-inspected facility. In an older photo, one of the jars of Thompson's green chili appears to list pork as an ingredient. That could have raised agency red flags. Its sale wouldn't be protected under federal or state law. But the food the USDA forced Thompson to dispose of was chicken chili, not pork chili. I interviewed Lindholm in March 2015, shortly after the Food Freedom Act's passage. I also spoke with him this week. "Maybe they haven't read the Wyoming Food Freedom Act," Lindholm suggested in a video he posted on Facebook after learning of the recent USDA action. Lindholm is also perplexed by the agency's actions because they run counter to what the USDA told him as he was drafting the bill that became the Food Freedom Act. "A poultry producer could slaughter and p[...]

Why It’s So Hard to Stop Bad Cops From Getting New Police Jobs

Fri, 30 Sep 2016 13:00:00 -0400

Depending on the state you live in, you may be required to obtain an occupational license to become a plumber, an insurance agent, a hair braider, a manicurist, or even a racetrack employee. These licenses, which can take dozens or hundreds of hours of training to procure, afford privileged access to specific industries—and they can be revoked if certain standards aren't met. But in six states, the same standard isn't applied to one surprising profession: law enforcement. Massachusetts, New York, New Jersey, Rhode Island, California, and Hawaii employ 26 percent of this country's law enforcement officers, according to the Bureau of Justice Statistics. But they have no legal authority to revoke the licenses of cops who have been dismissed for misconduct. And even though the other 44 states can decertify police officers, there is no nationwide mechanism allowing every police department in the country to access an applicant's work history with out-of-state departments. This information gap allows officers banned from working as police in one state to secure law enforcement employment in another state. Police representatives would have you believe that "gypsy cops," as such officers are sometimes referred to, represent an overstated and barely existent threat at best. In March 2016, Ray McGrath, the legislative director of the International Brotherhood of Police Officers (IBPO)—one of the U.S.'s most prominent police unions—told members of the Massachusetts legislature, "It's not possible for an officer [fired for misconduct] to get another job in civil service," according to a state House reporter for Boston University. But bad cops can and do find work in law enforcement. Decertified police have repeatedly slipped through the cracks to find new jobs in the profession, often by moving to another state and applying to a department lacking the resources or manpower to do a thorough background check. Although some efforts to track police decertifications exist, they are scattered and fragmented, varying from state to state, with no unified national coordination. That's why police reform advocates have been pushing for the creation of a single, federally maintained database for more than 20 years. Police representatives like McGrath, however, have used their political influence to resist national tracking, referring to the perennially proposed solution of a national database as a "blacklist." At the same time, resistance to federal oversight of the country's police has roots in America's historical deference to local authority when it comes to policing—meaning that full compliance with such a project by the nation's 18,000 law enforcement agencies, scattered across state, county, and local jurisdictions, remains aspirational at best. Decertified Cops Can and Do Find New Jobs By Crossing State Lines It's harder than you might think for a cop to be stripped of his or her license: In 20 states a criminal conviction is required for an officer to be decertified. Even still, over 9,000 police officers did lose their licenses from 2009 to 2014. That's a lot of cops with stains on their records out there looking for work. And while opponents insist there's no need for a tracking system, because no agency worth its salt would hire a "bad cop," the history clearly shows that some of those bad cops are indeed able to find work after being stripped of their licenses. In 2008, Maywood, California, hired an interim chief who had previously pleaded no contest to "charging for bogus overtime," as The American Prospect put it. In 2011, another California town—McFarland—had three officers in its employ who had been dismissed from other departments for offenses that included driving drunk and crashing a police cruiser, lying to the FBI in an investigation over alleged child porn possession, and insurance fraud. But one notorious case from 1990 encapsulates the need to watch the watchers like no other[...]

7 Issues That Won’t Be Treated Seriously at Tonight’s Debate in Gary Johnson’s Absence

Mon, 26 Sep 2016 10:25:00 -0400

Tonight as many as 100 million Americans, God help us, will be tuning in to watch the first debate between the two most hated presidential nominees since pollsters have been measuring candidates' unfavorability. Because the Commission on Presidential Debates, a technically nonpartisan nonprofit that was co-founded in 1987 by the Democratic and Republican parties to manage the terms of televised general-election discourse between White House aspirants, decided last October (with details ratified this August) to maintain as a participation threshold the unreasonably high average of 15 percent in national polls—a level no third-party candidate has attained in September of an election year since 1968—that means Libertarian Party nominee Gary Johnson, the highest-polling presidential outsider since Ross Perot in 1992, will be live-Tweeting instead of live-debating. Which is a shame, and not just for those 8.5 percent of us who intend to vote for the guy. Having a debate with no Gary Johnson means that a whole host of pressing issues will not be treated seriously Monday night, and increasingly in the election itself. From fiscal sanity to free trade, foreign occupation to repealing prohibition, the Democratic and Republican candidates have abandoned sober policy-making in favor of centrally planned, government-aggrandizing promises that often flout their own parties' bases and traditions. In many important ways, there will be no adult on stage. The following is an incomplete list of at least seven issue areas in which sensible and frequently popular viewpoints will not be offered by either of the "major"-party presidential candidates tonight, because a contrary Libertarian who will be on the ballot in all 50 states will nonetheless sit excluded, 28 miles away. 1) The country's grim long-term fiscal outlook. "Nobody's talking about balancing the federal budget," Johnson said on ABC's This Week with George Stephanopoulos Sunday. "Nobody's talking about the threat of a runaway government, nobody's talking about reforming Medicaid or Medicare." This reticence to grapple with the America's perilous balance sheet is new, and actively dangerous. As I detail in Reason's October cover story, every State of the Union Address between 1997 and 2013 mentioned the need for long-term entitlement reform; but no more. And that's not because the situation has gotten any less dire. To the contrary. In July, the Congressional Budget Office (CBO) pointed out that publicly held debt is "growing larger in relation to the economy than ever recorded in U.S. history," and that debt service alone will eclipse military spending in the next president's first term. "Large and growing federal debt over the coming decades would hurt the economy and constrain future budget policy," the CBO warned. "The amount of debt that is projected…would reduce national saving and income in the long term; increase the government's interest costs, putting more pressure on the rest of the budget; limit lawmakers' ability to respond to unforeseen events; and increase the likelihood of a fiscal crisis." Yet Hillary Clinton wants to expand Social Security and reduce the age for Medicare opt-in eligibility to 55, in addition to passing "the biggest investment in new, good-paying jobs since World War II," making "college tuition free for the middle class and debt-free for all," liberating "millions of people who already have student debt," and helping "more people learn a skill or practice a trade and make a good living doing it." How the heck would she pay for expanding an already bloated and unaffordable government? "Here's how," she said in her Democratic National Convention speech. "Wall Street, corporations, and the super-rich are going to start paying their fair share of taxes." Donald Trump, to his credit, does talk about the "disastrous" national debt. To his discredit, however, Trump's economic plans are[...]

Democrats Strengthen Platform Language Supporting Marijuana Reform

Thu, 14 Jul 2016 08:48:00 -0400

(image) The Democratic Party's platform committee, which already had approved reform-friendly language on marijuana, strenghtened that plank over the weekend, adopting an amendment backed by Bernie Sanders delegates that recommends rescheduling the drug to provide "a reasoned pathway for future legalization." That stance seems like a compromise between the positions staked out by presumptive nominee Hillary Clinton, who says marijuana should be moved from Schedule I to Schedule II of the Controlled Substances Act (CSA) to facilitate research, and Sanders, who last fall became the first senator to introduce legislation that would repeal the federal ban on cannabis by removing the plant and its products from the CSA's schedules altogether.

The earlier platform language endorsed marijuana federalism and added, "We support policies that will allow more research on marijuana, as well as reforming our laws to allow legal marijuana businesses to exist without uncertainty." The new language says, "Because of conflicting laws concerning marijuana, both on the federal and state levels, we encourage the federal government to remove marijuana from its list as a Class 1 [sic] Federal Controlled Substance, providing a reasoned pathway for future legalization." Assuming that plank is in the final version of the platform, it will be the first time either major party has endorsed marijuana legalization, even as a distant prospect.

On Monday, meanwhile, the GOP platform committee rejected a much milder plank that voiced support for states that allow medical use of noncombustible marijuana products. The Huffington Post reports that one opponent of the language warned that mass murderers are "young boys from divorced families, and they're all smoking pot." Was that you, Roger Morgan?

Feds and South Carolina Both Want to Execute Dylann Roof

Wed, 25 May 2016 07:30:00 -0400

(image) Yesterday the Justice Department further illustrated the unconstitutional absurdity of the federal hate crime statute by announcing that it will seek the death penalty for Dylann Roof, the man charged with murdering nine people at a church in Charleston, South Carolina, last June. Roof already faces the death penalty if he is convicted in his state murder trial, which is scheduled to begin in January. Do the feds think he should be executed twice?

The federal prosecution is worse than pointless. In the unlikely event that Roof is acquitted by a South Carolina jury, he can be tried again in federal court. That looks an awful lot like double jeopardy, except that the Supreme Court has arbitrarily decreed that serial prosecutions for the same conduct in state and federal courts do not violate the Fifth Amendment.

Roof's bigoted beliefs figured into the rationale for prosecuting him under federal law and the decision to seek the death penalty. He is charged with selecting his victims "because of" their race, and his racist statements before and during the mass shooting count as evidence of that motivation. Explaining their decision to ask for the death penalty rather than life imprisonment, prosecutors cited nine aggravating factors, including the fact that Roof "expressed hatred and contempt towards African-Americans, as well as other groups, and his animosity towards African-Americans played a role in the murders charged in the indictment."

The upshot is that Roof, because of the opinions he has expressed, is more likely to be convicted (since prosecutors can try him again if he's acquitted the first time) and more likely to be executed for his crimes (since if state jurors reject the death penalty federal jurors might still approve it). The Supreme Court says enhancing criminal penalties based on the defendant's bigoted motivation does not amount to punishing him for his beliefs. The Supreme Court is wong.

In addition to the double jeopardy and First Amendment issues, federal prosecutions like this one usurp the powers reserved to the states by the 10th Amendment. Murder is and always has been a state crime, and South Carolina is perfectly capable of prosecuting Roof for it. There is no need or valid constitutional rationale for federal involvement, the justification for which hinges on a reading of the 13th Amendment that could generously be described as implausible.

The federal prosecution of Dylann Roof is not about justice, which South Carolina is already pursuing. Last summer The New York Times reported that "Justice Department and F.B.I. officials have said the Charleston shooting was so horrific and racially motivated that the federal government must address it." In other words, the DOJ is trampling on federalism, freedom of speech, and a basic principle of criminal justice in order to make a political statement.

Oklahoma and Nebraska Try to Revive Their Challenge to Legal Pot in Colorado

Tue, 26 Apr 2016 08:45:00 -0400

(image) Having failed to interest the U.S. Supreme Court in their challenge to marijuana legalization in Colorado, Oklahoma and Nebraska are trying to join a couple of other anti-pot lawsuits that are now before a federal appeals court. This month Oklahoma Attorney General Scott Pruitt and Nebraska Attorney General Doug Peterson asked the U.S. Court of Appeals for the 10th Circuit to let them intervene in cases brought by Pueblo County landowners and Colorado sheriffs.

The landowners, Michael and Hope Reilly, filed suit under the Racketeer Influenced and Corrupt Organizations (RICO) Act in February 2015, arguing that a marijuana cultivation facility that Rocky Mountain Organics planned to open on a parcel near their horse ranch in Rye will spoil the view, ruin their peace of mind, and bring undesirable odors and visitors. Last January, U.S. District Judge Robert Blackburn ruled that the Reillys could not use RICO to sue Gov. John Hickenlooper or the other state and local officials they named in their complaint. That decision left in place the couple's claims against Rocky Mountain Organics, the company's insurer, its landlords, and the contractors who are building the cultivation facility and piping water to it. 

Six Colorado sheriffs, joined by four sheriffs from Nebraska and Kansas, sued Hickenlooper in March 2015, arguing that Amendment 64, which legalized marijuana in Colorado, violates the Controlled Substances Act (CSA) and therefore the Supremacy Clause (which makes congressional legislation "the supreme law of the land"). Last February, U.S. District Judge Wiley Daniel dismissed the lawsuit, ruling that neither the CSA, the Supremacy Clause, nor the international drug control treaties cited by the sheriffs authorize private causes of action.

In a lawsuit that the Supreme Court last month declined to hear, Pruitt and Peterson made arguments similar to the sheriffs', claiming that Colorado's regulation of marijuana suppliers violates federal law and harms their states by increasing opportunities for smuggling. Now they are trying to vindicate the interests they described in their lawsuit by joining the appeals filed by the sheriffs and the Reillys. "Because the people of Nebraska and Oklahoma have determined that marijuana is harmful and should be illegal," they say in their appeals court brief, "Nebraska and Oklahoma have a duty to protect their citizens from the continuing harms resulting from Colorado's illegal activities." They argue that there is "an imperative reason for intervention," because otherwise the 10th Circuit "may effectively decide Nebraska and Oklahoma's claim before it has the chance of being litigated in front of any court."

Ted Cruz Reiterates His Support for Marijuana Federalism

Mon, 11 Apr 2016 09:39:00 -0400

(image) In two interviews on Saturday, Ted Cruz reiterated his support for marijuana federalism. "Personally," he told the ABC station in Denver, "I would vote against marijuana legalization. If the state of Texas had a referendum on it, I would vote no. But I think it is the prerogative of the states to make that determination. I think the people of Colorado have the right to make the decision that they've made under the Constitution, and as president I would respect that right."

Talking to The Denver Post the same day, Cruz explained the practical advantages of letting states go their own way. "It is an opportunity for the rest of the country to see what happens here in Colorado, what happens in Washington state, see the states implement the policies," he said. "If it works well, other states may choose to follow. If it doesn't work well, other states may choose not to follow." He said it was too early to say how legalization is going in Colorado.

Those comments comport with what Cruz said at last year's Conservative Political Action Conference. "I actually think this is a great embodiment of what Supreme Court Justice Louis Brandeis called 'the laboratories of democracy,'" he told Fox News host Sean Hannity. "If the citizens of Colorado decide they want to go down that road, that's their prerogative. I personally don't agree with it, but that's their right." That marked a turnaround from Cruz's stance a year before, when he was complaining that the Obama administration had abdicated its responsibility to enforce the federal marijuana ban in states that had legalized the drug.

Most of the major-party presidential candidates (including all of those who remain in the race) agreed with Cruz that the feds should not interfere with marijuana legalization in states such as Colorado and Washington. The most vigorous dissenter from that position, Chris Christie, never scored higher than 5 percent in national polls. After quitting the race in February, Christie endorsed Donald Trump, who like Cruz says states should be free to legalize pot. 

Anti-Pot Oklahoma Legislator Celebrates the Death of His State's Anti-Pot Lawsuit

Fri, 01 Apr 2016 10:28:00 -0400

In a Tulsa World op-ed piece published yesterday, Oklahoma legislator Mike Ritze, a conservative Republican, celebrates the Supreme Court's refusal to hear his state's lawsuit challenging marijuana legalization in neighboring Colorado. Ritze, who represents Broken Arrow in Oklahoma's House, was one of seven state legislators who complained about the lawsuit in a December 2014 letter to Attorney General Scott Pruitt. Ritze says he "firmly" opposes marijuana legalization. But unlike Pruitt, an avowed federalist, Ritze takes the 10th Amendment and the doctrine of enumerated powers seriously: The lawsuit essentially claimed that because a federal statute and a few U.N. treaties ban marijuana, Colorado has no choice but to not only accept prohibition, but to help enforce it. But that's simply wrong. First of all, the U.S. Constitution does not delegate any power to the federal government in this area. That is why alcohol prohibition in 1920 necessitated a properly ratified constitutional amendment to be adopted at the federal level. If the U.S. Constitution does not delegate any powers to the feds in the area of marijuana prohibition, and it doesn't, Washington, D.C., has no business ratifying international treaties or passing federal statutes acting as if it possessed those powers. The U.S. Constitution only says statutes and treaties created in pursuance with the Constitution are the supreme law of the land. Any power grabs undertaken in defiance of that Constitution are mere usurpations that states have a duty to nullify.... Secondly, even if those U.N. treaties and federal statutes were constitutional, the U.S. Constitution does not allow the federal government to compel a state to criminalize something. Nor can the federal government commandeer state or local government resources in pursuit of its own policy agendas. Although Pruitt did not claim that the Supremacy Clause requires Colorado to recriminalize the cultivation, possession, and sale of marijuana, he argued that the state's licensing and regulation of commercial production and distribution conflicts with the Controlled Substances Act and harms Oklahoma because some Colorado cannabis ends up there. If he had gotten his way, the result could have been a free, unregulated market in marijuana, which libertarians might celebrate but pot prohibitionists like Pruitt presumably would not. Still, Ritze is right that Pruitt wanted the Supreme Court to override Colorado's laws because he thought they made it harder for Oklahoma and the federal government to enforce their bans on marijuana. Note that Ritze does not merely object that such an imposition would violate the state autonomy recognized by the 10th Amendment. He also argues (correctly) that the Constitution does not authorize Congress to ban marijuana to begin with, just as it did not authorize Congress to ban alcohol until the ratification of the 18th Amendment in 1919. In his 2014 letter to Pruitt, Ritze noted that the Controlled Substances Act rests on a reading of the power to regulate interstate commerce that the Supreme Court developed in the late 1930s and early '40s—a reading so broad that it allows Congress to do pretty much anything it wants, as long as it is not explicitly forbidden by the Constitution. Fair-weather federalists like Pruitt reject that understanding of the Commerce Clause in the context of Obamacare and other policies they do not like but embrace it when it's convenient.[...]

On Marijuana Legalization, Chris Matthews Sounds Dumber Than Donald Trump

Fri, 01 Apr 2016 07:30:00 -0400

(image) During his "town hall" with MSNBC's Chris Matthews on Wednesday, Donald Trump said "I'm getting some very negative reports" about the consequences of marijuana legalization in Colorado. He did not get more specific than that, except to suggest that "there's a lasting negative impact" if "you do too much of it."

Trump said something similar at the Conservative Political Action Conference last year, claiming that legalization has led to "some big problems" in Colorado. But he also said states should be free to legalize marijuana: "If they vote for it, they vote for it." Trump reiterated his support for marijuana federalism while campaigning in Nevada last October. "In terms of marijuana and legalization," he said, "I think that should be a state issue, state by state."

The dumbest comments about marijuana legalization on Wednesday actually came not from Trump but from Matthews:

What are the problems you've heard about Colorado? Because a lot of people wonder about who do you want smoking dope. I mean, do you want your train conductor, the bus driver, the airplane pilot? No. What do you want? Maybe the guy who teaches philosophy might be OK.

I mean—I mean does anybody trust anybody that's high to do anything? I mean, I'm serious about this....

Recreational drugs. What's that mean?

Matthews mentioned stoned train conductors, bus drivers, and airplane pilots but somehow left out stoned brain surgeons, another favorite prohibitionist trope. Like most drug warriors, he seems to think that if the government stops putting people in jail for growing, selling, and using marijuana, everyone will be high all the time. That expectation was clearly absurd even before any jurisdiction legalized marijuana (is everyone drunk all the time because alcohol prohibition was repealed?), and it's demonstrably false now. So contrary to what Matthews says, he is not at all serious about this.

Maybe this is one of the "very negative reports" Trump had in mind.

[via Westword]

SCOTUS Turns Away Oklahoma and Nebraska's Challenge to Legal Pot in Colorado

Mon, 21 Mar 2016 12:10:00 -0400

(image) Today the Supreme Court declined to hear Oklahoma and Nebraska's challenge to marijuana legalization in neighboring Colorado, which they say harms them through interstate smuggling. They argued that legalization in Colorado had "a direct and significant detrimental impact" on them by forcing "the diversion of limited manpower and resources to arrest and process suspected and convicted felons involved in the increased illegal marijuana trafficking or transportation." The Obama administration had urged the Court to reject Oklahoma and Nebraska's petition, saying their beef did not amount to a bona fide interstate controversy, since it grew out of lawbreaking that was neither directed nor approved by Colorado.

Oklahoma and Nebraska argued that Colorado's licensing, regulation, and taxation of marijuana growers and distributors violates the Controlled Substances Act (CSA) and therefore the Supremacy Clause, which makes federal statutes "the supreme law of the land." Colorado argued that it is acting well within the leeway that states enjoy under the Constitution and that its tolerance of heretofore criminal behavior does not create a "positive conflict" with federal law, as required for pre-emption under the CSA.

Justice Clarence Thomas, joined by Samuel Alito, dissented from the Court's decision not to hear the lawsuit. "The complaint, on its face, presents a 'controvers[y] between two or more States' that this Court alone has authority to adjudicate," he writes. "The plaintiff States have alleged significant harms to their sovereign interests caused by another State. Whatever the merit of the plaintiff States' claims, we should let this complaint proceed further rather than denying leave without so much as a word of explanation."

Marijuana Majority's Tom Angell welcomed the Court's decision, saying it avoids what could have been "a dark shadow on the marijuana ballot measures voters will consider this November" by allowing states to "move forward with implementing voter-approved legalization laws even if their neighbors don't like it." He adds that "if officials in Nebraska and Oklahoma are upset about how much time and resources their police are spending on marijuana cases, as they said in their briefs, they should join Colorado in replacing prohibition with legalization."

Scalia on Drugs

Mon, 22 Feb 2016 00:01:00 -0500

In 1989 the U.S. Supreme Court upheld urine testing of applicants for Customs Service jobs that involved carrying a gun, handling classified material, or participating in drug interdiction. Justice Antonin Scalia dissented, calling the urinalysis program an "immolation of privacy and human dignity in symbolic opposition to drug use." Scalia noted that the Customs Service policy required people to perform "an excretory function traditionally shielded by great privacy" while a monitor stood by, listening for "the normal sounds," after which "the excretion so produced [would] be turned over to the Government for chemical analysis." He deemed this "a type of search particularly destructive of privacy and offensive to personal dignity." Six years later, Scalia considered a case involving much the same procedure, this time imposed on randomly selected athletes at a public high school. Writing for the majority, he said "the privacy interests compromised by the process of obtaining the urine sample are in our view negligible." Scalia deemed the testing program reasonable, noting the importance of "deterring drug use by our Nation's schoolchildren." As those contrasting cases illustrate, Scalia was of two minds when confronted by the government's efforts to suppress consumption of arbitrarily proscribed intoxicants. The widely revered and reviled justice, who died on February 13, was appointed to the Supreme Court four years after Ronald Reagan declared his War on Drugs and Nancy Reagan launched her "Just Say No" campaign. During the next three decades, Scalia alternately cheered and criticized the vain crusade to achieve a "drug-free society." While he never questioned the goal, he questioned the means used to reach it more often than his critics on the left might think. For many years enforcement of drug prohibition has been the main factor undermining the Fourth Amendment's ban on "unreasonable searches and seizures." Scalia participated in that process, joining his colleagues in upholding invasive tactics such as flying low over private property in search of marijuana plants, searching bus passengers' bags based on consent that was clearly not freely given, and testing the urine of high school students participating in sports or any other extracurricular activities. But Scalia also resisted drug warriors' assaults on the Fourth Amendment. Writing for the majority in the 2001 case Kyllo v. United States, Scalia said police need a warrant to examine a house with infrared technology, looking for heat patterns indicative of indoor marijuana cultivation. In addition to evidence of illegal activity, he observed, such surveillance "might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath—a detail that many would consider 'intimate.'" While "it would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology," Scalia wrote, "the question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy….Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant." In the 2012 case United States v. Jones, Scalia likewise concluded that police need a warrant to track the movements of a suspected cocaine dealer by attaching a GPS device to his car. "The Government physically occupied private property [i.e., the[...]