Chicago Sun-Times: All posts by Jacob Sullum

Hunter Biden criminal case shows power of prosecutors to ‘coerce guilty pleas’

2023-12-14T17:28:21.423-06:00

Hunter Biden, son of President Joe Biden, talks to reporters outside the U.S. Capitol on Wednesday.

Kevin Dietsch/Getty

Under a plea deal that fell apart last July, Hunter Biden would have spent no time behind bars after admitting to illegally buying a gun and willfully failing to pay his income taxes. Now that Biden is forcing the government to prove its charges in court, he faces up to 42 years in federal prison.

The stark contrast between the punishment that special counsel David Weiss deemed appropriate in July and the punishment Biden could receive after going to trial reinforces Republican complaints the president’s son initially benefited from political favoritism.

But it also illustrates the enormous power prosecutors wield to coerce guilty pleas, which is so daunting that the Sixth Amendment right to trial by jury has become more theoretical than real.

In June, Weiss announced Biden would plead guilty to two misdemeanors involving his 2017 and 2018 taxes. In exchange, prosecutors would recommend probation and drop a felony gun charge after Biden successfully completed a two-year pretrial diversion program.

That deal disintegrated after a federal judge questioned some of its provisions, including an ambiguous promise of immunity from future prosecution. It was replaced by two indictments that multiplied the charges against Biden.

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Biden, who admits he was a crack cocaine user when he bought a revolver from a Wilmington, Delaware, gun shop in 2018, initially was charged with violating a statute that makes it a felony for “an unlawful user” of “any controlled substance” to receive or possess a firearm.

A Sept. 14 indictment added two more felonies based on the same transaction, both of which Biden allegedly committed by falsely denying illegal drug use when he bought the gun.

In addition to the two original tax charges, a Dec. 7 indictment includes four more misdemeanors involving late filing or late payment and three felonies: one count of tax evasion and two counts of filing a false return. The felonies are all related to Biden’s 2018 taxes, which were also the basis for one of the original misdemeanor charges.

A steep price if convicted

Weiss, in short, has not discovered new crimes so much as re-characterized conduct he knew about when he backed the agreement that would have allowed Biden to avoid incarceration. And Weiss has done that only because Biden decided he would exercise his constitutional right to trial.

If Biden is convicted, his sentences are apt to be substantially shorter than the statutory maximums. He nevertheless could pay a heavy penalty for declining to plead guilty, perhaps amounting to several years behind bars.

Biden is hardly unusual in that respect. According to a 2018 analysis by the National Association of Criminal Defense Lawyers, the average sentence for federal defendants who were convicted after trial was more than three times as long as the average sentence for defendants who pleaded guilty to similar crimes.

That “trial penalty” helps explain why, contrary to the impression left by movies and TV shows, criminal cases almost never go to trial. In the United States, nearly 98% of criminal convictions result from guilty pleas, which means the NACDL is not exaggerating when it says the Sixth Amendment right to trial is “on the verge of extinction.”

The pressure to plead guilty is so powerful that it can sway even the innocent. “A study of DNA exonerations conducted by the Innocence Project found that 11% of exonerated individuals had pleaded guilty,” an American Bar Association task force noted in a 2023 report.

You may have trouble sympathizing with Biden, who earned a fortune by trading on his father’s name and, according to last week’s indictment, “spent millions of dollars on an extravagant lifestyle rather than paying his tax bills.”

His case nevertheless exemplifies the broad prosecutorial discretion that has all but destroyed the venerable safeguard Thomas Jefferson called “the only anchor, ever yet imagined by man, by which a government can be held to the principles of its constitution.”

Jacob Sullum is a senior editor at Reason magazine.

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Justice Sandra Day O’Connor’s legacy includes 2 impactful dissents in 2005

2023-12-07T14:23:50.978-06:00

President Barack Obama presents the Presidential Medal of Freedom to Sandra Day O’Connor in 2009. O’Connor joined the Supreme Court in 1981 as the nation’s first female justice. She died Dec. 1.

AP file

The month before Justice Sandra Day O’Connor announced her retirement in 2005, she dissented from Supreme Court decisions in two cases that illustrated the twin perils of local tyranny and federal overreach.

O’Connor, who was appointed to the court by Ronald Reagan in 1981 and died Dec. 1 at 93, eloquently explained why property rights are especially important for people with little political influence and how state autonomy allows policy experiments that promote progressive as well as conservative goals.

In Kelo v. New London, nine owners of homes in that Connecticut city challenged the use of eminent domain to take their property in the name of economic development. The five-justice majority agreed with the city that transferring property from one private owner to another can qualify as “public use” under the Fifth Amendment’s Takings Clause when it is expected to create jobs and boost tax revenue.

O’Connor’s dissent began with a 1798 quote from Justice Samuel Chase, who cited “a law that takes property from A. and gives it to B” as an example of legislation that is “contrary to the great first principles of the social compact.”

Because the majority “abandons this long-held, basic limitation on government power,” O’Connor warned, “all private property is now vulnerable to being taken and transferred to another private owner” who plans to “use it in a way that the legislature deems more beneficial to the public.”

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As a result, “the specter of condemnation hangs over all property,” O’Connor wrote. “Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”

She added that “the beneficiaries are likely to be those citizens with disproportionate influence and power in the political process.”

While Kelo involved a constitutional limit on local power, Gonzales v. Raich involved a fundamental constraint on the federal government: It cannot exceed the powers specifically enumerated in the Constitution. Two Californians, Angel Raich and Diane Monson, argued that Congress had done that by purporting to criminalize their medical use of homegrown marijuana, which was allowed by state law but forbidden by the federal Controlled Substances Act.

Although Raich and Monson’s conduct was neither interstate nor commercial, the six justices in the majority nevertheless held that it could be reached under the power to regulate interstate commerce. “If the Court always defers to Congress as it does today,” O’Connor wrote in her dissent, “little may be left to the notion of enumerated powers.”

Protection from ‘excessive federal encroachment’

That principle, O’Connor noted, is crucial to protecting “historic spheres of state sovereignty from excessive federal encroachment” and preserving “the distribution of power fundamental to our federalist system of government.” That system, she emphasized, “promotes innovation” by allowing states to experiment with new policies that might prove worthy of emulation.

Although O’Connor was on the losing side in both of those cases, her positions were partly vindicated by subsequent political developments. The Kelo decision inspired many states to enact laws aimed at discouraging eminent domain abuse, and California’s experiment in marijuana reform has spread to three dozen states, most of which allow recreational as well as medical use.

Since 2014, congressional spending riders have barred the Justice Department from interfering with the implementation of state medical marijuana laws. And in practice, the department, under both Democratic and Republican administrations, also has tolerated state-licensed businesses that serve recreational consumers.

Still, the conflict between state and federal law at the center of Raich persists two decades later, continuing to handicap marijuana businesses by subjecting them to punitive taxation and limiting their access to financial services. And as George Mason law professor Ilya Somin notes, “Many states still have few constraints on eminent domain abuse.”

Respect for federalism and property rights, in short, remains largely aspirational. But O’Connor’s parting dissents at least pointed us in the right direction by explaining why these putatively conservative principles deserve a defense across the political spectrum.

Jacob Sullum is a senior editor at Reason magazine.

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Restrictions on vaping will stall efforts to curb cigarette use

2023-11-08T14:32:28.655-06:00

In this Aug. 28, 2019, file photo, a man exhales while smoking an e-cigarette in Portland, Maine.

Robert F. Bukaty/AP

Remember the “epidemic” of underage nicotine vaping? For years, activists, politicians and public health officials have been warning that a surge in e-cigarette use by teenagers would hook a generation of young people on nicotine and encourage them to smoke.

That never happened, as new federal survey data confirm. But policies adopted in response to that overblown threat continue to undermine the harm-reducing potential of vaping products by making them less attractive to current and former smokers.

According to the latest National Youth Tobacco Survey, which is overseen by the U.S. Centers for Disease Control and Prevention, 10% of high school students reported past-month e-cigarette use in 2023, down from 14% last year and more than 27% in 2019. Among middle school students, the 2023 rate was 4.6%, less than half the 2019 rate.

How many of those past-month vapers might reasonably be described as addicted to nicotine? A quarter of them — less than 2% of all respondents — reported vaping every day in the previous month, meaning that, as usual, the vast majority were occasional users.

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This does not look like an epidemic of nicotine addiction. Nor did the fear that vaping would lead to smoking pan out.

Even at the peak of underage vaping, the downward trend in adolescent smoking not only continued but accelerated. In the 2023 survey, less than 2% of high school students reported smoking cigarettes in the previous month — down from 16% in 2011 and (according to a survey of 10th- and 12th-graders) more than 30% in 1997.

The CDC describes vaping as “tobacco product use,” even though e-cigarettes do not contain tobacco, and lumps it in with smoking, even though it does not involve combustion. But while the CDC is loath to admit it, the shift from smoking to vaping — in any age group — is indisputably an improvement in terms of health risks.

The Food and Drug Administration acknowledges that vaping is far less hazardous than smoking, and it supposedly is committed to maintaining the availability of what it calls “electronic nicotine delivery systems” (ENDS) as a potentially life-saving alternative for cigarette smokers. Yet to deter underage use, the FDA has approved only tobacco-flavored ENDS, even though former smokers overwhelmingly prefer other flavors.

That policy makes ENDS less appealing to people who already have switched from smoking to vaping or might be interested in doing so. The results are predictable: A recent FDA-supported study of sales data from across the country found that state and local restrictions on ENDS flavors were associated with increased purchases of conventional cigarettes.

“We find that ENDS flavor policies reduce flavored ENDS sales as intended, but also increase cigarette sales across age groups,” the researchers reported. “As cigarettes are much more lethal than ENDS, the high rate of substitution estimated here suggests that, on net, any population health benefits of ENDS flavor policies are likely small or even negative.”

Although “flavored ENDS products remain widely available in states that do not prohibit their sales,” the study’s authors noted, the FDA seems to be “paving a path towards a de facto national ENDS flavor prohibition.” That policy, they said, entails an “inequitable tradeoff” because it “prioritizes youth over the 11.2% of US adults [who] smoke.”

Since the FDA has not made a serious effort to enforce its de facto ban against the thousands of suppliers who are theoretically violating it, adults can still purchase ENDS in a wide variety of flavors from vape shops, tobacconists and online vendors. Preserving those options for adults is consistent with efforts to reduce underage consumption, as the ongoing decline in adolescent vaping shows.

The flavor restrictions embraced by regulators and legislators threaten to harm public health in the name of protecting it. To save teenagers from an exaggerated danger, bureaucrats and politicians are sacrificing the interests, and perhaps the lives, of adult smokers across the country.

Jacob Sullum is a senior editor at Reason magazine.

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Republicans, Democrats both aim to restrict free speech on social media

2023-10-26T05:30:00-05:00

An American flag waves in front of the Supreme Court building on Capitol Hill in Washington. The court has agreed to hear cases that involve state and federal governments trying to shape private content moderation decisions.

Patrick Semansky/AP file

According to the Biden administration, federal officials who urged social media companies to suppress “misinformation” about COVID-19 and other subjects were merely asking platforms like Facebook and Twitter to enforce their own rules.

But according to the social media users whose speech was stifled as a result of that campaign, it crossed the line between permissible government advocacy and censorship by proxy.

The U.S. Supreme Court has agreed to resolve that dispute by deciding whether a federal judge and an appeals court were right to conclude the administration violated the First Amendment when it sought to limit the influence of content it viewed as dangerous. The case is one of several controversies that illustrate the bipartisan urge to control online speech.

Two other cases on the court’s docket involve Florida and Texas laws that, like the Biden administration’s anti-misinformation crusade, aimed to shape private content moderation decisions. While President Joe Biden demanded the removal of posts he thought social media companies should not allow, Republicans who backed the state laws insisted the platforms allow speech they otherwise might be inclined to remove.

A Democratic president was offended by conservative speech that contradicted his agenda. Republican legislators and governors, meanwhile, were angry at social media companies they perceived as biased against conservatives. Although those situations might look different, they raise the same basic issue.

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Should social media companies be free to set and enforce their own content rules, or should politicians have the power to override those decisions? The answer seems clear if you think the First Amendment protects editorial discretion, as the Supreme Court has repeatedly held.

New York wants ‘hateful’ speech policed

New York legislators rejected that proposition when they enacted a 2022 law that requires social media platforms to police “hateful” speech, which is indisputably protected by the First Amendment. A federal judge enjoined enforcement of that law in February, and New York is now asking the U.S. Court of Appeals for the 2nd Circuit to intervene.

While attempts to censor “hate speech” are mainly a Democratic thing, members of both major parties agree they should not have to put up with irksome criticism when they use their social media accounts for official purposes. Politicians ranging from former President Donald Trump to Rep. Alexandria Ocasio-Cortez, D-N.Y., have asserted the prerogative to block users whose opinions annoyed them.

That practice, the banished critics argued, violated their First Amendment right to participate in public forums created by thin-skinned government officials. In a 2019 case involving then-president Trump’s personal Twitter account, the 2nd Circuit agreed.

“Once the President has chosen a platform and opened up its interactive space to millions of users and participants,” the appeals court said, “he may not selectively exclude those whose views he disagrees with.” Although that case became moot after Trump left office, the underlying issue persisted, as reflected in two cases the Supreme Court will hear during its current term.

Another point of bipartisan agreement: When it comes to protecting the youth of America from online content that politicians think they should not see, the First Amendment goes out the window.

The Kids Online Safety Act, which a Senate committee unanimously approved in July, would impose an amorphous “duty of care” on interactive platforms, online games, messaging applications and streaming services, demanding “reasonable measures” to “protect” against and “mitigate” a long list of potential “harms” to users younger than 17.

That ambiguous mandate would be enforced by federal regulators and by state attorneys general with a wide range of views about which content is appropriate for minors. In practice, it would undermine the right to engage in anonymous speech and encourage restrictions on constitutionally protected content for adults as well as children.

That danger did not dissuade 46 Democrats and Republicans from co-sponsoring the Senate bill — further evidence that we cannot trust either party to respect freedom of speech. Although they sometimes differ on the details, they are united in believing that political imperatives trump constitutional guarantees.

Jacob Sullum is a senior editor at Reason magazine.

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Lawsuit against Black Lives Matter leader endangers free speech rights

2023-10-12T05:00:00-05:00

Demonstrators gather after marching at the Louisiana Capitol to protest the shooting of Alton Sterling on July 9, 2016 in Baton Rouge, Louisiana.

Mark Wallheiser/Getty Images

During a 2016 Black Lives Matter protest in Baton Rouge, Louisiana, someone picked up a rock or a piece of concrete and hurled it at police, striking an officer in the head. Although the assailant was never identified, we know it was not BLM leader DeRay Mckesson, who nevertheless faces a lawsuit that blames him for creating the circumstances that led to the officer’s injuries.

The U.S. Court of Appeals for the 5th Circuit allowed that lawsuit to proceed, rejecting Mckesson’s claim that it was inconsistent with the First Amendment. Mckesson, represented by the American Civil Liberties Union, is now asking the U.S. Supreme Court to intervene, and he makes a compelling case that such litigation threatens the protest rights of Americans across the political spectrum.

The BLM demonstration was prompted by the July 2016 death of Alton Sterling, a 37-year-old Black man who was shot six times during a struggle with two Baton Rouge police officers. Although federal and state investigations concluded that criminal charges against the officers were not warranted, a wrongful death lawsuit by Sterling’s family led to a $4.5 million settlement in 2021.

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The protest at the center of the civil case against Mckesson was staged outside the Baton Rouge Police Department four days after Sterling’s death. The injured officer, identified as John Doe in his original complaint and as John Ford in an amended complaint filed last August, suffered jaw, head and brain injuries.

Lawsuit says BLM leader showed negligence

Ford argues that Mckesson is responsible for those injuries because he negligently organized a protest that he should have known was apt to result in violence based on the experience with prior BLM demonstrations. According to the complaint, Mckesson also showed negligence by staging the protest in the street outside police headquarters, attempting to block traffic on a nearby highway, and failing to stop protesters from looting a convenience store, where some of them grabbed water bottles they later threw at police.

In a decision last June, a divided 5th Circuit panel deemed Ford’s allegations adequate to support a Louisiana tort claim and within the limits that the Supreme Court has imposed on protest leaders’ civil liability. But according to dissenting Judge Don Willett, that ruling misconstrued the Court’s 1982 decision in NAACP v. Claiborne Hardware Co., which said the First Amendment demands “precision of regulation” in addressing protests that combine constitutionally protected activity with threats or acts of violence.

The 1982 case involved a largely peaceful but sometimes violent boycott of white merchants in Claiborne County, Mississippi, that the NAACP launched in 1966. Unlike Mckesson, boycott organizer Charles Evers endorsed violence, saying, “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.”

Despite such rhetoric, the Supreme Court — which in 1969 ruled that even advocacy of criminal behavior is constitutionally protected unless it is both “directed” at “producing imminent lawless action” and “likely” to do so — concluded that holding Evers civilly liable for protest-related violence would violate the First Amendment. If that was true for Evers, Willett argued, it certainly should be true for Mckesson.

“Under Claiborne, Mckesson cannot be liable for violence unless he encouraged violence,” Willett wrote. “It is not enough that he encouraged or committed unlawful-but-nonviolent actions that preceded violence.”

Willett noted that Martin Luther King Jr.’s civil rights protests, including the 1965 Selma to Montgomery march, sometimes blocked traffic and sometimes were marred by violence. By the 5th Circuit’s logic, he suggested, King could have been held liable for that violence, even though, like Mckesson, he did not “direct” it.

Willett warned that “the novel ‘negligent protest’ theory of liability” endorsed by his colleagues would have a chilling effect on constitutionally protected activities and “reduce First Amendment protections for protest leaders to a phantasm, almost incapable of real-world effect.”

The Supreme Court has a chance to prevent that outcome by hearing Mckesson’s appeal.

Jacob Sullum is a senior editor at Reason magazine.

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Supreme Court needs to tell right-wingers Facebook has First Amendment rights.

2023-10-05T16:00:00-05:00

A smartphone displays Facebook and other apps. The Supreme Court will hear two cases dealing with the First Amendment rights of social media that Republicans say censor conservative views.

AP Photos

Social media companies argue that their content moderation decisions are a form of editorial discretion protected by the First Amendment. Conservative critics of those companies reject that argument, even as they complain that the platforms’ decisions reflect a progressive agenda.

That contradiction is at the heart of two cases that the Supreme Court recently agreed to hear, which involve constitutional challenges to state laws that aim to correct the bias that Republicans perceive. Although supporters of those laws claim they are defending freedom of speech, that argument hinges on a dangerous conflation of state and private action.

The 2021 Florida law at issue in Moody v. NetChoice requires social media platforms to host speech by any “candidate for office,” even when it violates their content rules. The law also says platforms may not limit the visibility of material “by or about” a political candidate and may not “censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast.”

The law does not cover relatively small, right-leaning platforms such as Gab, Parler, Rumble and Truth Social. It applies only to the largest platforms, such as X (formerly Twitter), Facebook and YouTube, which Republicans have long accused of discriminating against conservative speech.

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Florida politicians made it clear that they were trying to address that perceived imbalance. The bill’s legislative findings, which complain that Facebook et al. have “unfairly censored, shadow banned, deplatformed, and applied post-prioritization algorithms,” assert that the state has a “substantial interest in protecting its residents from inconsistent and unfair actions” by those platforms.

‘They will now be held accountable’

“If Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology,” Gov. Ron DeSantis declared upon signing the bill in May 2021, “they will now be held accountable.”

Lt. Gov. Jeanette Nunez said Florida was “tak(ing) back the virtual public square” from “big tech oligarchs” who were determined to “censor ... views that run contrary to their radical leftist narrative.”

Four months later, Texas Gov. Greg Abbott signed the law at issue in NetChoice v. Paxton, which says social media platforms may not “censor” speech based on “viewpoint” and defines censorship to include not just deletion but also any steps that make user-posted content less visible, accessible or lucrative. Like Florida’s statute, the Texas law is limited to the largest platforms, which Abbott said were trying to “silence conservative viewpoints and ideas,” adding, “It is now law that conservative viewpoints in Texas cannot be banned on social media.”

In May 2022, a panel of the U.S. Court of Appeals for the 11th Circuit unanimously ruled that the major provisions of Florida’s law probably violated the right to exercise editorial judgment, which the Supreme Court has recognized in diverse cases involving a Miami newspaper, an electric utility’s newsletter and a private organization’s St. Patrick’s Day parade. The 11th Circuit noted that “private actors have a First Amendment right to be ‘unfair’ — which is to say, a right to have and express their own points of view.”

A divided panel of the U.S. Court of Appeals for the 5th Circuit rejected that conclusion when it considered the Texas social media law later that year. Because they rely heavily on algorithms, do not review content before publication and take action against only a tiny percentage of messages, Judge Andrew Oldham said in the majority opinion, Facebook et al. “are nothing like” a newspaper.

Writing in dissent, Judge Leslie Southwick objected to that characterization. While “none of the precedents fit seamlessly,” Southwick said, a social media platform’s right to curate content is analogous to “the right of newspapers to control what they do and do not print.”

In arguing that the 5th Circuit got it right, DeSantis, Abbott and like-minded politicians assert that Facebook et al. are pursuing a left-wing agenda while simultaneously denying that the First Amendment protects their right to do so. The Supreme Court should not let them have it both ways.

Jacob Sullum is a senior editor at Reason magazine.

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Why Oregon is wrong to consider repeal of drug law reform

2023-09-28T02:21:00-05:00

A pile of Oxycodone pills displayed on a table, June 17, 2019. Oregon’s decriminalization of drug use has not led to a decrease in opioid deaths, but decriminalization is not the problem, Jacob Sullum writes.

AP Photos

Three years ago, 58% of Oregon voters approved Measure 110, a groundbreaking ballot initiative that eliminated criminal penalties for low-level possession of illegal drugs. Last week, a group called the Coalition to Fix and Improve Ballot Measure 110 proposed two versions of an initiative aimed at reversing that reform, and recent polling suggests most Oregonians are open to the idea.

There are two main reasons for that reversal of public opinion, neither of which goes to the heart of the moral and practical case for decriminalization. Oregonians are understandably troubled by the nuisances associated with public drug use, and they are dismayed that, despite Measure 110’s promise of more funding for treatment, opioid-related deaths have continued to increase.

The main idea behind Measure 110 was that consuming politically disfavored intoxicants should not be treated as a crime. Since drug use itself violates no one’s rights, it is hard to argue with that premise.

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Eliminating criminal penalties for drug possession, however, does not require tolerating conduct that offends, incommodes or alarms people who have an equal right to use sidewalks, parks and other taxpayer-funded facilities.

That problem — which many major cities face, regardless of whether they routinely arrest people for drug possession — is distinct from drug use per se, just as disorderly alcohol-related conduct is distinct from drinking per se.

The alcohol comparison is instructive in another way. Even during Prohibition, which banned the production and distribution of “intoxicating liquors,” drinking was not a crime. The situation created by Measure 110 is analogous, with all the dangers that criminalizing the drug supply entails.

Just as alcohol prohibition exposed drinkers to the potentially deadly hazards of bootleg booze, drug prohibition forces users to rely on black-market products of uncertain provenance and composition. Measure 110 did nothing to address that problem, which has led to record numbers of drug-related deaths across the country.

That trend was fostered by the proliferation of illicit fentanyl, a result of the economic incentives that prohibition creates, and by the government’s crackdown on pain medication, which drove non-medical users toward substitutes that are much more dangerous because their potency is highly variable and unpredictable.

It is therefore not surprising that opioid-related deaths kept rising after decriminalization in Oregon, which saw increases similar to those recorded in California and Washington, neighboring states where low-level possession remains a crime.

Advocates of recriminalization argue the threat of jail encourages drug users to enter treatment. But there are reasons to doubt that forcing “help” on people who do not want it is an effective way of resolving the social and psychological issues underlying life-disrupting drug habits.

According to a 2016 systematic review, “evidence does not, on the whole, suggest improved outcomes related to compulsory treatment approaches, with some studies suggesting potential harms.” The authors conclude that “given the potential for human rights abuses within compulsory treatment settings, non-compulsory treatment modalities should be prioritized by policymakers seeking to reduce drug-related harms.”

One danger of jailing noncompliant drug users is that incarceration raises the risk of a fatal overdose because forced abstinence reduces tolerance. According to a 2023 study, that risk is “markedly elevated” among people recently freed from prison, especially during the first two weeks after release.

Washington County District Attorney Kevin Barton, who supports recriminalization of drug use in Oregon, says he favors “mandatory diversion just like we have for drunk driving.” But drunk drivers have committed a crime that endangers other people, while Barton thinks drug users should be forced into treatment even when they have done nothing other than consume psychoactive substances that legislators have decided to ban.

Heavy drinkers are free to ruin their health and their lives as long as they do not injure or endanger others, and that was true even during Prohibition. But under the policy that Barton favors, all illegal drug users are equally subject to criminal penalties. Measure 110 rightly repudiated that morally indefensible distinction.

Jacob Sullum is a senior editor at Reason magazine.

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Trump’s newest defense in classified documents case is preposterous

2023-09-20T14:27:11.935-05:00

This image contained in a court filing by the Department of Justice on Aug. 30, 2022, and partially redacted by the source, shows a photo of documents seized during last year’s FBI search of former President Donald Trump’s Mar-a-Lago estate.

In May 2022, Donald Trump received a federal subpoena demanding all the documents with classification markings that remained in his possession at Mar-a-Lago. At that point, SiriusXM talk show host Megyn Kelly suggested in an interview with the former president last week, he was legally obligated to surrender those records.

“I know this,” Trump replied, then immediately corrected himself: “I don’t even know that, because I have the right to have those documents.” That startling response epitomized the lazy arrogance that Trump displayed in January 2021, when he removed thousands of presidential records from the White House, and during the ensuing year and a half, when he stubbornly resisted efforts to recover them.

In addition to 32 counts of willfully retaining national defense information, that pattern of defiance resulted in eight obstruction-related charges, which may pose the most serious threat to Trump’s continued freedom. While the other three indictments against Trump face formidable obstacles, including controversial legal interpretations, complicated narratives, and difficult questions of knowledge and intent, the story behind the documents case is relatively straightforward: Trump took a bunch of stuff that did not belong to him and refused to return it.

Trump disputes both parts of that story. Under the Presidential Records Act, he told Kelly, “I’m allowed to do what I wanna do” with government documents, classified or not.

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That is a counterintuitive reading of the statute, which says “the United States shall reserve and retain complete ownership, possession, and control of Presidential records.” Those records include all documents a president produces or sees in the course of his work, except for material “of a purely private or nonpublic character.”

As Trump noted in his interview with Kelly, that law was a response to “Richard Nixon, because he kept everything.” Yet Trump claims the law is no bar to his similar assertion of complete discretion over the fate of presidential records.

‘I’m allowed to have those documents’

Even if Trump had a credible argument to that effect, Kelly noted, that did not give him the right to defy a federal subpoena. If Justice Department officials had asked him for the classified material at Mar-a-Lago, Trump insisted, “I would have given it to them.”

But that is not what happened. Through his lawyers, Trump said he had complied with the subpoena by surrendering every responsive document. That was not true: During its Aug. 8 search of Mar-a-Lago, the FBI found 102 additional records marked as classified.

When Kelly pointed that out, Trump preposterously claimed, “I just don’t know the timing” of those events. “All I know is I’m allowed to have those documents,” he said.

Trump could claim he accidentally overlooked some documents with classification markings. But that defense would be complicated by conversations in which Trump reportedly suggested hiding the documents, his clandestine removal of file boxes from the storage room his lawyers searched, and his alleged attempt to cover up that cover-up by instructing his underlings to delete security camera footage.

Instead, Trump is suggesting he did not have to comply with a subpoena he claimed to be obeying. This does not seem like a winning legal strategy.

Kelly also asked Trump about the top-secret Defense Department document he allegedly waved around during a July 2021 meeting with two people working on his former chief of staff’s memoir. A recording shows that Trump said the “highly confidential” document contained “secret information,” adding that “as president, I could have declassified it,” but “now I can’t,” so “this is still a secret.”

Trump later told Fox News anchor Bret Baier “there was no document” — only press clippings. When Kelly asked him to reconcile that claim with what he said at the time, Trump replied, “I’m not going to talk about that, because that’s already been, I think, very substantiated, and there’s no problem with it.”

Trump told Kelly he plans to testify in his own defense. For his own sake, his lawyers should try to talk him out of that.

Jacob Sullum is a senior editor at Reason magazine.

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New Mexico governor’s unconstitutional gun edict shows dangers of ‘emergency powers’

2023-09-13T11:05:00-05:00

New Mexico Gov. Michelle Lujan Grisham speaks at the Arcosa Wind Towers, Aug. 9, 2023, in Belen, N.M. Grisham on Friday, Sept. 8, issued an emergency public health order that suspends the open and permitted concealed carry of firearms in Albuquerque for 30 days in the midst of a spate of gun violence.

Alex Brandon/AP

When New Mexico Gov. Michelle Lujan Grisham issued “a public health emergency order” that purportedly suspended the right to bear arms in Albuquerque and surrounding Bernalillo County last week, her justification was seemingly straightforward.

“I have emergency powers,” she told The New York Times. “Gun violence is an epidemic. Therefore, it’s an emergency.”

Grisham’s stunt was widely condemned as blatantly unconstitutional, even by some leading supporters of gun control. But her legal rationale also underlined the perils posed by the sweeping emergency powers that legislators in many states have granted governors — a problem that was abundantly clear during the COVID-19 pandemic.

Grisham, a Democrat, laid the ground for her ban on public possession of operable firearms last Thursday, when she declared that gun violence in New Mexico “constitutes a statewide public health emergency of unknown duration” under the state’s Public Health Emergency Response Act. That law defines a “public health emergency” as “an extremely dangerous condition or a highly infectious or toxic agent, including a threatening communicable disease, that poses an imminent threat of substantial harm.”

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Grisham also invoked New Mexico’s All Hazard Emergency Management Act, saying gun violence “constitutes a man-made disaster causing or threatening widespread physical or economic harm that is beyond local control.” In her gun order, which she issued the next day, Grisham asserted that violent crime is also “a condition of public health importance,” which New Mexico’s Public Health Act defines as “an infection, a disease, a syndrome, a symptom, an injury or other threat that is identifiable on an individual or community level and can reasonably be expected to lead to adverse health effects in the community.”

Those labels were meant to trigger the “emergency powers” that Grisham is claiming. The All Hazard Emergency Management Act, for example, says the governor may issue “necessary orders” to carry out its provisions, and it specifically authorizes the governor to “prohibit” the “possession of firearms or any other deadly weapon by a person in any place other than his place of residence or business, except for peace officers.”

Grisham relied heavily on these laws during the pandemic, when she issued many scientifically dubious edicts. In November 2020, for example, she banned outdoor activities and required New Mexicans to wear masks whenever they left their homes, which she said they should not do “unless it’s an emergency or for an essential need like food and water.”

Unlike gun violence, COVID-19 was a literal epidemic. But Grisham thinks both threats empower her to act like a dictator for however long she deems necessary. She repeatedly renewed her COVID-19 emergency orders, and she is threatening to do the same with her gun decree, which initially lasts for 30 days but can be renewed indefinitely.

It seems unlikely that the persistent, omnipresent threat of violent crime constitutes the sort of “emergency” that New Mexico legislators had in mind. But the more important point, repeatedly confirmed by state and federal courts, is that even properly defined emergencies do not nullify constitutional rights.

Two gun rights groups immediately challenged Grisham’s order in federal court, noting that it defies last year’s Supreme Court decision upholding the Second Amendment right to possess guns in public for self-defense. Albuquerque Police Chief Harold Medina and Bernalillo County Sheriff John Allen said they would not enforce the order, and two Republican state legislators said it was grounds for impeachment.

“I support gun safety laws,” Rep. Ted Lieu, D-Calif., said, but Grisham’s order “violates the U.S. Constitution,” and “there is no such thing as a state public health emergency exception to the U.S. Constitution.” Gun control activist David Hogg concurred.

Grisham admitted that her order was unlikely to pass legal muster and, even if it did, would not affect the behavior of criminals. But if it encourages legislators to reconsider the wisdom of letting governors rule by decree based on open-ended emergencies that they themselves declare, it will have served a useful purpose.

Jacob Sullum is a senior editor at Reason magazine.

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Marijuana reclassification won’t fix conflict between state, federal laws on pot

2023-09-06T14:00:00-05:00

Federal reclassification of pot would facilitate medical research and indirectly benefit state-licensed marijuana businesses, but it would leave federal prohibition essentially untouched, columnist Jacob Sullum writes.

Annie Costabile/Sun-Times file

For half a century, reformers have urged the Drug Enforcement Administration to reclassify marijuana, which since 1970 has been assigned to Schedule I of the Controlled Substances Act, the law’s most restrictive category. Although the DEA has always rejected that proposal, it could change course in light of a recent recommendation from the Department of Health and Human Services.

Last week, HHS recommended that the DEA move marijuana from Schedule I, which includes illegal drugs such as heroin, LSD, psilocybin and MDMA, to Schedule III, which includes prescription medications such as anabolic steroids and Tylenol with codeine. Although that reclassification would facilitate medical research and indirectly benefit state-licensed marijuana businesses, it would leave federal prohibition essentially untouched.

Schedule I supposedly is reserved for drugs with “a high potential for abuse” that have no recognized medical applications and are so dangerous that they cannot be used safely even under a doctor’s supervision. Marijuana’s Schedule I status never made much sense, and the justification for that designation has become steadily weaker over the years.

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Back in 1985, the Food and Drug Administration approved Marinol — a synthetic version of THC, marijuana’s main active ingredient — as a treatment for nausea and vomiting caused by cancer chemotherapy. The FDA later extended that approval to AIDS wasting syndrome, and five years ago it approved Epidiolex, which contains cannabis-derived CBD, as a treatment for two forms of severe, drug-resistant epilepsy.

Research indicates that marijuana is effective at relieving various symptoms, including neuropathic pain and muscle spasms as well as nausea and epileptic seizures. Based on such findings, 38 states allow medical use of cannabis.

It is therefore hard to defend the proposition that marijuana has “no currently accepted medical use,” as Schedule I requires. And since marijuana’s side effects compare favorably to those of many prescription drugs, the idea that it cannot be used safely “under medical supervision” — another Schedule I criterion — is also at odds with reality.

If the DEA, which has the final say on scheduling decisions, ultimately agrees with HHS, that decision would not authorize medical use of marijuana, which still would be limited to FDA-approved products legally available only by prescription. But rescheduling would facilitate medical research that could pave the way for FDA approval of cannabis-based medicines.

“The moment that a drug gets a Schedule I (designation), which is done in order to protect the public so that they don’t get exposed to it, it makes research much harder,” National Institute on Drug Abuse Director Nora Volkow, whose agency participated in the HHS review of marijuana’s classification, noted during congressional testimony in 2019. That designation, she explained, entails special regulatory requirements that deter scientists from studying marijuana’s therapeutic potential.

Pot users should not lose their gun rights

Moving cannabis to Schedule III would benefit marijuana suppliers as well as researchers. Because of an Internal Revenue Code provision aimed at drug traffickers, companies that sell Schedule I or Schedule II substances without federal authorization are barred from deducting standard business expenses when they pay income taxes — a huge financial burden that rescheduling would eliminate.

State-authorized marijuana merchants nevertheless would still be committing federal felonies every day because they would still be selling controlled substances without federal permission. And they still would have trouble obtaining financial services — an obstacle that fosters a heavy reliance on cash, which invites sometimes deadly robberies — because banks would still be leery of serving a federally illegal industry.

The most straightforward way to address these problems would be to completely “deschedule” marijuana instead of merely reclassifying it. That reform, which two-thirds of Americans favor, would treat marijuana like alcohol and tobacco, recreational intoxicants that are not considered “controlled” substances at all.

The HHS recommendation, which resulted from a review that President Joe Biden ordered last October, shows that Biden has come a long way since his days as a zealous drug warrior. Unfortunately, he has not come far enough to resolve the long-standing conflict between federal and state marijuana laws.

Jacob Sullum is a senior editor at Reason magazine.

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