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February 8, 2014

"On drug sentencing, a growing number of Republicans are ready to shed the party’s law-and-order image in favor of reform"

Jeff FlakeThe title of this post is part of the headline of this notable new Slate piece.  Among other astute points, this piece highlights the generational differences between the members of the GOP who continue to embrace tough (and big) federal criminal justice approaches and other GOP members now embracing reform efforts. Here are excerpts:

“As Christians, we believe in forgiveness,” said [Senator Rand] Paul [in his keynote at the annual American Principles Project conference]. “I think the criminal justice system should have some element of forgiveness.”  There are, sure, human terrors who need to be locked up. “But there are also people who make youthful mistakes who I believe deserve a second chance. In my state, you never vote again if you’re convicted of a felony. But a felony could be growing marijuana plants in college. Friend of mine’s brother did 30 years ago. He has an MBA. But he can’t vote, can’t own a gun, and he’s a house-painter with an MBA, because he has to check a box saying he’s a convicted felon.”

Paul’s audience, consisting of social conservatives, congressional candidates, and radio hosts, listened or nodded along. “These are ideas not many Republicans have talked about before,” Paul said. “I think if we talk about these ideas, we take them to the minority community, often the African-American and sometimes the Hispanic community — 3 out of 4 people in prison are black and brown! But if you look at surveys on who uses drugs, whites and blacks and Hispanic use at about the same rate.  You don’t have as good an attorney if you don’t have money.  Some of the prosecution has tended to go where it’s easier to prosecute people.”

The crowd stayed with him. “I think these are things we should look at. I’m not talking about legalization. I’m talking about making the criminal justice system fair and giving people a second chance if they served their time,” Paul said.

That line earned a long burst of applause.  Paul was in no danger of losing this crowd. Conservatives were ready to talk about lighter sentences for some criminals and for the restoration of felons’ rights.  Just one week earlier, the Senate Judiciary Committee had approved the Smarter Sentencing Act, co-sponsored by Illinois Sen. Dick Durbin and Utah Sen. Mike Lee.  If signed by the president, it would slash the 30-year-old mandatory minimums for drug crimes.  Ten-year sentences would become five-year sentences.  Five-year sentences would shrink to two years.

Every Democrat had voted “aye” — as had three of the committee’s eight Republicans. The bill isn’t as far-reaching as Paul’s own Justice Safety Valve bill, but it’s moving, and there’s already companion legislation waiting in the House.  The most partisan Congress in anybody’s memory may actually come together to go easier on nonviolent drug offenders....  The U.S. Sentencing Commission, which is being heavily lobbied to change standards, now consists mostly of Obama appointees.  Even the conservative appointees like William H. Pryor Jr., whose judicial nomination was filibustered by Democrats for two years, are advocates for reform.

This is more than a trend. This is a reversal of a trend that helped create the modern Republican Party. After bottoming out in the 1964 election, Republicans surged back in 1966 and won the presidency in 1968.  They cracked the old Democratic coalition, in part because rising crime rates and visions of urban riots sent voters sprinting away from liberalism....

For three more decades, Republicans could win tight elections by capitalizing on the fear of crime.  Democrats met them where they could, to neutralize the issue, because to be called “soft on crime” was to be exiled with Michael Dukakis.  As recently as 2012, a pro-Mitt Romney super PAC could dunk on Rick Santorum by warning voters that the senator “voted to let convicted felons vote.”...

Arizona Sen. Jeff Flake, one of the Judiciary Committee members who voted for the sentencing reform bill, acknowledged that the GOP had long been the “law and order” party.  “But we’ve also been the rational party,” he said. “We’ve been the party of fiscal discipline.  It’s tough to justify some of these incarcerations and the cost.  I understand the argument that it gives law enforcement another card to play, plea bargains — I understand that.  But we’ve gone too far.”

In the Judiciary Committee, the average age of the Republicans who voted for reform —Sens. Ted Cruz, Jeff Flake, and Mike Lee — was 45.  The average age of the Republicans who voted no — Sens. John Cornyn, Lindsey Graham, Chuck Grassley, Orrin Hatch, and Jeff Sessions — was 69.  The elder Republicans didn’t want to patronize the new class and didn’t doubt that, in Sessions’s words, “there are some areas where we could reduce the length of incarceration without adversely impacting crime rates.”  But they remembered the bad old days, and the young guys didn’t....

Idaho Rep. Raul Labrador, age 46, sponsored the House companion to the Durbin-Lee reform bill.  He was an immigration lawyer before he entered politics.  “I spent 15 years working in the criminal defense business and seeing people, nonviolent offenders, going to prison,” he explained.  “Then, when I was in the state legislature, I was seeing these budgets continue to grow.  In federal court, you can know a drug dealer, and just the fact that you knew he was about to make a deal, you’d be charged with the entire conspiracy. You’d have a person who was a low-level offender who really had no participation in the conspiracy, and he’d be charged with everything the top trafficker was charged with.  And I don’t think that’s right.  Our Founding Fathers wanted to make it difficult for people to be prosecuted.”

And here’s one of the paradoxes of the new Republican divide. The older class, hewing to law and order, points to the nightmares of the 1970s and 1980s. This isn’t a theoretical discussion. It’s about undoing minimums and social norms that have, sure, generated some awful stories but have played at least some role in plunging crime rates.  “I think the president made a big mistake when he spoke cavalierly about drug use,” said Sessions. “There’s a national effort that saw drug use by high school seniors go from over 50 percent to under 25 percent.  The more we talk about it, the more it goes on television, the more it goes on jokesters’ programs, you’re going to see young people use drugs more.”

The new Republicans, people like Paul, have their own anecdotes, about people their own age — about themselves. Then they skip past the law-and-order era, 200 years back, to the intent of the founders.  Here is a cause whose time should have come many, many years ago.

Some recent and older related posts:

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Comments

Bad news for certain folks who frequent this blog.

Posted by: anon14 | Feb 8, 2014 11:52:24 AM

anon14 --

But good news for drug pushers. And it is drug dealers, isn't it, who will be the most immediate and direct beneficiaries of the SSA? No?

Posted by: Bill Otis | Feb 8, 2014 1:31:22 PM

"The elder Republicans didn’t want to patronize the new class and didn’t doubt that, in Sessions’s words, “there are some areas where we could reduce the length of incarceration without adversely impacting crime rates.” But they remembered the bad old days, and the young guys didn’t...."

Which reminds me of the story of the villagers and the elephants.

There was a village getting constantly overrun by elephants. After a while, the villagers had enough of this, and decided to build a high stone wall around the village. The stones were heavy, ugly, cost a lot, and it took a long time and a lot of labor to build them into a wall. But when the wall was built, lo and behold, it worked. There were no more elephant rampages through the village.

A generation later, the new chief, a younger fellow, called a meeting of village residents. He eagerly proposed to take down the wall, and use the stones for compassionate purposes like schools and playgrounds.

One of the elders, a fellow who had helped build the wall, got up and said, "But what about the elephants?" Whereupon the young chief smilingly replied, "I don't know what you're talking about. We haven't had an elephant problem for years."

Posted by: Bill Otis | Feb 8, 2014 1:36:06 PM

There was a village getting constantly overrun by elephants. After a while, the villagers had enough of this, and decided to build a high stone wall around the village. The stones were heavy, ugly, cost a lot, and it took a long time and a lot of labor to build them into a wall. But when the wall was built, lo and behold, it worked. There were no more elephant rampages through the village.

A generation later, the new chief, a younger fellow, called a meeting of village residents. He eagerly proposed to take down the wall, and use the stones for compassionate purposes like schools and playgrounds.

One of the old farts, a fellow who had helped build the wall, got up and said, "But what is that you are smoking?" Whereupon the crowd got their pitchforks and forced the young chief outside the walls, where he was trampled by the elephants. The young chief's son saw this and decided when he was chief he would build a wall to keep all the old farts out. And that is the origin of "Never trust anyone over 30."

Posted by: George | Feb 8, 2014 2:10:34 PM

George wonderfully exemplifies the problem with the "thinking" of those who back the SSA: They believe that people with memories, and not rampaging elephants, are what the village needs to worry about.

Posted by: Bill Otis | Feb 8, 2014 2:25:47 PM

"George wonderfully exemplifies the problem with the "thinking" of those who back the SSA: They believe that people with memories, and not rampaging elephants, are what the village needs to worry about."

I do not understand this parable as applied to sentencing reform. I also do not know why thinking is in quotation marks.

There are members in Congress, of all ages, that support sentencing reform. If I am wrong on this, please let me know Mr. Otis.

Posted by: justin eisele | Feb 8, 2014 3:21:36 PM

The irony/hypocrisy of these old guard Republicans claiming they are all for small government is profound.

Look at Scalia's result-driven and expansive application of the Commerce Clause in his concurring opinion in Gonzales v. Raich, 545 U.S. 1 (2005).

Listen to the audio of Ken Starr's remarks in oral argument in Morse v. Frederick, 551 U.S. 393 (2007). Make sure you have a barf-bag close by, as you listen to him cheering for the war on drugs in a case that was supposed to be about the First Amendment.

These guys don't have any principled belief in small government. They are just a bunch of moralizing, socially conservative hacks.

Posted by: David Jenkins | Feb 8, 2014 4:22:59 PM

Republicans are not for "small government" -- they are not libertarians. Some of them use that sort of rhetoric, but generally speaking, they are not. They want to use government somewhat differently than Democrats.

The elephant parable is interesting but how it applies to the current situation is unclear.

Posted by: Joe | Feb 8, 2014 4:36:32 PM

Otis is a sad sadistic person who is beginning to realize that even his rightiwing friends, at least those under 70, have abandoned him. There should be a special place in hell for those bent on perpetuating the over-incarceration in our society. He is an absolute disgrace and should not be teaching at a reputable institution, let alone one with Jesuit values. He is too smart to be fairly called the village idiot for the views he expouses but he was probably abused when he was a child and is trying to get back at society. Either that or he is a virile racist seeking to lock up African Americans, one or the other or both. It is about time he simply gets called out for the statist outrage he is. I know this is uncivil, but enough of Otis is enough already.

Posted by: Mark | Feb 8, 2014 5:38:58 PM

Very good to see Bill Otis called out in strong terms. We are at an inflection point in trying to deal effectively with the excesses of this country's outrageous criminal justice system and the resulting horribly excessive prison population. Had more people been willing to speak out against the Nazi regime in the 1930s, the Holocaust might have been less. We all owe a duty to speak out forcefully against Bill Otis and other modern-adherents adherents of totalitarian and racist ideologies.

Posted by: Liberty Lawyer | Feb 8, 2014 6:12:42 PM

This comments thread is on quite a roll! Racism card played? Check. Nazi analogy broached? Check! Ad Hominem attacks launched? CHECK!
Can someone recommend a sentencing blog or discussion group with less, shall we say, flair?

Posted by: Wayne-O | Feb 8, 2014 7:02:58 PM

Wayne-O --

Good question. Try Crime and Consequences, here: http://www.crimeandconsequences.com/crimblog/

It's about many criminal law topics, including sentencing.

Doug has an all-comments-welcome policy and, like every other policy, it has good points and bad points. The good point is that he brings in a number of quite bright people from all different perspectives. The bad part is..........well, you see the bad part.

Posted by: Bill Otis | Feb 8, 2014 7:22:12 PM

Mark --

"I know this is uncivil, but enough of Otis is enough already."

Just so. I think you should burn my books, too.

P.S. I don't think you should worry too much about being uncivil. At one point on this blog, I was called a necrophiliac. Being called a mere "virile racist" is, well, not that big a deal.

P.P.S. Did you mean "virulent racist?" I appreciate the compliment to my masculinity, but I don't want to mistake your meaning here.

Posted by: Bill Otis | Feb 8, 2014 7:31:45 PM

justin eisele --

"I do not understand this parable as applied to sentencing reform."

And that, in a nutshell, is the whole problem.

Posted by: Bill Otis | Feb 8, 2014 7:38:39 PM

federalist --

David Jenkins just called Justice Scalia and former DC Circuit Judge Ken Starr "hacks."

Now when you call a judge or Justice a "hack," the board breaks out in a rash about how dreadful your manners are. Wanna make a bet on whether Mr. Jenkins gets similarly scolded?

Ha!

Posted by: Bill Otis | Feb 8, 2014 7:53:52 PM

Mark
The piece your missing is that Bills pre booker guideline chip kicks when the MM are trying to be retrofitted to something reasonable. 50% lower is a start. Gulp gulp.
Or simply trying to lower federal drug sentencing in general.

I briefed him when the yellow light comes on, to press the little button behind his ear, take 3 deep breathes and he too will be more human like.

You can lead a horse to water, but.......

Posted by: Midwest Guy | Feb 8, 2014 7:55:54 PM

Liberty Lawyer --

"Had more people been willing to speak out against the Nazi regime in the 1930s, the Holocaust might have been less. We all owe a duty to speak out forcefully against Bill Otis and other modern-adherents adherents of totalitarian and racist ideologies."

Well drat. Liberty Lawyer has finally outed me as Adolf Eichmann. And I had been hiding for so long.

Still, I have to admit I love it. It won't be a New York minute before the board's numerous narcissistic Lefties start congratulating themselves on how civil and tolerant and all that they are.

Posted by: Bill Otis | Feb 8, 2014 8:02:45 PM

Midwest Guy --

It's amazing but true: Your comment is one of the more sane ones we've seen today.

Welcome back!

Posted by: Bill Otis | Feb 8, 2014 8:06:46 PM

The controlling thread of the Republican Party right side of the aisle movement has not been totally centered on war on crime. The war on crime aspect was part of the larger program of The Southern Strategy expounded by Lee Atwater. He advised the big guys and little hacks, that they need to win over the South and the bigot vote all across the country by vilifying the Democratic Party as that of blacks and welfare. You don't have to say the N word anymore he preached. You just talk about welfare cheats and food stamp fraud. If you Google: The Southern Strategy and Lee Atwater you will learn about Ronnie Rayguns right hand man.

Posted by: Liberty1st | Feb 8, 2014 8:13:32 PM

Bill Otis,

You should do some introspection about why you draw so many passionate responses. I think it is because you appear to lack a compassionate bone in your body. That may be because the prison population does not look like you, so you couldn't give a damn about anyone serving time or a hoot about draconian sentencing. Most of the commenters on here, I venture to say, share your middle to upper-middle class comfort and have no vested personal interest in reform. Indeed, I am not a criminal defense lawyer (a group you constantly accuse of bad faith) but those who are surely have more business and better financially under a system that is more rather than less draconian. What makes you such a disgrace is that you use your influence and education to subvert justice and rational outcomes, whereas some of us share your impressive credentials but seek to do right by those less fortunate. I note that many members of the Federalist Society (of which your wife was a co-founder) have turned against your retrograde positions. It would be good to see you do some introspection and question why that is.

In the meantime, one can only assume that you lack all compassion, seek to remove minorities from the population, and would like to see our society more like Putin's Russia and look less like other Western Democracies when it comes to criminal justice issues. with rare exceptions, your fellow commentators on this board want to use their education and gifts to make for a better society. You, on the other hand, seek to give aid and comfort to the realists, under-educated White Southerners, and other invidious elements in society that oppose reform. You, fortunately, are becoming a lonelier and lonelier voice, because even many Republicans have thought through the issues and have enough character to try to do the right thing.

Posted by: Mark | Feb 8, 2014 8:26:57 PM

Bill, before autocorrect gives you fodder for more fun, I of course meant "racists" not "realists." And no, it was not a Freuedian slip.

Posted by: Mark | Feb 8, 2014 8:30:52 PM

I remember when this blog first started in the wake of Blakely/Booker. I was a law student at that time, and I have been reading this blog regularly ever since. This blog used to be a place for respectful dialog. It had a largely objective tone---information was presented by the good professor and smart people engaged in a respectful debate. I used to feel like I learned something by reading this blog. It is now, unfortunately, a place where people who disagree with you are labeled as Nazis and racists who should rot in Hell. Today, it has hit a new low with the comment "he was probably abused when he was a child." What a shame!

Posted by: Zachary B. | Feb 8, 2014 8:41:48 PM

Mark --

"You should do some introspection about why you draw so many passionate responses."

Well that's cool. You Lefties gin up a boatload of ad hominem, and it's the target of the mud (re-named "passionate responses"), not the people doing the throwing, who needs to introspect.

"I am not a criminal defense lawyer..."

Congratulations.

"...a group you constantly accuse of bad faith)..."

Oh, c'mon. Not a single defense lawyer would engage in bad faith. http://www.nytimes.com/2013/03/19/nyregion/paul-w-bergrin-new-jersey-lawyer-convicted-of-murder.html?pagewanted=all&_r=0

"What makes you such a disgrace..."

Please, please, tell us what you REALLY think!!

"...is that you use your influence and education to subvert justice and rational outcomes, whereas some of us share your impressive credentials but seek to do right by those less fortunate."

Assuming that you're capable of listening to the other side for a moment -- which I doubt but I'll give it a shot anyway -- the less fortunate are disproportionately the victims of crime, meaning that when we undertake the measures that reduce crime (e.g., for one, increased incarceration), they are DISPROPORTIONATELY THE ONES WHO BENEFIT.

"...one can only assume that you lack all compassion, seek to remove minorities from the population, and would like to see our society more like Putin's Russia."

LIBERALS, BEHOLD. This is what your argument looks like now.

Happy?

Posted by: Bill Otis | Feb 8, 2014 8:52:15 PM

Two responses and then I will give it a rest.

1. Do you really think the minority population is on your side of the issue? I don't think polling supports that. They are sick and tired of their communities being devastated by over-incarceration, and, I am sure, would be willing to trade whatever incremental crime drop has resulted (if any) to do something about our rate of incarceration that is almost AN ORDER OF MAGNITUDE more than otherness Western democracies. As you know, an argument that astronomical increases in incarceration lowers crime rates, along with many other factors, proves far too much and does not justify your opposition to incremental reform.

2. You come back again and again to the assertion that your opponents are "Liberals." I'm not. Are Rand Paul, Mike Lee, Ted Cruz, and Jeff Flake Liberals? Are Newt Gingrich and Ed Meese Liberals? You seem to have a very dated take on the political divisions here.

Posted by: Mark | Feb 8, 2014 9:10:40 PM

I think Rep. Labrador needs to hit the law books again. His understanding of federal conspiracy law is a bit lacking.

Posted by: Zachary B. | Feb 9, 2014 12:46:29 AM

By golly bill, you do remember me. Pretty good way of diffusing my multi colored remarks.

I've been hibernating, and I think I woke up way too early! I saw my shadow first thing.

Posted by: Midwest Guy | Feb 9, 2014 11:39:20 AM

"And that, in a nutshell, is the whole problem."

Well, could you give me something more than a nutshell?

I think some prosecutors use such analogies as a way to express a "we know better" attitude. (daddy) In my blog post I reference your own words. Where you in fact believe that you do know better (than judges). Could you address that topic?

Also, how about the idea that the legislature does exert ultimate authority over the courts: they pick the judges.

Posted by: justin eisele | Feb 9, 2014 1:07:29 PM

justin eisele --

I suspect you're feigning ignorance, but just in case your question is legitimate: We had a huge increase in crime over the Sixties and Seventies (the rampaging elephants). In the Eighties, we decided to do something about it, to wit, mandatory sentencing laws, laws that we knew would, and were intended to, increase incarceration, though incarceration is unpleasant and expensive (building the wall). Over the generation since then, crime has gone way, way down (the elephants quit rampaging). Now, important people who benefited from the crime decrease and who take it for granted (e.g., Rand Paul), see a big, ugly expensive wall (a large number of prisoners), and think we should tear it down and do something else with the stones (i.e., pass the SSA). The village elders who helped put up the wall (Grassley, Sessions, etc.) are asking, "But what about the elephants?" (when we release criminals, then, given the high recidivism rate, crime will start going right back up). The young, naïve leaders (Paul & Co.) can't understand this, having lived in a world of relative safety they did nothing to create, and whose benefits they simply take for granted.

Moral of story: Forgetfulness about the problem and complacency about the hard things we had to do to fix it are a sure recipe for seeing the problem re-emerge.

P.S. "...how about the idea that the legislature does exert ultimate authority over the courts: they pick the judges."

Congress has never picked a judge. The Senate confirms (or refuses to confirm) judges. And it is irrelevant in any event, since Congress cannot change the sentence in any individual case, no matter how outrageous (see, e.g., US v. Corey Reingold). Mandatory minimums are the only mechanism that can stop scandalously lenient sentencing, as in that case.

P.P.S. The idea that judges are infallible and that no one outside the judiciary can know better is arrant nonsense.

Posted by: Bill Otis | Feb 9, 2014 3:24:27 PM

Zachary B said he attended law school. I am doubly impressed with his suggestion all released convicts be moved into the street where their advocates live. Kelo allows the condemnation of their neighbors homes. And the Supreme Court has held that one may put 8 unrelated people into a house without zoning board approval. Very rare advocate of victim safety here (not victim rights, which are worthless after a loss to crime). And along with Bill, the sole lawyer advocate for victim safety.

Mark condemns Bill for lack of human consideration and compassion for prisoners, many of another race. Mark would serve the reader better if he disclosed his work, such as public defender. And everything he said about Bill, including a veiled insinuation of racism, applies to Mark, with zero mention of victims, who are also black. Blacks are being murdered at a pace 5000 more than expected for their fraction of the population. Not a word about this mass extinction of black males, orchestrated by the lawyer profession. Mark boohoos about 50 executions, and says nothing about 5000 extra-judicial executions, none of which pass muster with the evolving standards of decency mandated by the Eighth Amendment. The KKK lynched 5000 people in 100 years. The modern lawyer is managing that every year, being 100 times more lethal to the black population than the KKK.

Posted by: Supremacy Claus | Feb 9, 2014 3:52:45 PM

Zachary B. --

For the most part, the blog is still worthwhile. It draws some amazingly smart and analytical people, such as (on the conservative side) TarlsQtr, federalist and tmm (to name a few). On the liberal side, we have the amazingly bright Jonathan Edelstein, Marc Shepherd and, in his way, Joe (who is a bit "one-the-one-hand-but-on-the-other-hand," but still makes liberal points without rancor).

This particular thread is, as you point out, what the blog can become when the pro-defense side becomes frustrated and just cuts loose. Racist, Nazi, "abused as a child," a "disgrace," a "sad sadistic person," a Holocaust sponsor, ethnic cleansing (against blacks) and on and on.

There are several reasons for this sort of stuff. One, as noted, is frustration -- when you run out of argument, you just start spitting. One is McCarthyite intolerance -- if you don't toe the Reigning Line in Academia, you shouldn't teach (or speak) at all. One is simply a by-product of Internet anonymity -- people typically feel more free to say insulting and sometimes vile things when they can (1) avoid saying them to your face, and (2) avoid giving their own names. Another word for this is "cowardice."

But there is something more sinister going on too, I think. Some commenters have the feeling that this is or should be exclusively a pro-defense site, and that those in dissent are not welcome.

When a dissenter shows up, and (like me) shows up a lot, this is out of order. Since Doug will not ban me (since Doug actually LIKES debate and dissent), something else has to be done. The something else is to hurl personal insults so low and so disgusting, and hurl them so often, that the dissenter will eventually come to find the experience of posting sufficiently unpleasant that he'll quit. Thus will be restored the Tranquil, No-Dissent, We-Know-Better, Pro-Crime Fiefdom that, on this view of the world, this blog is truly supposed to be.

Posted by: Bill Otis | Feb 9, 2014 4:07:35 PM

Mr. Bill: "George wonderfully exemplifies the problem with the "thinking" of those who back the SSA: They believe that people with memories, and not rampaging elephants, are what the village needs to worry about."

Since you explained you story I'll explain my more realistic ending.


One of the old farts, a fellow who had helped build the wall, got up and said, "But what is that you are smoking?"

The old fart couldn't complain about the speech regarding better schools and playgrounds so he made a law against whatever he was smoking. That'll teach him to rebel.

Whereupon the crowd got their pitchforks and forced the young chief outside the walls, where he was trampled by the elephants.

Moral panic. The Crowd fell for it without any scientific evidence that what he was smoking was actually dangerous to himself or others. So they pushed him outside the walls into prison. He could have become an elephant (hardened criminal) but that would have been Dumbo.

The young chief's son saw this and decided when he was chief he would build a wall to keep all the old farts out.

His child was abandoned and had to fend for himself, which includes decision making. He might even become a tyrant.

And that is the origin of "Never trust anyone over 30."

Joke. I'm probably the only one that laughed.

Posted by: George | Feb 9, 2014 6:52:58 PM

There is a time for decorum, and there is a time for being outspoken. When it comes to matters pertaining to the government imprisoning people for lengthy periods of time for non-violent drug offenses, it is well past time for the latter. It needs to stop. It's senselessly ruining people's lives. The taxpayers are being forced to foot the bill for the incarceration boondoggle. It is immoral. It is difficult to be respectful to those who support imprisoning people for non-violent drug offenses. Their position is based on anti-science notions, such as the oft-stated view that marijuana has no legitimate medicinal value; they maintain that position in the face of the explanations by countless medical doctors that it does have legitimate medicinal value. For example, in a recent episode of HBO's Real Sports, Dr. Raphael Mechoulam, of the Hebrew University in Jerusalem, explained how marijuana is effective in treating chronic pain and inflammation, and how it has promising potential to treat traumatic brain injuries.

Posted by: Stephanie Vinson | Feb 10, 2014 12:24:25 AM

Stephanie Vinson --

"There is a time for decorum, and there is a time for being outspoken."

And who here is against being outspoken?

It is not "decorum," but basic adult manners, that counsel against the use of such snarling insults as racist, Nazi, "abused as a child," a "disgrace," a "sad sadistic person," a Holocaust sponsor, ethnic cleanser, and so forth.

Do you disagree? Do you really think that there is no such thing as principled disagreement with you? That's what Joe McCarthy thought. Are you on board with that?

"It is difficult to be respectful to those who support imprisoning people for non-violent drug offenses."

Life is full of things that are difficult. Do it anyway. But if it's disrespect (or, more accurately, hate) you choose nonetheless, you can start with the BACKERS of the SSA, which in every single instance continues to provide MM's for drug pushers, including pot pushers.

"Their position is based on anti-science notions, such as the oft-stated view that marijuana has no legitimate medicinal value; they maintain that position in the face of the explanations by countless medical doctors that it does have legitimate medicinal value."

THC does have limited and discrete medicinal value, which is why it is available by prescription in Marinol. But it is you, Ms. Vinson, who is against the weight of scientific opinion about whether pot is dangerous and should continue to be criminalized.

http://learnaboutsam.com/american-medical-association-opposes-marijuana-legalization-supports-health-first-approach-to-marijuana-use/

"Largest medical group in the US explicitly rejects calls to become “neutral” on legalization; supports full funding of the Office of National Drug Control Policy; calls for proper study of Colorado and Washington policies. It joins the American Psychiatric Association, who issued a statement last week outlining the public health harms of marijuana.

NATIONAL HARBOR, MD-The delegates at the 2013 Interim Meeting of the American Medical Association (AMA) House of Delegates, in National Harbor, Maryland, today voted to pass a resolution on marijuana, “Council of Science & Public Health Report 2 in Reference Committee K,” explicitly opposing marijuana legalization – fending off a challenge to “neutralize” their position. The report changes H-95.998 AMA Policy Statement on Cannabis to read in part that: “Our AMA believes that (1) cannabis is a dangerous drug and as such is a public health concern; (2) sale of cannabis should not be legalized.”

“The AMA today reiterated the widely held scientific view that marijuana is dangerous and should not be legalized,” commented Dr. Stuart Gitlow, Chair-Elect of the AMA Council on Science and Health and SAM Board Member. “We can only hope that the public will listen to science – not ‘Big Marijuana’ interests who stand to gain millions of dollars from increased addiction rates.”

Posted by: Bill Otis | Feb 10, 2014 12:57:00 AM

Lester Grinspoon, MD, Professor of Psychiatry at the Harvard Medical School, stated in the 2001 issue of the International Journal of Drug Policy:

"I have yet to examine a patient who has used both smoked marijuana and Marinol who finds the latter more useful; the most common reason for using Marinol is the illegality of marijuana, and many patients choose to ignore the law when they believe that the difference between the two puts their health, comfort or economic well-being at risk.

"If patients were legally allowed to use marijuana, relatively few would choose Marinol."

The Institute of Medicine stated the following in its 1999 report titled "Marijuana and Medicine: Assessing the Science Base":

"It is well recognized that Marinol's oral route of administration hampers its effectiveness because of slow absorption and patients' desire for more control over dosing."

Andrew Weil, MD, Director of Integrative Medicine at University of Arizona's College of Medicine, stated in a June 6, 2002 article published in the San Francisco Chronicle:

"Unfortunately, the only legal substitute [to marijuana] available now -- a prescription pill containing synthetic THC, marijuana's main psychoactive component -- is not EFFECTIVE enough for many patients. I hear regularly from patients that the pill does not work as well as the natural herb, and causes much greater intoxication."

Posted by: Mr. Otis Is Incorrect, Again | Feb 10, 2014 4:38:23 AM

Mark stated: "You should do some introspection about why you draw so many passionate responses. I think it is because you appear to lack a compassionate bone in your body."

Mark, most articulately, summed up the progressive mentality.

In essence, he says "You show no 'compassion', so we are going to show how compassionate we are by trying to beat the crap out of you."

Lovely.

People who throw the words "racist" or "Nazi" around indiscriminately have lost the debate. In fact, they ceased debating and chose tyranny of the mind. Using these words have no purpose other than to stifle debate, as there is no need to debate with a "racist" or "Nazi." Frankly, it is pathetic and I am embarrassed for you (especially the attorneys).

56% of America agrees with Mandatory Minimums. In the minds of some here, that means more than half of America is racist and supportive of Nazism. http://today.yougov.com/news/2013/08/15/mandatory-minimums-still-popular-principle/

Is Bill right that many of you hate AmeriKKKa or do you love a country where more than half the population is racist and supportive of Nazism?

Posted by: TarlsQtr | Feb 10, 2014 11:34:11 AM

David Jenkins stated: "The irony/hypocrisy of these old guard Republicans claiming they are all for small government is profound."

The irony is that you, like so many others including our host, have no idea what it means to support "small government."

It does not mean that the government stays out of all aspects of governance. It means that it should stick to the core activities listed in the constitution. In other words, "small government" does not mean we should have a small military, it means that we should not be using the military to perform duties beyond the scope of their mission. Likewise, the "small government" does not mean that we should have bare bones police force (although the militarization of the police is an unmentioned national scandal) and prison system. Its mission is to keep us as safe as possible from the criminal element. Unfortunately, throwing bad guys in prison is one of the few practices proven to work.

Posted by: TarlsQtr | Feb 10, 2014 11:48:22 AM

Re: "Harmless" Marijuana

http://seattle.cbslocal.com/2014/02/04/study-fatal-car-crashes-involving-marijuana-have-tripled/

SEATTLE (CBS Seattle) – According to a recent study, fatal car crashes involving pot use have tripled in the U.S.

“Currently, one of nine drivers involved in fatal crashes would test positive for marijuana,” Dr. Guohua Li, director of the Center for Injury Epidemiology and Prevention at Columbia, and co-author of the study told HealthDay News.

Researchers from Columbia University’s Mailman School of Public Health gathered data from six states – California, Hawaii, Illinois, New Hampshire, Rhode Island, and West Virginia – that perform toxicology tests on drivers involved in fatal car accidents. This data included over 23,500 drivers that died within one hour of a crash between 1999 and 2010.

Li reported in the study that alcohol contributed to about 40 percent of traffic fatalities throughout the decade.

The researchers found that drugs played an increasing role in fatal traffic accidents. Drugged driving accounted for more than 28 percent of traffic deaths in 2010, which is 16 percent more than it was in 1999.

The researchers also found that marijuana was the main drug involved in the increase. It contributed to 12 percent of fatal crashes, compared to only 4 percent in 1999.

“If a driver is under the influence of alcohol, their risk of a fatal crash is 13 times higher than the risk of the driver who is not under the influence of alcohol,” Li said. “But if the driver is under the influence of both alcohol and marijuana, their risk increased to 24 times that of a sober person.”

Researchers found that the increase in marijuana use occurred across all ages for males and females.

Jonathan Adkins, deputy executive director of the Governors Highway Safety Association, told HealthDay News that marijuana impairs driving in much the same way that alcohol does.

“This study shows an alarming increase in driving under the influence of drugs, and, in particular, it shows an increase in driving under the influence of both alcohol and drugs,” Jan Withers, national president of Mothers Against Drunk Driving, added.

“MADD is concerned anytime we hear about an increase in impaired driving, since it’s 100 percent preventable,” Withers said. “When it comes to drugged driving versus drunk driving, the substances may be different but the consequences are the same – needless deaths and injuries.”

Adkins noted that the legalization of marijuana in some states makes these findings important to traffic safety officials.

“It’s a wake-up call for us in highway safety,” Adkins added. “The legalization of pot is going to spread to other states. It’s not even a partisan issue at this point. Our expectation is this will become the norm rather than the rarity.”

Li added that police do not have a test as accurate as the Breathalyzer to check a driver’s marijuana intoxication level.

“In the case of marijuana, I would say in maybe five years or more you will see some testing method or technique that may not as accurate as the Breathalyzer, but is more accurate than the testing devices we have today,” Li said.

The study was published online in the American Journal of Epidemiology.

Posted by: TarlsQtr | Feb 10, 2014 11:54:01 AM

Mr. Otis Is Incorrect, Again --

You cite three doctors, the most recent of whom spoke 12 years ago. I cited a statement three months ago by the AMA, whose membership is over 200,000.

Fine. I'll let that stand.

As to Marinol, I'll assume arguendo that it does not act as quickly and is slower to absorb in the bloodstream for "many" patients (not knowing what "many" means -- 50? 300? 2000?). So what? The choice of medication ALWAYS involves tradeoff's -- in speed, side effects, medical hazards, likelihood of developing dependency, and a whole lot more. You just sweep under the rug the problems with smoked pot, to wit (to name three), no control for dosage, potency or adulteration.

Of course the main thing you sweep under the rug is that this whole "medical marijuana" gig is a fraud. Even the original backers of the first medical marijuana initiative (in California) now admit that the alleged "controls" are so lax, and so laxly enforced, that it's devolved into a slightly gussied-up form of recreational pot (as one of them memorably put it, "drug dealers in storefronts").

Posted by: Bill Otis | Feb 10, 2014 11:59:40 AM

TarlsQtr --

"In essence, [Mark] says 'You show no "compassion", so we are going to show how compassionate we are by trying to beat the crap out of you.'....People who throw the words "racist" or "Nazi" around indiscriminately have lost the debate. In fact, they ceased debating and chose tyranny of the mind. Using these words have no purpose other than to stifle debate..."

Nailed it big time. As I said in my note to Zachary B., and as you recognize, flinging insults like that is not done to advance the discussion. It's done to END the discussion by driving the opposing side off the board.

People can judge for themselves what sort of turn of mind it takes to (1) want to end debate, and (2) do so by insult, the more disgusting the better.

Posted by: Bill Otis | Feb 10, 2014 12:19:35 PM

TarlsQtr, thanks for the link on the drugged driving matter. I will follow-up with another post on this very important front in the coming days.

On the issue of "small government," am I right to understand that you think government can/should be made bigger if and when doing so is part of an effort to "keep us as safe as possible from the criminal element"? If so, given that we know statistically that "the criminal element" is often comprised of young men raised with poor nutrition, poor health care and poor schooling, then it would seem that the modern welfare state's efforts to give young men resources for better nutrition (e.g., food stamps), better health care (e.g., Medicaid), and better schooling (e.g., more public school funding) would be part of "small government" you would support, no? (In contrast, of course, since the elderly are a much smaller part of "the criminal element" the welfare state's growth in SS benefits and Medicare would seem to be first on your chopping block.)

Beyond whether you support, TarlsQtr, government growth to help rather than just punish those involved with "the criminal element," your comment provides yet another useful reminder that preaching about small government from many so-called conservatives is really just another version of arguments we hear from nearly all statists that we should always grow the parts of government we like, and just try to shrink those parts we do not like.

Posted by: Doug B. | Feb 10, 2014 2:45:18 PM

Doug,

By far, the largest correlating factor in "the criminal element" is bastardy.

It is also the largest factor in poverty.

Having a loving mom and dad is the best crime fighter ever.

There is little evidence that Medicaid and food stamps reduce crime, so your point is less than pointless.

Prison, admittedly, is a flawed solution. It is merely the best tool, among many even worse ones, because the government cannot mandate functional families.

Posted by: TarlsQtr | Feb 10, 2014 3:19:07 PM

Doug,

One more point. You completely ignored the importance of the government's core mission (competencies) as listed in the Constitution. It is far easier to find justification for prisons and police in the document than it is for "Obamacare", Medicaid, or food stamps.

Posted by: TarlsQtr | Feb 10, 2014 3:24:56 PM

Bill Otis & TarlsQtr:

If you two don't like marijuana, if you think it's gross, and if you think it is unhealthy, then don't use it.

But leave the rest of us alone. We'd rather make our own decisions about our own lives, based upon our own thinking and input from doctors and scientists we trust.

Go away. Stop meddling with the affiairs of others that are absolutely none of your business.

Posted by: Karen Fitchett | Feb 10, 2014 3:57:15 PM

Karen Fitchett --

Let me recast your comment and see if you agree:

"If you two don't like heroin, methamphetamine, PCP and Ecstasy, if you think it's gross, and if you think it is unhealthy, then don't use it.

But leave the rest of us alone. We'd rather make our own decisions about our own lives, based upon our own thinking and our own decision to accept or reject, as we wish, input from doctors and scientists we care to listen to, or ignore.

Go away. Stop meddling with the affiairs of others that are absolutely none of your business."

Do you agree with that? Do you want hard drugs legalized? Should mature and intelligent children aged 14 and up be able to "make their own decisions" about such drugs? Should distribution to addicts who have lost control of their lives be legal? Do you think that some impulsive 18 year-old who dies of an overdose death is simply an acceptable human sacrifice on the Altar of Libertarianism? Why not?

Posted by: Bill Otis | Feb 10, 2014 4:25:38 PM

Doug --

I second TarlsQtr's view that it is not government programs but stable, loving, education- and values-promoting mothers and fathers that are the key to having fewer kids become criminals.

Evidence: What was the crime rate in the much-maligned Fifties? Real low. What was the illegitimacy rate? Real low. What was the amount of government financial assistance in welfare and entitlement programs? Below low -- miniscule.

What does this tell you about the relative importance of stable families versus fat government handouts as factors in keeping a low crime rate?

Posted by: Bill Otis | Feb 10, 2014 4:35:26 PM

No one who smokes pot wants anyone to smoke some and go kill themselves or someone else with a car. How helpful is the above study though?

From the direct website:

Drugged driving is a safety issue of increasing public concern. Using data from the Fatality Analysis Reporting System for 1999–2010, we assessed trends in alcohol and other drugs detected in drivers who were killed within 1 hour of a motor vehicle crash in 6 US states (California, Hawaii, Illinois, New Hampshire, Rhode Island, and West Virginia) that routinely performed toxicological testing on drivers involved in such crashes. Of the 23,591 drivers studied, 39.7% tested positive for alcohol and 24.8% for other drugs. During the study period, the prevalence of positive results for nonalcohol drugs rose from 16.6% in 1999 to 28.3% in 2010 (Z = −10.19, P < 0.0001), whereas the prevalence of positive results for alcohol remained stable. The most commonly detected nonalcohol drug was cannabinol, the prevalence of which increased from 4.2% in 1999 to 12.2% in 2010 (Z = −13.63, P < 0.0001). The increase in the prevalence of nonalcohol drugs was observed in all age groups and both sexes. These results indicate that nonalcohol drugs, particularly marijuana, are increasingly detected in fatally injured drivers.

Getting the whole study requires a subscription, but the abstract does not claim cannabinol is responsible for more deaths. Indeed, it is detected more often why? More testing for cannabinol? More sensitive tests that detect pot smoked 6 weeks ago instead of 4 weeks ago? Or are more people smoking pot and drinking and driving and killing?

Also, pot driving is a small subset of drugged driving, and it appears other drugs, probably mostly prescription drugs, are most to blame. Yet Tars and Mr. Bill do not rant about outlawing those Big Business profits. The right did the same with tobacco. Remember when the government was a nanny state because of more and more tobacco laws and regulations? A better study in the context of public safety is a comparison of pot vs tobacco harm.

Posted by: George | Feb 10, 2014 4:58:41 PM

I second Mr. Bill's second of Tarls love of a loving family but would include the nursing program for at risk mothers because I always look for an excuse to post about it and as the conservatives used to say before the tried it, you can't legislate morality.

Mothers’ experiences in the Nurse-Family Partnership program: a qualitative case study

I'm reminded of the old story about psychology students when asked to evaluate a case. Anal retentive some said, neurotic said others, and so on. One student said, "He seems like he needs a friend." Sometimes its as simple as that, and that is what these nurses are - a reliable friend that won't steer them wrong. Someone they can trust. Simple as that.

Posted by: George | Feb 10, 2014 6:18:21 PM

I share you affinity for families, TarlsQtr and Bill, which is among the reasons I oppose using long terms of incarceration for mothers and fathers. Prison is one way the government ends up creating dysfunction families, and I encourage you to check out the crime rates for kids who grow up with an incarcerated parent. I agree that government cannot mandate functional families, but it should also try to avoid disrupting them. And that is was prison necessarily does. And, again, my point was not to defend the welfare state, but just to quickly highlight that small government will never be small if/when you say government can/should grow if/when needed to "keep us as safe as possible from the criminal element."

Speaking of "government's core mission," I would benefit from see where/how you find "justification for prisons and police" as distinct from other government functions. Again, my goal is not to say you cannot find a reason for government growth, but rather just to showcase again that "traditional conservatives" like you and Bill are not really for small government, but rather just for growing government where you think it is working and shrinking it where you think it is not. And on that front, you are on the same page with "traditional liberals" who just have a different take on where government is working and not working. In contrast, libertarians tend to think government should try to get out of the way in all setting because it will always find a way to convince itself that growth is needed.

Posted by: Doug B. | Feb 10, 2014 7:03:35 PM

Mr. Otis,

We clearly have two different views of the world. I have seen what you have had to say about people in my profession. I can't imagine I am going to change your mind, or that you would really listen to anything that I have to say.

You have a clever analogy with the wall building. I think your point is: We did this for a reason, it worked for that reason, so don't fool with my wall.

I think the statistics are ambiguous at best on the level of safety gained by mandatory sentences. However, I do think that given enough incarceration that there will be a decrease in crime.

I've been held at gun point. I'm the type of victim you would lead one of your stories with to scare people. Boo! I just choose not to live scared. I want to live in a country where we treat people as part of our community. I think we are all responsible for each other. If I can help it, we won't be a country that incarcerates more people than any other country in the world. If I can help it, snitching will not be the only real way for a defendant to be given mercy in his case.

I don't want mass incarceration. I don't want AUSAs to have the power that they currently have.

I'll do what what I should be doing: spend my time convincing people that aren't already convinced. (like us)

Posted by: justin eisele | Feb 10, 2014 7:43:47 PM

Doug stated: "I share you affinity for families, TarlsQtr and Bill, which is among the reasons I oppose using long terms of incarceration for mothers and fathers. Prison is one way the government ends up creating dysfunction families, and I encourage you to check out the crime rates for kids who grow up with an incarcerated parent."

Your statement comes with a very foolish implied premise. The state is not ripping the Cleavers apart, and turning the Norman Rockwell family into MS13 members. The same dysfunctions (selfishness, sloth, greed) that make someone decide to be a criminal are not asymptomatic when being a parent. The second generation of criminal did not become a criminal because his dad went to prison, he became a criminal because his dad was a criminal (to the extent he was present at all).

Doug stated: "And, again, my point was not to defend the welfare state, but just to quickly highlight that small government will never be small if/when you say government can/should grow if/when needed to "keep us as safe as possible from the criminal element.""

On what basis do you make that statement? If we keep the MMs in place and eliminate the Department of Energy and Education, we reduced the size of government, right?

Doug stated: "Speaking of "government's core mission," I would benefit from see where/how you find "justification for prisons and police" as distinct from other government functions. Again, my goal is not to say you cannot find a reason for government growth, but rather just to showcase again that "traditional conservatives" like you and Bill are not really for small government, but rather just for growing government where you think it is working and shrinking it where you think it is not."

Actually, you misrepresent my position. I do not believe in growing government "where it is working", I believe in having the correct size of government in the core missions/competencies as outlined in the constitution. One area where I probably differ from Bill is that I DO have a problem with MM's in the sense that I believe police powers were given to the states, not the Federal government, at least to the extent currently practiced. That said, I am no constitutional scholar and it is a non starter. The FBI, ATF, etc. are here to stay even though I would much rather have the issue of MM's and law enforcement dealt with at the individual state level.

Posted by: TarlsQtr1 | Feb 10, 2014 8:14:53 PM

People disrupt their own families by committing crimes. And for most federal defendants, they commit crimes over and over. It is sad, but that is the truth. If you love your family so much, stop selling meth/heroin/crack etc.

Posted by: Zachary B. | Feb 10, 2014 9:20:30 PM

Karen Fitchett,

Do you also want VP Joe Biden to leave you alone and go away? (See Time Magazine article of Feb. 6, 2014 entitled "Vice President Joe Biden Not High on Marijuana Legalization"). Biden also previously said the following about marijuana: “I still believe it’s a gateway drug. I’ve spent a lot of my life as chairman of the Judiciary Committee dealing with this. I think it would be a mistake to legalize.”

Posted by: Zachary B. | Feb 10, 2014 9:36:10 PM

TarlsQtr --

"I probably differ from Bill is that I DO have a problem with MM's in the sense that I believe police powers were given to the states, not the Federal government, at least to the extent currently practiced."

Ahem. I mean, please.

Don't you know that you can't disagree with me without calling me a racist, fascist, and sadist? Haven't you learned anything about manners from reading the comments section?

And to think, you used to be a teacher. The shame of it all.

Posted by: Bill Otis | Feb 10, 2014 9:50:49 PM

Mr. Eisele --

"I have seen what you have had to say about people in my profession."

Yup, and to sum it up, I wish they would be a bit more concerned with truth and accountability and a bit less concerned with springing the Holy Client at any cost, e.g. http://www.nj.com/news/index.ssf/2013/09/lawyer_sentenced_to_life_in_prison_on_murder_racketeering_charges.html

I've also seen what you have had to say about people in my former profession, to wit, that their bloodlusters, seek vengeance not justice, and extort defendants.

That is what you've said, right?

"I can't imagine I am going to change your mind, or that you would really listen to anything that I have to say."

I spend lots and lots of time listening to people who disagree with me.

"I've been held at gun point. I'm the type of victim you would lead one of your stories with to scare people. Boo!"

Actually, it's your allies on this forum who want to scare people by portraying prosecutors as a cross between Big Brother and Hitler.

Still, I see what you're saying about scaring people. Why would anyone be scared of having their daughter around, say, Ariel Castro? And wouldn't you agree that the prosecutors bullied him into pleading guilty to all 937 counts? Sounds like a coerced confession to me -- you know how those DA's are!!!

"I just choose not to live scared."

Thanks to the more serious sentencing you detest, that's a wiser choice now than it would have been 20 years ago.

"I want to live in a country where we treat people as part of our community."

I want to live in a country where people can be trusted because they earn trust.

"I think we are all responsible for each other."

Would you mind telling me in what decipherable sense I am or could be "responsible" for approximately 317,000,000 people I don't know and have never met?

By the way, does this grand sense of responsibility extend to your clients, or did they have no responsibility toward the people they beat the crud out of?

"If I can help it, we won't be a country that incarcerates more people than any other country in the world."

What's more important -- the incarceration rate that affects 2.2 million, or the crime rate that affects 317 million?

"If I can help it, snitching will not be the only real way for a defendant to be given mercy in his case."

Your ship has come in! Indeed, about 70,000 of your ships have come in. Have you ever heard of the federal Safety Valve?

"I don't want mass incarceration. I don't want AUSAs to have the power that they currently have."

Of course not. You want them to have so little power that guilty and dangerous people will escape justice even more often than they do now.

Please understand that there are those of us who, having families, do not share this aspiration.

Posted by: Bill Otis | Feb 10, 2014 11:04:36 PM

Zachary B.: Yes

Bill Otis: If you feel my remarks merit a response, why not respond to my remarks, rather than responding to your own "recast[ed]" and version of my remarks? Pretty weak.

Posted by: Karen Fitchett | Feb 10, 2014 11:19:25 PM

Karen Fitchett --

I didn't give you an answer because you didn't ask a question. I gave the discussion your remarks invited, to wit, a discussion about the implications of libertarianism for the legalization of hard drugs. I then asked you some questions about that, which you wisely but too obviously duck.

If you'd care to answer now, though, I'm all ears.

Posted by: Bill Otis | Feb 10, 2014 11:32:20 PM

Tarls, I am very pleased this back-and-forth has revealed that you are on my side (what Bill Otis might call the dark side) concerning federal use of MM to grow the size and power of big govt federal police and prosecutors. In this way, you indicate that you really are concerned about the growth of government, especially at the federal level. And though you are not a constitutional scholar, I trust you know and find notable that a century ago it was thought a constitutional amendment was needed to get national/federal alcohol Prohibition, but now national/federal pot prohibition is achieved by Congress saying so and (over)funding the DEA and FBI and ATF and others government agencies with our tax dollars.

Your localism insights here should also inform your own sense of whether we are doing good or bad by local families when we threaten to send every drug dealer to federal prison for decades (and, in so doing, drive up the price for illegal drugs). I know we are not ripping up the Cleavers, but I trust states and local communities to make these judgments about how to balance family concerns and incarceration better than folks far away inside the Beltway. Ergo, I think localities and states should be permitted to make their own choices on drug war issues without DEA and FBI and ATF telling them how to do so.

My main point here, as we talk in broad generalities, is just that one's general views about government power and effectiveness (especially at the federal level) should inform one's specific view about the govt drug war reform. If you generally think the feds use govt power and our tax dollars well, then you should be skeptical of my call for drug war reform. But if you generally think feds use govt power and our tax dollars poorly, then you should be skeptical of Bill's advocacy again drug war reform. Younger folks in the GOP like Senators Flake and Cruz and Lee and Paul seem to get this, the older GOP folks not so much.

Posted by: Doug B. | Feb 11, 2014 9:13:05 AM

We agree? Oh no!

Well, kind of.

Yes, I do agree with you that the law enforcement structure at the Federal level is far too large. Some guy selling at the street level should not be subject to Federal prosecution just because someone 5 levels above brought the weed over state lines. It goes way beyond that to include someone committing a common crime in a national park, hate crimes, sitting in front of your computer watching illegal porn, etc. That federal prosecution of George Zimmerman was even considered shows the level overreach we have come to.

All of that said, I do not share your general disdain for MM's. The premise of them is fine. They work. To the extent that the Federal government is acting within its jurisdiction, I am all for it. I also have no issue with them locally if a state so wishes. "Laboratories of democracy" and all that. And I am not naive to what that means. At least half of the states will make other choices. If California, Washington, NY, etc. want to continue their criminal coddler ways, I am fine with it. Just do not look to the rest of us for a bailout.

My issues with you on this topic (and others) are twofold. 1) I have always perceived your "libertarianism" as a convenient mask. You will use the Rand Pauls of the Republican Party as a cudgel on the rare occasion that you agree with him but would throw up in your own mouth a bit at the thought of voting for the man. 2) I see your argument as more a lawyer tactic than a principled stand. Winning the argument is more important than being correct. I suspect that you embody the same inconsistencies you accuse "big government Republicans" of. Arguing for small government in this case because it helps the overall "cause" but not dedicated to it otherwise. It is a way to win an argument. The end justifies the means.

I could be wrong. Just one man's perception.

Posted by: TarlsQtr | Feb 11, 2014 11:27:24 AM

Doug --

I would never say you're on the dark side. Clouded over, yes.

"...federal use of MM to grow the size and power of big govt federal police and prosecutors."

Actually, they're used to contain the power of pro-child porn rulings by judicial ideologues like Jack Weinstein. But you would forbid Congress from constraining the Weinsteins of the world, so the unelected judiciary could grow WITHOUT LIMIT in power.

"...a century ago it was thought a constitutional amendment was needed to get national/federal alcohol Prohibition..."

But every single challenge to federal police power over narcotics has flopped. Every one. So what difference does it make what thoughts existed a century ago? Plessy v. Ferguson wasn't a whole lot more than a century ago either, now that I think of it. And phrenology was all the rage.

"Your localism insights here should also inform your own sense of whether we are doing good or bad by local families when we threaten to send every drug dealer to federal prison for decades..."

STAW MAN ALERT! STRAW MAN ALERT!

"I know we are not ripping up the Cleavers..."

Thank you. I would not have guessed from your first take on this. The unfortunate truth of the matter is that what the defense tries to palm off as "families" is the 25 year-old drug pushing father who impregnated his 17 year-old girlfriend-of-the-week a few times, now has four kids he never sees, doesn't support, and could care less about. This is what the defense tries to present to the court as the "family."

The other unfortunate truth is that the kids are better off with his NOT showing up, because "fathers" like this are one of the main sources of child abuse.

As Tarls correctly says, the solution to this is not the Big Government welfare programs he and I oppose (do you?), but a restoration of the values of fidelity, responsibility, and family AS TRADITIONALLY UNDERSTOOD -- in other words, all the things liberals ridicule.

Good thinking there, liberals!

"I think localities and states should be permitted to make their own choices on drug war issues without DEA and FBI and ATF telling them how to do so."

This just shows how much you would have benefited from a few years in the field. When I was in the USAO, we never told the states and localities what to do. Never. To the exact contrary, THE STATES AND LOCALS CAME TO US, seeking our help with drug gangs too powerful and malevolent for them to handle.

Finally, this whole argument about drug war "reform" being the answer to Big Government is beyond crazy.

First, the main "reform" being pushed right now is simply cutting sentences. Durbin-Lee doesn't do a single thing, directly or indirectly, to cut back on the size, scope or activities of DOJ, the FBI or DEA.

Second, it's time for at least a little nuanced thinking, rather than thinking that "Big Government" is all the same thing. More incarceration costs a minuscule portion of the federal budget, but it has worked -- crime is way, way down. By contrast, entitlement and welfare programs cost a huge portion of the federal budget, and they DON'T WORK. More people are below the poverty line than at any time in its history; food stamp use is at an all-time high; and structural unemployment is through the roof.

Where we should cut spending depends on how much we're getting for the buck, and differentiating between success and failure.

Third, just looking at the size of the respective programs will tell you where Big Government can be cut. The answer is easy: It can be cut where it's actually big.

And where is that? Entitlement and welfare spending. The numbers don't lie. You could cut out every single dollar spent on federal incarceration and it would be virtually unnoticeable.

As Tarls incisively notes, your campaign against Big Government is so very oddly selective -- ignoring the real fiscal problem to focus exclusively on the tiny one -- as to lead a suspicious person to think that it is merely a makeweight for the long pre-existing agenda of doing sentencing favors to criminals.

Posted by: Bill Otis | Feb 11, 2014 2:06:14 PM

Just finally seeing your final comments here, Tarls and Bill, and I cannot help but wonder why you think my campaign here against Big Government is "so very oddly selective" or just a "lawyer tactic" when there is no obvious reason to think your campaign elsewhere against Big Government is anything else. And why are you so quick to assume I would not vote for Rand Paul (e.g., I LOVE that he is the only one willing to call Bill Clinton on his long-running "war on women")?

More to the point, why exactly do you distrust government in other settings and like it here? I distrust government because government agents are great at saying big government "works" when in fact it might not --- and this is exactly what Bill Otis says over and over and over again here and elsewhere concerning the part of big govt he likes, such as the war on drugs. Similarly, those who like food stamps and unemployment insurance and the war on poverty and Medicare and Medicaid and SS all say that this works, though here Bill disagrees. Valuably, free people and free markets decide these matters without needing government involvement or government agent propaganda.

Put most simply, I like liberty, the rule of law, honesty and transparency, I trust free people (aided by free markets) to make decisions for themselves subject to the rule of law, honesty and transparency norms, and I distrust government agents making choices for others, especially when they are not subject to the rule of law, honesty and transparency norms. I think that makes me a libertarian, and I know that makes me very wary about how prosecutors (especially federal prosecutors) use their powers.

If you are so keen to see a big government wolf in libertarian sheep's clothing, I urge you to consider that this could be because you are really a wolf at heart and do not know what a sheep actually looks like.

Posted by: Doug B. | Feb 17, 2014 10:37:30 PM

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