August 24, 1999

by Peter J.M. Orvetti, Manager of Editorial Services

In today's Cato Daily Dispatch, Gov. Johnson gets a write-in for president, Kentucky's concealed-carry success, Oregon takes asset forfeiture out for a spin, Clinton places his orders, and interfering with the Internet in Virginia.

Johnson For President?

Los Angeles Times Contributing Editor Robert Scheer urges Gov. Gary Johnson, to seek the presidency in a commentary published this morning: "The Republican governor of New Mexico and just about the only politician in the country with the gumption to admit he used marijuana and cocaine in his youth and lived to tell the tale. Unlike too many hypocrites of his generation, Johnson has the guts to challenge that monumental tribute to bureaucratic stupidity known as the war on drugs, a $40-billion program that's made America the world's biggest jailer of innocent people... Abuse of any drug--illegal or not--is of serious concern, but it remains fundamentally a medical not a criminal problem, and the pathology of the disease varies with individuals. Criminal law should concern the immense adverse social consequence of abuse, say in the form of wife-beating or auto accidents, and on that score, attention should turn primarily to alcohol. Alcohol causes more than 100,000 deaths a year, while federal statistics report no deaths due solely to marijuana use. Laws that deal with the consequence of drug use--for example, driving under the influence--should be firmly enforced. But drug-induced escapism that merely wastes one's time, mind and body is no business of the cops. Clearly, our drug policy is an inconsistent hodgepodge, causing more misery than drugs themselves. But we will not begin to seriously reexamine this question until politicians, and the reporters who cover them, come out of the closet and share their own experiences on the subject. Many of us know more about how wrongheaded the drug policy debate is from our own experience than we've been willing to admit." Johnson will be at the Cato Institute in Washington on October 5 to participate in the conference Beyond Prohibition: An Adult Approach to Drug Policies in the 21st Century.

Straight Shooting In Kentucky

Kentucky's concealed-carry law is being hailed as a success after a man shot an assailant during an attempted robbery, the Kentucky Post reported. The law's chief sponsor, state Rep. Bob Damron, said, "That's what the law was intended to do: Let a legal citizen protect himself." More than 51,000 Kentuckians have obtained permits to carry hidden weapons in the three years since the state's concealed-carry law took effect. Kenton County Sheriff Charles Korzenborn added that "[p]eople have not only a right but a responsibility to take care of themselves. If you rely on the police to do everything, you would need one policeman for every person." Joe Megerle was confronted in a park by Jamie Kennedy, who drew a pistol and demanded money. Megerle shot Kennedy in the chest and head; he is in serious condition at University Hospital in Cincinnati. Rep. Dorsey says that the people who have permits to carry concealed weapons have acted responsibly. "I'd match those people's criminal record against any other group in the state. They are showing that you can trust law-abiding citizens who actually own and keep firearms."

In the Cato Policy Analysis "Fighting Back: Crime, Self-Defense, and the Right to Carry a Handgun," Jeffrey R. Snyder writes that "[p]rior to 1987, almost every state in America either prohibited the carrying of concealed handguns or permitted concealed-carry under a licensing system that granted government officials broad discretionary power over the decision to grant a permit. The key feature of the new concealed-carry laws is that the government must grant the permit as soon as any citizen can satisfy objective licensing criteria. Concealed-carry reform reaffirms the basic idea that citizens have the right to defend themselves against criminal attack. And since criminals can strike almost anywhere at any time, the last thing government ought to be doing is stripping citizens of the most effective means of defending themselves. Carrying a handgun in public may not be for everyone, but it is a right that government ought to respect… According to Department of Justice statistics, approximately 87 percent of violent crime occurs outside the home. Despite the fact that Americans possess approximately 70 million handguns, one is not armed if one does not have a weapon at hand when needed. Perversely, the discretionary licensing laws and prohibitions against the carrying of weapons succeed only in disarming those who respect the law. Perversely, by ensuring that those who abide by the law will not carry weapons outside the home, the law aids and abets criminals by assuring them that they will find unarmed, easy victims. Shall-issue concealed-carry laws, by contrast, deprive criminals of that peace of mind." In addition to Snyder's paper, the complete audio of the Cato Policy Forum "Concealed-Carry Gun Laws and the Crime Rate" is available in RealAudio format.

Highway Robbery By Law Enforcement?

Asset forfeiture is under criticism in Lane County, Oregon, AP reports. In July, officers with the Interagency Narcotics Enforcement Team seized $22,143 and a car from a suspect at time of arrest. The suspect spent the night in the Lane County Jail on a charge of possession of a controlled substance, but was released the next morning because of overcrowding. He has not been indicted on any charge, but the Lane County district attorney's office has filed an asset forfeiture claim against the cash and the car, alleging that the money came from a drug crime and the car was used to transport marijuana. Since 1989, the state's asset forfeiture law has generated an estimated $7.6 million to fight drugs and fund courts. The statute places the burden on the person trying to reclaim the seized property; he or she has to prove the property was not connected to a drug crime.

In testimony before the Senate Judiciary Committee Criminal Justice Oversight Subcommittee in late July, Cato Institute Vice President for Legal Affairs Roger Pilon noted that "[m]odern American asset forfeiture law, especially civil forfeiture, rests on animistic and authoritarian principles, leading to practices that are utterly foreign to our first principles as a nation. Something is terribly wrong when a body of 'law' enables officials to stop motorists and other travelers and seize their cash on the spot, returning it, if they do, often years later, only after the person proves his innocence--where such a defense is possible; when that "law" enables officials to seize and sometimes destroy boats, cars, homes, airplanes, and whole businesses because they suspect the property has somehow been 'involved' in a crime; or when it encourages officials to maim and even kill in their efforts to seize property for forfeiture to the government. Lawyers who come upon this body of law for the first time are often taken aback by the injustice and irrationality of it all. Imagine what the ordinary citizen must think." And earlier this spring, the Cato Institute hosted Forfeiture Reform: Now, or Never?, available in RealVideo format. A Cato Policy Analysis also addresses the forfeiture issue: "Broad forfeiture claims by state and federal officials might be better justified, and enjoy wider public support, if their sting were visited only upon the guilty, those who have intentionally committed crimes. But the oldest and most frequently used form of forfeiture--civil forfeiture--is not targeted at criminally culpable property owners. Instead... civil forfeiture laws apply indiscriminately to property, regardless of the innocence of the owner, and render it subject to forfeiture if it is used unlawfully by anyone... Moreover, by any measure, forfeiture laws provide the government with unique litigation advantages, benefits not enjoyed by other litigants in any other area of law. They generally permit the government to seize property first, for example, and then place the burden upon the owners to come forward to prove they are entitled to have their property returned. This power of immediate possession, usually through summary government action, provides the government with tangible bargaining advantages at the outset of any title dispute between the government and a property owner. If, as the adage goes, possession is nine-tenths of the law, the government can secure this advantage before it has any obligation to prove anything."

Executive Decision-Maker

The Washington Times Monday examined President Clinton's prolific use of executive orders to rule by fiat. "Making good on a vow to pick up where Congress leaves off, Mr. Clinton has posted 301 formal executive orders and generated a storm from opponents who say the orders push the limits of presidential power. The president has used that extraordinary power to revamp civil service rules for workers with psychiatric disabilities, ban discrimination against homosexuals in civilian federal jobs, halt dealings with federal contractors who use products made by foreign child labor, declassify vast stacks of old files, change contracting practices to give Asian-Americans and Pacific Islanders a bidding edge, revise food labeling, restrict smoking in government offices, revamp encryption export rules and intervene in a Philadelphia transit strike," the paper reported on its front page. House Majority Leader Richard Armey (R-Texas) warned that "President Clinton seems bent on using his powers until someone says stop. President Clinton is running roughshod over our Constitution." Rep. Jack Metcalf (R-Wash.) is leading an effort to stem the flow of executive orders. "Unfortunately, the Supreme Court has essentially ruled over time that the executive orders have the force and effect of law. Well, they don't, but if nobody's there to challenge them they continue to carry the effect and force of law," Metcalf said. Rep. Ron Paul (R-Texas), the House's leading libertarian, has filed a bill that would designate executive orders as "advisory" and without the force of law unless Congress approves. The Times quotes William J. Olson, a constitutional lawyer who formerly worked in the Justice Department Office of Legal Counsel, who is preparing a paper for the Cato Institute on Clinton's use of executive orders. "It is a deliberate plan to usurp legislative function, and unfortunately most of the time he has faced a Congress that could be described as supine," Olson said.

Webbed In

A federal appeals court has agreed to hear arguments next month in a case challenging a 1996 Virginia law forbidding state employees from using their computers at work to look at sexually explicit material on the Internet, AP reports. Six college professors and the American Civil Liberties Union contend that the law limits the educators' ability to conduct research into human sexuality, art history and English literature. Last year, a federal judge in Alexandria struck down the law, but a three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond overturned that ruling in February. "A lot of English, a lot of novels and a lot of art is sexually explicit. Unless you're going to pass a law that says you're not going to have any more sexually explicit art and books, you're going to have to deal with this," Professor Terry Meyers said at the trial last year. But the state attorney general's spokesman said the case was not about censorship or Internet regulation but "about appropriate use of taxpayer funds." A 1995 Cato Policy Analysis on the federal "Communications Decency Act" examined many of the issues brought to the surface in the Virginia case: "The nature of online communication also makes intrusive regulations far less necessary. Computers and modems offer users (read parents) a much greater degree of control over what may be accessed than ever imagined for a telephone or television. To begin with, computers require a basic skill literacy--that is not a prerequisite for the other communications appliances. In addition, software may be configured to screen out unwanted services… It has been suggested that 'online systems give us far more genuinely free speech and free press than ever before in human history.' … [but the] harsh penalties of the law, including possible jail terms, ensure that those placed at risk will err on the side of exclusion." In another Cato Policy Report, Solveig Singleton writes that "[n]o regulation of computer network indecency, however carefully tailored, should pass constitutional scrutiny. First, no legislator has been able to define indecency coherently. Such regulation is inherently unfair, especially as applied to spontaneous, casual speech of the sort that the Internet facilitates between unsophisticated and noncommercial speakers. Second, government cannot legitimately claim that it has any interest in content control, when civil society has solved the perceived problem on its own." A transcript of the Cato Policy Forum "Sex, Cyberspace, and the First Amendment" is also available. At that meeting, Marcia Pally, president of Feminists for Free Expression, argued that "[b]efore the 20th century few people, save a wealthy elite, saw any pornography whatsoever. Certainly they heard no rap or rock n' roll. Yet violence and sexism flourished for thousands of years before the printing press and the camera. Today countries where no sexual imagery or Western music is permitted--countries such as Saudi Arabia, Iran, and China--do not boast strong records of social harmony or strong women's rights records. For millennia teenagers have managed to become pregnant without the aid of sexual imagery, rock n' roll, or matrimony. In Intimate Matters: A History of Sexuality in America, John D'Emilio and Estelle Freedman note that up to one-third of births in colonial America occurred out of wedlock or within eight months of obviously hurried marriages. In light of the historical record of violence and sexual abuse, it is unlikely that their cause lies in a Johnny-come- lately industry such as mass-market pornography or rock n' roll or rap. Banning sexually explicit material is not likely to reduce those abuses or assist women and children. The social science data come to the same conclusion."