Writing in the New Yorker on the mystique of the Mob, Adam Gopnik makes a point long familiar here at Cato:

The former Mafia prosecutor John Kroger, in his 2008 book, “Convictions,” details his team’s victories against the Mob but admits, with some chagrin, that the Mob was really defeated not by charges but by changes. Crime battens on prohibition. The lotteries stripped the numbers racket of its appeal; Internet porn took a toll on the prostitution and smut business; easily obtained credit cards robbed the loan sharks of their monopoly. A more permissive society—with gambling, sex, and debt regularized—was a less Mafia‐​friendly one.

In explaining the fall of the once‐​mighty numbers racket, the near‐​ubiquity of lawful casino gambling might be added to lotteries. Due credit to Kroger and Gopnik, in any event, for not overlooking the less often heralded connection between the rise of a truly mass credit industry and the decline of loansharking rackets, once a key Mob moneymaker and still a major problem in some advanced countries such as Japan.

On a broader look, the best known example of all is alcohol prohibition, which fueled first the steep rise of organized crime in the 1920s and then, after Repeal, its decline. Another enormous driver of gang activity, both at home and abroad, has been the Drug War, which has not yet seen its day of Repeal.

Which raises the question: how many of these lessons have truly been learned? As Cato scholars have repeatedly observed, punitive taxes and rigid controls have managed to repeat chapters of the Drug War on the tobacco front, making the smuggling and irregular retail sale of cigarettes into a big criminal enterprise, especially in New York (Will vaping be next?).

Where barriers of prohibition are high enough, people will turn to organized crime in buying or selling almost any article of commerce Thus the colorful history of contraband smuggling associated with everyday items like calico printed fabrics (don’t miss Virginia Postrel’s account), maple syrup, and even butter. Schemes to raise big new barriers to international trade, popular on both the left and right, seldom devote much foresight to the possibilities of criminal evasion.

Ominous, too, are the schemes to suppress large portions of the mass lending business (including, but not limited to, oft‐​reviled “payday lending”). Two years ago Sen. Bernie Sanders (I-VT) and Rep. Alexandria Ocasio‐​Cortez (D-NY) introduced a truly bad bill whose provisions included a cap on national interest rates on credit cards at 15 per cent, a level sure to make much current lending unprofitable. Although couched in the rhetoric of anti‐​loansharking, as Todd Zywicki wrote then, the Sanders‐​AOC bill would invite back into American life the kinds of informal muscle operators against whom generations of racket‐​busters like Thomas Dewey and Robert F. Kennedy crusaded.

Organized crime has subsided as a force in American life, and for that we are lucky. But it seems none of these lessons are ever permanently learned.

The forward march of marijuana legalization encountered a roadblock yesterday when a South Dakota judge ruled against the will of voters and declared an amendment legalizing the use and sale of recreation and medical marijuana and hemp unconstitutional. Last November South Dakota voters approved Amendment A by a margin of eight points but strong opposition to the voter‐​driven initiative from within the highest levels of state government – including the governor – have led to this recent ruling.

The basis for the unconstitutionality argument rests on the 2018 adoption of Amendment Z which, “establish[es] that a proposed constitutional amendment may embrace only one subject, and requiring proposed amendments to be presented and voted on separately.” Despite warnings from opponents that it could be used to prevent all but the narrowest amendments from being voted upon and dramatically increase the cost of initiative petition drives, Amendment Z passed with overwhelming support – 62.4 percent to 37.6 percent.

South Dakota is not alone in having a single‐​subject rule. Of the twenty‐​six states with processes for initiatives or referendums sixteen – including South Dakota – have similar single‐​subject rules or separate‐​vote requirement provisions. These weaken the power of citizens to generate change from outside the political structure which is antithetical to democratic ideals.

Two law enforcement officers – Pennington County Sheriff Kevin Thom and Highway Patrol Superintendent Col. Rick Miller – brought the lawsuit challenging Amendment A. Governor Kristi Noem ordered the state to pay legal fees for Mr. Miller, leaving taxpayers paying for both sides of the legal battle.

It is not surprising that South Dakota law enforcement would oppose marijuana legalization efforts. In 2019, there were 9,791 arrests for drug violations – accounting for one quarter of all arrests in the state. And since 2010, drug arrests in South Dakota have increased by 148 percent. Marijuana legalization would eliminate many of these arrests, perhaps making it more difficult for state and local law enforcement agencies to justify bloated budgets.

Research shows that marijuana legalization results in modest effects and has the potential to generate substantial revenue for states. Marijuana legalization is increasingly popular as evidenced by the rapidly increasing number of states embracing it. South Dakota should listen to voters and legalize the use and sale of recreational and medical marijuana.

Juror #112 had serious reservations about the case in front of him. The defendants were each charged with no less than 42 offenses. “Do we have the right to use jury nullification of a charge?” the juror asked.

The trial court’s answer was evasive, but the juror was insistent. “Can you answer the jury nullification with a yes or no response?” came the second note. After the third such inquiry, the circuit judge made the following declaration:

“Ladies and gentlemen of the jury you may not use, implement, or resort to jury nullification. It is improper, it’s contrary to the law [and] would be a violation of your oath…”

That declaration prompted a reversal by the Maryland Special Court of Appeals, the state’s intermediate appellate court. But in an opinion filed on Jan. 29, Maryland’s highest court—the Maryland Court of Appeals—upheld the circuit judge’s bald‐​faced assertion that jury nullification was “contrary to the law.”

Do jurors have the power to nullify charges – or, in the words of Chief Justice Marshall, “find a verdict of guilty or not guilty as their own consciences may direct?” The plain answer is yes. A jury’s verdict of “not guilty” is final. It may not be set aside even if it flatly contradicts the evidence, and jurors may not be punished for acquittal. The U.S. Supreme Court most recently acknowledged this in Greggs v. Georgia 428 U.S. 153 (1976), which noted that a holding where “jury nullification would not be permitted… would be totally alien to our notions of criminal justice. Moreover, it would be unconstitutional…. The suggestion that a jury’s verdict of acquittal could be overturned and a defendant retried would run afoul of the Sixth Amendment jury‐​trial guarantee and the Double Jeopardy Clause of the Fifth Amendment.”

Nevertheless, ever since Sparf v. United States, 156 U.S. 51 (1895), courts have generally embraced the proposition that criminal defendants have no constitutional right to ensure that the jury is advised of its power to acquit against the evidence. But that doesn’t mean courts are permitted to misrepresent to juries that they may not engage in jury nullification, which, again, has been an unquestioned power of juries throughout centuries of common law. Apparently unable or unwilling to challenge that history, the Maryland Court of Appeals resorts to rank sophistry by asserting that “although a jury may have the ability to nullify, and we recognize that jury nullification occurs, a jury does not have the right to engage in jury nullification.” (Emphasis added.)

The high court’s attempt to strain a line between a jury’s ability to nullify and their right to do so may also be explained by the fact that the court itself had previously recognized a jury’s “ability” to nullify in Chambers v. State (Md. 1994) (“[Juries] always have the ability to nullify the application of the criminal law to a particular defendant”). But the even the Court of Appeals’ spurious distinction between a jury’s “right” and its “ability” to acquit against the evidence does not fairly meet the substance of the trial court’s actual instruction that the jury “may not use, implement, or resort to jury nullification.” That order is a blatant misrepresentation of what well‐​settled legal doctrine and historical practice empower criminal juries to do.

When our nation’s founders convened in Philadelphia to write our Constitution, they were well aware of the 1735 trial of John Peter Zenger, who was famously acquitted against the evidence for the crime of seditious libel against the Royal Governor of New York, William Cosby. Expressing what he and other Founders would no doubt have considered a truism, John Adams said that “it is not only [the juror’s] right, but his duty, to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the direction of the court.” Thus, the power of jury nullification—or stated more accurately, conscientious acquittal, since a jury’s verdict does not invalidate the underlying law—isn’t a bug in our nation’s criminal justice system. It’s a feature, designed to permit juries to act as a check against unjust charges, draconian punishments, and other abuses of government power.

The Maryland Court of Appeals’ endorsement of the novel (and false) proposition that juries may not acquit against the evidence—and its prospective instruction that state trial judges repeat that misrepresentation of the law to juries—represents a brazen usurpation of the jury’s power. No matter how much some judges may dislike jury nullification, letting them lie to juries to prevent the conscientious acquittal of a defendant is unconstitutional.

Inauguration Week seems like an opportune time to think how much more just the Department of Justice could be if President Biden took the bold step of putting a libertarian in charge of it. As I've written before, our criminal justice system is fundamentally rotten—it punishes vast amounts of morally blameless conduct, uses coercion-fueled mass adjudication to perpetuate mass incarceration, and insists upon a policy of near-zero accountability for its own transgressions. Indeed, it is doubtful whether any American institution inflicts more injustice than our so-called criminal "justice" system.

One might argue that because the vast majority of criminal enforcement occurs at the state level there's not much point in focusing on the federal system. I disagree. The U.S. Department of Justice looms large over the entire criminal-justice landscape by establishing norms, setting examples, providing oversight, and offering—or withholding—financial incentives to other agencies and jurisdictions. For better or worse, DOJ represents a kind of industry gold standard for criminal justice. And that's disturbing because, as discussed below, many of DOJ's standard practices are astonishingly unjust.

DOJ is a sprawling, $30 billion-a-year agency that wears many hats. Accordingly, it would be impossible to provide a comprehensive list of proposed reforms in a single blog post. But one of the most consequential things DOJ does—and an area in particular need of fundamental reform—is the enforcement of federal criminal laws. On that front, a libertarian attorney general would be well-advised to address three specific issues: accountability, prosecutorial tactics, and institutional culture.

1. Accountability. The lack of accountability among federal prosecutors is simply astonishing. Perhaps the most stark—but by no means isolated—illustration is the Ted Stevens case, in which prosecutors systematically cheated their way through the prosecution of a sitting U.S. senator, got caught, and were subjected to no meaningful discipline of any kind.

Unlike other federal agencies, allegations of misconduct against DOJ lawyers are not handled by the Department's inspector general, but instead by a notoriously lax in-house entity called the Office of Professional Responsibility. Among other things, OPR has a policy of not disclosing the identity of prosecutors whom OPR itself has determined have committed willful misconduct—which is a remarkable stance for an agency that routinely arranges media-saturated "perp walks" for arrests of high-profile targets like Roger Stone.

Read the rest of this post →

Tony Timpa dialed 911, scared for his life. He was having a psychotic episode, he said, and was off his medications. The Dallas Police Department dispatched their “Crisis Intervention Training” Team: five officers ostensibly equipped to help those with mental disabilities. Tony had already been restrained by a local security guard when the officers arrived. All was in hand—or it should have been.

But the combination of incompetence and emotional indifference displayed by the Dallas officers that night is horrifying to watch. Restraining Tony’s legs and putting him in police cuffs, the officers laid him prone and kneeled on his body. They ignored his cries that they were killing him. They brushed off his agonal respiration as “snoring.” They cracked juvenile jokes to one another as Tony slid into unconsciousness: “It’s time for school! Wake up!” remarks one officer when Tony stops responding. After 14 minutes of compacting Tony’s lungs as he begged for his life until he could no longer speak, officers finally turned Tony over to a trained paramedic. “He’s dead,” the paramedic declares almost immediately after Tony is lifted into the ambulance.

Virtually no one could watch the video of Tony Timpa’s death and come away with the impression that the officers had committed anything less than a grave moral injustice. Tony’s death was not the result of some split‐​second, tragic misjudgment in the middle of a chaotic conflict: he died because the five police officers who responded to his call were more interested in acting like the toughest kid at summer camp than doing their professional duty to help a person in need. Yet a lawsuit from Tony’s surviving family members demanding justice for his death was blocked by a federal district judge’s decision that the officers were immune from civil suit. The Cato Institute filed an amicus brief last Friday urging the Fifth Circuit to reverse the district court’s decision and allow the case to proceed to trial.

As we argue in our brief, the ill‐​defined qualified immunity standard is regularly misconstrued by lower courts in ways that put even the most reprehensible police behavior beyond reproach. The result is rapidly declining public confidence that makes police work more difficult and good talent harder to recruit.

At the same time, department and municipal leaders face few repercussions for failing to replace unfit officers as courts become ever‐​more willing to invent excuses for third‐​rate recruits. Four of the officers present at the scene of Timpa’s death remain on active duty with the Dallas Police Department, and the fifth retired at age 50. It’s not just Texas: examples abound of police killing Americans through prone asphyxiation, and there’s no telling how many cases go unreported because police departments successfully conceal them—as Dallas did for three years in Timpa’s case.

It’s a devastating cycle for the institution of policing. By inventing various immunities from civil damages suits out of whole cloth, judges have vastly reduced the costs of employing inept officers; departments—lacking the motivation that those damage awards would otherwise provide—have predictably failed to clean up their ranks; and good people who would otherwise be attracted to a career in law enforcement are having second thoughts about joining an institution mired in controversy. Every day the Supreme Court waits to re‐​examine its flawed qualified immunity doctrine will make rebuilding a little harder.

On January 14, the U.S. Department of Health and Human Services issued new, relaxed guidelines for physicians wishing to prescribe buprenorphine to their patients with opioid use disorder. While the so‐​called “X” waiver required of prescribers remains, the new guidelines permit physicians (not nurse practitioners or physician assistants) to prescribe buprenorphine without the waiver. They may only prescribe to patients located within their own state and they may have no more than 30 opioid use disorder patients on buprenorphine at any time.

Buprenorphine is a synthetic opioid that was developed to treat pain. It is only a partial opioid agonist, and therefore is less prone to suppress the respiratory mechanism in high doses. Since the early part of this century, it has been used for Medication Assisted Treatment (MAT) for opioid use disorder. Practitioners have been allowed to prescribe and dispense buprenorphine to their patients and follow them as outpatients in their office. Unfortunately, onerous federal regulations apply.

Under the Drug Addiction Treatment Act of 2000, practitioners who wish to treat substance use disorder with buprenorphine are required to obtain an “X waiver.” Providers must take an 8‐​hour course in order to have the ”X” added to their Drug Enforcement Administration narcotics prescribing license. There are also strict limits on how many patients a practitioner can treat at any given time, as well as restrictions on nurse practitioners or physician assistants wishing to obtain the X waiver.

These have combined to create an acute lack of buprenorphine MAT providers. According to the Substance Abuse and Mental Health Services Administration, less than 7 percent of practitioners have jumped through the hoops and obtained X waivers. The shortage is particularly severe in rural areas. Nationally, only 1 in 9 patients with opioid use disorder are able to obtain buprenorphine MAT. This has fueled a black market for buprenorphine, where many with opioid dependency or addiction use the drug—which is a poor substitute for the “high” they get from their opioid of choice—to self‐​medicate against withdrawal symptoms.

For this reason, health care practitioners interested in treating opioid use disorder, as well as other harm reduction advocates, have called for ending the requirement of an X waiver to use buprenorphine for MAT. In France roughly one‐​fifth of general practitioners treat people with substance use disorder in their offices without any further licensing or education requirements. It has contributed to a dramatic reduction in France’s overdose death rate.

In January 2020, the National Academy of Science, Engineering, and Medicine (NASEM) joined the chorus calling to end the “X” waiver.

Methadone is another synthetic opioid that has been used for MAT since the late 1960s. Unfortunately, in the U.S., methadone can only be used for MAT in DEA‐​regulated methadone clinics, and the patients must receive and consume the methadone in the presence of clinic staff. In several other developed countries, such as Canada, the U.K., and France, patients are prescribed and dispensed methadone without this requirement. Naltrexone, an opioid blocker sometimes administered in depot injections that last a month, has also been used for MAT.

Recent research found MAT with either methadone or buprenorphine to be the only effective treatments associated with reduced overdoses and overdose deaths out of 6 different treatment pathways studied, including a pathway using naltrexone.

The relaxation of the MAT regulations for buprenorphine is a step in the right direction. But limiting the new rule to physicians and restricting their number of patients to 30 doesn’t go far enough. Interviewed by MedPage Today, Assistant Secretary of HHS Admiral Brett Giroir, MD said:

[W]e anticipate that this is going to be primary care providers who may be in rural areas that may treat 5 or 10 people within their practice with this. If they’re going to get into the business of 40 or 50 or 80 or 100, right now we think they should go through the X waiver process with all the controls on that, but this is a first step that we’ll evaluate.

Dr. Nora Volkow, Director of the National Institute on Drug Abuse, told MedPage Today:

This is a compromise. We’re changing a practice, and by doing it in a conservative way, we can ensure that we’re not producing harm by practices of things that we may not know. Initially the X waiver was also starting with 30, and I assume that that’s because there was experience with that; that made a reasonable, justifiable number.

There was bipartisan support in the last Congress for legislation that would eliminate the X waiver requirement for health care practitioners prescribing buprenorphine for MAT. Hopefully the new Congress and the incoming Biden administration will pick up where their predecessors left off so that people with opioid use disorder can get the help they need.

The attack on Capitol Hill yesterday was disgraceful. It was also remarkable. After all the security breaches at both the congressional complex and White House over the years, and the many large protests in the city, you would think that the Capitol Police would have been better prepared.

The Capitol Police certainly has enough funding to be prepared. The force has 2,300 officers and a $516 million budget to defend two square miles.

The chart shows that outlays for the Capitol Police have soared over the past two decades. In actual or nominal dollars, spending increased from $115 million in fiscal 2000 to an estimated $516 million in fiscal 2021. That equals an annual average growth rate of 7.4 percent, much faster than the 2.1 percent average annual inflation over the period.

The Capitol Police budget is more than the police budgets of Atlanta and Detroit. A watchdog group examined the agency’s activities in posts here and here.

Spending data is from the federal budget here. The figure for 2021 is the estimate from last year’s budget. A conversation with David Ditch prompted this post. William Yeatman examines the agency here.