On December 25, 2019 the Wall Street Journal had an editorial that discussed the involvement of bootleg THC vaping cartridges in the recent outbreak of vaping-related lung illnesses. For an editorial board that is usually very sophisticated in understanding and applying economics, I was very disappointed to witness how biases against the recreational use of marijuana and other currently illicit drugs can cloud the usually clear reasoning of the editors. Not only did the editorial cherry-pick facts to perpetuate unproven or long-discredited dogmas about the harmful effects of marijuana—a drug not nearly as dangerous as alcohol—but it also seemed to ignore the harmful unintended consequences that result from prohibition, which has a lot to do with the “Vaping-Marijuana Nexus.” This should never escape the attention of editorialists who are knowledgeable in economics. I was particularly disappointed in light of the editorial board’s history of opposing punitive taxes on tobacco and other politically incorrect but legal products, recognizing that such “sin taxes” only fuel an often-dangerous black market. My disappointment and frustration moved me to write this letter to the editor, which the Journal was gracious enough to publish today.

States that permit recreational marijuana sales tend to have lower rates of vaping-related hospitalizations, according to data published by the Centers for Disease Control and Prevention (CDC). The CDC has linked vitamin E acetate, an adulterant typically reserved to the black market, to 48 of the 51 hospitalized patients it has examined. Governments have often responded to these contaminations by enacting bans on e‑cigarettes and other vaping products, but the CDC data suggest they should take the opposite approach.

From my column with Jacob Rich at rea​son​.com. 

A public defender pseudonymously named Don Zeko posted an infuriating thread on Twitter yesterday in which he describes confronting a police officer in the parking lot of a courthouse as the officer was in the process of citing a woman for saying the word “b*tch” in public.

The officer claimed this was disorderly conduct, a misdemeanor punishable by up to 60 days in jail. Zeko pointed out to the officer that it is, in fact, not illegal to curse in public (as a constitutional lawyer, I would add that there is a First Amendment right to do so) and that the charge would certainly be thrown out.

The officer then ordered Zeko to get in his car and drive away, and Zeko believes he would have been arrested had he stood his ground, as he later wished he had.

This may seem like a trivial incident, particularly to anyone who’s never been berated by a heavily armed agent of the state for no good reason. (I have, and it’s scary.) But there are three key points to make about this encounter.

First, this kind of thing happens all the time. Just noodle around on YouTube a bit and you’ll be struck by the utter banality of it all: The casual disrespect, intimidation, deceit, manipulativeness—it’s shocking how so many officers misbehave so flagrantly, even when they know they’re being recorded.

Second, as discussed below, there are rarely any consequences for officers who engage in the sort of low-level harassment described by Zeko and depicted in the links above. Once in a great while—and usually only after a recording of the incident goes viral—an officer will experience some minor internal discipline, but that is very much the exception to the rule of impunity.

Third, while this sort of petty tyranny may pale in comparison to beatings and shootings, these micro-assaults on people’s freedom are antithetical to liberal democracy and, in the aggregate, corrosive to the rule of law. The message is clear: “I’m a cop. If you don’t want to get hurt, don’t challenge me.”

Unfortunately, our system is not well designed to address constitutional violations that do not produce significant physical injuries or otherwise provide the opportunity to recover substantial monetary damages. Although the main federal civil rights law, 42 U.S.C. § 1983 (known as “Section 1983”) does not distinguish between major and minor constitutional violations—on the contrary, it provides that police and other state actors “shall be liable to the party injured” for the “deprivation of any right[]”—there are many practical limitations to bringing federal civil rights claims for relatively minor violations like the ones described by Zeko.

These include the fact that most plaintiffs’ attorneys work on a contingent-fee basis and are understandably reluctant to take on smaller cases with low damage awards; judges not wishing to see their dockets clogged with cases involving relatively minor transgressions by government actors; and even case-filing fees (currently $400 in federal court) which will often exceed the value of any possible damages award.

So is it simply impossible to provide any recourse for citizens who experience individually minor—but in the aggregate potentially quite significant—violations of their rights by police officers? Absolutely not. In fact, there’s an easy, virtually off-the-shelf solution that involves nothing more than combining two utterly commonplace features of our existing system: traffic tickets and small claims court.

When the government catches you committing some minor infraction, do they make a federal case out of it? Not usually. Chances are, they just give you a citation, which is a written notice of the alleged infraction, together with instructions on how to challenge it and (usually) how to make it go away by simply pleading guilty (or no contest) and sending in some money.

Similarly, when someone won’t take responsibility for some relatively small injury they’ve caused you—backing up into your car in the parking lot, say, or throwing a ball through a plate-glass window—do you go out and hire a lawyer and insist upon a full-blown jury trial to sort the whole thing out?

No. If you decide to pursue the matter, chances are you do so in small claims court, where there are (usually) no lawyers, little or no discovery, and no jury. Instead, each side takes a few minutes to make their case to a judge and present whatever relevant papework they may have, such as an invoice from the repair shop, and the judge decides the case right on the spot.

So why shouldn’t these two approaches for resolving relatively minor conflicts—traffic tickets and small claims court—work with relatively low-level police misconduct? The answer is, they would work—beautifully.

Without geting too bogged down in the mechanics, imagine a system like this: The city has a website where people can file small claims against police officers like the one described in Zeko’s Twitter thread. There’s one field for the officer’s name and/​or badge number, another for a brief description of what you claim happened, and another where you can list any injuries or damages you believe you sustained. And as with small claims court, there’s a way to include any documentation you might have, including a recording of the incident, photographs of bruises or other physical injuries, witness statements, etc. 

But won’t officers constantly be tied up in constitutional small-claims court to the detriment of their other duties? Nope, not at all. First, as with traffic tickets, there will be a way for them to simply admit liability (or decline to contest it) and pay up (more on that in a minute). And that may not be as far-fetched as it sounds, particularly when there’s a recording of the misconduct, and especially if we allow judges to assess an additional fee to officers who challenge the claim and lose, just as people who challenge a traffic ticket and lose are typically charged court costs.

Second, traffic courts typically schedule hearings on all of the contested citations a given police officer has issued in the past X weeks or months for the same day so the officer only has to spend one day in court testifying about those cases. We could do the same thing in constitutional small claims court: Schedule all of the contested cases against a particular officer on the same day, just like traffic court but in reverse. (This will be even easier if we allow both sides to testify remotely via video chat, which we probably should given the relatively low financial stakes.)

And again like traffic court, there could be a set schedule of fines—or, in this case, damages awards—for particular sorts of misconduct. Let’s say a base-level award of $500 for garden-variety violations like threatening to cite or arrest someone for engaging in constitutionally protected speech; an additional $500 for aggravating circumstances such as engaging in deceitful or deliberately intimidating behavior during the encounter; and perhaps another $1000 for causing any physical injuries that did not require medical care. Again, the details can be hashed out later—for now, we’re thinking conceptually.

So where would the money for these damages awards come from? Arguably the most just answer is that the money should come from the officers’ own pockets, just like the money for traffic tickets and other fines and fees comes out of citizens’ pockets–including many people who can ill afford it. But let’s say we’re willing to indulge the customary double standard whereby members of law enforcement are treated much more favorably than ordinary citizens under similar circumstances. We could seek to ameliorate the supposed harshness of this new regime (though in reality there is nothing “harsh” about requiring people to internalize the costs of their own misconduct) and harness the power of loss aversion in the following way.

We provide a kind of bonus, equivalent to, say, ten percent of an officer’s current salary, and we put it in escrow at the beginning of the year. Human nature being what it is, many officers on January 1st will already be thinking about how to spend that money on Christmas presents come December. In short, they’ll have a possessive feeling towards the money in that escrow account and a strong incentive to avoid seeing it depleted.

And it is from that escrow account that awards against the officer in constitutional small claims court would be drawn. Thus, good officers who generate few if any meritorious claims in a given year will receive a nice bonus in the form of a substantially fully funded escrow account; but officers who generate lots of meritorious claims will receive little if any bonus and may even have to go into their own pockets if the money in their escrow account runs out before the end of the year. Talk about harnessing the power of incentives!

One final point. This would be a big deal—a major departure from the way we do things now, which is to collectively shrug our shoulders at the vast majority of relatively low-level civil-rights violations committed by cops hundreds, if not thousands, of times a day across the country. Is it really worth it to require cops to answer for those violations and distract them from the important and sometimes even life-saving duties they perform–often with great courage and personal sacrifice?

I think so. But if you’re in doubt, you might try asking two people what they think. First, ask the best cop you know–one who takes pride in his or her job and in serving the community respectfully, honorably, and with integrity–and who, deep down, probably resents the opprobrium created by cops like the one in Zeko’s Twitter thread.

Second, track down the woman whom that officer threatened with a bogus misdemeanor arrest for exercising her constitutional right to curse in public (which she probably did at a time of great personal stress and frustration). I’ll bet her answer wouldn’t surprise you, and it might even humble you.

The Washington Post has just published a deep dive into the war in Afghanistan, including the war on opium. These newly released documents expose in stark terms the dramatic failures of our century-long war on drugs. Of all the aspects of the Afghan quagmire, the war on opium has been among the most indefensibly foolish. Metaphorical wars against inanimate objects (drugs, alcohol, etc.) or vague ideas (crime, poverty, etc.) have an extensive history of failure. Continuing to pursue them is nonsensical at best, and deadly at worst.

U.S. opium poppy eradication efforts have cost nearly $9 billion since 2001. In 2001 US airstrikes targeted “a network of clandestine opium production labs that U.S. officials said was helping to generate $200 million a year in drug money for the Taliban,” but aerial efforts were abandoned after “many of the suspected labs turned out to be empty, mud-walled compounds…[and] the U.S. military concluded it was a waste of resources to keep blowing up primitive targets with advanced aircraft and laser-guided munitions.”

American officials struggled with the question of how to address Afghanistan’s status as the world’s leading opium supplier. According to the Washington Post article, military leaders under the Bush administration “saw [fighting opium production] as a distraction or hindrance to their primary mission of fighting terrorists.” Under the Obama administration officials began recognizing the role of opium profits in funding insurgents but were also concerned that acting “could alienate poppy farmers…or U.S.-friendly warlords who profited from opium trafficking,” which would alienate US allies on the ground.

The tipping point in the war on poppies came when US military and intelligence officials began to perceive drug trafficking as a financial boon for terrorists. The drugs themselves were not a cause of terrorism, but prohibition made them a highly profitable and lucrative source of income for the US’ enemies. Therefore, in the eyes of US officials, fighting opium and fighting terrorism were intrinsically linked.

One striking illustration of the folly of strategies developed by the US and its allies was paying farmers large sums to destroy opium crops. The Post reports:

“In the spring of 2002, British officials…agreed to pay Afghan poppy farmers $700 an acre — a fortune in the impoverished, war-ravaged country — to destroy their crops.

Word of the $30 million program ignited a poppy-growing frenzy. Farmers planted as many poppies as they could, offering part of their yield to the British while selling the rest on the open market. Others harvested the opium sap right before destroying their plants and got paid anyway.

In a Lessons Learned interview, Anthony Fitzherbert, a British agricultural expert, called the cash-for-poppies program “an appalling piece of complete raw naivete,” saying that the people in charge had “no knowledge of nuances and [I] don’t know they really cared.”

U.S. officials said the British wanted to be seen as doing something, even though they had little confidence the program would work. Michael Metrinko, a former U.S. diplomat who served in the embassy in Kabul at the time, said the results were predictable.”

Years of failed policy have proven that victory in the war on drugs, as with the war on terror, will not come easily. But one approach will unlink drugs and terror: legalize the production, sale, and use of drugs. Competition in legal markets will drive prices down, thus eliminating drug trafficking as a means to fuel terrorism. The U.S. has no reason to continue a costly, ineffective prohibition when history has shown, time and again, that it does not work.

Last week the Washington Post featured an article in the “Outlook” section by Dr. James D. Hudson, a pain management specialist, lamenting Americans’ “Dangerous Fear of Pain,” arguing that the efforts by doctors to make their patients “pain free” has largely contributed to the overdose crisis.

Public policy towards the overdose crisis is panic-driven. Often lacking a strong basis in evidence and fueled by the media, it marks a return to the opiophobia of the 1950s and 1960s. This has led to comments about people in pain like this one by former U.S. Attorney General Jeff Sessions at a Tampa press conference in February 2018:

“Sometimes you just need to take two Bufferin or something and go to bed.”

As doctors are pressured by law enforcement and policymakers to curtail the treatment of pain, it seems a market has developed for articles by pain management doctors urging patients to “suck it up” and learn to live with pain. Dr. Hudson responded to the market demand. While not going to extremes like Attorney General Sessions, he still encourages people to learn to live with pain. At one point he writes:

In many ways, learning to live with chronic pain is like learning to live next to the El in Chicago. This aboveground transit system is old and loud. It roars past homes and businesses. Nearby residents feel the vibrations; it can be so noisy that they pause their conversations while the train goes by. Yet those who think a lower rent is worth the annoyance report that the sound soon ceases to be disruptive. You get used to it.

Well, this doctor disagrees. I believe that part of the physician’s mission is to end pain and suffering, not just treat illnesses and injuries.

Unfortunately, this return to a pre-modern approach to pain management will do nothing to stop the overdose rate, on a steady exponential increase since at least the late 1970s—well before the creation of OxyContin. And while the obsession over the prescription of pain medicine to patients in pain continues, policymakers, Dr. Hudson, and the media continue to ignore the obvious: the overwhelming majority of overdose deaths are from heroin and illicit fentanyl obtained by non-medical users—most of whom were never patients—in the dangerous black market made possible by drug prohibition.

This moved me to write a letter to the editor of the Washington Post, which was published here today.

Based on today’s argument in New York Rifle & Pistol Association, the unconstitutionality of New York City’s obscure transportation restriction on licensed handguns seems to be a foregone conclusion, with the only real question being how the Supreme Court will respond to the City’s strategic attempt to moot the case by repealing the law before a ruling could be handed down.


On that question, the justices appear divided along predictable ideological lines, with Justices Ginsburg and Sotomayor taking a hard line in their questioning that the case is moot, and Justices Alito and Gorsuch pushing back with equal force for the proposition that the controversy remains live and the city should not be rewarded for its blatant efforts to frustrate Supreme Court review of its now abandoned policy.

The mootness issue is particularly significant in this case because it involves such a clear attempt by a government litigant to obtain favorable rulings in the lower courts (which have been generally—but not uniformly—supportive of gun regulations in Second Amendment challenges) while denying the Supreme Court the opportunity to reverse those rulings and order the lower courts to stop rubber-stamping gun regulations and apply a more searching level of judicial scrutiny.


Notably, the sort of bad-faith case mooting on display in New York Rifle & Pistol is not remotely limited to Second Amendment cases and has been successfully deployed in a number of areas, including particularly civil forfeiture cases, where the government has been quite effective at thwarting Supreme Court review of highly dubious practices.

Another point that cuts against New York City’s strategic efforts to moot the New York Rifle & Pistol case is how far mootness and standing doctrine often drifts from its constitutional rationale, which is to avoid putting judges in the position of offering what amount to “advisory opinions” in situations where there is really no genuine dispute between the parties and nothing for the judiciary to remedy.

Nevertheless, courts have have held that even something as materially insignificant as a nominal damages claim for, say, $10 may be sufficient to keep an otherwise defunct case alive. And indeed, much of this morning’s argument focused on the question about whether the plaintiffs did, or should have, or might one day be able to assert a potentially case-saving low-dollar damages claim.

Well. If the question for Article III case-or-controversy purposes is really, “Hey buddy, can you spot me a Hamilton?” then Neil Gorsuch’s answer—and perhaps that of four more justices as well—appears to be, “For this case? Delighted to.”

Many people blame excessive painkiller prescriptions for the rise in opioid overdose deaths over the past two decades; and the government has responded with strict limits on how physicians prescribe opioids. Many pain patients lost access to medications with little warning and no alternative other than illicit opioids. However, a recent Policy Analysis finds that the opioid epidemic has resulted from too many restrictions on prescribing, not too few.

A reader who read the PA reached out to us with his story:

Your article is spot on. My adult son was prescribed several opioids at a pain clinic for displaced vertebrae in his neck. Surgery was too dangerous, and a pain clinic was recommended. As time went on he needed more and more to kill the pain, but we now know it was addiction. He started using more than prescribed and needed his script filled earlier. The clinic then cut him off telling him to seek treatment elsewhere. No one would take him at that point because the Feds put the hammer down. He did what they all do, go to the street. He was lucky in that his dealer cared about his business and would not sell altered drugs.

After he spent all his mother’s money and ended up in a hospital suffering from withdrawal, I was going to force him to rehab. He is a veteran, so I took him to the VA, where they had him put in outpatient Methadone, to treat the addiction and pain. Four times a year he gets an injection in his neck of cortisone. He is alive and well now and goes to the Methadone clinic every morning at 4:30 on his way to work. The stories he tells me of the people he meets at the clinic are sobering to say the least.

He is totally turned around. Always a great kid who did not want to be that way but had no choice thanks to over-regulation. Methadone at the clinic is $95 a week. Best money I ever spent. People who go to the clinic drive for 3 hours because they take anyone with money or voucher. Not enough clinics like that around.

The stigma surrounding outpatient methadone treatment means that many, like the writer above, face unnecessary obstacles to getting treatment. The reader continues:

My son tells me the lack of available Methadone clinics is a major problem. If CVS and Walgreens can give flu shots, how hard would it be to administer Methadone. It is a simple process. He checks in and then goes to the dosing room which has a drawer like the drive-in window at a bank. They put your dose in there. You get your dose in a small cup, about an ounce, and drink it like a shot while they watch.

With the millions appropriated to combat this, more easily available dosing centers would allow the poorest of us a chance. Kevin has a car we provided. Most addicted people have no car, home or family that care anymore. Not much of a chance. No way to drive 50 miles to a clinic. People are always telling him how lucky he is to have family that cares. All types are in line there, from fancy suits to cut off shorts.

I have come to the conclusion that those who became addicted prior to the federal crackdown, are just collateral damage. An expendable generation. The powers to be do not get serious until an election is near or they lose someone. I almost lost my son.

Eliminating the over-regulation of methadone and other medication-assisted treatments, thereby expanding access, is an obvious step toward ending the opioid crisis.