Latest Cato Research on Criminal Law and Civil Liberties https://www.cato.org/ en Will Isotonitazene Replace Fentanyl on the Black Market? https://www.cato.org/blog/will-isotonitazene-replace-fentanyl-black-market Jeffrey A. Singer <p><span><span><span>Waging a&nbsp;war on drugs is like playing a&nbsp;game of <a href="https://www.cincinnati.com/story/opinion/2018/06/08/opinion-fentanyl-floods-streets-dont-blame-doctors-patients/679133002/">Whac‐​A‐​Mole.</a></span></span></span></p> <p><span><span><span>In 2005 Congress addressed the “meth crisis” by passing the <a href="https://www.deadiversion.usdoj.gov/meth/index.html">Combat Methamphetamine Epidemic Act</a> that, among other things, made the popular decongestant <em>Sudafed, </em>used by homegrown labs to make meth, a&nbsp;behind‐​the‐​counter drug and restricted its sale to patients. It didn’t take long for Mexican drug cartels to fill the void created by the crackdown on domestic meth labs, and to find <a href="https://www.vice.com/en_us/article/exmg5n/a-comprehensive-guide-to-cooking-meth-on-breaking-bad">other and better</a> ways to manufacture meth. Now the Centers for Disease Control and Prevention report methamphetamine‐​related deaths at <a href="https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2019/05/13/as-the-opioid-crisis-peaks-meth-and-cocaine-deaths-explode">record high levels</a>.</span></span></span></p> <p><span><span><span>Reacting to the fact that the synthetic opioid fentanyl and its analogs— largely made and smuggled into the U.S. by labs in <a href="https://www.dea.gov/sites/default/files/2020-03/DEA_GOV_DIR-008-20%20Fentanyl%20Flow%20in%20the%20United%20States_0.pdf">China</a>—is responsible for up to 75 percent of <a href="https://www.cdc.gov/nchs/products/databriefs/db356.htm">opioid‐​related deaths</a>, the Trump administration persuaded China to impose a&nbsp;<a href="https://www.nytimes.com/2019/04/01/world/asia/china-bans-fentanyl-trump.html">ban</a> on the production of fentanyl and its analogs in April 2019. By the fall of 2019 a&nbsp;new synthetic opioid, <a href="https://onlinelibrary.wiley.com/doi/abs/10.1002/dta.2738">isotonitazene</a>, made its debut in U.S. and Canadian black markets. The drug, which is not a&nbsp;derivative of fentanyl but equally as potent, is legal to export from China and is not banned in North America or Europe. </span></span></span></p> <p><span><span><span>In March of this year <em>Vice</em> gave a&nbsp;<a href="https://www.vice.com/en_us/article/wxebjb/40-americans-are-dying-every-month-from-taking-this-new-legal-opioid">detailed report</a> on how this synthetic opioid has been found&nbsp;in counterfeit Dilaudid tablets sold on the streets in Nova Scotia, mixed with heroin sold in the U.S., and is&nbsp;sold in underground markets in Europe.</span></span></span></p> <p><span><span><span><a href="https://www.sciencedaily.com/releases/2018/09/180920161028.htm">Research</a> by the University of Pittsburgh shows that overdose deaths from licit and illicit drugs have been increasing exponentially since at least the late 1970s and show no signs of slowing. The drug that predominates&nbsp;as the cause of death has changed over the years, but the trend continues. In the beginning of this century prescription opioids that were diverted to the street were predominant. As prescriptions of opioids dropped, non‐​medical users migrated to heroin. Soon thereafter fentanyl and its analogs emerged on the scene, and now make up the bulk of opioid‐​related overdose deaths. </span></span></span></p> <p><span><span><span>As efforts are underway to crack down on illicit fentanyl, don’t be surprised if isotonitazene is the next big thing.</span></span></span></p> Fri, 10 Jul 2020 12:02:46 -0400 Jeffrey A. Singer https://www.cato.org/blog/will-isotonitazene-replace-fentanyl-black-market Lessons from the Death of Kelly Thomas https://www.cato.org/blog/lessons-death-kelly-thomas Michael D. Tanner <p>Nine years ago today, Kelly Thomas, a mentally ill man living on the streets of Fullerton, California died from injuries resulting from a beating by local police five days earlier. The scandal of Thomas’ death highlighted problems with the way police interact with people experiencing homelessness, but despite hopes for systemic reforms and some positive changes, California continues to rely on law enforcement as a solution to the state’s large and growing homelessness problem.</p> <p>On July 5, 2011, police responded to a call from a local bar, whose manager reported car break‐​ins or vandalism across the street. (Subsequently, an investigation <a href="https://losangeles.cbslocal.com/2012/06/12/fullerton-bar-owner-denies-false-report-led-to-homeless-mans-death/">suggested</a> that this initial report was untrue; the bar manager was instead concerned that Thomas was loitering in the bar’s parking lot.) Police accosted Thomas and at some point the interaction turned violent. Police initially reported that Thomas was uncooperative and violent, and that several police officers were injured in the confrontation. However, witnesses, bolstered by videos, showed that the police were actually the aggressors, repeatedly tasering Thomas and beating him with batons and other weapons, even after he was restrained, and police retracted their initial claims of injuries.</p> <p>After the beating, police officers were allowed to watch video of the incident before writing their reports, and internal information was restricted or withheld, leading to <a href="https://voiceofoc.org/2011/10/councilman-alleges-cover-up-in-kelly-thomas-police-beating/">allegations</a> of a cover‐​up. Moreover, evidence that one of the officers involved had previously been reprimanded for misconduct was kept from the public. Another officer was simultaneously collecting disability pay from the Los Angeles Police Department, which had determined him <a href="https://www.ocregister.com/2014/01/21/whiting-is-ex-officer-cicinelli-physically-qualified-for-his-old-job/">medically unfit</a> for service. Three of the officers were charged with involuntary manslaughter, second‐​degree murder, and excessive use of force. After two of the officers were acquitted, charges against the third were dropped.</p> <p>The Fullerton police’s killing of Mr. Thomas sparked a movement for reform in the Fullerton city government: three city council members <a href="https://web.archive.org/web/20120619223600/http:/articles.cnn.com/2012-06-06/us/us_california-fullerton-recall-election_1_involuntary-manslaughter-election-officials-homeless-man?_s=PM%3AUS">lost</a> recall elections, and the police chief went <a href="https://www.latimes.com/local/la-xpm-2011-aug-11-la-me-fullerton-death-20110811-story.html">on leave</a> and eventually resigned. Fullerton also shifted toward using non‐​police professionals to deal with homelessness and mental illness. Today, the Fullerton Police Department maintains a team of <a href="http://www.fullertonpd.org/services/police/homeless_outreach.asp">four officers</a> working with <a href="https://fullertonobserver.com/2018/11/04/a-ride-along-with-fullertons-homeless-liaison-team/">nonprofit</a> and medical partners to address the type of situations that resulted in Thomas’ death. At a time when many California communities are debating “defunding the police,” Fullerton offers an example of one way this might work in practice.</p> <p>However, most California cities still rely on law‐​enforcement to deal with their homeless populations. For example, many cities have laws against sitting, laying down, own sleeping in public places. A <a href="http://www.cohsf.org/Punishing.pdf#page=27">survey</a> of people experiencing homelessness in San Francisco found that 45 percent of people living on the street were approached by police on a monthly basis. 85 percent reported having been cited by the police, often for quality of life laws like those listed above.. Many of these laws exist as little more than a pretense for clearing people experiencing homelessness out of areas in response to complaints, much like in Mr. Thomas’ case.</p> <p>Defenders of anti‐​homeless laws often suggest that people experiencing homelessness can access services more easily when in the criminal justice system, but this is not the case in reality. Setting aside the moral issue of incarcerating people ostensibly “for their own good,” incarceration clearly does not help people rise out of poverty: 81 percent of respondents to the San Francisco <a href="http://www.cohsf.org/Punishing.pdf#page=9">survey</a> reported not having been offered any services upon release.</p> <p>No doubt California has a crisis of homelessness. More than half of all the unhoused homeless in the United States reside in California. Many of the people experiencing homelessness are suffering from substance abuse and/​or mental illness, but many others have been driven to the streets by their state’s lack of affordable housing.</p> <p>Rather than criminalizing homelessness, and resorting to the type of police use of force that can quickly escalate and, all too often, falls heaviest on people of color, California should remove regulatory barriers that make it difficult to provide services to the homeless. And, the state needs to deregulate the housing market in order to build more — and more affordable — housing.</p> <p> </p><div data-embed-button="brightcove_video" data-entity-embed-display="view_mode:brightcove_video.content_embed" data-entity-type="brightcove_video" data-entity-uuid="3cc66105-bd58-48e8-a9fa-5d9d7a38f560" data-langcode="en" class="embedded-entity"><div class="brightcove-player sizing-responsive"> <div> </div> </div> </div> Fri, 10 Jul 2020 08:28:17 -0400 Michael D. Tanner https://www.cato.org/blog/lessons-death-kelly-thomas Cato and the ACLU Join Forces to Protect Philadelphia’s Supervised Injection Site https://www.cato.org/blog/cato-aclu-join-forces-protect-philadelphias-supervised-injection-site Trevor Burrus <p>The first major federal drug law, the Harrison Narcotics Act, went into effect in 1915. As the federal drug war moves into its second century, we are still faced with an unprecedented opioid crisis that is <a href="https://www.washingtonpost.com/health/2020/07/01/coronavirus-drug-overdose/">getting worse</a> during the current pandemic. Yet while other countries such as <a href="https://www.cato.org/publications/white-paper/drug-decriminalization-portugal-lessons-creating-fair-successful-drug-policies">Portugal</a> and <a href="https://transformdrugs.org/heroin-assisted-treatment-in-switzerland-successfully-regulating-the-supply-and-use-of-a-high-risk-injectable-drug/">Switzerland</a> are approaching the problem with new, more humane ideas, the federal government is stuck in the prohibitionist mindset of the past, which not only doesn’t work but makes the problem worse.&nbsp;</p> <p><a href="https://www.safehousephilly.org/" target="_blank">Safehouse</a> is a&nbsp;nonprofit public‐​health organization that seeks to mitigate the harms of the opioid crisis in many ways. First and foremost, Safehouse wants to provide a&nbsp;supervised injection site (SIS) for compulsive opioid users. SISs do not provide any drugs to users but offer a&nbsp;place where the drugs can be tested and medical professionals are available in the event of an overdose. In addition, Safehouse will offer counseling and recovery treatment.</p> <p>SIS model has been used with great success elsewhere, especially in Vancouver’s Downtown Eastside, which was an epicenter of overdoses before <a href="http://www.vch.ca/locations-services/result?res_id=964" target="_blank">Insite</a> opened in 2003. Despite those successes, the federal government is trying to block Safehouse by invoking a&nbsp;1980s crack‐​house law that makes it a&nbsp;crime to provide a&nbsp;place to take illicit drugs, even without compensation. Safehouse <a href="https://www.nytimes.com/2019/10/02/us/injection-safehouse-philadelphia-ruling.html">won the first round</a> when a&nbsp;federal district court ruled that the Department of Justice couldn’t stretch the crack‐​house statute to cover Safehouse’s lifesaving SIS.</p> <p>Now on appeal to the Third Circuit, Cato, joined by&nbsp;the ACLU and the ACLU of Pennsylvania, has&nbsp;filed&nbsp;a&nbsp;<a href="https://www.cato.org/sites/cato.org/files/2020-07/CatoACLU-Safehouse-As-Filed.pdf">brief supporting Safehouse</a>. We argue that the Constitution’s federal structure was designed to allow for states to experiment with different policies, especially when it comes to protecting the health and welfare of citizens. No one knows how to solve the opioid crisis, and it is bad form, at the very least, for the federal government to try to block SISs with a&nbsp;30‐​year‐​old law that was passed during the height of the War on Drugs. The idea that prohibition and arrests is the best way to solve the opioid crisis should be left in the past.</p> <p>Moreover, the federal government is <a href="https://www.cato.org/publications/commentary/how-drug-prohibition-created-fentanyl-crisis">largely responsible for the current overdose crisis</a>. Over the past decade, the synthetic opioid fentanyl has become the biggest source of overdoses, with over 31,000 dying in 2018. Fentanyl is 50 to 100 times stronger than heroin, and the lethal dose is 2&nbsp;or 3&nbsp;milligrams, which is equivalent to about 4&nbsp;grains of salt. Compulsive heroin users are increasingly finding fentanyl in their heroin, often unknowingly. They shoot up the same amount as usual, and they die.</p> <p>Why is such a&nbsp;deadly drug polluting the drug supply? Because of the “iron law of prohibition.” When college kids sneak alcohol into a&nbsp;football game, they don’t sneak beer, they prefer the more compact and potent stuff. Similarly, during alcohol Prohibition, beer and wine essentially disappeared and were replaced by hard spirits. For the same reasons, drug traffickers prefer high‐​potency opioids like fentanyl even when the users are not demanding it.</p> <p>Finally, we argue that the DOJ’s attempt to apply the crack‐​house law to Safehouse’s SIS is an unconstitutional extension of the Commerce and Necessary and Proper Clauses. Under the government’s argument, parents that let their son shoot up in the bathroom so they can monitor him would be violating the same statute. Yet the Commerce and Necessary and Proper Clauses do not let Congress regulate intrastate, noneconomic activity such as this. While Congress has broad power under current precedents, it doesn’t have the power to control everything that happens around illicit drugs.</p> <p>The Third Circuit should stop the federal government’s cruel and counterproductive attempt to block an institution that will undoubtedly save lives.</p> Wed, 08 Jul 2020 14:32:42 -0400 Trevor Burrus https://www.cato.org/blog/cato-aclu-join-forces-protect-philadelphias-supervised-injection-site Courts Shouldn’t Punish Plausible Claims of Civil Rights Abuses https://www.cato.org/blog/courts-shouldnt-punish-plausible-claims-civil-rights-abuses Ilya Shapiro <p>William Frey and his lawyers have been assessed $55,340 for filing civil rights claims on his behalf against municipal government defendants. While the ability for citizens to vindicate their constitutional rights is typically viewed with the utmost importance, the district court hearing Frey’s allegations found them to be so frivolous as to require sanctions.</p> <p>Evaluate Frey’s allegations to see if you would reach the same conclusion: As Frey passed through the screening checkpoint at Jackson Municipal Airport (Wyoming), he triggered a&nbsp;body‐​scanning machine that alerted to his groin area. After a&nbsp;security employee assured Frey the alert was a&nbsp;false positive caused by his belt, he was ordered to submit to a&nbsp;pat‐​down search of his groin area.</p> <p>Frey requested that he merely reenter the body scanner without his belt to clear the false positive. His suggestion was ignored, and he was told that if he did not submit to the pat‐​down he would not be allowed to board his flight—or even leave the airport.</p> <p>A municipal police officer was summoned after Frey again refused to consent to the invasive search. The officer arrested Frey after refusing Frey’s repeated request to either reenter the scanner or leave the airport. Frey was then subjected to an invasive pat‐​down by the officer, who found no unlawful items.</p> <p>Frey was detained in jail for three hours, during which he was interrogated and denied repeated requests to speak to an attorney. His wife, seated in the lobby of the jail, was even told that her husband’s prolonged detainment was due to his request for a&nbsp;lawyer, which she eventually found for him.</p> <p>Frey contends that his constitutional rights were violated during the arrest and subsequent detention. But the federal district court not only rejected Frey’s claims, but also found them to be so frivolous as to order him to pay the defendants’ court fees and sanctioned his lawyers for bringing the lawsuit.</p> <p>Now before the U.S. Court of Appeals for the Tenth Circuit, Cato has joined the Institute for Justice, Competitive Enterprise Institute, and Rutherford Institute on an <a href="https://www.cato.org/publications/legal-briefs/frey-v-town-jackson-wyo">amicus brief</a> arguing against the fee and sanctions award. This penalty—typically reserved only for claims deemed “fanciful,” “fantastic,” and “delusional”—would have a&nbsp;chilling effect on future civil rights litigation, particularly against municipal defendants that are the target of most such suits. Regardless of the ultimate merits of his claims, which we believe to be strong, they aren’t meritless, frivolous, or otherwise illegitimate.</p> <p>If the Tenth Circuit affirms the lower court’s order, it would send an unsettling signal to citizens hoping to seek relief against government infringements of their civil liberties. Potential plaintiffs would likely forgo legitimate claims of constitutional abuses for fear of bearing a&nbsp;substantial financial risk. The court should make clear that sanctions should be reserved for plaintiffs and counsel bringing baseless claims.</p> Wed, 08 Jul 2020 09:06:05 -0400 Ilya Shapiro https://www.cato.org/blog/courts-shouldnt-punish-plausible-claims-civil-rights-abuses United States v. Safehouse https://www.cato.org/publications/legal-briefs/united-states-v-safehouse Trevor Burrus, Clark Neily, Ezekiel R. Edwards, Mary Catherine Roper <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p><a href="https://www.safehousephilly.org/" target="_blank">Safehouse</a>&nbsp;is a&nbsp;nonprofit public‐​health organization that seeks to mitigate the harms of the opioid crisis in many ways. First and foremost, Safehouse wants to provide a&nbsp;supervised injection site (SIS) for compulsive opioid users. SISs do not provide any drugs to users but offer a&nbsp;place where the drugs can be tested and medical professionals are available in the event of an overdose. In addition, Safehouse will offer counseling and recovery treatment.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>SIS model has been used with great success elsewhere, especially in Vancouver’s Downtown Eastside, which was an epicenter of overdoses before&nbsp;<a href="http://www.vch.ca/locations-services/result?res_id=964" target="_blank">Insite</a>&nbsp;opened in 2003. Despite those successes, the federal government is trying to block Safehouse by invoking a&nbsp;1980s crack‐​house law that makes it a&nbsp;crime to provide a&nbsp;place to take illicit drugs, even without compensation. Safehouse won the first round when a&nbsp;federal district court ruled that the Department of Justice couldn’t stretch the crack‐​house statute to cover Safehouse’s lifesaving SIS.</p> <p>Now on appeal to the Third Circuit, Cato has joined with the ACLU and the ACLU of Pennsylvania on a&nbsp;brief supporting Safehouse. We argue that the Constitution’s federal structure was designed to allow for states to experiment with different policies, especially when it comes to protecting the health and welfare of citizens. No one knows how to solve the opioid crisis, and it is bad form, at the very least, for the federal government to try to block SISs with a&nbsp;30‐​year‐​old law that was passed during the height of the War on Drugs. The idea that prohibition and arrests is the best way to solve the opioid crisis should be left in the past.</p> <p>Moreover, the federal government is largely responsible for the current overdose crisis. Over the past decade, the synthetic opioid fentanyl has become the biggest source of overdoses, with over 31,000 dying in 2018. Fentanyl is 50 to 100 times stronger than heroin, and the lethal dose is 2&nbsp;or 3&nbsp;milligrams, which is equivalent to about 4&nbsp;grains of salt. Compulsive heroin users are increasingly finding fentanyl in their heroin, often unknowingly. They shoot up the same amount as usual, and they die.</p> <p>Why is such a&nbsp;deadly drug polluting the drug supply? Because of the “iron law of prohibition.” When college kids sneak alcohol into a&nbsp;football game, they don’t sneak beer, they prefer the more compact and potent stuff. Similarly, during alcohol Prohibition, beer and wine essentially disappeared and were replaced by hard spirits. For the same reasons, drug traffickers prefer high‐​potency opioids like fentanyl even when the users are not demanding it.</p> <p>Finally, we argue that the DOJ’s attempt to apply the crack‐​house law to Safehouse’s SIS is an unconstitutional extension of the Commerce and Necessary and Proper Clauses. Under the government’s argument, parents that let their son shoot up in the bathroom so they can monitor him would be violating the same statute. Yet the Commerce and Necessary and Proper Clauses do not let Congress regulate intrastate, noneconomic activity such as this. While Congress has broad power under current precedents, it doesn’t have the power to control everything that happens around illicit drugs.</p> <p>The Third Circuit should stop the federal government’s cruel and counterproductive attempt to block an institution that will undoubtedly save lives.</p> </div> Mon, 06 Jul 2020 15:27:33 -0400 Trevor Burrus, Clark Neily, Ezekiel R. Edwards, Mary Catherine Roper https://www.cato.org/publications/legal-briefs/united-states-v-safehouse Jeffrey A. Singer discusses the opioid crisis on WWL’s First News with Tommy Tucker https://www.cato.org/multimedia/media-highlights-radio/jeffrey-singer-discusses-opioid-crisis-wwls-first-news-tommy Mon, 06 Jul 2020 12:24:41 -0400 Jeffrey A. Singer https://www.cato.org/multimedia/media-highlights-radio/jeffrey-singer-discusses-opioid-crisis-wwls-first-news-tommy Trevor Burrus discusses guns in America on the Preconceived Podcast https://www.cato.org/multimedia/media-highlights-radio/trevor-burrus-discusses-guns-america-preconceived-podcast Sat, 04 Jul 2020 12:21:34 -0400 Trevor Burrus https://www.cato.org/multimedia/media-highlights-radio/trevor-burrus-discusses-guns-america-preconceived-podcast Clark Neily participates in the webinar, “Racism, immigration and criminal justice. Rethinking a broken system,” hosted by the Instituto Juan de Mariana and the Institut Ostrom Catalunya https://www.cato.org/multimedia/media-highlights-tv/clark-neily-participates-webinar-racism-immigration-criminal-justice Sat, 04 Jul 2020 12:19:59 -0400 Clark Neily https://www.cato.org/multimedia/media-highlights-tv/clark-neily-participates-webinar-racism-immigration-criminal-justice Colorado Acts on Police Accountability While Congress Dithers https://www.cato.org/multimedia/cato-daily-podcast/colorado-acts-police-accountability-while-congress-dithers Leslie Herod, Caleb O. Brown <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Congress has yet to make clear changes of policy with respect to police brutality, but Colorado has moved in a&nbsp;big way. Leslie Herod is a&nbsp;Democratic state representative in Colorado. Her proposals to reform use of force and liability for police officers is now law in Colorado. She describes how states can replicate Colorado’s efforts to hold police accountable to the public.</p> <ul><li><a href="https://www.cato.org/qualified-immunity">More from Cato on qualified immunity</a></li> </ul> </div> Sat, 04 Jul 2020 02:00:00 -0400 Leslie Herod, Caleb O. Brown https://www.cato.org/multimedia/cato-daily-podcast/colorado-acts-police-accountability-while-congress-dithers Why Is Florida Still Pushing Prostitution Charges for Robert Kraft? https://www.cato.org/multimedia/cato-daily-podcast/why-florida-still-pushing-prostitution-charges-robert-kraft Elizabeth Nolan Brown, Caleb O. Brown <div class="mb-3 spacer--nomargin--last-child text-default"> <p>The owner of the New England Patriots is pushing a&nbsp;strong defense against solicitation charges filed against him, and what first looked like a&nbsp;big win for prosecutors against a&nbsp;high‐​profile defendant is now looking more like a&nbsp;major headache. Elizabeth Nolan Brown of <em>Reason</em> says that the Robert Kraft case should highlight what happens to people charged with victimless crimes who don’t happen to be fabulously wealthy.</p> </div> Fri, 03 Jul 2020 02:00:00 -0400 Elizabeth Nolan Brown, Caleb O. Brown https://www.cato.org/multimedia/cato-daily-podcast/why-florida-still-pushing-prostitution-charges-robert-kraft Frey v. Town of Jackson, Wyo. https://www.cato.org/publications/legal-briefs/frey-v-town-jackson-wyo Jeffrey Redfern, Clark Neily, Ilya Shapiro <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>William Frey and his lawyers have been assessed $55,340 for filing civil rights claims on his behalf against municipal government defendants. While the ability for citizens to vindicate their constitutional rights is typically viewed with the utmost importance, the district court hearing Frey’s allegations found them to be so frivolous as to require sanctions.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Evaluate Frey’s allegations to see if you would reach the same conclusion: As Frey passed through the screening checkpoint at Jackson Municipal Airport (Wyoming), he triggered a&nbsp;body‐​scanning machine that alerted to his groin area. After a&nbsp;security employee assured Frey the alert was a&nbsp;false positive caused by his belt, he was ordered to submit to a&nbsp;pat‐​down search of his groin area. Frey requested that he merely reenter the body scanner without his belt to clear the false positive. His suggestion was ignored, and he was told that if he did not submit to the pat‐​down he would not be allowed to board his flight—or even leave the airport.</p> <p>A municipal police officer was summoned after Frey again refused to consent to the invasive search. The officer arrested Frey after refusing Frey’s repeated request to either reenter the scanner or leave the airport. Frey was then subjected to an invasive pat‐​down by the officer, who found no unlawful items. Frey was detained in jail for three hours, during which he was interrogated and denied repeated requests to speak to an attorney. His wife, seated in the lobby of the jail, was even told that her husband’s prolonged detainment was due to his request for a&nbsp;lawyer, which she eventually found for him.</p> <p>Frey contends that his constitutional rights were violated during the arrest and subsequent detention. But the federal district court not only rejected Frey’s claims, but also found them to be so frivolous as to order him to pay the defendants’ court fees and sanctioned his lawyers for bringing the lawsuit.</p> <p>Now before the U.S. Court of Appeals for the Tenth Circuit, Cato has joined the Institute for Justice, Competitive Enterprise Institute, and Rutherford Institute in filing a&nbsp;brief arguing against the fee and sanctions award. This penalty—typically reserved only for claims deemed “fanciful,” “fantastic,” and “delusional”—would have a&nbsp;chilling effect on future civil rights litigation, particularly against municipal defendants that are the target of most such suits. Regardless of the ultimate merits of his claims, which we believe to be strong, they aren’t meritless, frivolous, or otherwise illegitimate.</p> <p>If the Tenth Circuit affirms the lower court’s order, it would send an unsettling signal to citizens hoping to seek relief against government infringements of their civil liberties. Potential plaintiffs would likely forgo legitimate claims of constitutional abuses for fear of bearing a&nbsp;substantial financial risk. The could should make clear that sanctions should be reserved for plaintiffs and counsel bringing baseless claims.</p> </div> Thu, 02 Jul 2020 08:49:29 -0400 Jeffrey Redfern, Clark Neily, Ilya Shapiro https://www.cato.org/publications/legal-briefs/frey-v-town-jackson-wyo The “Drug Czar” Says Overdose Deaths Were Already Rising Before Pandemic and Now Are Spiking—The Ultimate Blame Belongs to Prohibition https://www.cato.org/blog/drug-czar-says-overdose-deaths-were-already-rising-pandemic-now-are-spiking-ultimate-blame Jeffrey A. Singer <p><span><span><span>White House “drug czar” Jim Carroll told <a href="https://www.politico.com/news/2020/06/29/pandemic-unleashes-a-spike-in-overdose-deaths-345183">Politico</a> earlier this week that an Office of National Drug Control Policy analysis finds&nbsp;an 11.4 percent year‐​over‐​year increase in opioid‐​related overdose deaths during the first four months of 2020. Kentucky has seen a&nbsp;25 percent increase in overdose deaths during the first four months of this year, and West Virginia saw a&nbsp;50 percent increase in deaths since the beginning of the year. The data are incomplete at this point, and not all states have reported in.</span></span></span></p> <p><span><span><span>Mr. Carroll attributed much of the increase in the overdose rate to anxiety, social isolation, and depression resulting from the COVID-19 pandemic. But he also noted that, after a&nbsp;one‐​year pause in 2017, the overdose death rate resumed its climb in <a href="https://thehill.com/opinion/healthcare/442985-prescriptions-are-down-but-overdoses-are-up-is-that-progress">late 2018 and 2019</a>. And methamphetamine‐​related deaths have been surging for the past few years.</span></span></span></p> <p><span><span><span><a href="https://www.sciencedaily.com/releases/2018/09/180920161028.htm">Research</a> has shown that overdose deaths from the non‐​medical use of licit or illicit drugs have been on a&nbsp;steady exponential increase since at least the late 1970s—with different drugs predominating at different periods. And there is no evidence the trend is slowing.</span></span></span></p> <p><span><span><span>While it remains popular to attribute the opioid‐​related overdose crisis to doctors prescribing pain relievers to patients, the evidence <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6369835/">shows</a> there is no correlation between prescription volume and the non‐​medical opioid use or opioid use disorder. </span></span></span></p> <p><span><span><span>To be sure, the COVID-19 pandemic is exacerbating the situation. People with substance use disorder need to feel connectedness with others as well as themselves to overcome the problem.&nbsp;<a href="https://www.cato.org/blog/anxiety-despair-coronavirus-pandemic">Isolation, loneliness, and the anxiety and depression</a> associated with quarantines, lockdowns, and the resultant economic dislocations are the opposite of what people suffering from addiction require.</span></span></span></p> <p><span><span><span>Add to that the fact that the pandemic response has&nbsp;hampered the smooth operation of harm reduction programs, despite efforts to mitigate the disruption with the temporary <a href="https://www.cato.org/blog/mat-regulations-relaxed-during-covid-19-pandemic-should-catalyze-further-reform">relaxation</a> of many federal regulations. And the Substance Abuse and Mental Health Services Administration <a href="https://www.samhsa.gov/sites/default/files/guidance-law-enforcement-first-responders-administering-naloxone.pdf">reports</a> the sobering fact that many first responders are reluctant to respond to overdose calls with the antidote naloxone, fearing they may contract COVID-19 during the resuscitative process. Of course, this is yet another argument for having the Food and Drug Administration reclassify naloxone as <a href="https://reason.com/2018/04/27/to-combat-opioid-abuse-the-surgeon-gener/">over the counter</a>. </span></span></span></p> <p><span><span><span>But it should not go without notice that many chronic pain patients have been unable to follow up with their physicians, whose offices have been closed (or office hours restricted) in order to reduce the spread of COVID-19. And many elective procedures to treat or eliminate these painful conditions have been postponed or cancelled because of blanket bans on elective procedures. This was discussed at a&nbsp;Cato online&nbsp;<a href="https://www.cato.org/events/dont-forget-people-living-pain-how-war-opioids-causing-chronic-pain-patients-unnecessary">event</a> in May. In desperation, many patients might be seeking relief in the dangerous black market fueled by drug prohibition. </span></span></span></p> <p><span><span><span>Speaking of prohibition, the drug czar told Politico that the pandemic response has caused Customs and Border Patrol agents to reduce screening for drugs smuggled across the border.</span></span></span></p> <p><span><span><span>The effect of the COVID-19 pandemic on substance use, substance use disorder, and overdose deaths must not be ignored or underemphasized. But, at the end of the day, the <a href="https://townhall.com/columnists/jeffreysinger/2018/08/20/drug-prohibition-and-thirdparty-payers-created-the-pill-mills-n2510792">driving force</a> behind overdose deaths has always been <a href="https://www.cato.org/publications/commentary/drug-prohibition-blame-opioid-crisis">drug prohibition</a>. And <a href="https://www.upi.com/Top_News/Voices/2019/04/24/Scapegoating-opioid-makers-lets-true-offender-get-away/6371556106270/">so it will remain</a>, until it is repealed. </span></span></span></p> Wed, 01 Jul 2020 16:35:47 -0400 Jeffrey A. Singer https://www.cato.org/blog/drug-czar-says-overdose-deaths-were-already-rising-pandemic-now-are-spiking-ultimate-blame Mustafa Akyol on lessons from Gezi Park protests for Americans https://www.cato.org/multimedia/cato-audio/mustafa-akyol-lessons-gezi-park-protests-americans Wed, 01 Jul 2020 15:24:26 -0400 Mustafa Akyol https://www.cato.org/multimedia/cato-audio/mustafa-akyol-lessons-gezi-park-protests-americans Fabio Rojas on protest movements that get things done https://www.cato.org/multimedia/cato-audio/fabio-rojas-protest-movements-get-things-done Wed, 01 Jul 2020 15:23:19 -0400 Fabio Rojas https://www.cato.org/multimedia/cato-audio/fabio-rojas-protest-movements-get-things-done Walter Olson on the reality of militarized cops (2014) https://www.cato.org/multimedia/cato-audio/walter-olson-reality-militarized-cops-2014 Wed, 01 Jul 2020 15:22:06 -0400 Walter Olson https://www.cato.org/multimedia/cato-audio/walter-olson-reality-militarized-cops-2014 Clark Neily and Jay Schweikert on kicking Qualified Immunity down the road https://www.cato.org/multimedia/cato-audio/clark-neily-jay-schweikert-kicking-qualified-immunity-down-road Wed, 01 Jul 2020 15:20:25 -0400 Clark Neily, Jay Schweikert https://www.cato.org/multimedia/cato-audio/clark-neily-jay-schweikert-kicking-qualified-immunity-down-road Radley Balko discusses the militarization of police on NPR’s Fresh Air https://www.cato.org/multimedia/media-highlights-radio/radley-balko-discusses-militarization-police-nprs-fresh-air Wed, 01 Jul 2020 10:21:18 -0400 Radley Balko https://www.cato.org/multimedia/media-highlights-radio/radley-balko-discusses-militarization-police-nprs-fresh-air For Liberal Public Values. Against Mob Violence. https://www.cato.org/blog/liberal-public-values-against-mob-violence Walter Olson <p>Among the accomplishments of last week’s protest mob at the Wisconsin state capitol in Madison:</p> <p>* The mob pulled down two statues. One was “Forward,” a&nbsp;replica of an allegorical representation of a&nbsp;female figure created by <a href="https://www.wisconsinhistory.org/Records/Article/CS2752?fbclid=IwAR2E1a6E6bdBt8uM_PDqQ5lYVg--TOP1ImAcXLSdB5nPxQh9w-uDQKkZUKg">sculptor Jean Pond Miner in 1893</a>, both created and later preserved through subscription contributions from Wisconsin women.</p> <p>* The other was of <a href="https://www.wisconsinhistory.org/Records/Article/CS2545">Hans Christian Heg</a>, a&nbsp;fervent abolitionist and Free Soil Party member who helped command a&nbsp;militia devoted to protecting runaway slaves and was later appointed the founding commander of the only Union Army regiment composed entirely of Scandinavian‐​Americans. Heg rallied immigrants to join the Union cause and was killed battling the rebels at Chickamauga.</p> <p>The mob, which presented itself as acting against white supremacy and on behalf of the interests of black Americans,&nbsp;rolled Heg’s statue down the street and dumped it in Lake Monona; the statue’s body was soon recovered, but its head was removed and as of this writing is missing.</p> <p>* The assemblage also <a href="https://www.jsonline.com/story/news/2020/06/24/madison-protesters-pull-down-forward-hans-christian-heg-statues-attack-senator-sculptures-in-lake/3247948001/?fbclid=IwAR1br3LO1wSTaVEJkVvq5WuSq0-ziDT-XGavFXm8PcMhPvjXlo54dtsJN5Q">attacked several public buildings</a>; someone threw a&nbsp;Molotov cocktail into the city‐​county administration building. “Spokeswomen for [Gov. Tony] Evers and Madison Mayor Satya Rhodes‐​Conway did not respond to questions late Tuesday about [the] police force’s slow response.”</p> <p>* When veteran liberal state Sen. Tim Carpenter (D‐​Milwaukee) stopped to take a&nbsp;picture of the crowd, he was <a href="https://www.washingtonpost.com/nation/2020/06/24/madison-police-protest-senator/?fbclid=IwAR0CfYI0GuMk6wgvspS4RwVGQ41i34KBD24rapfzsox_kYzklVXunilljPU">set upon by what he estimated</a> as 8&nbsp;or 10 participants who punched him and kicked his head. Carpenter collapsed attempting to make his way back to the Capitol but recovered. Just as there is a&nbsp;right to take photos of <a href="https://www.cato.org/blog/right-record-police-accountability">what police do on public streets</a> without their beating you up, so there should also be a&nbsp;right to take photos of what protesters do on public streets without their beating you up.</p> <p>It should not be that hard to distinguish between peaceful, lawful assembly in pursuit of political causes, on the one hand, and property destruction, assault, intimidation, looting, and riot, on the other. Yet at this particular moment, many seem to think that to draw the line against the latter is somehow to undercut the ground on which the former stands.</p> <p>Libertarians oppose countless actions by the government and its officers, notably police, that violate individual rights, interfere with peaceful and cooperative activity, or break from the impartial rule of law. It is only fair to recognize that actions by private crowds can accomplish those evils too — when they beat down bystanders like Sen. Carpenter, when they smash and trash store windows, when they block freeway traffic and surround terrified motorists, when they replace a&nbsp;public deliberative process over whether a&nbsp;statue should stay on its pedestal with the answer that is brute force.</p> <p>We should be just as clear in opposing that too.</p> Mon, 29 Jun 2020 15:15:11 -0400 Walter Olson https://www.cato.org/blog/liberal-public-values-against-mob-violence Kicking the Habit: The Opioid Crisis and America’s Addiction to Prohibition https://www.cato.org/publications/policy-analysis/kicking-habit-opioid-crisis-americas-addiction-prohibition Josh Bowers, Daniel Abrahamson <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>There is no single cause of America’s opioid crisis, but overprescription of opioids has undoubtedly contributed. The federal government has responded predictably, criminally prosecuting doctors who prescribe opioids to the drug dependent. The approach may seem sensible, but it is as wrongheaded as our century‐​old drug war. Law enforcement’s recent push for punishment might succeed in limiting opioid prescriptions but only at the cost of driving drug‐​dependent individuals into more dangerous criminal markets and toward adulterated street heroin and fentanyl. For individuals addicted to opioids or suffering from chronic pain, a&nbsp;war on drugs has never been a&nbsp;prescription for improving wellness. This dominant abstinence‐​based policy model is grounded in the logic of prohibition, and it depends not upon healing but upon shame, isolation, prosecution, and penalty. The better model is “harm reduction,” grounded in connection and care, reason and rights, and human dignity and worth.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>International&nbsp;and historical public health efforts have demonstrated that one of the best ways to confront epidemic drug use is addiction&nbsp;maintenance—that&nbsp;is, establishing medically supervised clinics to provide&nbsp;pharmaceutical‐​grade&nbsp;narcotics (often free of charge) in amounts calibrated to maintain the social and physical&nbsp;well‐​being&nbsp;of the drug dependent.&nbsp;In&nbsp;this policy analysis, we survey these international and historical efforts.&nbsp;We&nbsp;look to our own past to examine the roots of the modern&nbsp;American&nbsp;drug war and describe contemporary reforms both within and beyond the opioid crisis.&nbsp;We&nbsp;explain how meaningful change is likeliest to occur: from the ground up, as a&nbsp;product of underground experimentation initiated by and within the&nbsp;most‐​affected&nbsp;communities.&nbsp;Finally, we offer our own public health prescription: a&nbsp;set of pragmatic&nbsp;harm‐​reduction&nbsp;responses to prohibition and its counterproductive and often deadly effects.</p> </div> , <h2 class="heading"> Introduction </h2> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>For a&nbsp;century, the United States has fought a&nbsp;war on drugs.<sup><a href="#_ednref1" id="_edn1">1</a></sup> Some strategies have changed over time, of course. The state has diverted manpower from opium to other substances, including heroin, marijuana, hallucinogens, powder and crack cocaine, and prescription and nonprescription opioids. Likewise, police, prosecutors, and politicians have supplemented conventional statutory approaches, such as the Harrison Narcotics Act, with more powerful policies, including the Controlled Substances Act and other state‐​law corollaries.<sup><a href="#_ednref2" id="_edn2">2</a></sup> Other strategies have remained constant. For instance, law enforcement has kept its sights trained throughout the drug war on low‐​income and minority neighborhoods.</p> <p>More to the point, the goal of the drug war—<em>punitive prohibition</em>—has never shifted. With the exceptions of alcohol, tobacco, and, to a&nbsp;narrow extent, marijuana, recreational drugs are still forbidden, and users are still prosecuted. The state has consistently prohibited much more, even prosecuting the activists and medical professionals who would help problematic drug users through unconventional but promising means. It has defunded studies searching for innovative approaches to solve the problems arising from drug use and abuse, and it has undermined local reform efforts. The state’s objective is a&nbsp;drug‐​free society—full stop.</p> <p>An entire study could be devoted to unpacking the reasons for the drug war’s obsession with prohibition. It is enough, however, to flag three principal influences. First, the drug war’s preoccupation with prohibition lies partially in America’s history and worldview.<sup><a href="#_ednref3" id="_edn3">3</a></sup> Second, and to a&nbsp;greater degree, punitive prohibition is rooted in racism. Third, and more subtle, the logic of punitive prohibition follows a&nbsp;fixation with rules. Prohibition is what happens when public policy is left to be shaped from the top down. The war on drugs exposes a&nbsp;particular drawback of law, legal institutions, and the legal turn of mind: all have a&nbsp;tendency toward rigid rules, intimidation, and aversion to risk and experimentation.<sup><a href="#_ednref4" id="_edn4">4</a></sup></p> <p>While&nbsp;some legal regimes and bureaucratic frameworks have great value, many tend to fall prey to limited perspectives that not only make for misguided public policy but also complicate course correction.&nbsp;Simple&nbsp;answers are preferred to the pursuit of nuanced solutions.&nbsp;On&nbsp;this reasoning, prohibition takes on a&nbsp;certain elegance, captured by the directive, “Just&nbsp;Say&nbsp;No.”<sup><a href="#_ednref5" id="_edn5">5</a></sup>&nbsp;One&nbsp;might dismiss this as no more than an anodyne public service message.&nbsp;But&nbsp;those three words succinctly describe much more: a&nbsp;century of a&nbsp;state‐​sponsored&nbsp;war on drugs that has proven to be a&nbsp;public health failure.</p> <p>Yet&nbsp;now, in the face of a&nbsp;brutal opioid crisis, there is a&nbsp;modicum of energy for genuine drug policy&nbsp;reform—for&nbsp;a&nbsp;shift from the prevailing&nbsp;just‐​say‐​no&nbsp;mentality.&nbsp;The&nbsp;shift is welcome, of course.&nbsp;Still, it is hard to get too excited about a&nbsp;newfound enthusiasm that is, in itself, seemingly grounded in racial bias.&nbsp;White&nbsp;America&nbsp;has opened its eyes to the evils of the drug war at the very moment that the opioid epidemic has begun to plague rural and predominantly white communities.<sup><a href="#_ednref6" id="_edn6">6</a></sup>&nbsp;We&nbsp;are witnessing an example of interest convergence theory in action, which posits that white&nbsp;America&nbsp;will only see fit to help black&nbsp;America&nbsp;if white&nbsp;Americans&nbsp;are forced to face the same challenges as black&nbsp;Americans.<sup><a href="#_ednref7" id="_edn7">7</a></sup>&nbsp;Simply&nbsp;put, there are limits to a&nbsp;polity’s moral imagination when the problem exists “over there” only.</p> <p>We&nbsp;would rather see reform grounded in a&nbsp;genuine commitment to civil, constitutional, and human&nbsp;rights—in&nbsp;a&nbsp;commitment to the liberty, equality, dignity, and interests of all drug users and their circles of social support.&nbsp;All&nbsp;the same, we are pragmatic drug policy reformers.&nbsp;And, because lives do in fact hang in the balance, we’ll take what we can&nbsp;get—including&nbsp;any opportunity to shift the narrative, however slightly, from that of a&nbsp;criminal justice menace to a&nbsp;public health crisis.</p> <p>In this policy analysis, we address the historical and contemporary approaches to addiction treatment and policy. First, we recall a&nbsp;time, before our centurylong war on drugs, when America responded to an opioid epidemic not with prohibition but with an intervention known as addiction maintenance—that is, providing drugs in amounts calibrated to maintain the well‐​being of dependent persons. We examine what changed and how we came to abandon that harm‐​reduction model.<sup><a href="#_ednref8" id="_edn8">8</a></sup> Next, we explore contemporary international efforts to return to an old‐​style, harm‐​reduction approach. In the process, we explore some of the advantages of addiction maintenance in its modern form. Then we discuss how, when, and why addiction maintenance works and evaluate what stands in the way of addiction maintenance. Finally, we survey a&nbsp;host of domestic reform efforts and provide a&nbsp;framework for understanding when, how, and to what extent these endeavors have succeeded.</p> <p>As these reform efforts reveal, addiction maintenance is only one front in harm reduction. Indeed, additional reforms necessarily must precede addiction maintenance because the practice is appropriate only after the failure of other much‐​needed therapeutic interventions—such as medication‐​assisted treatment with methadone, buprenorphine, or suboxone, none of which are uniformly available at present. We conclude with a&nbsp;six‐​point plan, designed to address the current opioid crisis in a&nbsp;manner that moves away from prohibition and toward harm reduction.</p> </div> , <h2 class="heading"> Early Addiction Maintenance Efforts </h2> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Throughout the 19th century, drugs remained mostly unregulated.<sup><a href="#_ednref9" id="_edn9">9</a></sup> Users purchased products through mail‐​order catalogs and at local pharmacies.<sup><a href="#_ednref10" id="_edn10">10</a></sup> Sears, Roebuck and Company sold syringes with doses of injectable cocaine for one or two dollars.<sup><a href="#_ednref11" id="_edn11">11</a></sup> Opiates were packaged into serums with delightfully alliterative names, like “Mrs. Winslow’s Soothing Syrup.”<sup><a href="#_ednref12" id="_edn12">12</a></sup> And, critically, this legal market was substantially safer than the modern‐​day criminal market:</p> </div> , <blockquote class="blockquote"> <div> <p>Before&nbsp;the ban, almost all opiate users would buy a&nbsp;mild form of the drug at their corner store for a&nbsp;small price. A&nbsp;few did become addicts, and that meant their lives were depleted, in the same way that an alcoholic’s life is depleted today…&nbsp;.&nbsp;But&nbsp;virtually none of them committed crimes to get their drug, or became wildly out of control, or lost their jobs.&nbsp;Then&nbsp;the legal routes to the drug were cut&nbsp;off—and&nbsp;all the problems we associate with drug addiction began: criminality, prostitution, violence.<sup><a href="#_ednref13" id="_edn13">13</a></sup></p> </div> </blockquote> <cite> </cite> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Medical professionals of the era considered opioid abuse a&nbsp;public health problem.<sup><a href="#_ednref14" id="_edn14">14</a></sup> The idea of a&nbsp;drug war would likely have seemed foreign to them.<sup><a href="#_ednref15" id="_edn15">15</a></sup> To the contrary, doctors regarded persons suffering from drug addiction as patients deserving of treatment.<sup><a href="#_ednref16" id="_edn16">16</a></sup> Even for the profoundly dependent, the medical profession provided a&nbsp;form of palliative care—often termed addiction maintenance—by which cravings were treated by access to the craved substance.<sup><a href="#_ednref17" id="_edn17">17</a></sup></p> <p>By the turn of the century, the push for prohibition had begun—in part as a&nbsp;means to control minority communities. Politicians, pastors, and the press drew specious links between drug abuse and the exploitation of white women.<sup><a href="#_ednref18" id="_edn18">18</a></sup> These early drug warriors pushed for aggressive state responses, playing on racial stereotypes.<sup><a href="#_ednref19" id="_edn19">19</a></sup> African Americans were singled out for especially harsh treatment. Unsubstantiated claims linked black drug abuse to “many of the horrible crimes committed in the Southern States,” thus providing another convenient excuse for all varieties of Jim Crow persecution and oppression, including continued disenfranchisement.<sup><a href="#_ednref20" id="_edn20">20</a></sup> Notably, Harry Anslinger—the first commissioner of the Federal Bureau of Narcotics—was an unapologetic bigot who waged a&nbsp;ruthless (and almost bizarrely personal and obsessive) campaign against African American jazz singer and drug user Billie Holiday.<sup><a href="#_ednref21" id="_edn21">21</a></sup></p> <p>Then, as now, whites used drugs at rates comparable&nbsp;to—and&nbsp;perhaps even higher&nbsp;than—other&nbsp;populations.<sup><a href="#_ednref22" id="_edn22">22</a></sup>&nbsp;Indeed, historian&nbsp;David&nbsp;Courtwright&nbsp;concludes that “southern whites [of the era] had the highest addiction rate of any regional racial group in the country, and perhaps one of the highest in the world.”<sup><a href="#_ednref23" id="_edn23">23</a></sup>&nbsp;But, among&nbsp;more‐​privileged&nbsp;populations, it seems that drug abuse was still considered no worse than an unfortunate but tolerable vice.<sup><a href="#_ednref24" id="_edn24">24</a></sup>&nbsp;In&nbsp;other words, attitudes about recreational drugs were shaped by caste and&nbsp;class—by&nbsp;the desire to prevent the “wrong” type from associating with the “right” type.&nbsp;Unsurprisingly, then, the first shots of the drug war were, like most shots since, targeted strikes against poorer and darker communities.<sup><a href="#_ednref25" id="_edn25">25</a></sup></p> <p>What did early regulation look like? In 1914, Congress passed the Harrison Narcotics Tax Act, which taxed, but did not wholly prohibit, the production and distribution of cocaine and opioids.<sup><a href="#_ednref26" id="_edn26">26</a></sup> In this way, doctors could still prescribe narcotics, and many continued to do so to treat dependence. In fact, several municipalities ran public addiction maintenance clinics, including opioid clinics in New York City, Los Angeles, New Orleans, Shreveport, Atlanta, New Haven, Albany, and Jacksonville.<sup><a href="#_ednref27" id="_edn27">27</a></sup> These dispensaries operated aboveground, granting prescriptions for hard drugs to users. Health officials not only treated but also tracked patients.<sup><a href="#_ednref28" id="_edn28">28</a></sup> Participants were required to register with the state, which minimized the risk of diversion of the drugs into criminal markets and provided a&nbsp;data source to measure success empirically—even though such studies were apparently relatively uncommon at the time.<sup><a href="#_ednref29" id="_edn29">29</a></sup></p> <p>It seems that the efforts were largely successful. If nothing else, they initially enjoyed widespread support from city councils, boards of health, and even local law enforcement.<sup><a href="#_ednref30" id="_edn30">30</a></sup> According to one city official in Los Angeles, the city’s maintenance clinic “did more good … in one day than all the prosecutions in one month.“<sup><a href="#_ednref31" id="_edn31">31</a></sup> But the legal landscape was shifting. “Law enforcement officials soon began to move to curtail the medical profession’s freedom to prescribe narcotics in the treatment of addicts.”<sup><a href="#_ednref32" id="_edn32">32</a></sup> Initially, law enforcement focused on the so‐​called script doctors who liberally dispensed opioids to patients. Federal prosecutors argued that addiction maintenance failed to qualify under the Harrison Act’s allowance for good faith prescriptions in the course of professional practice.<sup><a href="#_ednref33" id="_edn33">33</a></sup> And the Supreme Court would come to agree. First, in <em>Webb</em> <em>v. </em> <em>United States</em>, the court held that a&nbsp;doctor was prohibited from prescribing to a&nbsp;habitual user a&nbsp;dose of morphine if the doctor’s intention was not to cure the habit but to keep the patient “comfortable by maintaining his customary use.”<sup><a href="#_ednref34" id="_edn34">34</a></sup> Subsequently, in <em>Jin Fuey Moy v.</em> <em>United States</em>, the court reaffirmed this position, observing that a&nbsp;prescription could not “cater to the appetite … of one addicted to the use of the drug.”<sup><a href="#_ednref35" id="_edn35">35</a></sup> Finally, in <em>United States v. Behrman</em>, the court held that a&nbsp;violation of the Harrison Act did not turn on a&nbsp;doctor’s subjective motivation,<sup><a href="#_ednref36" id="_edn36">36</a></sup> meaning that “prescribing drugs for an addict was a&nbsp;crime regardless of the physician’s intent in the matter.”<sup><a href="#_ednref37" id="_edn37">37</a></sup> Somewhat surprisingly, however, in <em>Linder v. United States</em>, the court endorsed a&nbsp;different approach:</p> </div> , <blockquote class="blockquote"> <div> <p>[Addicts] . .&nbsp;. are diseased, and proper subjects for such treatment, and we cannot possibly conclude that a&nbsp;physician acted improperly or unwisely or for other than medical purposes solely because he has dispensed to one of them, in the ordinary course and in good faith . .&nbsp;. morphine or cocaine for relief of conditions incident to addiction.<sup><a href="#_ednref38" id="_edn38">38</a></sup></p> </div> </blockquote> <cite> </cite> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>But <em>Linder</em> would prove to be sui generis—an exception to the dominant rule, applied to a&nbsp;case where the doctor had prescribed only a&nbsp;relatively small dose.<sup><a href="#_ednref39" id="_edn39">39</a></sup> The Harrison Act had set the stage for punitive prohibition. And, with the passage of the Eighteenth Amendment, the logic of prohibition became a&nbsp;constitutional mandate, shifting both legal and cultural norms.<sup><a href="#_ednref40" id="_edn40">40</a></sup> Enforcement of the Harrison Act “stigmatized medication‐​assisted treatment as well as the patients who received such care.”<sup><a href="#_ednref41" id="_edn41">41</a></sup> In short order, the practice of addiction maintenance disappeared.<sup><a href="#_ednref42" id="_edn42">42</a></sup> By 1925, the last clinic had closed.<sup><a href="#_ednref43" id="_edn43">43</a></sup></p> <p>With&nbsp;the repeal of the&nbsp;Eighteenth&nbsp;Amendment&nbsp;in 1933, there was, perhaps, some hope that the state might soften its approach to prohibition writ large.<sup><a href="#_ednref44" id="_edn44">44</a></sup>&nbsp;To&nbsp;the contrary, federal officials, now relieved of&nbsp;alcohol‐​interdiction&nbsp;duties, were free to devote even more time and criminal justice energy to narcotics.<sup><a href="#_ednref45" id="_edn45">45</a></sup></p> <p>The government had its reasons, of course, to worry about unscrupulous physicians who indiscriminately dispensed opioids and other drugs.<sup><a href="#_ednref46" id="_edn46">46</a></sup> There is a&nbsp;legitimate concern about the diversion of prescription drugs into criminal markets.<sup><a href="#_ednref47" id="_edn47">47</a></sup> And the line is fine between <em>treating</em> and <em>creating</em> drug dependency. Thus the Harrison Act replaced the physician’s tools with the threats of the criminal justice system. “The unfortunate consequence of this policy was to drive from the field of treatment not only the unethical ‘script doctor’ but the legitimate doctor as well.”<sup><a href="#_ednref48" id="_edn48">48</a></sup></p> </div> , <h2 class="heading"> International Public Health Efforts </h2> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Beyond our borders, several cities and countries have, for some time, successfully provided free, uncontaminated, comparatively safe narcotics to persons addicted to controlled substances.<sup><a href="#_ednref49" id="_edn49">49</a></sup> Among those closest to home, Vancouver has witnessed a&nbsp;grassroots campaign undertaken by drug users—the Vancouver Area Network of Drug Users (VANDU)—to support and care for each other.<sup><a href="#_ednref50" id="_edn50">50</a></sup> VANDU initially established an underground, supervised injection facility: a&nbsp;sterile, medically staffed environment to which recreational users could bring drugs to consume in relative safety.<sup><a href="#_ednref51" id="_edn51">51</a></sup> And, as VANDU’s successes became apparent, it took its efforts mainstream.<sup><a href="#_ednref52" id="_edn52">52</a></sup> It pressured the municipality to declare a&nbsp;public health emergency and won the support of the city’s conservative mayor, Philip Owen.<sup><a href="#_ednref53" id="_edn53">53</a></sup> Then Vancouver opened Insite, the first licit drug‐​consumption safe site in North America.<sup><a href="#_ednref54" id="_edn54">54</a></sup> Drug users who brought their drugs to Insite were made safe in three ways: they were insulated from arrest and prosecution, they were given sterile injection equipment and other drug‐​use paraphernalia, and they were supervised by medical professionals prepared to administer naloxone and oxygen as needed to reverse overdoses.<sup><a href="#_ednref55" id="_edn55">55</a></sup></p> <p>The results were transformative. To date, Insite claims to have reversed nearly 5,000 overdoses without suffering a&nbsp;single overdose death.<sup><a href="#_ednref56" id="_edn56">56</a></sup> More than that, clean needles have kept injectable‐​drug users from transmitting communicable diseases, such as HIV and hepatitis.<sup><a href="#_ednref57" id="_edn57">57</a></sup> And, as participants have moved their habits—and needles—indoors, quality of life in Vancouver’s formerly derelict Downtown Eastside has improved dramatically.<sup><a href="#_ednref58" id="_edn58">58</a></sup> Many heavy drug users have reduced or even ceased their drug use and have secured stable employment and housing.<sup><a href="#_ednref59" id="_edn59">59</a></sup> Notably, between 1996 and 2006, life expectancy in the Downtown Eastside rose by several years.<sup><a href="#_ednref60" id="_edn60">60</a></sup> These results are in keeping with recent research tracing the roots of addiction.<sup><a href="#_ednref61" id="_edn61">61</a></sup> The current phrase is, “The opposite of addiction is connection,” and by normalizing but still discouraging drug use, these international experiments have served to reconnect dependent drug‐​users with their communities.<sup><a href="#_ednref62" id="_edn62">62</a></sup></p> <p>But, ultimately, the safe site was not enough to effectively serve the needs of drug‐​affected Vancouver communities. Thus the city opened the Providence Crosstown Clinic, which operates on a&nbsp;genuine addiction maintenance model.<sup><a href="#_ednref63" id="_edn63">63</a></sup> At Crosstown, staff provide addicts with pharmaceutical‐​grade heroin in a&nbsp;supervised setting with care sometimes paid for by Health Canada (the country’s national public health care provider).<sup><a href="#_ednref64" id="_edn64">64</a></sup> The program reaches the very individuals that criminal legal systems label recidivists.<sup><a href="#_ednref65" id="_edn65">65</a></sup> Indeed, many participants have previously cycled through Canadian jails and prisons—to no avail.<sup><a href="#_ednref66" id="_edn66">66</a></sup> Crosstown makes heroin available to patients for whom all other interventions have failed, including even medication‐​assisted therapy with methadone, buprenorphine, or suboxone.<sup><a href="#_ednref67" id="_edn67">67</a></sup> Out of options, Vancouver took the only viable step left: the city turned to free heroin, turning run‐​of‐​the‐​mill repeat offenders into patients.<sup><a href="#_ednref68" id="_edn68">68</a></sup></p> <p>The aim is palliative care.<sup><a href="#_ednref69" id="_edn69">69</a></sup> First, harm is reduced to the opioid‐​dependent person by providing clean needles in a&nbsp;clinical setting and drugs of predictable quality, unadulterated by more toxic substances such as fentanyl.<sup><a href="#_ednref70" id="_edn70">70</a></sup> Second, harm is reduced to the public by minimizing the incentives of drug seekers to commit property and violent crimes to feed drug habits.<sup><a href="#_ednref71" id="_edn71">71</a></sup> The operating philosophy is not American‐​style prohibition or use reduction.<sup><a href="#_ednref72" id="_edn72">72</a></sup> To the contrary, there is little expectation that habitual users will even taper their usage in the near future.<sup><a href="#_ednref73" id="_edn73">73</a></sup> The idea is to transform the heavy drug user into a&nbsp;functional and socially productive individual who need not spend every waking moment evading law enforcement to furtively score and use illicit substances of unknown purity, potency, and provenance.<sup><a href="#_ednref74" id="_edn74">74</a></sup> To that end, the clinic also offers other supportive services, such as social workers on staff and job and housing programs, all designed to help participants maintain social connections and construct lives of meaning, even as participants remain drug dependent.<sup><a href="#_ednref75" id="_edn75">75</a></sup> But it should be noted that opportunities are likewise available to participants to transition to more conventional treatment, including abstinence‐​based programs, meaning that participants may ultimately reduce use, although that is not the core objective.</p> <p>Vancouver’s efforts were built upon those of mainly&nbsp;European&nbsp;countries that had previously fashioned innovative harm reduction interventions, including the establishment of addiction maintenance programs.&nbsp;For&nbsp;instance, dating back to the 1980s, the city of&nbsp;Liverpool,&nbsp;England, experimented with prescription “heroin reefers”—cigarettes soaked in heroin.<sup><a href="#_ednref76" id="_edn76">76</a></sup>&nbsp;Although&nbsp;few data were developed or kept, a&nbsp;police study showed that criminal convictions for&nbsp;drug‐​addicted&nbsp;persons dropped from 6.88 convictions per individual in the 18 months prior to enrollment to only 0.44 convictions in the 18 months thereafter.<sup><a href="#_ednref77" id="_edn77">77</a></sup></p> <p>Likewise, Switzerland opened addiction maintenance clinics in the 1990s.<sup><a href="#_ednref78" id="_edn78">78</a></sup> Today, there are 23 such clinics treating more than 2,000 heroin‐​dependent persons.<sup><a href="#_ednref79" id="_edn79">79</a></sup> Predictably, the country has enjoyed a&nbsp;marked decline in communicable diseases as well as drops in incidences of crimes associated with drug use.<sup><a href="#_ednref80" id="_edn80">80</a></sup> And the percentage of participants maintaining full‐​time employment has tripled, while dependence upon welfare has declined dramatically.<sup><a href="#_ednref81" id="_edn81">81</a></sup> In turn, harm reduction efforts have grown in popularity. In 2008, 68 percent of Swiss voters approved a&nbsp;measure to incorporate addiction maintenance into the country’s official health policy.<sup><a href="#_ednref82" id="_edn82">82</a></sup></p> <p>Portugal has implemented even more ambitious harm reduction measures and has achieved even greater success. By the end of the 20th century, a&nbsp;staggering 1&nbsp;percent of Portugal’s population was hooked on heroin.<sup><a href="#_ednref83" id="_edn83">83</a></sup> In 2001, the government decriminalized possession and use (but not sale) of <em>all</em> drugs and invested heavily in treatment and social services.<sup><a href="#_ednref84" id="_edn84">84</a></sup> Portugal’s new philosophy was to treat drug users as patients, not criminals—to keep them “inside the health system, not outside of it.”<sup><a href="#_ednref85" id="_edn85">85</a></sup> And its efforts have worked. Portuguese rates of drug use remain relatively high, but rates of hard drug use have declined, with heroin use declining by an astounding two‐​thirds from its peak.<sup><a href="#_ednref86" id="_edn86">86</a></sup> More to the point, drug‐​related HIV infections plummeted more than 90 percent and overdose deaths fell 85 percent—to the lowest death rate in Western Europe and one‐​fiftieth the rate in the United States.<sup><a href="#_ednref87" id="_edn87">87</a></sup> Portugal may have adopted radical policies of decriminalization and harm reduction, but it is not <em>tolerant </em>of drugs rather, it is intolerant of death and all the other unintended consequences of prohibition. As Nicholas Kristof remarked, “Portugal may be winning the war on drugs—by ending it.”<sup><a href="#_ednref88" id="_edn88">88</a></sup></p> </div> , <h2 class="heading"> How, When, and Why Addiction Maintenance Works </h2> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Why&nbsp;have these international efforts proved so successful?&nbsp;First, they are finely targeted to the challenges facing dependent drug users and are designed deliberately to help those users at critical moments.&nbsp;Heroin&nbsp;and other opioids are prescribed only after the failure of other&nbsp;efforts—whether&nbsp;therapeutic interventions or criminal enforcement.<sup><a href="#_ednref89" id="_edn89">89</a></sup>&nbsp;Second, addiction maintenance promotes safety: the drugs must be consumed&nbsp;onsite—in&nbsp;comfortable but sterile settings with&nbsp;well‐​equipped&nbsp;medical personnel on hand, thereby minimizing risks of death and the diversion of opioids into criminal markets.<sup><a href="#_ednref90" id="_edn90">90</a></sup>&nbsp;Third, and perhaps most importantly, these efforts are oriented against the logic of prohibition.<sup><a href="#_ednref91" id="_edn91">91</a></sup></p> <p>The&nbsp;goal of addiction maintenance is harm&nbsp;reduction—a&nbsp;reduction in the harms that flow from illicit drug markets, infectious diseases, overdoses, and criminal enforcement and punishment.<sup><a href="#_ednref92" id="_edn92">92</a></sup>&nbsp;And, because addiction maintenance is an intervention of last resort (not unlike “heroic” measures in medicine<sup><a href="#_ednref93" id="_edn93">93</a></sup>), it promises to reduce harm for the most dependent users.<sup><a href="#_ednref94" id="_edn94">94</a></sup>&nbsp;For&nbsp;those for whom nothing has worked, addiction maintenance provides the possibility to stay off streets, with families, in jobs, and out of emergency rooms, hospitals, jails, and mortuaries.<sup><a href="#_ednref95" id="_edn95">95</a></sup></p> <p>And, even though addiction maintenance is intended only to provide palliative care, there is some evidence&nbsp;that—under&nbsp;the right&nbsp;circumstances—it&nbsp;may reduce overall drug use.<sup><a href="#_ednref96" id="_edn96">96</a></sup>&nbsp;This&nbsp;would seem counterintuitive, of course.&nbsp;How&nbsp;could it be that free access to opioids might help dependent users get clean?&nbsp;Appreciate, first, the context in which drugs are most often abused.&nbsp;The&nbsp;environmental theory of addiction insists that pharmacology is only secondarily related to dependence.<sup><a href="#_ednref97" id="_edn97">97</a></sup>&nbsp;Chemicals&nbsp;have physiological effects to be sure, but plenty of drug users maintain relative free will to ingest without becoming dependent.<sup><a href="#_ednref98" id="_edn98">98</a></sup>&nbsp;Indeed, the vast majority of people who try even hard drugs avoid dependence.<sup><a href="#_ednref99" id="_edn99">99</a></sup>&nbsp;A&nbsp;small subset develop powerful compulsions, but the question of when and whether these compulsions take hold may depend more on an individual’s life circumstances than the chemical composition of the drug.<sup><a href="#_ednref100" id="_edn100">100</a></sup></p> <p>This is the environmental theory of addiction;<sup><a href="#_ednref101" id="_edn101">101</a></sup> consider a&nbsp;series of animal studies.<sup><a href="#_ednref102" id="_edn102">102</a></sup> In an early set of studies, rats were placed alone in cages with food, water, and cocaine drips.<sup><a href="#_ednref103" id="_edn103">103</a></sup> In short order, most rats abandoned their food and water and fixated on the cocaine, consuming copious amounts until death.<sup><a href="#_ednref104" id="_edn104">104</a></sup> At first blush, the studies seemed to demonstrate the intensity of chemical hooks.<sup><a href="#_ednref105" id="_edn105">105</a></sup> But, decades later, social scientists replicated the studies with a&nbsp;clever twist: several rats were housed together in nurturing environments, not in isolation in sterile cages, and they were given ample opportunities to interact and socialize.<sup><a href="#_ednref106" id="_edn106">106</a></sup> These rats still experimented with the cocaine, but not to excess and less so over time.<sup><a href="#_ednref107" id="_edn107">107</a></sup> Consider also the many heroin‐​dependent American soldiers fighting in Vietnam who readily gave up substance abuse once they returned home safely.<sup><a href="#_ednref108" id="_edn108">108</a></sup> These men self‐​medicated against the horrors of war but were able to alter their behavior once the context changed.<sup><a href="#_ednref109" id="_edn109">109</a></sup> Like the drug‐​dependent soldiers in Vietnam, the first set of rats was self‐​medicating against pain and loneliness. The second set enjoyed meaningful lives, and those rats had less desire or compulsion to fill the void with self‐​harm.<sup><a href="#_ednref110" id="_edn110">110</a></sup></p> <p>Now consider the life of a&nbsp;drug user under the framework of prohibition. The threat of criminal repercussions drives users underground in search of drugs of unknown quality and provenance while isolating them from the resources and support systems needed to address addiction. According to Gabor Maté, a&nbsp;doctor specializing in childhood trauma and addiction,</p> </div> , <blockquote class="blockquote"> <div> <p>If&nbsp;I&nbsp;had to design a&nbsp;system that was intended to keep people addicted, I’d design exactly the system that we have right now…&nbsp;. I’d attack people and ostracize them…&nbsp;.&nbsp;The&nbsp;more you stress people, the more they’re going to use.&nbsp;The&nbsp;more you&nbsp;de‐​stress&nbsp;people, the less they are going to use.&nbsp;So&nbsp;to create a&nbsp;system where you ostracize and marginalize and criminalize people, and force them to live in poverty with disease, you are basically guaranteeing they will stay at it.<sup><a href="#_ednref111" id="_edn111">111</a></sup></p> </div> </blockquote> <cite> </cite> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Maté has been criticized for overstating the influence of isolation and trauma while underplaying pharmacological effects.<sup><a href="#_ednref112" id="_edn112">112</a></sup> But the Vancouver and European experiences suggest strongly that the isolation and trauma created by prohibition cause substantial harm. When these international municipalities and governments abandoned prohibition and focused instead on eliminating barriers to drug acquisition, drug users were better able to focus on self‐​improvement. Their ties to family, community, education, and employment were strengthened (or at least left intact). Thus, for instance, a&nbsp;<em>Lancet</em> study found that the majority of participants in Switzerland’s addiction maintenance clinics were able to pivot eventually to methadone or abstinence programs.<sup><a href="#_ednref113" id="_edn113">113</a></sup> Moreover, as Vancouver’s Downtown Eastside discovered, fewer people are likely to become drug dependent in the first instance once a&nbsp;neighborhood’s quality of life improves.</p> <p>The&nbsp;conclusion is inescapable.&nbsp;Addiction&nbsp;need not be a&nbsp;terminal condition.&nbsp;And, for the most dependent, the most promising treatment may just be to feed the habit.<sup><a href="#_ednref114" id="_edn114">114</a></sup>&nbsp;If&nbsp;nothing else, addiction maintenance facilitates the process known as aging out.<sup><a href="#_ednref115" id="_edn115">115</a></sup>&nbsp;Heavy&nbsp;drug abuse and other&nbsp;risk‐​taking&nbsp;behaviors concentrate in populations of young adult men.<sup><a href="#_ednref116" id="_edn116">116</a></sup>&nbsp;As&nbsp;individuals mature, they tend to use less.<sup><a href="#_ednref117" id="_edn117">117</a></sup>&nbsp;The&nbsp;more stable people’s lives are, the likelier they are to age out more quickly.<sup><a href="#_ednref118" id="_edn118">118</a></sup>&nbsp;The&nbsp;takeaway is obvious: sometimes the best approach is&nbsp;patience—to&nbsp;wait out drug use, misuse, abuse, or&nbsp;dependence—and, in the interim, to minimize the damage done to the individual and his social network.</p> <p>This&nbsp;is what addiction maintenance programs are designed to achieve.&nbsp;They&nbsp;try to keep the hopeless addict alive, relatively healthy, and socially integrated long enough to navigate, eventually, to the other side of the age&nbsp;divide—to&nbsp;steer clear of the most destructive and deadly byproducts of punitive prohibition.<sup><a href="#_ednref119" id="_edn119">119</a></sup></p> </div> , <h2 class="heading"> Legal Roadblocks </h2> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>But&nbsp;isn’t the current opioid crisis a&nbsp;product of a&nbsp;prescription market and model?&nbsp;Drug&nbsp;manufacturers pushed opioids on doctors.<sup><a href="#_ednref120" id="_edn120">120</a></sup>&nbsp;And&nbsp;“pill mills”—the pharmacies and physicians that overprescribed and overdispensed&nbsp;medications—pushed&nbsp;opioids on patients.<sup><a href="#_ednref121" id="_edn121">121</a></sup>&nbsp;In&nbsp;short,&nbsp;America&nbsp;already subscribed to a&nbsp;drug‐​licensing&nbsp;regime, and it led to lives ruined or ended prematurely, families and communities splintered, and support networks broken down.<sup><a href="#_ednref122" id="_edn122">122</a></sup>&nbsp;If&nbsp;prescriptions and addiction maintenance are so promising, what went so wrong?</p> <p>The&nbsp;short answer is that recent&nbsp;American&nbsp;experience cannot be understood as addiction maintenance.&nbsp;Under&nbsp;addiction maintenance, people who abuse opioids and who have failed to respond to other kinds of treatment, including methadone maintenance, would be admitted into medically supervised clinics and provided&nbsp;pharmaceutical‐​grade&nbsp;narcotics in amounts calibrated to reduce the harms of obtaining and using drugs from illicit markets while maintaining social and physical&nbsp;well‐​being.<sup><a href="#_ednref123" id="_edn123">123</a></sup>&nbsp;The&nbsp;American&nbsp;approach is, in fact, the opposite of addiction maintenance.&nbsp;Our&nbsp;prevailing licensing regime permits doctors to prescribe opioids only until patients become dependent.<sup><a href="#_ednref124" id="_edn124">124</a></sup>&nbsp;A&nbsp;recently passed&nbsp;Michigan&nbsp;statute captures this, defining&nbsp;good‐​faith&nbsp;practice as “the prescribing or dispensing of a&nbsp;controlled substance&nbsp;. .&nbsp;.&nbsp;in the regular course of professional treatment . .&nbsp;. for a&nbsp;pathology or condition&nbsp;<em>other than that individual’s physical or psychological dependence upon or addiction to a&nbsp;controlled substance</em>&nbsp;[italics added].”<sup><a href="#_ednref125" id="_edn125">125</a></sup>&nbsp;Once&nbsp;patients get hooked,&nbsp;patient‐​centered&nbsp;care is displaced and the protocols of mandatory tapering and forced cessation imposed, backed by threat of criminal penalties.<sup><a href="#_ednref126" id="_edn126">126</a></sup></p> <p>Use‐​reduction logic might seem simple enough: fewer prescriptions for pills should correspond with less use by the drug dependent. And, indeed, prescription opioid use has dropped dramatically in recent years.<sup><a href="#_ednref127" id="_edn127">127</a></sup> Prescriptions peaked in 2012 and have fallen since.<sup><a href="#_ednref128" id="_edn128">128</a></sup> In 2017 alone, they plummeted 10 percent, the sharpest decline in a&nbsp;quarter century.<sup><a href="#_ednref129" id="_edn129">129</a></sup> But current enforcement efforts have succeeded only in minimizing prescription drug use and diverting prescription drugs and prescription drug users into illicit markets.<sup><a href="#_ednref130" id="_edn130">130</a></sup> Put simply, a&nbsp;downtick in prescription drug availability translates into an uptick in demand for street‐​manufactured drugs. Patients become criminal buyers, the price of heroin undercuts illicitly diverted pharmaceuticals, syringes replace pills, and dealers cut drugs with fentanyl and other dangerous chemicals. According to Johann Hari:</p> </div> , <blockquote class="blockquote"> <div> <p>If I&nbsp;am an American who has developed an Oxycontin addiction, as soon as my doctor realizes I’m an addict, she has to cut me off. She is allowed to prescribe to treat only my physical pain—not my addiction.… That’s when, in desperation, I&nbsp;might hold up a&nbsp;pharmacy with a&nbsp;gun, or go and buy unlabeled pills from street dealers. Most of the problems attributed to prescription drugs in the United States … begin here, when the legal, regulated route to the drug is terminated.… The prescription drug crisis doesn’t discredit legalization—it shows the need for it.<sup><a href="#_ednref131" id="_edn131">131</a></sup></p> </div> </blockquote> <cite> </cite> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>The data bear out Hari’s claims. As opioid prescriptions have plummeted, opioid‐​linked deaths have skyrocketed.<sup><a href="#_ednref132" id="_edn132">132</a></sup> Street trade produces unreliable doses that fluctuate in quality and strength. One dealer may find it profitable to dilute a&nbsp;batch and sell more. Another dealer may cut costs by adding cheap fentanyl—an extremely potent and highly lethal synthetic opioid for which even seasoned opioid users may lack tolerance. More to the point, dealers may not even be aware of the purity and potency of their own unlabeled and unregulated goods. And comparatively milder prescription drugs, which were previously more accessible on pharmacy shelves, are often just too expensive and bulky for street‐​level sellers to keep in stock. “Just as when all legal routes to alcohol were cut off, beer disappeared and whisky won, when all legal routes to opiates are cut off, Oxy disappears, and heroin prevails. This isn’t a&nbsp;law of nature.… [It’s] drug policy.”<sup><a href="#_ednref133" id="_edn133">133</a></sup></p> <p>Recent reform efforts have made the problem only worse. The current war on opioids is, like the first war on drugs, a&nbsp;war on physicians. In the words of former attorney general Jeff Sessions, “‘We’re going to target those doctors.’”<sup><a href="#_ednref134" id="_edn134">134</a></sup> In January 2018, the Drug Enforcement Agency (DEA) initiated a “surge” in efforts to shut down pill mills.<sup><a href="#_ednref135" id="_edn135">135</a></sup> The next month, the Justice Department started a&nbsp;task force to pursue manufacturers and distributors.<sup><a href="#_ednref136" id="_edn136">136</a></sup> According to a&nbsp;press release, “The Department will … use all criminal and civil tools at its disposal to hold distributors such as pharmacies, pain management clinics, drug testing facilities, and individual physicians accountable for unlawful actions … to prevent diversion and improper prescribing.”<sup><a href="#_ednref137" id="_edn137">137</a></sup> In March 2018, the administration announced plans to cut opioid prescriptions by a&nbsp;third within three years, and the DEA initiated new drug‐​production quotas, ultimately producing dramatic opioid shortages.<sup><a href="#_ednref138" id="_edn138">138</a></sup> In June 2018, Sessions announced charges against 162 individuals, including physicians, for crimes related to prescribing and distributing prescription opioids.<sup><a href="#_ednref139" id="_edn139">139</a></sup> And, even before this recent crackdown, the DEA had increased actions against doctors from 88&nbsp;in 2011 to 479&nbsp;in 2016.<sup><a href="#_ednref140" id="_edn140">140</a></sup></p> <p>The&nbsp;escalation and crackdown are not unique to federal law enforcement.&nbsp;The&nbsp;Centers&nbsp;for&nbsp;Disease&nbsp;Control&nbsp;and&nbsp;Prevention&nbsp;(CDC) has promulgated its own guidelines for prescribing higher dosages.<sup><a href="#_ednref141" id="_edn141">141</a></sup>&nbsp;Initially, these were recommendations only, but several states and medical boards have turned those guidelines into rigid rules, using the CDC template to enact statutory and regulatory limits that help define what constitutes medical malpractice and criminal wrongdoing.<sup><a href="#_ednref142" id="_edn142">142</a></sup>&nbsp;Likewise, public and private insurers have imposed their own tapering protocols that expand tracking, interfere in the&nbsp;physician‐​patient&nbsp;relationship, and curtail further the responsible practice of individualized medicine.<sup><a href="#_ednref143" id="_edn143">143</a></sup></p> <p>In&nbsp;turn, physicians have stopped treating patients whose health could genuinely benefit from large or&nbsp;long‐​term&nbsp;doses of prescription opioids.&nbsp;Consider&nbsp;the DEA’s pursuit of&nbsp;Forest&nbsp;Tennant, a&nbsp;prominent&nbsp;California&nbsp;physician who faced criminal investigation for atypical prescribing.<sup><a href="#_ednref144" id="_edn144">144</a></sup>&nbsp;Tennant&nbsp;specialized in severe chronic pain and was&nbsp;world‐​renowned&nbsp;for palliative care, often at the end of life.<sup><a href="#_ednref145" id="_edn145">145</a></sup>&nbsp;He&nbsp;had&nbsp;evidence‐​based&nbsp;reasons for prescribing such large quantities of opioids.<sup><a href="#_ednref146" id="_edn146">146</a></sup>&nbsp;Nevertheless, law enforcement successfully pushed&nbsp;Tennant&nbsp;into early retirement, leaving his patients to suffer without effective pain management.<sup><a href="#_ednref147" id="_edn147">147</a></sup></p> <p>This&nbsp;is overdeterrence in&nbsp;action—another&nbsp;example of how prohibition chills socially valuable conduct at the margins.<sup><a href="#_ednref148" id="_edn148">148</a></sup>&nbsp;Indeed, in some states, the wait to see a&nbsp;qualified pain management specialist has increased to a&nbsp;year or longer.<sup><a href="#_ednref149" id="_edn149">149</a></sup>&nbsp;And&nbsp;it stands to reason that some of the most ethical doctors may be the most easily dissuaded from prescribing opioids consistent with patients’ actual needs; because these physicians are likelier to be comparatively risk averse, they are likelier to overcorrect in order to steer well clear of increasingly pronounced criminal justice threats and consequences.&nbsp;Moreover, they are likelier to be aware of (and comply with) the heightened recordkeeping requirements that law enforcement may use to trawl for patient and physician targets.&nbsp;At&nbsp;a&nbsp;certain point, it’s just not worth the effort.&nbsp;As&nbsp;one primary care doctor put it, “‘I will no longer treat chronic pain.&nbsp;Period…&nbsp;.&nbsp;There&nbsp;is too much risk involved.’”<sup><a href="#_ednref150" id="_edn150">150</a></sup></p> </div> , <h2 class="heading"> The Future of Reform </h2> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Meaningful domestic drug reform has only ever arisen from the bottom up. Take the example of syringe exchanges. Starting in Europe in the 1980s, activists experimented with exchanges as a&nbsp;response to the deadly epidemic of HIV/AIDS.<sup><a href="#_ednref151" id="_edn151">151</a></sup> American reformers took note, but federal and state governments worked actively against such initiatives. The DEA, for example, had previously promulgated the Model Drug Paraphernalia Act, which provided a&nbsp;template for 46 states to criminalize the manufacture, possession, or distribution of drug paraphernalia, broadly defined.<sup><a href="#_ednref152" id="_edn152">152</a></sup> Moreover, the federal government refused to fund syringe exchanges until they were proven “safe and effective” (and, of course, it refused also to fund research into the question).<sup><a href="#_ednref153" id="_edn153">153</a></sup> Indeed, Sen. Jesse Helms (R-NC) equated any public effort to implement a&nbsp;syringe exchange to government‐​supported drug abuse.<sup><a href="#_ednref154" id="_edn154">154</a></sup> Nevertheless, activists persisted in doing what they could, typically underground.<sup><a href="#_ednref155" id="_edn155">155</a></sup> Over time, some mainstream stakeholders even began to buy in. Ultimately, a&nbsp;number of municipal and state authorities authorized syringe‐​exchange programs, maneuvering polit­ically and legally to prevent pushback.<sup><a href="#_ednref156" id="_edn156">156</a></sup> By 2015, even the federal government had lifted its funding ban—albeit only partially (and more than a&nbsp;quarter century too late).<sup><a href="#_ednref157" id="_edn157">157</a></sup> Overall, reform efforts proved successful.</p> <p>Consider&nbsp;the example of medical cannabis.&nbsp;Today, a&nbsp;majority of states permit at least some form of medical use.<sup><a href="#_ednref158" id="_edn158">158</a></sup>&nbsp;But&nbsp;these statutory public health interventions were slow in coming, even though, as early as the 1970s, it was already well established that cannabis could quell cancer patients’ nausea and stimulate their appetites.<sup><a href="#_ednref159" id="_edn159">159</a></sup>&nbsp;Over&nbsp;the next 20&nbsp;years, patients and advocates raised awareness that cannabis could also alleviate suffering from other illnesses and&nbsp;afflictions—glaucoma,&nbsp;AIDS‐​related&nbsp;wasting syndrome, epilepsy, neuropathic pain, and the side effects of ingesting certain drug cocktails.<sup><a href="#_ednref160" id="_edn160">160</a></sup></p> <p>Nevertheless, the federal government remained largely intransigent. In 1996, after California voters passed the Compassionate Use Act by proposition, federal authorities threatened physicians with civil and criminal penalties merely for recommending medical cannabis.<sup><a href="#_ednref161" id="_edn161">161</a></sup> Even today, the Controlled Substances Act classifies marijuana as a&nbsp;Schedule I&nbsp;drug—a substance purported to have no therapeutic benefits and a&nbsp;high potential for abuse.<sup><a href="#_ednref162" id="_edn162">162</a></sup> Simply put, federal law continues to criminalize cannabis.<sup><a href="#_ednref163" id="_edn163">163</a></sup></p> <p>In spite of these hurdles, activists found a&nbsp;way to build a&nbsp;grassroots movement around medical cannabis, establishing a&nbsp;collection of underground dispensaries.<sup><a href="#_ednref164" id="_edn164">164</a></sup> Municipalities and states began to follow their lead, primarily, at first, by citizen‐​initiated resolutions, referendums, and propositions.<sup><a href="#_ednref165" id="_edn165">165</a></sup> Lawmakers only began to act once the issue of medical cannabis had become obviously expedient.<sup><a href="#_ednref166" id="_edn166">166</a></sup> Until then, the path to meaningful reform was direct democracy and direct action.</p> <p>To&nbsp;these examples, we could add the&nbsp;drug‐​court&nbsp;movement, which now boasts over 2,000 courts currently operating nationwide.<sup><a href="#_ednref167" id="_edn167">167</a></sup>&nbsp;In&nbsp;the interest of full disclosure, we should make it clear that we, as authors, are deeply skeptical of the ability of drug courts to provide appropriate treatment and to function effectively as an alternative to incarceration (much less to avoid the collateral harms of the drug war).<sup><a href="#_ednref168" id="_edn168">168</a></sup>&nbsp;The&nbsp;drug‐​court&nbsp;model embraces and perpetuates the same prohibitionist and coercive paradigm of abstinence that we believe is so misguided.&nbsp;The&nbsp;movement operates within criminal justice, retaining the threat of punishment as a&nbsp;backstop for the noncompliant participant.&nbsp;Disappointingly, but perhaps unsurprisingly, many leading&nbsp;drug‐​court&nbsp;advocates have tended, therefore, to publicly oppose more ambitious drug policy reform, including the decriminalization of cannabis (even for medical use),<sup><a href="#_ednref169" id="_edn169">169</a></sup>&nbsp;reduction of felony possession offenses to misdemeanor or noncriminal offenses,<sup><a href="#_ednref170" id="_edn170">170</a></sup>&nbsp;and acceptance of (and reliance upon)&nbsp;medication‐​assisted&nbsp;treatments.<sup><a href="#_ednref171" id="_edn171">171</a></sup></p> <p>The&nbsp;origins of the&nbsp;drug‐​court&nbsp;movement can be traced to a&nbsp;small handful of&nbsp;ground‐​level&nbsp;advocates (in this case, county judges and local law enforcement) who could no longer countenance the most egregious excesses of the drug war, such as lengthy jail and prison sentences for&nbsp;low‐​level, nonviolent drug offenders.<sup><a href="#_ednref172" id="_edn172">172</a></sup>&nbsp;With&nbsp;no other viable option, these officials began to experiment, first quietly, then vocally, with alternative judicial interventions intended to avoid draconian penalties for chemically dependent persons.</p> <p>These examples illustrate the failure of the drug war and the role of grassroots activism in driving meaningful change. Although there has been some progress, such issues remain with respect to the opioid epidemic. Until relatively recently, federal and state laws largely prevented most people from preemptively gaining access to naloxone, an opioid antagonist, which reverses overdoses.<sup><a href="#_ednref173" id="_edn173">173</a></sup> Naloxone (trade name Narcan) is called the Lazarus drug for a&nbsp;good reason: injecting naloxone into a&nbsp;person’s bloodstream revives the sufferer by counteracting respiratory distress.<sup><a href="#_ednref174" id="_edn174">174</a></sup> For a&nbsp;long time, however, possession of naloxone was limited principally to emergency medical technicians and emergency room staff.<sup><a href="#_ednref175" id="_edn175">175</a></sup> Thus its benefits could reach only those overdose victims who lived long enough to see the inside of an ambulance or hospital.</p> <p>Technically, some physicians could still prescribe naloxone, but any such efforts were resisted by public officials, law enforcement, and even many within the medical community.<sup><a href="#_ednref176" id="_edn176">176</a></sup>&nbsp;In&nbsp;a&nbsp;classic example, opponents of naloxone relied upon the argument that ready access to naloxone would encourage opioid users (antidote in hand) to use drugs more often and more recklessly.<sup><a href="#_ednref177" id="_edn177">177</a></sup>&nbsp;Naloxone&nbsp;is neither an addictive nor&nbsp;mind‐​altering&nbsp;chemical compound, and it is incapable of recreational abuse.<sup><a href="#_ednref178" id="_edn178">178</a></sup>&nbsp;It&nbsp;is, first and foremost, a&nbsp;lifesaver.&nbsp;To&nbsp;withhold it is to endorse the view that death is an appropriate punishment for those who overdose.</p> <p>Enter&nbsp;the street activists.&nbsp;Piggybacking&nbsp;on the highly successful work of a&nbsp;syringe exchange program in&nbsp;Chicago, activists began distributing naloxone to&nbsp;syringe‐​exchange&nbsp;clients and taught them how to administer naloxone to reverse an overdose.<sup><a href="#_ednref179" id="_edn179">179</a></sup>&nbsp;Days&nbsp;after distribution of the first naloxone dose, a “save” was recorded.<sup><a href="#_ednref180" id="_edn180">180</a></sup>&nbsp;Hundreds&nbsp;and then thousands of saves followed.<sup><a href="#_ednref181" id="_edn181">181</a></sup>&nbsp;Other&nbsp;syringe exchanges took note of the&nbsp;Chicago&nbsp;experiment, as did local public health departments.&nbsp;In&nbsp;short order, communities across the country began to distribute (or turn a&nbsp;blind eye to the distribution of) naloxone; municipal and&nbsp;state‐​level&nbsp;law and policy reform followed thereafter.&nbsp;By&nbsp;July&nbsp;2017, all 50 states and the&nbsp;District&nbsp;of&nbsp;Columbia&nbsp;had taken legal steps to increase access to naloxone.<sup><a href="#_ednref182" id="_edn182">182</a></sup></p> <p>Four dynamics describe these drug policy reforms. First, until harm reduction interventions are well established, public officials and law enforcement agents are typically part of the problem, not the solution. Policymakers and professionals initially either opposed pragmatic harm reduction measures or stayed mum, fearing backlash.<sup><a href="#_ednref183" id="_edn183">183</a></sup> The enforcers of the drug war participate in a&nbsp;multibillion‐​dollar criminal justice‐​industrial complex, just as drug traffickers participate (illicitly and licitly) in multibillion‐​dollar drug‐​distribution and pharmaceutical‐​industrial complexes.<sup><a href="#_ednref184" id="_edn184">184</a></sup> In each of these markets, there is a&nbsp;lot at stake. Criminal justice has its jail and prison cells, paid prosecutors and judges, and police, probation, and corrections officers. The prescription drug industry has its drug representatives, scientific researchers, public relations professionals, and political lobbyists. Organized drug crime has its guns and safe houses, gang members, foot soldiers, and street dealers. The pressure is tremendous to keep feeding the drug‐​war machinery. No surprise, then, that institutional elites tend to make bad insurgents.</p> <p>Second, and relatedly, public health innovations typically start underground. For years—without any change in local, state, or federal law—sterile syringes were exchanged, medical marijuana was ingested, and naloxone was distributed and injected. If “Just Say No” is the mantra of the drug war, then the ethos of drug reform is Nike’s motto, “Just Do It.” Grassroots activists have proven to be willing to risk everything to defy the status quo by purposefully violating drug laws.<sup><a href="#_ednref185" id="_edn185">185</a></sup> For these advocates, protecting and saving lives is worth the gamble.</p> <p>Third, if and when de jure reform occurs, it often bubbles up from below. Long before legislators find the motivation or courage to enact statutes, community activists, advocates, and organizers persuade independent‐​minded city councilors and mayors to declare states of emergencies—authorizing, for instance, syringe exchanges to combat HIV/AIDS.<sup><a href="#_ednref186" id="_edn186">186</a></sup> Local police and prosecutors exercise discretion to look the other way when grassroots activists disobey criminal laws against the possession of naloxone.<sup><a href="#_ednref187" id="_edn187">187</a></sup> City officials use local initiatives to push law enforcement to deprioritize the criminal possession of small amounts of marijuana.<sup><a href="#_ednref188" id="_edn188">188</a></sup> And the public pass popular resolutions and referendums.<sup><a href="#_ednref189" id="_edn189">189</a></sup> Eventually, states may follow suit—but only after witnessing what has worked locally.</p> <p>Fourth, all the while, the federal structure stays largely intact.&nbsp;Its&nbsp;orientation remains prohibition first.&nbsp;At&nbsp;best, federal officials may tolerate local experimentation.&nbsp;But&nbsp;the federal law remains criminal&nbsp;law—the&nbsp;Controlled&nbsp;Substances&nbsp;Act&nbsp;and other punitive statutes like it.&nbsp;Even&nbsp;today, federal support for syringe exchanges is largely passive.&nbsp;Likewise, the federal government continues to oppose medical cannabis.&nbsp;And, perhaps more importantly, it continues to stifle&nbsp;medical‐​cannabis&nbsp;research,<sup><a href="#_ednref190" id="_edn190">190</a></sup>&nbsp;thereby keeping technically true the hollow claim that the substance has no&nbsp;<em>proven</em>&nbsp;medical benefits.<sup><a href="#_ednref191" id="_edn191">191</a></sup></p> <p>It is against this backdrop—and within this framework—that we should consider addiction maintenance. Addiction maintenance is more than a&nbsp;theoretical possibility; it is a&nbsp;historical and international reality. But, as a&nbsp;domestic practice, it remains a&nbsp;distant prospect. How distant is unclear. By nature, underground enterprises are hard to track. It could well be that an American addiction maintenance clinic is operating illegally already—either with a&nbsp;wink and nod from local officials or completely underground. The lives of heroin‐​dependent persons rely upon access to pharmaceutical‐​grade heroin instead of toxic street‐​corner junk.</p> <p>More to the point, a&nbsp;precursor to the addiction maintenance clinic has already begun to find traction—the safe site, or supervised injection facility, which does not supply drugs but provides a&nbsp;space for relatively safe consumption.<sup><a href="#_ednref192" id="_edn192">192</a></sup> For some time, it has been an open secret that at least one unsanctioned supervised injection facility has operated within the United States.<sup><a href="#_ednref193" id="_edn193">193</a></sup> And activists have lobbied to bring underground safe sites to the surface.<sup><a href="#_ednref194" id="_edn194">194</a></sup> Even the American Medical Association has come aboard, declaring support for the model.<sup><a href="#_ednref195" id="_edn195">195</a></sup> Likewise, the idea has spread to progressive prosecutors and police commissioners.<sup><a href="#_ednref196" id="_edn196">196</a></sup> Just this past year, public health advocates in Philadelphia, with the support of city leaders, formed a&nbsp;nonprofit called Safehouse to open the first above‐​ground supervised injection facility in the country.<sup><a href="#_ednref197" id="_edn197">197</a></sup> Predictably, state officials have opposed the effort with claims that it cannot be done under federal law (though Pennsylvania’s governor has signaled that he may keep his hands off the effort).<sup><a href="#_ednref198" id="_edn198">198</a></sup> Federal officials have responded predictably, flexing drug‐​war muscles with threats to enforce the so‐​called crack house law against any safe site should one try to open aboveground.<sup><a href="#_ednref199" id="_edn199">199</a></sup> In the same vein, the Justice Department is currently planning to appeal a&nbsp;district court ruling that the Controlled Substances Act would not apply to Safehouse’s operations.<sup><a href="#_ednref200" id="_edn200">200</a></sup> Notwithstanding the federal resistance, we believe it likely that licit supervised injection facilities will open domestically—if not in Philadelphia, then somewhere else sometime soon.<sup><a href="#_ednref201" id="_edn201">201</a></sup></p> <p>That&nbsp;is what happened with syringe exchanges and medical cannabis.&nbsp;More&nbsp;to the point, that is what happened in&nbsp;Vancouver&nbsp;where underground efforts by street activists eventually produced a&nbsp;legally authorized supervised injection facility.<sup><a href="#_ednref202" id="_edn202">202</a></sup>&nbsp;And&nbsp;that facility, in turn, helped produce an aboveground addiction maintenance&nbsp;clinic—a&nbsp;site where individuals now go to get their fix without needlessly jeopardizing their lives and liberty or, for that matter, public safety and order.</p> </div> , <h2 class="heading"> Conclusion </h2> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>The&nbsp;drug‐​free&nbsp;society is a&nbsp;pipe dream.&nbsp;If, instead, we were to acknowledge that drugs are an often (but not always) unfortunate fact of life, we might come to regard drug misuse, abuse, dependence, and addiction for what they&nbsp;are—questions&nbsp;of health, not morality, and of social policy, not penology.&nbsp;Our&nbsp;success would not be measured by our proximity to a&nbsp;drug‐​free&nbsp;America&nbsp;but whether we have minimized&nbsp;drug‐​related&nbsp;deaths, disease, crime, and suffering, whether we have improved health and welfare, and whether we have preserved and expanded autonomy and dignity.</p> <p>We&nbsp;remain doubtful that&nbsp;American&nbsp;society and its legal and medical institutions can reorient wholly from a&nbsp;criminal‐​legal&nbsp;model to a&nbsp;public health model.&nbsp;The&nbsp;logic of prohibition has enjoyed too much dominance for far too long.&nbsp;Few&nbsp;medical schools meaningfully incorporate addiction treatment into core curricula, and few new doctors choose to specialize in addiction medicine.<sup><a href="#_ednref203" id="_edn203">203</a></sup>&nbsp;Perhaps&nbsp;doctors have avoided practicing addiction medicine because the professional and legal risks are too great.&nbsp;Moreover, until relatively recently, insurance providers could legally refuse to cover addiction&nbsp;treatment—at&nbsp;least, more readily than other accepted medical interventions.<sup><a href="#_ednref204" id="_edn204">204</a></sup>&nbsp;But, for many in the industry, the problem is likewise cultural.&nbsp;Although&nbsp;many medical professionals have been on the front lines of the most ambitious drug policy reforms, it is still not uncommon to encounter doctors who harbor the same attitudes as prohibitionists.</p> <p>However, precisely because culture plays such an influential role in drug policy and medical practice, there is a&nbsp;silver lining to the immediate epidemic. The opioid crisis has awoken a&nbsp;previously indifferent America to the failings of prohibition.<sup><a href="#_ednref205" id="_edn205">205</a></sup> We are hopeful, but not overly so, that this awakening could translate to meaningful change all the way up to the federal level. We are especially encouraged—and somewhat surprised—that the Senate, by a&nbsp;remarkable vote of 99 to 1, recently passed sweeping legislation that could make it easier for doctors to prescribe suboxone (buprenorphine) and other forms of medication‐​assisted treatment for addiction.<sup><a href="#_ednref206" id="_edn206">206</a></sup> Again, interest convergence has a&nbsp;way of making the seemingly impossible suddenly possible, even if not for entirely admirable reasons.<sup><a href="#_ednref207" id="_edn207">207</a></sup></p> <p>But&nbsp;these welcome developments are counterbalanced by more conventional resistance, like the&nbsp;Justice&nbsp;Department’s recent crackdown against prescribing doctors.&nbsp;All&nbsp;in all, we expect to see mainly&nbsp;street‐​level&nbsp;activism and politically popular local initiatives but too few positive steps beyond that.&nbsp;The&nbsp;logic of prohibition will continue to predominate, and the machinery of criminal punishment will continue to churn.<sup><a href="#_ednref208" id="_edn208">208</a></sup>&nbsp;Still, we offer this pragmatic&nbsp;six‐​point&nbsp;plan for addressing our current opioid crisis:</p> <ol> <li>Grant&nbsp;911 amnesty from arrest for all drug offenses for all individuals who contact authorities to report overdoses or people in need of aid.<sup><a href="#_ednref209" id="_edn209">209</a></sup></li> <li>Make&nbsp;naloxone available without a&nbsp;prescription at pharmacies, fire stations, public libraries, police stations, hospitals, jails and prisons, and supervised injection facilities.<sup><a href="#_ednref210" id="_edn210">210</a></sup></li> <li>Make&nbsp;pill and powder testing available to assess drug purity and to detect the presence of fentanyl and other dangerous compounds as a&nbsp;means to enable drug users to make informed choices about whether and how to use substances.<sup><a href="#_ednref211" id="_edn211">211</a></sup></li> <li>Make&nbsp;medication‐​assisted&nbsp;treatment available with prescription, within and beyond clinical settings, for all individuals who require it, inmates included, without forced detoxification after fixed time periods.<sup><a href="#_ednref212" id="_edn212">212</a></sup></li> <li>Make&nbsp;supervised injection facilities, drug consumption rooms, and syringe exchanges available in areas of concentrated injection drug use.<sup><a href="#_ednref213" id="_edn213">213</a></sup></li> <li>Make&nbsp;physician‐​supervised&nbsp;addiction maintenance programs available with prescription for individuals for whom other forms of&nbsp;medication‐​assisted&nbsp;therapy have failed.</li> </ol> <p>The empirical and anecdotal evidence is persuasive that these interventions will save lives, alleviate suffering, and lessen drug‐​related&nbsp;crime.</p> <p>Criminal&nbsp;law is the wrong tool for addressing the opioid epidemic.&nbsp;People&nbsp;are dying in record numbers, and we must acknowledge and abandon our addiction to punishment and broaden our legal horizons to adopt measures proven to reduce and avoid harms related to both drug use and enforcement of the drug war.<sup><a href="#_ednref214" id="_edn214">214</a></sup></p> </div> , <h2 class="heading"> Citation </h2> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Bowers, Josh, and Daniel Abrahamson. “Kicking the Habit: The Opioid Crisis and America’s Addiction to Prohibition.” Policy Analysis No. 894, Cato Institute, Washington, DC, June 29, 2020. <a href="https://www.cato.org/publications/policy-analysis/kicking-habit-opioid-crisis-americas-addiction-prohibition">https://​doi​.org/​1​0​.​3​6​0​0​9​/​P​A.894</a>.</p> </div> Mon, 29 Jun 2020 00:00:00 -0400 Josh Bowers, Daniel Abrahamson https://www.cato.org/publications/policy-analysis/kicking-habit-opioid-crisis-americas-addiction-prohibition Radley Balko discusses his article, “Both parties’ police reform bills are underwhelming. Here’s why,” on MSNBC’s Velshi https://www.cato.org/multimedia/media-highlights-tv/radley-balko-discusses-article-both-parties-police-reform-bills-are Sun, 28 Jun 2020 12:08:52 -0400 Radley Balko https://www.cato.org/multimedia/media-highlights-tv/radley-balko-discusses-article-both-parties-police-reform-bills-are Tucker Carlson’s Fanciful Defense of What He Imagines Qualified Immunity To Be https://www.cato.org/blog/tucker-carlsons-fanciful-defense-what-he-imagines-qualified-immunity-be Jay Schweikert <p>A good sign that a&nbsp;policy is indefensible is when its proponents cannot bring themselves to describe it accurately. Such is the case with the doctrine of <a href="https://www.unlawfulshield.com/frequently-asked-questions-about-qualified-immunity/">qualified immunity</a>, which is currently the subject of a&nbsp;furious disinformation campaign led by the law‐​enforcement lobby (see <a href="https://www.unlawfulshield.com/2020/06/rebutting-the-iacps-spurious-defense-of-qualified-immunity/">here</a>, <a href="https://www.unlawfulshield.com/2020/06/bizarre-rant-from-fleoa-demands-to-know-how-officers-will-avoid-suits-for-sexual-misconduct-after-we-abolishqi/">here</a>). The most recent mouthpiece for this campaign was Tucker Carlson, who two nights ago mounted a&nbsp;<a href="https://dailycaller.com/2020/06/25/tucker-carlson-mike-braun-police-qualified-immunity-bill/">spirited defense</a> of an imaginary legal rule that he <em>called</em> “qualified immunity,” but which bears only the faintest resemblance to the actual doctrine. Reason’s <a href="https://reason.com/2020/06/26/tucker-carlson-qualified-immunity-fox-news/">Billy Binion</a> and IJ’s <a href="https://www.youtube.com/watch?v=hwROr5p3Q8M&amp;feature=youtu.be&amp;fbclid=IwAR3jOy4-kqc3bPstU0hvJEpamrAhNfGkZXSm341NpCeSYNpLopEwPFs2B1Q">Patrick Jaicomo</a> have already done a&nbsp;great job explaining some of Carlson’s biggest mistakes, but there is <em>so</em> much here that is either highly misleading or outright false that it’s worth unpacking in full. Strap in!</p> <p>By way of background, the inciting incident for Carlson’s segment on qualified immunity was the “<a href="https://www.braun.senate.gov/sites/default/files/2020-06/SIL20757.pdf">Reforming Qualified Immunity Act</a>” introduced by Senator Mike Braun (R-IN) earlier this week. As I&nbsp;discussed <a href="https://www.unlawfulshield.com/2020/06/republican-senator-introduces-legislation-to-reform-qualified-immunity/">here</a>, what this bill would effectively do is eliminate qualified immunity in its current form and replace it with limited safe‐​harbor provisions. The main effect would be that people whose rights are violated would no longer need to find prior cases where someone else’s rights were violated in the same way before being allowed to proceed with their claims. However, if defendants could show that either (1) their actions were specifically authorized by a&nbsp;state or federal law they reasonably believed to be constitutional, or (2) their actions were specifically authorized by judicial precedent that was applicable at the time, then they could avoid liability.</p> <p>In other words, this bill doesn’t go far as the Amash‐​Pressley “<a href="https://amash.house.gov/sites/amash.house.gov/files/wysiwyg_uploaded/Ending%20Qualified%20Immunity%20Act_0.pdf">Ending Qualified Immunity Act</a>,” which would eliminate the doctrine entirely. But it is still a&nbsp;significant proposal that both meaningfully addresses and corrects the core absurdity of the current qualified immunity regime (the “clearly established law” standard), while preserving immunity in those relatively rare—but more sympathetic—cases in which defendants are specifically acting in <em>accordance</em> with applicable statutes or judicial precedent. And, unlike the “<a href="https://www.congress.gov/bill/116th-congress/house-bill/7120/text#toc-H57B388668DB34CE2836850C9F5BAF900">Justice in Policing Act</a>,” Senator Braun’s bill would reform qualified immunity across the board for all government agents, not just members of law enforcement.</p> <p>So, what did Tucker Carlson have to say about this bill?</p> <blockquote><p>Braun has introduced legislation in the Congress that will make it easier for left‐​wing groups to sue police officers.</p> </blockquote> <p>I won’t dwell on this point, because Carlson is clearly just being snarky here. But suffice to say, Braun’s proposal is <em>not</em> specific to “left‐​wing groups,” and indeed, not specific to police at all. Rather, it just amends <a href="https://www.law.cornell.edu/uscode/text/42/1983">Section 1983</a>,&nbsp;our primary federal civil rights statute, which permits <em>all</em> citizens to sue government agents who violate their rights—to clarify that defendants cannot escape liability, just because there is no prior case with similar facts.</p> <blockquote><p>Under current law, police officers in this country benefit from something that’s called “qualified immunity.”</p> </blockquote> <p>Again, qualified immunity is not limited to police officers. The defense can be raised by all state and local public officials who have civil rights claims brought against them, including <a href="https://2hldob3j9av74294382opmu6-wpengine.netdna-ssl.com/wp-content/uploads/2018/07/2018.05.25-Brief-amicus-curiae-of-Cato-Institute.pdf">corrections officers</a>, <a href="https://reason.com/2020/06/10/its-time-to-end-qualified-immunity-for-college-administrators-too/">public school officials</a>, <a href="https://reason.com/2019/08/28/no-qualified-immunity-for-kim-davis/">county clerks</a>, and other municipal employees. Still, the <em>reason</em> qualified immunity is such a&nbsp;hot topic right now is because of its application to law enforcement, so I’ll stop harping on this issue. Also, the suggestion that police officers actually <em>benefit</em> from qualified immunity is highly suspect, but we’ll get to that later…</p> <blockquote><p>Qualified immunity means that cops can’t be <em>personally</em> sued when they <em>accidentally</em> violate people’s rights while conducting their duties. They can be sued personally when they do it <em>intentionally</em>, and they often are.</p> </blockquote> <p>Here is where Carlson plunges headfirst into fantasy. This “accidental/​intentional” distinction he’s describing has no basis in qualified immunity case law. Indeed, under the “clearly established law” standard, a&nbsp;defendant’s state of mind has no bearing whatsoever on whether they are entitled to qualified immunity—a defendant could be explicitly acting in <em>bad</em> faith, with the express intent to violate someone’s rights, and still receive immunity, so long as there was no prior case involving the precise sort of misconduct they committed.</p> <p>The best illustration of this point is the Ninth Circuit’s recent decision in <a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/04/17-16756.pdf"><em>Jessop v. City of Fresno</em></a>, where the court granted immunity to police officers alleged to have stolen over $225,000&nbsp;in cash and rare coins while executing a&nbsp;search warrant. The court noted that while “the theft [of] personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers could not be sued for the theft because the Ninth Circuit had never specifically decided “whether the theft of property covered by the terms of a&nbsp;search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.” In other words, it didn’t matter that the officers were <em>intending</em> to break the law; not even the defendants here claimed that they “accidentally” stole from this suspect. All that mattered was that the court hadn’t confronted this particular factual scenario before.</p> <blockquote><p>In other words, police officers are not above the law.</p> </blockquote> <p>It is true that police officers are not literally immune from liability for their misconduct (unlike <a href="https://www.cato.org/blog/pressing-need-meaningful-prosecutorial-accountability">prosecutors,</a> who actually do receive <em>absolute</em> immunity for violating people’s rights). But police officers <em>are</em> held to a&nbsp;vastly lower standard of accountability than the citizens they police. For regular people, it’s a&nbsp;well‐​known legal maxim that “ignorance of the law is no excuse.” Even in cases with serious criminal penalties, courts routinely permit the prosecution and conviction of defendants who had no idea they were breaking the law. If anything, you would expect law enforcement—public officials specifically charged with knowing and enforcing the law—to be held to a&nbsp;<em>higher</em> standard of care than ordinary citizens. But in fact, they’re held to a&nbsp;far <em>lower</em> standard. Ignorance of the law is no excuse—unless you wear a&nbsp;badge.</p> <blockquote><p>Cops who commit crimes can be punished .… Cops who make lesser mistakes can be disciplined, suspended, or fired, and they often are. That’s the system that we have now. It works pretty well.</p> </blockquote> <p>If this assertion doesn’t cause you to burst out laughing, then you haven’t been paying attention to our criminal justice system for the last several decades. Suffice to say, no, our system is not working pretty well. It is <a href="https://fivethirtyeight.com/features/why-its-still-so-rare-for-police-officers-to-face-legal-consequences-for-misconduct/">extraordinarily difficult</a> to convince prosecutors to bring charges against police officers, much less to obtain convictions (see <a href="https://www.cnn.com/2017/05/18/us/police-involved-shooting-cases/index.html">here</a> for a&nbsp;list of especially notable non‐​convictions). And internal discipline measures are laughably feeble, due in large part to the <a href="https://reason.com/2020/06/03/its-time-to-bust-police-unions/">power of police unions</a>. The inadequacy of both criminal prosecution and internal discipline as meaningful accountability measures is exactly why we need a&nbsp;robust civil remedy—and therefore exactly why qualified immunity is such a&nbsp;serious problem (we’ve argued this point in much more detail in our <a href="https://www.supremecourt.gov/DocketPDF/19/19-1261/143596/20200514193421509_Taylor%20v.%20Riojas%20cross-ideological%20brief.pdf">cross‐​ideological amicus briefs</a> before the Supreme Court).</p> <blockquote><p>Civil immunity, by the way, has precisely nothing to do with anything that happened in the George Floyd case, just in case you’re wondering. That cop is in jail.</p> </blockquote> <p>Qualified immunity applies in civil law suits, not criminal prosecutions, so it’s true that qualified immunity will not limit the criminal prosecution of Derek Chauvin. But Carlson is wrong that the doctrine has “nothing to do with anything that happened in the George Floyd case,” for two reasons.</p> <p>First, if George Floyd’s family does decide to bring a&nbsp;civil rights claim against Chauvin and the other officers on the scene, it is entirely possible that the officers would be able to invoke qualified immunity, depending on whether there’s a&nbsp;prior case in the Eighth Circuit with similar facts (i.e., an officer kneeling on a&nbsp;non‐​resisting suspect’s neck for a&nbsp;long period of time while the suspect says he can’t breathe). Even if Chauvin is convicted of <em>murder</em>, that’s no guarantee that he wouldn’t be entitled to immunity in a&nbsp;civil suit. Whether a&nbsp;prosecutor can prove the elements of murder beyond a&nbsp;reasonable doubt is simply a&nbsp;different legal question than whether prior case law would make the violation of George Floyd’s rights “clearly established,” under modern qualified immunity doctrine.</p> <p>Second, the senseless violence committed by Derek Chauvin and the stunning indifference of the other officers standing nearby&nbsp;are the product of our <a href="https://www.cato.org/blog/americas-criminal-justice-system-rotten-core">culture of near‐​zero accountability for law enforcement</a>. While that culture has many complex causes, one of the most significant is qualified immunity. Section 1983 was supposed to be <em>the</em> primary means of holding accountable government agents who violate our constitutional rights. Qualified immunity has severely undermined the deterrent effect of that statute, and thereby contributed to an environment where police simply do not expect to be held to account when they commit misconduct.</p> <blockquote><p>Qualified immunity has worked so well because police officers, maybe more than anyone else in society, must make difficult split‐​second decisions on the job, and a&nbsp;lot. They do it constantly. Whether to arrest someone, whether to conduct a&nbsp;search, whether to use force against a&nbsp;suspect. Sometimes, actions they sincerely and reasonably believe are legal are found later by courts to be unconstitutional.</p> </blockquote> <p>Here, Carlson regurgitates what is probably the most commonly invoked defense of qualified immunity:&nbsp;that it is necessary to protect the discretion of police officers to make split‐​second decisions. And, no surprise, it is profoundly mistaken. This was the very first issue I&nbsp;addressed in my previous post on “<a href="https://www.unlawfulshield.com/2020/06/the-most-common-defenses-of-qualified-immunity-and-why-theyre-wrong/">The Most Common Defenses of Qualified Immunity, and Why They’re Wrong</a>,” but the short answer is that our substantive standards for determining what actions do and do not violate the Fourth Amendment <em>already</em> incorporate substantial deference to on‐​the‐​spot police decision‐​making. In other words, when police “sincerely and reasonably” make a&nbsp;decision about whether to arrest someone or use force, they almost certainly will not have broken the law in the first place. Qualified immunity is therefore unnecessary to protect this discretion, because the doctrine, by definition, only applies when a&nbsp;defendant <em>has</em> committed a&nbsp;constitutional violation.</p> <p>Moreover, as a&nbsp;I discussed above, qualified immunity has nothing to do with whether an officer “sincerely and reasonably” believed their actions to be lawful. It doesn’t turn on their state of mind at all. All that matters is whether a&nbsp;court determines that the facts of prior cases were sufficiently similar to hold that the law was “clearly established.”</p> <p>The <a href="https://reason.com/2020/06/26/tucker-carlson-qualified-immunity-fox-news/">Reason article</a> by Billy Binion aptly notes that Carlson’s assertion here “can only be explained by a&nbsp;lack of familiarity with qualified immunity case law,” and provides numerous examples of the sort of egregious injustices this doctrine regularly permits:</p> <blockquote><p>Take the cop who received qualified immunity after <a href="https://reason.com/2020/06/12/tom-brady-qualified-immunity-police-drew-brees-steve-kerr-justin-amash/">shooting a&nbsp;10‐​year‐​old</a> while in pursuit of a&nbsp;suspect that had no relationship to the child. The officer, sheriff’s deputy Matthew Vickers, was aiming at the boy’s nonthreatening dog. There were also the cops who were granted qualified immunity after <a href="https://reason.com/2020/06/10/qualified-immunity-cleveland-cops-assault-false-charges-sixth-circuit/">assaulting and arresting a&nbsp;man</a> for standing outside of his own house. And the prison guards who <a href="https://reason.com/2020/06/25/qualified-immunity-prison-guards-trent-taylor-naked-inmate-feces-5th-circuit/">locked a&nbsp;naked inmate</a> in a&nbsp;cell filled with raw sewage and “massive amounts” of human feces. And the cop who, without warning, <a href="https://reason.com/2019/08/22/court-rules-cop-who-shot-unarmed-15-year-old-is-protected-by-qualified-immunity/">shot a&nbsp;15‐​year‐​old</a> who was on his way to school. And the cops who received qualified immunity after <a href="https://reason.com/2020/06/15/police-qualified-immunity-supreme-court-clarence-thomas-baxter/">siccing a&nbsp;police dog on a&nbsp;person who’d surrendered</a>. It doesn’t take much thought to conclude that those courses of action were morally bankrupt.</p> </blockquote> <p>Just so. Okay, back to Carlson’s defense of what‐​he‐​calls‐​qualified‐​immunity:</p> <blockquote><p>Sometimes the very laws [police officers] enforce are struck down. That’s not their fault, obviously, but without qualified immunity, police could be sued for that personally.</p> </blockquote> <p>Only a&nbsp;tiny fraction of lawsuits against police involve claims that the laws they’re enforcing are themselves unconstitutional. But Carlson actually is correct that, without qualified immunity, police officers could be held liable for enforcing unconstitutional statutes. Indeed, that sort of application was probably the principal evil that Congress had in mind when it enacted Section 1983&nbsp;in 1871, as part of the <a href="https://history.house.gov/HistoricalHighlight/Detail/15032451486?ret=True">Ku Klux Klan Act</a>. Congress was well aware that southern states would continue passing laws infringing on the constitutional rights of recently freed slaves, and they wanted to deter state and local officials from carrying out such laws. Executive officers—no less than legislators or judges—have an independent obligation to enforce and respect constitutional limitations.</p> <p>Still, one can understand the seeming unfairness in holding defendants personally liable when the only conduct alleged to be unlawful was executing a&nbsp;statute they reasonably believed to be valid. But,&nbsp;for that very reason, this is one of the two explicit safe harbors included in Braun’s bill! <a href="https://www.braun.senate.gov/sites/default/files/2020-06/SIL20757.pdf">His proposal</a> specifically states that a&nbsp;defendant will <em>not</em> be liable under Section 1983 when “the conduct alleged to be unlawful was specifically authorized or required by a&nbsp;Federal statute or regulation, or by a&nbsp;statute passed by the primary legislative body of the State … in which the conduct was committed.” In other words, Carlson is either entirely unaware of or willfully concealing the fact that Braun <em>agrees</em> with his own argument here, and has already incorporated it into his bill.</p> <blockquote><p>[Police officers] could be bankrupted, they could lose their homes. That’s unfair. It would also end law enforcement. No one would serve as a&nbsp;police officer.</p> </blockquote> <p>This is another issue I&nbsp;already addressed in my <a href="https://www.unlawfulshield.com/2020/06/the-most-common-defenses-of-qualified-immunity-and-why-theyre-wrong/">“common defenses” post</a>, but I’ll repeat the main points here. First, it’s crucial to understand that even today, police officers are nearly always <em>indemnified</em> for any settlements or judgments against them in civil rights claims. This means that their municipal employers, not the officers themselves, actually end up paying. Joanna Schwartz, a&nbsp;UCLA law professor and probably the foremost scholar of qualified immunity, demonstrated in a&nbsp;2014 article called <a href="https://www.nyulawreview.org/issues/volume-89-number-3/police-indemnification/"><em>Police Indemnification</em></a> that, in her study period, “governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement.” In other words, even when plaintiffs <em>do</em> overcome qualified immunity, the individual police officers rarely pay a&nbsp;dime.</p> <p>I have <a href="https://www.nbcnews.com/think/opinion/police-immunity-highlighted-george-floyd-protesters-must-end-officers-must-ncna1225281">written elsewhere</a> about how this practice of near‐​automatic indemnification is itself problematic, because it fails to provide for <em>individualized</em> accountability for officers who violate people’s rights. A&nbsp;better practice, as my colleague Clark Neily <a href="https://www.cato.org/publications/commentary/make-cops-carry-liability-insurance-private-sector-knows-how-spread-risks">has also discussed</a>, would be to take some portion of the money that municipalities already spend on civil rights judgments, and instead put that toward an insurance allowance for individual officers. Nevertheless, as things currently stand, officers are almost never required to pay anything personally, and that won’t change if we eliminate qualified immunity. The idea that police would be “bankrupted” or “lose their homes” is reckless fear‐​mongering.&nbsp;</p> <p>Also, with regard to the idea that eliminating qualified immunity would “end law enforcement,” I&nbsp;wonder whether Carlson is aware that he’s made a&nbsp;testable prediction? After all, as I&nbsp;discussed <a href="https://www.unlawfulshield.com/2020/06/colorado-passes-historic-bipartisan-policing-reforms-to-eliminate-qualified-immunity/">here</a>, Colorado recently enacted a&nbsp;civil rights law that effectively removes the defense of qualified immunity for officers who violate people’s rights under the state constitution. Will this “end law enforcement” in Colorado? If Tucker Carlson or anyone who agrees with him would like to <a href="https://www.econlib.org/archives/2017/06/what_a_bet_show.html">make a&nbsp;bet</a> on this question, I’ll give generous odds.</p> <blockquote><p>And that’s why the Supreme Court has upheld the principle of qualified immunity for decades now, often unanimously, both sides agreeing.</p> </blockquote> <p>I will give Carlson this—he&nbsp;is absolutely right that the Supreme Court has shown remarkable tenacity in sticking to one of the most embarrassing, egregious mistakes in its history. <a href="https://www.law.cornell.edu/uscode/text/42/1983">Section 1983</a> clearly says that any state actor who violates someone’s constitutional rights “shall be liable to the party injured,” and the <a href="http://www.californialawreview.org/wp-content/uploads/2018/02/2Baude-33.pdf">common‐​law history</a> against which that statute was passed did not include any across‐​the‐​board defenses for all public officials. The Supreme Court’s invention of qualified immunity was a&nbsp;brazen act of judicial policy‐​making that effectively rewrote this statute, and it’s shameful that the <a href="https://www.unlawfulshield.com/2020/06/the-supreme-courts-dereliction-of-duty-on-qualified-immunity/">Justices have repeatedly declined</a> the opportunity to correct this error.</p> <p>What is surprising, however, is why Tucker Carlson <em>approves </em>of such blatant judicial activism in this case. After all, Carlson himself <a href="https://video.foxnews.com/v/5738221821001#sp=show-clips">recently bemoaned</a> how “courts increasingly have come to see themselves not as interpreters of the law, their constitutional role, but as the country’s main policy makers.” So, does he want the Supreme Court to faithfully interpret the text and history of Section 1983, or to continue imposing their own policy preferences?</p> <blockquote><p>But now, in order to placate the rioters, who he believes have more moral authority than the police, Senator Mike Braun of Indiana would like to gut qualified immunity, and make it easier for cops to be sued personally for mistakes.</p> </blockquote> <p>I already discussed above how Senator Braun’s bill does not wholly abolish qualified immunity, but rather replaces the “clearly established law” standard with two limited, principled safe‐​harbors. I&nbsp;also discussed how Section 1983 doesn’t make cops liable for “mistakes,”&nbsp;it makes them liable for <em>constitutional violations—</em>and the Fourth Amendment itself is already incredibly deferential to police decision‐​making. An officer hasn’t violated the Fourth Amendment because they made the “wrong” call with regard to an arrest or use of force; they only violate the Fourth Amendment when they act <a href="https://supreme.justia.com/cases/federal/us/490/386/"><em>objectively unreasonable</em></a>, under the circumstances known to them at the time.</p> <p>But I&nbsp;do want to address this idea of “moral authority.” Setting aside the nonsense about “placating rioters,” how does it affect the moral authority of the law enforcement community when we hold police officers to a&nbsp;lower standard of liability than any other profession? As I’ve <a href="https://www.unlawfulshield.com/2020/06/the-most-common-defenses-of-qualified-immunity-and-why-theyre-wrong/">discussed previously</a>, the proponents of qualified immunity are profoundly mistaken if they think the doctrine is doing the law enforcement community any favors. If you want to restore the moral authority of the police, you can’t let police officers escape liability for egregious and immoral misconduct. If you want people to respect officers as professionals, then the law has to hold them to professional standards.</p> <p>Qualified immunity, more than any other single rule or decision, has <em>eroded</em> the moral authority of the police, not protected it. And that is exactly why the more thoughtful members of law enforcement—such as the <a href="https://lawenforcementactionpartnership.org/national-policing-recommendations/">Law Enforcement Action Partnership</a> and the <a href="https://d3i6fh83elv35t.cloudfront.net/static/2020/06/Davis-Testimony.pdf">National Organization of Black Law Enforcement Executive</a>s—have explicitly called for the elimination of qualified immunity. As Major Neill Franklin (Ret.) <a href="https://lawenforcementactionpartnership.org/wp-content/uploads/2020/06/PRESS-RELEASE-LEAP-Policing-Recommendations.pdf">has explained</a>: “Accountability measures that show an agency is serious about respecting the rights of all of its residents help the police as much as they help the communities we serve. There’s no better way to restore community trust. And we cannot do our jobs without trust.”</p> <p>* * *</p> <p>Carlson finishes his segment with a&nbsp;rant about Charles Koch that would make <a href="https://www.vox.com/the-big-idea/2017/7/14/15967788/democracy-shackles-james-buchanan-intellectual-history-maclean">Nancy MacLean</a> blush, and then asks whether Senator Braun would be willing to defend the <em>absolute</em> immunity that members of Congress enjoy. This latter question is interesting&nbsp;enough on its own, but Carlson obviously just intends it as a “gotcha,” not as a&nbsp;serious point of discussion.</p> <p>But the bottom line is that Tucker Carlson has done a&nbsp;profound disservice to his viewers and to the country by further propagating blatant misunderstandings of what qualified immunity actually is. It’s honestly hard to say whether Carlson himself has been duped, or whether he is willfully joining the disinformation campaign of the law‐​enforcement lobby. But either way, nobody should take what he’s saying at face value. I&nbsp;remain interested&nbsp;to see whether any self‐​professed advocate of qualified immunity will defend the actual doctrine.</p> Sat, 27 Jun 2020 17:05:53 -0400 Jay Schweikert https://www.cato.org/blog/tucker-carlsons-fanciful-defense-what-he-imagines-qualified-immunity-be Radley Balko participates in the debate, “Is the Criminal Justice System Racist? A Soho Forum Debate,” sponsored by Reason https://www.cato.org/multimedia/media-highlights-tv/radley-balko-participates-debate-criminal-justice-system-racist-soho Fri, 26 Jun 2020 12:03:46 -0400 Radley Balko https://www.cato.org/multimedia/media-highlights-tv/radley-balko-participates-debate-criminal-justice-system-racist-soho David B. Kopel discusses the anti‐​police brutality movement and other topics on PBS12’s Colorado Inside Out https://www.cato.org/multimedia/media-highlights-tv/david-b-kopel-discusses-anti-police-brutality-movement-other-topics Fri, 26 Jun 2020 11:57:14 -0400 David B. Kopel https://www.cato.org/multimedia/media-highlights-tv/david-b-kopel-discusses-anti-police-brutality-movement-other-topics FLEOA Wants to Know How Officers Will Escape Lawsuits without Qualified Immunity https://www.cato.org/blog/fleoa-wants-know-how-officers-will-escape-lawsuits-without-qualified-immunity James Craven <p>The Federal Law Enforcement Officers Association put forward a&nbsp;nonsensical defense of qualified immunity in <a href="https://thehill.com/opinion/criminal-justice/503963-qualified-immunity-can-prevent-frivolous-lawsuits">The Hill</a> Monday. The article starts tamely enough, with a&nbsp;classic misexplanation of the doctrine.</p> <blockquote><p>When determining whether [a law has been clearly established], courts consider whether a&nbsp;hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights.</p> </blockquote> <p>Nope. Courts <em>never</em> use a&nbsp;reasonable person test to determine if a&nbsp;law was clearly established: they consider whether a&nbsp;previous case already held near‐​identical conduct unconstitutional, a&nbsp;standard rarely set since courts can dismiss cases for qualified immunity without answering that question. <a href="https://www.unlawfulshield.com/2020/06/slap-in-the-face-qi-video-breakdown/">It works a&nbsp;little like this</a>.</p> <p>FLEOA’s strawman is bad, but it’s at least&nbsp;on‐​topic. The article proceeds&nbsp;to veer&nbsp;wildly off‐​course.</p> <p>Bizarrely, FLEOA invokes a&nbsp;sexual misconduct allegation against a&nbsp;police officer that never got past the initial complaint. Sherita Dixon‐​Cole accused Officer Hubbard of groping her during a&nbsp;DUI stop — an accusation quickly refuted by Hubbard’s dash cam footage. FLEOA goes on to say that the woman’s complaint, which was shared widely on social media, “led to a&nbsp;conviction of the officer in the court of public opinion.”</p> <p>Qualified immunity is a&nbsp;legal defense — not a&nbsp;defense that can be asserted on Twitter. And as happened here, there are several stages built into <em>every</em> civil trial to quickly weed out false allegations like these. Determining the truth of contested matters is a&nbsp;purpose of the trial itself. If&nbsp;FLEOA wants to use a&nbsp;single complaint to crudely color a&nbsp;case for the doctrine, ignoring the <a href="https://unlawfulshield.com/cases">volume of cases illustrating otherwise</a>, you’d think they would pick one that <em>involves</em> <em>qualified immunity</em>.</p> <p>It only gets worse as FLEOA attempts to connect the dots.</p> <blockquote><p>Had this case gotten to the point of a&nbsp;lawsuit, if the trooper’s conduct was found to be unconstitutional or unethical, he may have been left exposed by his agency to any legal ramifications from that unethical conduct.</p> </blockquote> <p>Hold the phone.</p> <p>So if this were a&nbsp;<em>totally different case</em> where the officer was <em>actually</em> sued because he <em>actually</em> groped a&nbsp;woman at a&nbsp;DUI stop — he might be “exposed” to “legal ramifications from that unethical conduct?” The kicker for FLEOA’s stray logic is that it’s not <em>wrong</em>. It just seems to be literally arguing that officers need qualified immunity to protect them from being sued for sexually abusing people they detain at traffic stops. That <em>is</em> what qualified immunity does — and why it should be abolished.</p> <p>Without elaborating on why anyone should support a&nbsp;doctrine that prevents us from suing troopers for “unethical conduct,” FLEOA declares that they have made their point and the article is over.</p> <blockquote><p>This example speaks to the need for qualified immunity, especially since all lawyers know how to file lawsuits and their actions are not bound by an investigation.</p> </blockquote> <p>I’m not sure which part of this grand finale speaks to me more — the disjointed “what we just said proves our point,” or the bonus argument that officers may be vulnerable because another profession is capable of doing its job.</p> Wed, 24 Jun 2020 15:42:53 -0400 James Craven https://www.cato.org/blog/fleoa-wants-know-how-officers-will-escape-lawsuits-without-qualified-immunity How Militarized Police Can Attract the Wrong Officers https://www.cato.org/publications/commentary/how-militarized-police-can-attract-wrong-officers Trevor Burrus <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>Last week, police in the small town of Moundsville, West Virginia received a&nbsp;<a href="https://twitter.com/JBaker_WTOV/status/1273655533510242308" target="_blank">military vehicle designed to withstand mines</a>. The Mine‐​Resistant Ambush Protected (MRAP) vehicle was given to the town (population 9,318&nbsp;in the 2010 census) by the federal government as part of the “1033 program,” which distributes surplus military gear to local law enforcement agencies.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>As we engage in a&nbsp;national dialog about reforming police, we should ask not only why a&nbsp;small town with&nbsp;<a href="https://www.city-data.com/crime/crime-Moundsville-West-Virginia.html" target="_blank">two murders since 2005</a>&nbsp;would need such a&nbsp;vehicle, but how such military gear and tactics affect who chooses to become a&nbsp;police officer. De‐​militarizing our police should not only be about taking away gear that is too often used to conduct violent raids on nonviolent suspects; it should also be about reforming the mindset, held by too many officers, that they are soldiers going to war against their fellow citizens.</p> <p>After the unrest in Ferguson in 2014, the militarization of police became a&nbsp;rightful object of criticism and concern. Why do our police increasingly look like soldiers in a&nbsp;warzone? Why do police average around&nbsp;<a href="https://www.aclu.org/blog/smart-justice/mass-incarceration/another-day-another-124-violent-swat-raids" target="_blank">124 SWAT raids per day</a>, nationwide, at a&nbsp;time when crime has dropped to rates that haven’t been seen since the 60s? Why do so many cops seem willing to commit casual acts of violence even when they’re being filmed, as is being documented in an&nbsp;<a href="https://twitter.com/greg_doucette/status/1273854378852659200" target="_blank">ongoing Twitter thread</a>&nbsp;from criminal defense attorney T. Greg Doucette? </p> </div> , <aside class="aside--right aside--large aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>De‐​militarizing our police should not only be about taking away gear that is too often used to conduct violent raids on nonviolent suspects; it should also be about reforming the mindset, held by too many officers, that they are soldiers going to war against their fellow citizens. </p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Today’s idea of a&nbsp;police officer is no longer the whistling, baton‐​twirling officer who will assist an old lady with her groceries and help little Timmy get find his stolen bike. While such things still happen around the country, and there are many neighborly cops around, the image of policing has drastically changed. That image is what matters, because it’s what many prospective cops have in their head when they decide to pursue this career.</p> <p>A&nbsp;<a href="https://www.youtube.com/watch?v=W7XcoJ1Gs9o" target="_blank">shocking recruitment video</a>&nbsp;produced by the SWAT team of Hobbs, New Mexico (population 33,405&nbsp;in the 2010 census) highlights the problem. Over a&nbsp;grinding metal soundtrack, police are shown undergoing military training, practicing with assault rifles, throwing grenades, traveling in armored vehicles, training as snipers, and much more. Perhaps the most disturbing thing in the video is the first line, “The rules of engagement of SWAT are simple: Defeat the enemy … any way you can.” The video clearly implies, “join the police if you want to break down doors and bust some heads.”</p> <p>While there are exceptional times when such weapons and tactics might be required, a&nbsp;police department should consider it an achievement if military weapons and tactics are never used. Unfortunately, the opposite seems to be true, as police around the country continually use military‐​style raids, mostly to&nbsp;<a href="https://www.aclu.org/issues/criminal-law-reform/reforming-police/war-comes-home#:~:text=War%20Comes%20Home%20%7C%20American%20Civil%20Liberties%20Union&amp;text=Black%20people%20are%20being%20murdered,battles%20and%20urgent%20advocacy%20efforts." target="_blank">serve search warrants for drugs</a>. Perhaps that’s not surprising if many police officers start complaining “what the hell? I&nbsp;was told I&nbsp;could throw grenades, break down doors, and bash heads, not find some kid’s stolen bike.”</p> <p>The Hobbs video, and&nbsp;<a href="https://www.wuft.org/news/2015/05/11/gainesville-police-department-recruiting-video-raises-concern/" target="_blank">many</a>&nbsp;<a href="https://vimeo.com/80952907" target="_blank">more</a>&nbsp;like it, also highlight a&nbsp;more general problem of police often being tone deaf to the messages they convey. For example, during the 2008 Democratic National Convention in Denver, a&nbsp;police officer—who had evidently come to the city to help with crowd control—was&nbsp;<a href="https://imgur.com/lN6SxY9" target="_blank">photographed</a>&nbsp;wearing a&nbsp;shirt with a&nbsp;menacing, baton wielding cop hovering over the Denver skyline with the words “we get up early to beat the crowds, 2008 DNC.” This stunning endorsement of casual violence has shown up in other places, including on a&nbsp;shirt&nbsp;<a href="https://twitter.com/anonyops/status/427129818866786304" target="_blank">commemorating the 2012 NATO summit</a>.</p> <p>All of this points to a&nbsp;crucial aspect of policing that is difficult to easily reform: department culture. Some departments are paragons of honor and duty. New recruits are socialized into a&nbsp;system of accountability and respect for citizens’ rights. Far too many departments, however, are beset with the warrior cop mentality (to borrow a&nbsp;phrase from the <em>Washington Post</em>’s Radley Balko, whose book&nbsp;<a href="https://www.amazon.com/Rise-Warrior-Cop-Militarization-Americas-ebook/dp/B00B3M3UFQ/" target="_blank">The Rise of the Warrior Cop</a>&nbsp;is the definitive text on this issue). In those departments, officers will high‐​five a&nbsp;colleague for wearing the “we get up early…” shirt and ask where they can get one for themselves.</p> <p>Rolling back our militarized police forces won’t be easy. While ending the distribution of dangerous military gear to local police is a&nbsp;good idea, we will also have to deal with the gear that is already out there. There are 1,098 MRAPs currently distributed to local law enforcement, according to records from the&nbsp;<a href="https://www.dla.mil/DispositionServices/Offers/Reutilization/LawEnforcement/" target="_blank">Defense Logistics Agency</a>&nbsp;that administers the 1033 program. Additionally, there are myriad assault rifles, grenade launchers, tactical body armor, and much more. Moreover, even without the 1033 program, police can and do acquire military gear on their own.</p> <p>Local governments can limit police acquisitions of military gear, but they will have to go through the police unions, which can hold a&nbsp;lot of power, especially on the local level. Yet given the current fervor for police reform, it may be possible to overcome the unions. One possibility is to push for further transparency. We know surprisingly little about when, how, and why militarized raids are used. Local jurisdictions, as well as the states and the federal government, should push for laws that require police to extensively report the nature and justifications for such raids.</p> <p>Increased transparency would be a&nbsp;sign of progress, but unfortunately it won’t do much to reform departments with entrenched cultures of unaccountability and casual violence. Fixing those will require a&nbsp;deeper look at the type of people who choose to become cops in the first place.</p> </div> Wed, 24 Jun 2020 15:02:59 -0400 Trevor Burrus https://www.cato.org/publications/commentary/how-militarized-police-can-attract-wrong-officers