Democratic delegates approved the party's 2024 platform at the Democratic National Convention in Chicago yesterday, including sections lamenting the unfairness of marijuana convictions. However, the platform failed to explicitly call for legalizing or even decriminalizing the drug, a change from its position four years ago.
"No one should be in jail just for using or possessing marijuana," the final 2024 Democratic Party platform reads. "Sending people to prison for possession has upended too many lives and incarcerated people for conduct that many states no longer prohibit. Those criminal records impose needless barriers to employment, housing, and educational opportunities, disproportionately affecting Black and brown people."
The platform praises President Joe Biden for his moves to reschedule marijuana and his "historic action to end this failed approach by pardoning people convicted federally for using or possessing marijuana." It also promises that Democrats "will take action to expunge federal marijuana-only convictions" and "combat drug trafficking and expand the use of drug courts, interventions, and diversion for people with substance use disorders."
Former Republican President Donald Trump's approach to criminal justice "could not be more different," the platform argues. "His Administration threatened federal prosecution for marijuana cases in states where marijuana was legal."
For opponents of drug prohibition, though, the platform is a step backward from the Democratic Party's 2020 platform, which said it was "past time to end the failed 'War on Drugs' which has imprisoned millions of Americans—disproportionately Black people and Latinos—and hasn't been effective in reducing drug use." That platform also said Democrats supported federal decriminalization and rescheduling of marijuana, and legalization of medical marijuana.
The Democratic Party's official position on marijuana prohibition continues to fall well short of its stated goal of ending the unfairness of the drug war. First, it conflates all recreational drug use with substance abuse and addiction, which is an atypical outcome.
Second, the platform rests on the illogical notion that it shouldn't be a crime to possess and smoke marijuana, but it should remain illegal to sell it to others to smoke. (Notably, Biden's "historic" pardons for marijuana crimes excluded people convicted of growing or distributing the drug.)
Third, while drug courts and involuntary treatment are preferable alternatives to prison, they are still heavy-handed government interventions against adults for their personal choices. Drug courts and diversion programs operate under the threat of incarceration for noncompliance—the metaphorical iron fist in a velvet glove.
Even measures that the Democratic Party no longer explicitly supports in its platform—such as changes to Justice Department policy and decriminalization—would leave the federal prohibition of marijuana dormant but intact for future administrations to revive.
This has already happened. Former President Donald Trump's first attorney general, Jeff Sessions, rescinded President Barack Obama-era memos instructing U.S. Attorneys to take a hands-off approach to enforcing federal marijuana laws in states that legalized the drug.
The Democratic Party's position on pot is closer in spirit to creaky old Joe Biden, who could never quite give up his drug warrior ways, than the party's new leading candidates. As Reason's Jacob Sullum recently detailed, Vice President Kamala Harris and Minnesota Gov. Tim Walz both support marijuana legalization, although Harris is a Johnny-come-lately to her position. She was laughing off questions about marijuana legalization in 2014, but by 2018 she had come around and cosponsored a bill in the Senate that would have repealed federal prohibition.
According to a Gallup poll published last November, a record 70 percent of Americans, including 87 percent of Democrats, favor legalization. If the Democratic Party's presidential ticket and nearly 90 percent of its voters think marijuana should be fully legalized, how long will it take the party to catch up?
An April 1 federal indictment charged two men, Antonio Venti and Michael Kuilan, with supplying the drugs that killed transgender activist Cecilia Gentili in February. Among other things, Venti and Kuilan are accused of causing Gentili's death by distributing a mixture of heroin and fentanyl, a felony punishable by a mandatory minimum of 20 years in prison and a maximum of life.
Gentili "was tragically poisoned in her Brooklyn home [by] fentanyl-laced heroin," Breon Peace, the U.S. attorney for the Eastern District of New York, said in a press release. "Fentanyl is a public health crisis. Our Office will spare no effort in the pursuit of justice for the many New Yorkers who have lost loved ones due to this lethal drug." The indictment "delivers a strong message to anyone who profits from poisoning our communities with illicit drugs," New York City Police Commissioner Edward Caban added. "It is imperative that we continue to hold distributors accountable for their callous actions."
That self-righteous stance obscures the role that drug warriors like Peace and Caban played in killing Gentili. If Venti and Kuilan were "callous," how should we describe public officials who are dedicated to enforcing laws that predictably cause tens of thousands of deaths like this one every year?
Those laws create a black market in which the composition and potency of drugs is uncertain and highly variable. They also push traffickers toward highly potent drugs such as fentanyl, which are easier to conceal and smuggle. As a result, drug users like Gentili typically don't know exactly what they are consuming, which magnifies the risk of a fatal mistake. The "poisoning" that Peace and Caban decried therefore is a consequence of the policies they were proudly enforcing in this very case.
In this context, it would be perverse to hold Gentili responsible for causing her own death. Peace and Caban instead blamed Venti and Kuilan, which might seem more plausible until you consider the complexities of illicit drug distribution. As the Drug Policy Alliance (DPA) noted, "People who sell drugs rarely know the exact contents of their drug supply or a given dose. Research shows drug mixing is typically done at much higher levels of the supply chain."
It is clear neither Kuilan nor Venti intended to kill Gentili. Yet the mandatory penalties they face are much more severe than the federal penalties for voluntary or involuntary manslaughter and New York's penalties for criminally negligent homicide. That distinction hinges on the legal status of the drugs they sold, as opposed to their culpability in Gentili's death.
Prosecutions like these make a mockery of justice. "Drug-induced homicide laws, mandatory minimum laws, and other severe penalties that people face when they sell or share drugs that result in a fatal overdose primarily punish people involved with low-level selling who often use drugs themselves," the DPA noted. The New York Times reported that Venti, who was previously convicted of "petty larceny and attempted drug sales," is an electrician who has "struggled with drug addiction." Even drug users who merely share purchases with friends or relatives have been prosecuted for causing their deaths.
These attempts to convert accidental overdoses into homicides are dangerous as well as morally dubious. They "cost lives because fear of prosecution deters people from seeking help in an emergency," the DPA argues. "Drug-induced homicide prosecutions may have the unintended consequence of people failing to seek medical help in a drug overdose situation, resulting in increased likelihood of death."
Prohibition, in short, created the hazard that killed Gentili. It compounded that hazard by fostering the use of additives such as fentanyl and the animal tranquilizer xylazine (which was also detected in Gentili's blood). And it made the resulting overdoses more perilous by discouraging prompt intervention. The answer, according to Peace and Caban, is zealous enforcement of the same laws that produced this disaster.
Frank Tarentino, special agent in charge of the Drug Enforcement Administration's New York Division, concurred. "Fentanyl is a deadly drug that dealers mix into their product and has accounted for 70% of drug related deaths nationwide," he said in Peace's press release. "Drug poisonings take too many lives too soon from communities nationwide and DEA is committed to bringing to justice those responsible."
If Americans truly demanded accountability from "those responsible" for drug-related deaths, they would start with the politicians and law enforcement officials who are perversely committed to making drug use as dangerous as possible.
In this week's TheReason Roundtable, editors Matt Welch and Nick Gillespie welcome not just one but two special guests from The Dispatch. In this convivial Roundtable crossover episode, Jonah Goldberg and Kevin D. Williamson ruminate on Kamala Harris' veep options, identity politics, and drug legalization.
Send your questions to [email protected]. Be sure to include your social media handle and the correct pronunciation of your name.
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"All you need, besides the cocaine, is a lighter, water, baking soda, some Q-Tips, high-proof alcohol, a ceramic mug, and a piece of cheesecloth or an old T-shirt," writes Glenn Loury in his riveting Late Admissions: Confessions of a Black Conservative. The book is surely the only memoir by an Ivy League economist that includes a recipe for crack cocaine along with technical discussions of Karl Marx, Ludwig von Mises, Friedrich Hayek, and Albert O. Hirschman.
Born in 1948 and raised working class on Chicago's predominantly black South Side, Loury tells a story of self-invention, ambition, hard work, addiction, and redemption that channels Benjamin Franklin's Autobiography, Richard Wright's Native Son, Saul Bellow's The Adventures of Augie March, and Milton Friedman's Capitalism & Freedom. An alternative title might have been "Rise Above It!," the slogan of a pyramid-scheme cosmetics company on which he squandered his savings as a young man in Chicago.
Now a chaired professor at Brown University and the host of The Glenn Show, a wildly popular YouTube offering, Loury worked his way through community college, Northwestern, and a Massachusetts Institute of Technology Ph.D., became the first tenured black economist at Harvard, emerged as a ubiquitous commenter on race and class in the pages of The New Republic and The Atlantic, was offered a post in the Ronald Reagan administration, and was then publicly humiliated after affairs, arrests, and addiction all became public, threatening the end of his professional and personal life. With the support of his wife, Linda Datcher Loury (herself a highly regarded economist), Alcoholics Anonymous (A.A.), and colleagues, Loury managed to rise above it and not just rebuild his academic reputation and relationships with his children, but also gain a unique perspective on economics, individualism, and community.
Reason: When you say you are a black conservative, what does that mean?
Glenn Loury: Well, I think of a few things. One of them is thinking that markets get it right in terms of the resource allocation problem and that the planning instinct and centralized, politically controlled interference in theeconomy is suspect. Of course, there are exceptions. The general predisposition is that I like prices. I like laissez faire. AndI think the first and second fundamental theorems of welfare economics are true, that we get efficient resource allocation when we allow the interplay of self-interest. You know, classical liberal stuff.
That makes you a libertarian, not a conservative.
Well, I was going to go the Edmund Burke route. I was going to say not discarding everything that's been handed to me from the past generations. Respect for tradition, reverence for some of these things that we've been handed down. So when people can't define who's a man and who's a woman, I hold my wallet. I'm a little bit skeptical about this nouveau thing.
But the "black conservative" comes out of I think a reflex or reaction to the dilemma that we African Americans face as the descendants of slaves, a marginal population disadvantaged in various ways and struggling for equality, dignity, inclusion, freedom.
I think there's a trap in that situation: the trap of falling into a status of victim and of looking to the other, the white man, the system to raise our children and deliver us from the challenge which everybody faces of living life in good faith, of, as Jordan Peterson puts it, standing up straight with your shoulders back. Of confronting the reality that there's some stuff that nobody can do for you. This posture of dependence, these arguments for reparations, this invocation of structural and systemic [racism], when the real questions are of responsibility and role.
In your book you cover your education in economics, but it's also a memoir that traffics a lot with addiction, both with drugs and sex. Can economics explain addictive behavior and self-destructive behavior?
Well, I think of the late Gary Becker. He has a paper on addiction. And I think of George Stigler and Becker's classic paper "De Gustibus Non Est Disputandum"—about taste there can be no dispute. They do it all in terms of intertemporal preferences, where you build up a taste for certain kinds of pleasures, and you invest in them.
Did they get it right?
No, I don't think they got it right. I thought it was reductive, closed off. [It's an] "everything's going to be optimization; we just have to find the right objective function" way of looking at the world. I much prefer [game theorist and Nobel laureate] Tom Schelling's engagement with the problems of self-command, as he called it, and addiction, which was understanding the conflict within the single individual who at one point in time would want not to smoke or to use cocaine, but at another point in time would find themselves, notwithstanding their understanding that this is not good for them, being compelled to do it nonetheless, and the strategic interaction between those two types within the same person.
Some critics of capitalism say that drug addiction is the apotheosis of capitalism, that it creates a bunch of things that enslave people. But your story, in one way, is about learning self-command and control over self-destructive behaviors. Is there a larger lesson from your struggles with addiction and your ultimate triumph over it?
Yeah, A.A. saved my life. That therapeutic community, that halfway house I lived in for five months in 1988: They saved my life. I went to meetings faithfully for years. And I abstained. I was clean and sober for five years. But I eventually drifted away from the A.A. abstinence philosophy.
I did have a period where I was very religious. I was born again. This initiated during the period when I was struggling to recover from drug addiction but persisted long after I was out of the woods. It changed my perspective. The hope, the whole experience of going through rehab and what they did, it quieted me down. I started reading the Bible even before I was professing genuine religious conviction. I started memorizing passages after I began to confess some belief, going to meetings, living within myself, a kind of humility. I'm not in control. Let go and let God.
What is the work that you're most proud of as an economist?
I think my best technical paper was published in Econometrica in 1981. It's called "Intergenerational Transfers and the Distribution of Earnings." It applied what at the time were state-of-the-art technical methods in dynamic optimization and the behavior of dynamic stochastic systems to the problem of inequality. It formalized the idea that young people depend on the resources available to their parents, in part, to realize their productive potential as workers and economic agents. Investments made early in life by parents in children affect the productivity of children later in life. That productivity is also dependent on other factors beyond parental control that are random, but it depends on the resources that are available. There cannot be perfect markets to allow for borrowing forward against future earnings potential, so as to realize the investment possibilities. If a parent doesn't have the resources to fund the investment themselves, there's no place to go to borrow to get piano lessons for a kid who might develop into a virtuoso pianist.
As a consequence, inequality has resource allocation consequences. Some parents have a lot of resources; others have very little. But the kids all have comparable potential, and there's diminishing returns to investing in kids. The net result is that if you could move money from rich parents to poor parents and indirectly move investment in kids from rich families to poor families, the loss in the former would outweigh the gain in the latter.
Is that a rebuttal to the idea that you can rise above it on your own? Throughout your work you make a case that if we want a more equitable society, we have to do something to help kids whose parents don't have any resources.
I see them as two different realms of argument about human experience. On the one hand, I'm talking about how there can be market failures and incompleteness and informational impact. Illness and externalities and property rights are unclear, and things like that. And you can make arguments about a minimal role for government intervention to deal with public goods problems and environmental externality problems and perhaps market failures.
On the other hand, if I'm talking to an individual about how to live their life, about whether or not to delegate responsibility for their life to outside forces or to live in good faith, to take responsibility for what you do, that's existential, almost spiritual. It's how to be in the world as opposed to how the world works.
You're on college campuses now, and campuses are more fraught than they ever have been. Do you feel like that message has disappeared?
I think so, especially with the debate that's going on presently about the war in Gaza and the campus protests occupying spaces and setting up tents on the campus green and canceling graduations and seizing buildings and engaging in civil disobedience and whatnot.
But that all comes in the aftermath of the culture war that we've been fighting about critical race theory and diversity, equity, and inclusion. These arguments have been around for a while, and I've tended to be on the side of suspicion of the so-called progressive sentiment. There's too much focus on race and sex and sexuality as identities in the context of the university environment, where our main goal is to acquaint our students with the cultural inheritance of civilization. Their narrow focus on being this particular thing and chopping up the curriculum to make sure that it gets representative treatment feels stifling to me, especially if you let that spill over into what can be said.
The therapeutic sentiment. The kids have these sensibilities. We have to be mindful of them. We don't want to offend. We don't want anyone to be uncomfortable. No, the whole point is to make you uncomfortable. You came thinking something that was really a very superficial and undeveloped framework for thinking; I'm going to expose you to some ideas that run against that grain, and you're going to have to learn how to grapple with them. And in your maturity, you may well return to some of these, but you will do so with a much firmer sense of exactly what it is that you're affirming. I want to educate you. I don't want to placate you. I'm not here to make you feel better.
I do think there's too much reliance on system-based accounts and much less of an embrace of responsibilities that we as individuals have in our education, our politics, our social and economic lives.
What is the case against affirmative action?
The case against affirmative action: It's unfair to people who are disfavored. They didn't do anything to be in the group that you decided you wanted to put your thumb on the scale for. It has concerning incentive problems. If you belong to the favorite group, it's OK to have a B average and be in the 70th percentile of test takers. And you can get into UCLA or Stanford or Yale if you're black. But if you're white, you better have an A-minus average. And you'd better be at the 90th percentile of the test takers.
The systematic implementation of affirmative action amplifies the concerns that one might have about stigmatizing African Americans who would be presumed to be beneficiaries. This is the classic complaint of [Supreme Court Justice] Clarence Thomas, that his Yale law degree isn't worth anything because it's got an asterisk on it because of affirmative action.
There's something undignified about not being held to the same standard as other people and everybody assuming that because of the sufferings of your ancestors you're somehow in need of a special dispensation.I don't regard that as equality. You're not standing on equal ground when you're dependent upon such a dispensation. In the case of affirmative action, it's a Band-Aid. You're treating a symptom and not the underlying cause. The underlying reality is there are population differences in the express[ed] productivity of the agents in question. The African Americans, on average, are producing fewer people in relative numbers who are exhibiting these kinds of skills that your instruments of assessment are intended to measure. And if you don't remedy that problem, you're never going to get truly to equality.
Where are these population differences coming from? Is it primarily an effect of cultural change? Is it inherited differences in economic status and opportunity? Is it genetic?
I don't think it's genetic, though I can't rule out that genetics could have an effect. I'm just not persuaded by the evidence of the early childhood developmental stuff. I don't underestimate the differences in the effectiveness of primary and secondary education. This is not just race. This is race and class and geography and whatnot. I think we'd do ourselves as a society a lot of good if we were to follow the sort of wholesale reform movement in K-12, including charter schools and more competition to the union-dominated public provision sector of that part of our social economy.
But culture is a tough one. I give a lot of evidence indirectly in my memoir about the effects of culture on life experience. The culture that nurtured me coming up in Chicago had its positives. It also had its norms, values, ideals, what a community affirms as being a life well lived, how people spend their time, about parenting, things of this kind.
I read this book by two Asian sociologists, Min Zhou and Jennifer Lee, called The Asian American Achievement Paradox, and it attempts to explain, based on interview data from a couple hundred families in Southern California, how it is that these Asian communities are able to send their youngsters to places like Harvard and Stanford in such large numbers. And it basically makes a cultural argument. One of the chapters is entitled "The Asian F." It turns out that the Asian F is an A-minus, according to some of their respondents. I don't think you can discount the importance of that kind of cultural reinforcement, because at the end of the day what matters is how people spend their time.
You're a critic of race-based policies, but you also get kind of pissed when people dismiss the black experience. You say being a black American is a part of your identity. Is there a way for us to bring our individual cultural and ethnic heritage to the conversation that doesn't divide us or put us in one group or another?
We all have a story. We all have a narrative and a cultural inheritance. And yet underneath we are kind of all the same. Our struggles are comprehensible to each other, and our triumphs and our failures are things that we can relate to as human beings. And that's how we should be relating to each other.
I'm in my 70s now, and I've just written a book about my life. So who am I? What does it amount to? I'm the kid that really did grow up immersed in an almost exclusively black community on the South Side of Chicago. The music that I listened to, the food that I ate, the stories that I was told and that I told to my own children in turn. These things are related to the history, the struggles and triumphs, the dreams and hopes of African-American people. That's a part of who I am. And it annoys me when people attempt to say "get over it" to me. They're not respecting me when they tell me that race is not a deep thing about people.
It's a superficial thing, I grant you that. I grant you the melanin in the skin, the genetic markers that are manifest in my physical presentation, don't add up to very much. But the dreams of my fathers and others, the lore, the narrative about who "we" are, that's not arbitrary and it's not trivial. And it seems to me sociologically naive in the extreme to just want to move past that. That's a part of who people actually are.
But I struggle with this, because I also want to tell my students not to wear that too heavily, not to let it blinker them and prevent them from being able to engage with, for example, the inheritance of European civilization in which we are embedded. That's also your inheritance. Tolstoy is mine. Einstein is mine. And yours. I want to say to youngsters of whatever persuasion: Don't be blinkered. Don't be so parochial that you miss out on the best of what's been written and thought and said in human culture.
(Photo: Ken Richardson)
This interview has been condensed and edited for style and clarity.
Buying counterfeit weight loss drugs from illegal online pharmacies that don't require prescriptions is, in fact, a very bad idea, according to a study published Friday in JAMA Network Open.
The counterfeit drugs are sold as equivalents to the blockbuster semaglutide drugs, Ozempic and Wegovy, which are prescription only. When researchers got their hands on three illegal versions, they found that the counterfeit drugs had low-purity semaglutide, had dosages that exceeded the labeled amount, and one had signs of bacterial contamination.
The three substandard drugs tested came from three different illegal online pharmacies, which sold them as generic semaglutide drugs for weight loss, appetite suppression, diabetes, and cardiovascular health. However, the researchers, led by scientists at the University of California, San Diego, and the University of Pécs in Hungary, had initially tried purchasing counterfeit drugs from six such sellers.
Enlarge/ Pharma interest and investment in radiotherapy drugs is heating up. (credit: Knowable Magazine)
On a Wednesday morning in late January 1896 at a small light bulb factory in Chicago, a middle-aged woman named Rose Lee found herself at the heart of a groundbreaking medical endeavor. With an X-ray tube positioned above the tumor in her left breast, Lee was treated with a torrent of high-energy particles that penetrated into the malignant mass.
“And so,” as her treating clinician later wrote, “without the blaring of trumpets or the beating of drums, X-ray therapy was born.”
Radiation therapy has come a long way since those early beginnings. The discovery of radium and other radioactive metals opened the doors to administering higher doses of radiation to target cancers located deeper within the body. The introduction of proton therapy later made it possible to precisely guide radiation beams to tumors, thus reducing damage to surrounding healthy tissues—a degree of accuracy that was further refined through improvements in medical physics, computer technologies and state-of-the-art imaging techniques.
As of early May, more than three years after New York legalized recreational marijuana, just 119 licensed dispensaries were serving that market in the entire state. Unauthorized pot shops outnumbered legal outlets by 20 to 1, according to The New York Times, with more than 2,000 operating in New York City alone. The state had less than one licensed pot store per 100,000 residents—in contrast with about six in Massachusetts, 10 in Maine, 11 in Colorado, 19 in Oregon, and 48 in New Mexico.
Legislators and regulators could have avoided this "disaster," as New York Gov. Kathy Hochul recently called it, had they learned from the mistakes of other states that have struggled to displace the black market. Yet New York politicians somehow did not anticipate what would happen after people could legally use marijuana but could not obtain it from legal sources.
Legislators did not allow home cultivation, and they initially did not allow medical dispensaries to serve recreational consumers. New York created a complicated, costly, and sluggish licensing process that prioritized "equity" and "diversity" above efficiency. The state imposed burdensome fees, taxes, and regulations that made it difficult for legal dispensaries to compete with the unlicensed stores that sprang up to fill the supply gap.
New York did not let medical dispensaries enter the market until last December. Even then, it charged companies $20 million for the privilege of operating up to three outlets.
New businesses faced fees up to $300,000, and regulators gave priority to retail applicants who were deemed disadvantaged, including people with marijuana conviction records and their relatives. Those preferences provoked lawsuits that further delayed the licensing process, and they blocked applicants who might have been better equipped to run a successful business.
Despite these problems, Hochul remains proud of New York's "social equity" program. But she has ordered a bureaucratic overhaul to speed up retail license approvals and has voiced support for cutting the state's heavy marijuana taxes, which currently include a three-tiered wholesale tax based on THC content as well as a 13 percent retail tax.
Legislators should keep in mind that licensed shops are competing with a black market where the tax rate is zero. New York also should reexamine the onerous regulations that make legal weed more expensive and less accessible.
Although Hochul has promised to "shut down illicit operators," any such crackdown is apt to inflict the sort of harm that legalization was supposed to ameliorate, punishing entrepreneurs for filling the yawning gap left by the state's misguided policies and administrative incompetence. Nor is enforcement likely to succeed, given the abysmal track record of the war on weed—a crusade that legislators supposedly ended three years ago.
"We have pardoned tens of thousands of people with federal convictions for simple marijuana possession," Vice President Kamala Harris bragged on Thursday. It was not the first time she had offered that estimate, which she also cited during an appearance in South Carolina last February and at a "roundtable conversation about marijuana reform" the following month.
Where did Harris get that number? From thin air, it seems. "While Harris said 'tens of thousands' have been pardoned under President Joe Biden's October 2022 and December 2023 clemency proclamations," Marijuana Momentnoted in February, "the Justice Department estimates that roughly 13,000 people have been granted relief under the executive action." And only a tiny percentage of those people have bothered (or managed) to obtain evidence of their pardons: This week the Justice Department reported that "the Office of the Pardon Attorney has issued 205 certificates of pardon" to people covered by Biden's proclamations.
In October 2022, President Joe Biden announced pardons for people who had possessed marijuana in violation of 21 USC 844 or Section 48–904.01(d)(1) of the D.C. Code. That proclamation applied to "all current United States citizens and lawful permanent residents" who had "committed the offense of simple possession of marijuana" on or before October 6.
According to a count by the U.S. Sentencing Commission (USSC), about 7,500 citizens and 1,200 "resident/legal alien offenders" (only some of whom would be eligible for pardons) were convicted of marijuana possession under 21 USC 844 from FY 1992 through FY 2021. Those numbers include some people who also were convicted of other offenses.
That count did not include D.C. Code violations. "We estimate that over 6,500 people with prior federal convictions for simple possession of marijuana and thousands of such convictions under D.C. law could benefit from this relief," a White House official said during a press background call on the day Biden announced the pardons.
In December 2023, Biden expanded the pardons to include people who had violated either of two additional laws covering attempted possession (21 USC 846 and Section 48-904.09 of the D.C. Code) or federal regulations prohibiting marijuana possession in specific locations such as "Federal properties or installations." That proclamation also extended the cutoff for violations by another year or so. At the time, Harris said the additional pardons would help "thousands of people."
So how did Harris arrive at "tens of thousands"? Even if you include people who committed these offenses prior to FY 1992, there would have to be about 10,000 of them who are still alive to justify Harris' estimate.
The USSC found fewer than 9,000 such cases over three decades, and Biden's expansion may have added a few thousand more. So going back a couple more decades would not do the trick, even if you assume that the annual numbers are about the same over time, which we know is not true: The USSC count included years when the number of federal sentences for simple marijuana possession rose and fell precipitously. Overall, the annual number of marijuana arrests (the vast majority under state law) was much lower in the 1960s and '70s than it was in the period covered by the USSC analysis. And if you go back that far, you are including many people busted for possession who are no longer with us.*
Harris' exaggeration reflects the Biden administration's general tendency to fib about the extent of its "marijuana reform" while trying to motivate younger voters whose turnout could be crucial to the president's reelection. In his State of the Union address on March 8, for example, Biden falsely claimed that he was "expunging thousands of convictions."
Biden's marijuana pardons do not entail expungement because it is not possible under current federal law. As the Justice Department notes, a pardon "does not signify innocence or expunge the conviction." So it is also not true that Biden's clemency "lifts barriers to housing, employment, and educational opportunities for thousands of people with prior convictions under federal and D.C. law for simple marijuana possession," as inaptly named "fact sheets" from the White House claimed in February 2023, September 2023, and April 2024. Likewise for Biden's recent claim that he is "lift[ing] barriers to housing, employment, small business loans, and so much more for tens of thousands of Americans," which combines two kinds of hyperbole.
During his 2020 campaign, Biden promised to "decriminalize the use of cannabis." But his pardons did not accomplish that either. Without new legislation, simple possession will remain a federal offense punishable by a minimum $1,000 fine and up to a year in jail. Biden and Harris have muddied that point by saying his pardons are based on the premise that "no one should be jailed for simply using" marijuana, as Biden said in March, or that "no one should go to jail for smoking weed," as Harris put it on Thursday.
Those formulations also imply that low-level marijuana arrests commonly result in incarceration, which is not true. The USSC reported that "no offenders" covered by Biden's October 2022 proclamation were in federal Bureau of Prisons custody as of the previous January. And since those pardons excluded people who had been convicted of growing or distributing marijuana, they did not free a single federal prisoner.
Biden also has misrepresented the significance of moving marijuana from Schedule I to Schedule III of the Controlled Substances Act, which he describes as a "monumental" accomplishment. That change, which the Drug Enforcement Administration formally proposed this week, would facilitate medical research and allow state-licensed marijuana suppliers to deduct standard business expenses when they file their federal tax returns—a big financial benefit to the cannabis industry. But it otherwise would leave federal pot prohibition essentially unchanged, which is how Biden wants it.
For a longtime drug warrior who supposedly has seen the error of his ways but nevertheless opposes marijuana legalization, appealing to voters who overwhelmingly favor it is a tough sell. As Harris' pardon prevarication illustrates, that pitch requires obscuring the truth in ways small and large.
*Addendum: "I share your concerns about hyperbole around the number of pardons (and all the other marijuana reform hype)," Douglas Berman, a sentencing expert at the Ohio State University's Moritz College of Law, says in an email. He nevertheless suggests that "motivated math" could get Harris to a bit more than 20,000 simple possession convictions. That calculation would hinge on including D.C. arrests from the mid-1970s on and assuming about 15 percent resulted in convictions, which Berman says is "reasonable for a mid-sized city." But "this VP-friendly accounting," he notes, "is entirely back of the envelope," which he sees as "a big problem in this space." And Harris said she was talking about "federal convictions for simple marijuana possession," which implies convictions under 21 USC 844, 21 USC 846, and location-specific federal regulations.
[This post has been updated with additional observations about the impact of Biden's pardons.]
President Joe Biden describes the Drug Enforcement Administration's proposal to reclassify marijuana under federal law as "monumental." How so? "It's an important move toward reversing longstanding inequities," Biden claims in a video posted on Thursday. "Today's announcement builds on the work we've already done to pardon a record number of federal offenses for simple possession of marijuana, and it adds to the action we've taken to lift barriers to housing, employment, small business loans, and so much more for tens of thousands of Americans."
Even allowing for 60 days of public comment and review of a final rule by Congress and the Office of Management and Budget, marijuana's rescheduling could be finalized before the presidential election. And even if it does not take effect before then, Biden is hoping the move will help motivate younger voters whose turnout could be crucial to his re-election. But he also had better hope those voters are not paying much attention to the practical consequences of rescheduling marijuana, which are much more modest than his rhetoric implies.
"Look, folks," Biden says in the video, "no one should be in jail merely for using or possessing marijuana. Period. Far too many lives have been upended because of [our] failed approach to marijuana, and I'm committed to righting those wrongs." Yet rescheduling marijuana will not decriminalize marijuana use, even for medical purposes. It will not legalize state-licensed marijuana businesses or resolve the growing conflict between federal prohibition and state laws that authorize those businesses. It will not stop the war on weed or do much to ameliorate the injustice it inflicts.
In accordance with a recommendation that the Department of Health and Human Services (HHS) made last August, the DEA plans to move marijuana from Schedule I of the Controlled Substances Act, a list of completely prohibited drugs, to Schedule III, which includes prescription medications such as ketamine, Tylenol with codeine, and anabolic steroids. Schedule I supposedly is reserved for drugs with a high abuse potential and no accepted medical applications that cannot be used safely even under a doctor's supervision.
When Biden directed HHS to review marijuana's legal status in October 2022, he noted that "we classify marijuana at the same level as heroin" and treat it as "more serious than fentanyl," which "makes no sense." On Thursday, he likewise noted that "marijuana has a higher-level classification than fentanyl and methamphetamine—the two drugs driving America's overdose epidemic."
Biden is right that marijuana's current classification makes no sense, as critics have been pointing out for half a century and as HHS belatedly acknowledged in explaining the rationale for rescheduling. HHS found "credible scientific support" for marijuana's use in the treatment of pain, nausea and vomiting, and "anorexia related to a medical condition." It also noted that "the risks to the public health posed by marijuana are low compared to other drugs of abuse," such as heroin (Schedule I), cocaine (Schedule II), benzodiazepines like Valium and Xanax (Schedule IV), and alcohol (unscheduled).
Although "abuse of marijuana produces clear evidence of harmful consequences, including substance use disorder," HHS said, they are "less common and less harmful" than the negative consequences associated with other drugs. It concluded that "the vast majority of individuals who use marijuana are doing so in a manner that does not lead to dangerous outcomes to themselves or others."
According to the DEA's proposed rule, Attorney General Merrick Garland, who holds the ultimate authority to reschedule drugs under the CSA, "concurs with HHS's conclusion" that marijuana has currently accepted medical uses. Garland also "concurs with" the assessment that "marijuana has a potential for abuse less than the drugs or other substances in schedules I and II." And he agrees that "the abuse of marijuana may lead to moderate or low physical dependence, depending on frequency and degree of marijuana exposure."
Those conclusions are "monumental" in the sense that HHS, the DEA, and the Justice Department are finally acknowledging what most Americans already knew. Abandoning the pretense that marijuana meets the criteria for Schedule I represents progress in that sense, although it comes after decades of legal wrangling in which HHS and the DEA took the opposite position, at a time when 38 states have legalized medical use of marijuana, two dozen have taken the further step of legalizing recreational use, and an overwhelming majority of Americans oppose pot prohibition.
In practical terms, the two main benefits of moving marijuana to Schedule III are fewer regulatory barriers to medical research and a financial boon to state-licensed cannabis suppliers, who will no longer be barred from deducting standard business expenses when they file their federal tax returns. But when Biden calls it "an important move toward reversing longstanding inequities" and links it to "righting [the] wrongs" suffered by cannabis consumers, he is promising more than rescheduling can possibly deliver.
Although Biden promised to "decriminalize the use of cannabis" during his 2020 campaign, rescheduling does not do that. Nor do the pardons he touts. Despite those two moves, low-level marijuana possession will remain a federal offense punishable by a minimum $1,000 fine and up to a year in jail. Only Congress can change that. Biden has invested little, if any, effort in urging it to do so, and he opposes outright federal legalization based on "gateway drug" concerns that pot prohibitionists have been voicing since the 1950s.
Neither rescheduling nor pardons will remove the unfair "barriers" that Biden decries. Although Biden claims he is "expunging thousands of convictions," that is not true, since pardons do not entail expungement. Nor do pardons eliminate the various legal disabilities associated with marijuana convictions, cannabis consumption, or participation in the cannabis industry, which include loss of Second Amendment rights (a policy that Biden defends) and ineligibility for admission, legal residence, and citizenship under immigration law.
As his pardons reflect, Biden's concern about unjust incarceration is curiously limited. Because those pardons did not apply to people convicted of growing or selling marijuana, they did not free a single federal prisoner. Neither will rescheduling.
With marijuana in Schedule III, state-licensed marijuana businesses will remain criminal enterprises under federal law, albeit subject to less draconian penalties. "If marijuana is transferred into schedule III," the DEA notes, "the manufacture, distribution, dispensing, and possession of marijuana would remain subject to the applicable criminal prohibitions of the CSA."
For that reason, rescheduling is unlikely to reassure financial institutions that are leery of serving marijuana businesses because it could expose them to devastating criminal, civil, and regulatory penalties. "Because marijuana would remain a controlled substance under the CSA," the law firm Debevoise & Plimpton notes, "its rescheduling would not immediately impact the potential legal risks to financial institutions (and other parties) considering whether to provide services to marijuana businesses."
If marijuana is listed along with prescription drugs, doesn't that at least mean that it can legally be used as a medicine? No, because doctors can prescribe only specific products that have been approved by the Food and Drug Administration (FDA). Unless and until new cannabis-based medicines pass muster with the FDA, they will not be legal for doctors to prescribe or patients to use.
These points are easily overlooked in the hoopla surrounding the rescheduling announcement. But the limitations of Biden's "monumental" policy shift are clear from the reactions of activists and the cannabis industry.
"This recommendation validates the experiences of tens of millions of Americans, as well as tens of thousands of physicians, who have long recognized that cannabis possesses legitimate medical utility," said Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws, which first urged the DEA to reschedule marijuana back in 1972. "But it still falls well short of the changes necessary to bring federal marijuana policy into the 21st century. Specifically, the proposed change fails to harmonize federal marijuana policy with the cannabis laws of most U.S. states, particularly the 24 states that have legalized its use and sale to adults."
The review from the American Civil Liberties Union (ACLU) was similarly mixed. "President Biden's decision to reschedule marijuana is the most significant step any American president has taken to address the harms of the war on marijuana," Cynthia W. Roseberry, director of policy and government affairs at the ACLU's Justice Division, said in an emailed statement. "While it is an incredibly encouraging step in the right direction, the rescheduling does not end criminal penalties for marijuana or help the people currently serving sentences for marijuana offenses."
John Mueller, CEO of the Greenlight dispensary chain, likewise noted what rescheduling will not do. "This is a monumental moment," he said in an emailed press release, "but we still have a long way to go to rectify the injustices of the War on Drugs. The recent strides in cannabis rescheduling mark a significant departure from a failed 50-year prohibition policy. We must continue this momentum by calling on our state and federal leaders to prioritize the release of individuals incarcerated for cannabis-related offenses. This is not just about acknowledging the legitimacy of the cannabis industry, but also about rectifying the disproportionate impact of outdated policies on marginalized communities.…It's time to right the wrongs of the past and embrace progress wholeheartedly."
Aaron Smith, CEO of the National Cannabis Industry Association, had a similar take. "On behalf of thousands of legal businesses operating across the country, we commend President Biden for taking this important first step toward a more rational marijuana policy," he said. "Now it's time for Congress to enact legislation that would protect our industry, uphold public safety, and advance the will of the voters who overwhelmingly support making cannabis legal for adults. Rescheduling alone does not fix our nation's state and federal cannabis policy conflict. Only Congress can enact the legislation needed to fully respect the states and advance the will of the vast majority of voters who support legal cannabis."
The job of the prosecutor is to hold the public accountable. But when the tables are turned—when the prosecutor is the one who allegedly flouted the law—it is, paradoxically, enormously difficult for victims to achieve recourse. Lawyers yesterday sparred at the U.S. Court of Appeals for the 5th Circuit over one such barrier preventing someone from suing a former assistant district attorney accused of misconduct so egregious that one judge on the 5th Circuit described it last year as "utterly bonkers."
At the center of the case is Ralph Petty, whose yearslong career included work as both an assistant district attorney and a law clerk—at the same time, for the same judges. In practice, that means his arguments as a prosecutor were sometimes performance art, because, as a law clerk, he had the opportunity to draft the same rulings he sought in court. It doesn't take a lawyer to deduce that the set-up presents troubling implications for due process.
One of Petty's alleged victims, Erma Wilson, would like the opportunity to bring her civil suit against him before a jury. In 2001, she was convicted of cocaine possession after police found a bag of crack on the ground near where she and some friends were gathered. Law enforcement offered to let her off if she implicated the guilty party; she said she didn't know.
Years later, that conviction continues to haunt her. Most notably, it doomed any chance of her fulfilling her lifelong dream of becoming a nurse, because Texas, where she lives, does not approve registered nursing licenses for people found guilty of drug-related crimes.
Wilson's conviction coincided with the beginning of Petty's dual-hat arrangement in Midland County, Texas. Though he was not the lead prosecutor on her case, she alleges he "communicated with and advised fellow prosecutors in the District Attorney's Office" on her prosecution while simultaneously working for Judge John G. Hyde, who presided over her case, giving him "access to documents and information generally unavailable to prosecutors." (Hyde died in 2012.)
"Further undermining confidence in Erma's criminal proceedings, Petty and Judge Hyde engaged in ex parte communications concerning Erma's case," her lawsuit reads. "Consequential motions, such as Erma's motion to suppress, were resolved in the prosecution's favor throughout trial. And despite the weak evidence against her, Erma's motion for a new trial was not granted. Any of these facts by itself undermines the integrity of Erma's trial. Together, these facts eviscerate it."
Typically prosecutors are protected by absolute immunity, which, as its name implies, is an even more robust shield than qualified immunity. But that issue is not before the 5th Circuit, because Wilson must overcome another barrier: Someone who has been convicted of a crime may not sue under Section 1983—the federal statute that permits lawsuits against state and local government employees for alleged constitutional violations—unless "the conviction or sentence has been reversed on appeal or otherwise declared invalid," wrote Judge Don Willett for the 5th Circuit in December. "The wrinkle here is that Petty's conflicted dual-hat arrangement came to light only after Wilson had served her whole sentence."
But Willett—the same judge who characterized Petty's alleged malfeasance as "utterly bonkers"—did not appear happy with his own ruling, which he said came because his hands were tied by precedent. He invited the 5th Circuit to hear the case en banc, where all the judges on the court convene to reconsider an appeal, as opposed to a three-judge panel (the usual format for evaluating cases).
The court accepted. "The defendants say that [Wilson is] forever barred from invoking that federal cause of action or any other federal cause of action unless she first persuades state officials to grant her relief. If they never do, she can never sue," Jaba Tsitsuashvili, an attorney at the Institute for Justice who is representing Wilson, argued yesterday. "In most circuits, that argument would be rejected, and rightly so."
At the center of the case is Heck v. Humphrey (1994), a Supreme Court precedent that, as Willett noted, forecloses Section 1983 relief for plaintiffs alleging unconstitutional convictions if his or her criminal case was not resolved with "favorable termination." The catch: Most federal appeals courts have established that Heck does not apply when federal habeas relief is no longer available, as is the case with Wilson. The 5th Circuit is an exception.
Perhaps soon it won't be. Yet even if the judges agree with Tsitsuashvili's interpretation of the law, Wilson is not in the clear. She will then have to explain why Petty is not entitled to absolute immunity, which inoculates prosecutors from facing such civil suits if their alleged misconduct was carried out in the scope of their prosecutorial duties. It is nearly impossible to overcome. But Petty may not be a candidate for it, because his malfeasance was technically not committed as a prosecutor. It was committed as a law clerk.
Should Wilson be granted the privilege to sue, it will be the first time an alleged victim of Petty's gets a tangible chance at recourse. There was, of course, the fact that he was disbarred, but defendants whose trials were marred by Petty likely take little comfort in that, particularly when considering it came in 2021—two years after he retired.
The Justice Department formally, finally, proposed to stop lying about marijuana today after decades of insisting the drug is comparable to heroin and ecstasy—and more dangerous than cocaine and methamphetamine.
The Drug Enforcement Administration (DEA), in a proposed rule sent to the Federal Register, moved to change marijuana's status from a Schedule I drug under the Controlled Substances Act—considered by the government to be highly abuse-prone drugs with no medical value—to a Schedule III drug. Recreational marijuana possession and use would remain illegal under federal law, and any new cannabis-based medications would still require approval from the Food and Drug Administration.
President Joe Biden directed the Justice Department and the Department of Health and Human Services (HHS) in 2022 to review marijuana's status as a Schedule I drug. In 2023, HHS recommended that marijuana be moved to Schedule III, which includes drugs with a medium risk of abuse and accepted medical use.
On the campaign trail in 2020, Biden promised to "decriminalize the use of cannabis," but despite lamenting the injustices of marijuana convictions and the barriers they create, and despite the continuing collapse of public support for marijuana prohibition, Biden still opposes full-scale legalization. Instead, his administration has focused on mass pardons and other measures that largely leave those injustices in place.
As Reason's Jacob Sullum wrote earlier this month, after news of the impending proposal first broke, rescheduling marijuana may allow for more medical research and be a good election-year talking point for Biden, but it won't end the continuing federal prohibition of cannabis:
Rescheduling marijuana will not resolve the conflict between the CSA and the laws of the 38 states that recognize cannabis as a medicine, 24 of which also allow recreational use. State-licensed marijuana businesses will remain criminal enterprises under federal law, exposing them to the risk of prosecution and forfeiture. While an annually renewed spending rider protects medical marijuana suppliers from those risks, prosecutorial discretion is the only thing that protects businesses serving the recreational market.
Even if they have state licenses, marijuana suppliers will be in the same legal position as anyone who sells a Schedule III drug without federal permission. Unauthorized distribution is punishable by up to 10 years in prison for a first offense and up to 20 years for subsequent offenses. That is less severe than the current federal penalties for growing or distributing marijuana, which include five-year, 10-year, and 20-year mandatory minimum sentences, depending on the number of plants or amount of marijuana. But distributing cannabis, with or without state permission, will remain a felony.
But even getting the DEA to acknowledge that marijuana is not a drug on par with LSD and heroin is a victory of sorts.
In 2012, Barack Obama's head of the DEA, Michele Leonhart, refused to say whether drugs like crack cocaine and heroin were worse than marijuana, only offering the weak response that "all illegal drugs are bad."
Chuck Rosenberg, who followed Leonhart as head of the DEA, also equivocated when asked the same question in 2015: "If you want me to say that marijuana's not dangerous, I'm not going to say that because I think it is," Rosenberg said on a conference call with reporters. "Do I think it's as dangerous as heroin? Probably not. I'm not an expert."
Rosenberg clarified his statements a week later, saying, "Heroin is clearly more dangerous than marijuana."
Still, the federal government decided to keep embarrassing itself for nearly another decade before moving to drop marijuana from Schedule I.
The DEA's rescheduling proposal will now go through a public comment period.
Last Thursday, a federal judge in Delaware rejected Hunter Biden's Second Amendment challenge to the three gun charges he faces for buying a revolver in October 2018, when he was a crack cocaine user. In a 10-page order, U.S. District Marylellen Noreika concludes that 18 USC 922(g)(3), which makes it a felony for an "unlawful user" of a "controlled substance" to receive or possess firearms, is not unconstitutional on its face, meaning there are at least some cases in which the provision can be enforced without violating the right to keep and bear arms.
Noreika's decision does not end a constitutional dispute that pits Biden against his own father, who has steadfastly defended a policy that could send his son to prison. That policy denies Second Amendment rights to millions of Americans with no history of violence, including cannabis consumers, whether or not they live in states that have legalized marijuana.
Noreika's ruling leaves the door open to an "as-applied" challenge if and when Biden is convicted, meaning he can still argue that his prosecution violates the Second Amendment at that point. That claim may ultimately be resolved by the U.S. Court of Appeals for the 3rd Circuit, which has yet to address the constitutionality of Section 922(g)(3) under the test that the U.S. Supreme Court established in the 2022 case New York State Rifle & Pistol Association v. Bruen.*
If Biden is convicted and his appeals are unsuccessful, he could face a substantial prison sentence. When he bought his gun, violations of Section 922(g)(3) were punishable by up to 10 years in prison. The Bipartisan Safer Communities Act, which his father signed into law in 2022, raised the maximum penalty to 15 years. But even though Congress views gun ownership by illegal drug users as a serious crime, it is rarely prosecuted. While survey data suggest that millions of gun owners are guilty of violating Section 922(g)(3), fewer than 150 Americans are prosecuted for that offense each year.
The two other gun charges that Biden faces, which are based on the same transaction, likewise are rarely prosecuted. One alleges a violation of 18 USC 922(a)(6), which applies to someone who knowingly makes a false statement in connection with a firearm transaction. The other involves 18 USC 924(a)(1)(A), which applies to someone who "knowingly makes any false statement or representation with respect to the information" that a federally licensed dealer is required to record.
Both charges are based on the same conduct: Biden checked "no" in response to a question on Form 4473, which is required for gun purchases from federally licensed dealers: "Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?" That check mark, according to federal prosecutors, qualified as two felonies, punishable by a combined maximum prison sentence of 15 years. Although actual sentences tend to be much shorter than the maximums, Biden theoretically faces up to 25 years in prison for conduct that violated no one's rights.
Biden argued that Section 922(g)(3) fails the Bruen test, which requires the government to show that a gun law is "consistent with this Nation's historical tradition of firearm regulation." He added that the ancillary charges also should be dismissed because they would not be possible but for Section 922(g)(3).
In rejecting Biden's motion to dismiss, Noreika relies heavily on a recent decision by the U.S. Court of Appeals for the 8th Circuit. Last month in United States v.Veasley, the 8th Circuit rejected a facial challenge to Section 922(g)(3), citing the legal treatment of "the mentally ill" in the 18th and 19th centuries.
In the 18th century, the appeals noted, justices of the peace were empowered to order the confinement of "lunatics" who were deemed a threat to public safety. Since such confinement "did not include access to guns," the court reasoned, it was clear that "lunatics" had no such rights. And by the late 19th century, states had begun to prohibit gun sales to people of "unsound mind." Together with "the even longer tradition of confinement," the 8th Circuit said, "these laws suggest that society made it a priority to keep guns out of the hands of anyone who was mentally ill and dangerous."
Those precedents, the appeals court said, amply justify Section 922(g)(3): "The 'burden' imposed by § 922(g)(3) is 'comparable,' if less heavy-handed, than Founding-era laws governing the mentally ill. It goes without saying that confinement with straitjackets and chains carries with it a greater loss of liberty than a temporary loss of gun rights. And the mentally ill had less of a chance to regain their rights than drug users and addicts do today. Stopping the use of drugs, after all, restores gun rights under § 922(g)(3)." The court thought the justification for Section 922(g)(3), "which is to 'keep guns out of the hands of presumptively risky people,'" is "also comparable."
The 8th Circuit assumed that drug users are analogous to "lunatics" and people of "unsound mind" who are "mentally ill and dangerous." But the U.S. Court of Appeals for the 5th Circuit rejected that analogy last year, when it overturned the Section 922(g)(3) conviction of Patrick Darnell Daniels Jr., a Mississippi man who was caught with a gun and the remains of a few joints after he was pulled over for driving without a license plate in April 2022.
"Just as there was no historical justification for disarming a citizen of sound mind, there is no tradition that supports disarming a sober citizen who is not currently under an impairing influence," the 5th Circuit said in United States v. Daniels. "The Founders purportedly institutionalized the insane and stripped them of their guns; but they allowed alcoholics to possess firearms while sober. We must ask, in Bruen-style analogical reasoning, which is Daniels more like: a categorically 'insane' person? Or a repeat alcohol user? Given his periodic marihuana usage, Daniels is firmly in the latter camp. If and when Daniels uses marihuana, he may be comparable to a mentally ill individual whom the Founders would have disarmed. But while sober, he is like the repeat alcohol user in between periods of drunkenness."
Noreika also cites district court decisions that accepted the Justice Department's analogy between Section 922(g)(3) and early laws that made it a crime to publicly carry or discharge firearms while intoxicated. But the 5th Circuit rejected that analogy, and so did the 8th Circuit.
As both courts noted, those historical laws addressed a specific hazard—drunken gun handling—with narrow restrictions. They applied only in public and only to people who were actively intoxicated. They did not apply to private possession of firearms, let alone impose a categorical ban on gun ownership by drinkers.
"Under the government's reasoning," the 5th Circuit said, "Congress could ban gun possession by anyone who has multiple alcoholic drinks a week…based on the postbellum intoxicated carry laws. The analogical reasoning Bruen prescribed cannot stretch that far."
The 8th Circuit reached a similar conclusion. "For drinkers, the focus was on the use of a firearm, not its possession," it noted. "And the few restrictions that existed during colonial times were temporary and narrow in scope." It added that "there was even less regulation when it came to [other] drugs," which were widely available without a prescription in the 19th century.
"The government concedes that its 'review of early colonial laws has not revealed any statutes that prohibited [firearm] possession' by drug users," the 8th Circuit noted. "It took until 1968, with the passage of § 922(g)(3), for Congress to keep guns away from drug users and addicts….The fact that 'earlier generations addressed the societal problem…through materially different means [is] evidence that' disarming all drug users, simply because of who they are, is inconsistent with the Second Amendment."
Since it viewed the comparison between Section 922(g)(3) and laws aimed at preventing drunken gun handling as problematic, the 8th Circuit instead relied on the comparison between drug users and people who are "mentally ill and dangerous." It also invoked "the Founding-era criminal prohibition on taking up arms to terrify the people."
The 8th Circuit conceded that "not every drug user or addict will terrify others, even with a firearm." It is "exceedingly unlikely," for example, that "the 80-year-old grandmother who uses marijuana for a chronic medical condition and keeps a pistol tucked away for her own safety" will "pose a danger or induce terror in others." But "those are details relevant to an as-applied challenge, not a facial one," the court added. "For our purposes, all we need to know is that at least some drug users and addicts fall within a class of people who historically have had limits placed on their right to bear arms."
Noreika emphasizes that the 5th Circuit characterized Daniels as upholding an "as-applied" challenge. "We do not invalidate the statute in all its applications, but, importantly, only as applied to Daniels," the appeals court said. Noreika concludes that Daniels therefore provides no support to Biden's challenge. The 5th Circuit's reasoning nevertheless casts doubt on the notion that illegal drug users, as a class, are so dangerous that they have no Second Amendment rights.
Noreika finds that "the overwhelming weight of the district courts lends no support to Defendant's position either." But she notes three decisions in which federal judges concluded that Section 922(g)(3) charges were unconstitutional.
United States v. Harrison, decided in February 2023, involved an Oklahoma marijuana dispensary employee who was pulled over on his way to work for failing to stop at a red light in May 2022. Police found marijuana and a loaded revolver in his car. U.S. District Judge Patrick Wyrick dismissed a Section 922(g)(3) charge, rejecting the government's contention that "Harrison's mere status as a user of marijuana justifies stripping him of his fundamental right to possess a firearm."
United States v. Connelly, decided two months later, involved a Texas woman who was charged with illegal possession of firearms after El Paso police found marijuana and guns in her home while responding to a domestic disturbance in December 2021. U.S. District Judge Kathleen Cardone concluded that Section 922(g)(3) "does not withstand Second Amendment scrutiny."
U.S. Magistrate Judge Robert Numbers reached the same conclusion that July in United States v. Alston, which also involved a marijuana user charged with violating Section 922(g)(3). "The government has failed to establish that historical laws regulating the mentally ill, the intoxicated, or the dangerous are sufficiently analogous to § 922(g)(3)," Numbers wrote. "The founding-era laws the government offers sought to remedy different problems than § 922(g)(3) does, and they did so through less-restrictive means. Taken together, the historical examples discussed above are not analogous enough to § 922(g)(3) to establish the statute's constitutionality." Last October, U.S. District Judge Louise Flanagan agreed that "the government has not met its burden of proving that § 922(g) is consistent with the Second Amendment."
Although Noreika describes only that last decision as upholding a facial challenge, Cardone's conclusion that Section 922(g)(3) "does not withstand Second Amendment scrutiny" went further than deeming a specific prosecution unconstitutional, and all three decisions rejected the government's historical analogies in no uncertain terms. Furthermore, all of these cases were resolved before trial, as Biden sought to do in his case.
Why does Noreika say that remedy is not available to Biden? "Defendant argues that § 922(g)(3) is unconstitutional under the revised framework announced in Bruen because there is no 'historical precedent for disarming citizens based on their status of having used a controlled substance,'" she writes. "Because Defendant makes no arguments specifically tailored to him or the application of § 922(g)(3) to his facts, Defendant's challenge to the constitutionality of § 922(g)(3) is a facial one….To the extent that Defendant seeks in his motion to raise a challenge to the constitutionality of § 922(g)(3) as applied to him, that request is denied without prejudice to renew on an appropriate trial record."
As Noreika sees it, in other words, Biden has to be convicted before he can challenge his prosecution. But no matter what happens with this particular case, the Biden administration's dogged defense of Section 922(g)(3), especially as applied to cannabis consumers, belies the president's repudiation of the hardline anti-drug position that he took for decades as a senator.
Nowadays, Biden says marijuana use should not be treated as a crime and decries the disadvantages associated with marijuana possession convictions. But his Justice Department simultaneously insists that marijuana use makes people so dangerous that they cannot be trusted with guns—so dangerous, in fact, that they should go to prison for trying to exercise their Second Amendment rights. The government claims that judgment is supported by historical precedents that bear little resemblance to a 1968 law that categorically deprives people of the right to arms for no good reason.
*Correction: This paragraph has been revised to clarify the timing of Biden's possible appeal.
The Justice Department yesterday confirmed that the Drug Enforcement Administration (DEA) plans to move marijuana from Schedule I of the Controlled Substances Act (CSA), a list of completely prohibited drugs, to Schedule III, which includes prescription medications such as ketamine, Tylenol with codeine, and anabolic steroids. The Associated Press notes that the change, which is based on an August 2023 recommendation by the Department of Health and Human Services (HHS) that resulted from a review President Joe Biden ordered in October 2022, "would not legalize marijuana outright for recreational use."
That is by no means the only thing rescheduling marijuana will not do. Biden wants credit for "marijuana reform," which he hopes will help motivate young voters whose turnout could be crucial to his reelection. The announcement of the DEA's decision seems designed to maximize its electoral impact. But voters should not be fooled: Although moving marijuana to Schedule III will facilitate medical research and provide a financial boost to the cannabis industry, it will leave federal pot prohibition essentially untouched.
Rescheduling marijuana will not resolve the conflict between the CSA and the laws of the 38 states that recognize cannabis as a medicine, 24 of which also allow recreational use. State-licensed marijuana businesses will remain criminal enterprises under federal law, exposing them to the risk of prosecution and forfeiture. While an annually renewed spending rider protects medical marijuana suppliers from those risks, prosecutorial discretion is the only thing that protects businesses serving the recreational market.
Even if they have state licenses, marijuana suppliers will be in the same legal position as anyone who sells a Schedule III drug without federal permission. Unauthorized distribution is punishable by up to 10 years in prison for a first offense and up to 20 years for subsequent offenses. That is less severe than the current federal penalties for growing or distributing marijuana, which include five-year, 10-year, and 20-year mandatory minimum sentences, depending on the number of plants or amount of marijuana. But distributing cannabis, with or without state permission, will remain a felony.
That reality suggests that banks will remain leery of providing financial services to state-licensed marijuana suppliers, which entails a risk of potentially devastating criminal, civil, and regulatory penalties. The dearth of financial services has forced many cannabis suppliers to rely heavily on cash, which is cumbersome and exposes them to a heightened risk of robbery. It also makes investment in business expansion difficult.
Although federal arrests for simple marijuana possession are rare, cannabis consumers likewise will still be committing crimes, even if they live in states that have legalized marijuana. Under 21 USC 844, possessing a controlled substance without a prescription is a misdemeanor punishable by a minimum $1,000 fine and up to a year in jail. Moving marijuana to Schedule III will not change that law, which only Congress can do. Nor did President Joe Biden's mass pardons for people convicted of simple marijuana possession under that statute, which apply only retrospectively, "decriminalize the use of cannabis," as he promised to do during his 2020 campaign.
Biden has repeatedly decried the barriers to education, employment, and housing that marijuana convictions create. But contrary to what he claims, his pardons do not entail expungement of criminal records and therefore do not eliminate those barriers. Nor did the pardons address the various legal disabilities associated with marijuana convictions, cannabis consumption, or participation in the cannabis industry, which include loss of Second Amendment rights (a policy that Biden defends) and ineligibility for admission, legal residence, and citizenship under immigration law. Rescheduling marijuana likewise will not remove those barriers and disabilities.
Moving marijuana to Schedule III will not even make it legally available as a medicine, which would require regulatory approval of specific products. Doctors can legally prescribe Marinol (a.k.a. dronabinol), a synthetic version of THC listed in Schedule III, and Epidiolex, a cannabis-derived CBD solution listed in Schedule V. But they will not be able to prescribe marijuana even after it is moved to Schedule III unless the Food and Drug Administration approves additional cannabis-based medications.
The medical "recommendations" that authorize patients to use marijuana for symptom relief under state law are not prescriptions, and they do not make such use compliant with the CSA. So rescheduling marijuana not only will not legalize recreational use; it will not legalize medical use either.
What will rescheduling do? It should make medical research easier by eliminating the regulatory requirements that are specific to Schedule I, and it will provide an important benefit to state-licensed marijuana suppliers by allowing them to deduct standard business expenses when they pay federal income taxes.
Under Section 280E of the Internal Revenue Code, which is aimed at sticking it to drug dealers, taxpayers may not claim a "deduction or credit" for "any amount paid or incurred during the taxable year in carrying on any trade or business" that involves "trafficking" in Schedule I or Schedule II drugs. As that provision has been interpreted by tax courts, marijuana businesses can still deduct the "cost of goods sold," which counterintuitively means they can deduct the expenses associated with obtaining and maintaining an inventory of cannabis products. But they cannot deduct any other business expenses, including rent, utilities, salaries and benefits, office supplies, security, cleaning services, insurance, and legal fees.
That rule results in a crushing financial burden, forcing marijuana retailers to pay an effective tax rate as high as 70 percent or more. But because Section 280E applies only to businesses that sell drugs in Schedule I or Schedule II, moving marijuana to Schedule III will eliminate that disadvantage.
"I cannot emphasize enough that removal of § 280E would change the industry forever," cannabis lawyer Vince Sliwoski writes. "Having worked with cannabis businesses for 13 years, I view taxation as the largest affront to marijuana businesses—more than banking access, intellectual property protection problems, lack of bankruptcy, you name it. This would be HUGE." In addition to making it much easier to turn a profit, Sliwoski says, the tax change would help attract investors and give marijuana businesses "more leverage" in negotiating those deals.
Aside from those practical changes, rescheduling represents a historic federal about-face on the benefits and hazards of marijuana. Schedule I is supposedly reserved for drugs with a high abuse potential and no accepted medical use that cannot be used safely even under a doctor's supervision. Explaining its rationale for recommending marijuana's reclassification, HHS acknowledged that the drug does not meet those criteria—a point that critics had been making for half a century.
HHS cited "credible scientific support" for marijuana's use in the treatment of pain, nausea and vomiting, and "anorexia related to a medical condition." Regarding abuse potential and safety, it noted that marijuana compares favorably to "other drugs of abuse," such as heroin (Schedule I), cocaine (Schedule II), benzodiazepines like Valium and Xanax (Schedule IV), and alcohol (unscheduled). "The vast majority of individuals who use marijuana," HHS said, "are doing so in a manner that does not lead to dangerous outcomes to themselves or others."
In agreeing to follow the HHS recommendation, the DEA likewise is implicitly admitting that the federal government has been lying about marijuana for decades. But that long-overdue reversal falls far short of addressing today's central cannabis issue: the conflict between federal prohibition and state tolerance, which extends to recreational use in jurisdictions that account for most of the U.S. population. Repealing the federal ban—a step that Americans overwhelmingly support—would resolve that conflict. And while Biden cannot do that on his own, he has stubbornly resisted the idea, even as he emphasizes the irrationality and injustice of the war on weed.
Today's guest is comedy writer Rob Long, who served as a writer for and producer of the great sitcom Cheers for years, writes the weekly Martini Shot commentary, and cohosts the GLoP Culture podcast with Jonah Goldberg and John Podhoretz. He is a columnist for Commentary and a cofounder of Ricochet, the online community and podcast platform. At a live event in New York City, Reason's Nick Gillespie spoke with Long about whether Hollywood is out of ideas, what it's like being a libertarian-leaning conservative in a very progressive industry, and the role that psychedelics have played in his creative process.
Chapters:
0:00- Blockchain, Machine Learning, and Jesus
3:22- What's Scarier; God Or Guns?
8:59- Road To Damascus, Hollywood
13:45- Jesus: A Weird But Groovy Dude
17:30- A Hollywood Solution To Hell
22:50- A Psychedelic Life Lesson
29:48- Comedy As Aggression
32:09- MDMA: A Non-Specific Amplifier
34:25- O Hollywood Mega-Hit, Where Art Thou? 43:35- The Comedies That Made Rob Long
Nick Gillespie with Students for Sensible Drug Policy's Kat Murti, May 8. 2023. In a world where drug use and policy are rapidly changing, what role will younger people play in challenging legal and cultural prohibitions of psychoactive substances? Join us for a candid conversation with Kat Murti, the new executive director of Students for Sensible Drug Policy, which for over 25 years has been the leading voice on college campuses for changing laws and attitudes about psychedelics and other drugs. She will be interviewed by Reason Editor at Large Nick Gillespie and the conversation, including audience Q&A, will be recorded for a future episode of The Reason Interview with Nick Gillespie podcast. Use the discount code REASON42 at checkout for 20 percent off all tickets.
The federal government is finally expected to change the way it regulates marijuana, such that the drug would no longer be completely forbidden. The change is welcome, but it does not go far enough.
"The U.S. Drug Enforcement Administration will move to reclassify marijuana as a less dangerous drug," the Associated Press reported on Tuesday. The proposal "would recognize the medical uses of cannabis and acknowledge it has less potential for abuse than some of the nation's most dangerous drugs. However, it would not legalize marijuana outright for recreational use."
The policy would signal a welcome shift from decades of prohibitionist drug policy. Since 1970, the federal government has regulated marijuana under Schedule I of the Controlled Substances Act, intended for drugs with "a high potential for abuse" and "no currently accepted medical use in treatment." Other Schedule I substances include heroin and peyote.
That description has always been ridiculous when applied to marijuana, but especially in recent years, as more than two-thirds of U.S. states, plus three territories and the District of Columbia, now allow marijuana for medical use—not to mention that 24 states, two territories, and D.C. further allow recreational use.
The proposed reclassification stems from President Joe Biden's October 2022 announcement calling on Attorney General Merrick Garland and Secretary Xavier Becerra of the Department of Health and Human Services (HHS) to "initiate the administrative process to review expeditiously how marijuana is scheduled under federal law."
In August 2023, HHS delivered its recommendation: Marijuana should be reclassified from Schedule I to Schedule III. According to the DEA, Schedule III drugs have "a moderate to low potential for physical and psychological dependence" and can be prescribed by a doctor. Examples include ketamine, Tylenol with codeine, and anabolic steroids. Marijuana would not be completely legalized, though: Schedule III substances are still subject to regulation on their sale and use.
Even now, if the DEA decides to reschedule marijuana, nothing will change right away: The proposal "still must be reviewed by the White House Office of Management and Budget," the A.P. notes, after which "the DEA will take public comment on the plan…. After the public comment period,…the agency would publish the final rule."
Marijuana prohibition is an antiquated notion, and its end is long overdue. Nearly 90 percent of Americans now think marijuana should be legal in some capacity, according to a Gallup poll conducted earlier this year, with 57 percent favoring full legalization and another 32 percent preferring that it be legal only for medical use.
Even the government's excuses for keeping cannabis illegal have never stood up to scrutiny. When HHS decided to recommend reclassification last year, it effectively reversed itself and contradicted its own long-held position on the topic; the DEA has previously declined to reschedule marijuana five times. As Reason's Jacob Sullum wrote in January, "The [HHS] reversal shows that marijuana's classification has always been a political question rather than a legal or scientific matter."
"It is significant for these federal agencies, and the DEA and [Food and Drug Administration] in particular, to acknowledge publicly for the first time what many patients and advocates have known for decades: that cannabis is a safe and effective therapeutic agent for tens of millions of Americans," said Deputy Director Paul Armentano of the National Organization for the Reform of Marijuana Laws (NORML) in an emailed statement. But that's not far enough, Armentano argues: "Just as it is intellectually dishonest and impractical to categorize cannabis in the same placement as heroin, it is equally disingenuous and unfeasible to treat cannabis in the same manner as anabolic steroids and ketamine."
Rescheduling marijuana so that people can use it without fear of being put in prison is a welcome first step. But the best solution would be for Congress to simply decriminalize it altogether.
Tressa Beltran, former police chief of Hartford, Michigan, has been charged with multiple felonies, including delivery of narcotics, larceny, extortion, using a computer to commit a crime, embezzlement over $50 by a public official, and three counts of drug possession. Beltran reportedly admitted stealing from the drug disposal box at the police department. Now a new lawsuit against Beltran and the city claims she coerced Hai Quoc Le Jr. into providing her with pain medication he was prescribed for a torn ACL. Le is on parole, and according to his lawsuit, Beltran threatened to make his life "a living hell" if he didn't provide her with drugs, by reporting him to his parole officer and charging him criminally. Le says Beltran was often in her uniform and on duty when she met with him.
The DEA's scare tactics likening Adderall prescriptions to the opioid epidemic betrays its addiction to manufacturing drug panics to protect its authority amid the drug war's failures.
The Drug Enforcement Administration has found a new bogeyman to justify its failed prohibitionist crusade — prescription medication for people with ADHD. — Read the rest
President Joe Biden's perfunctory reference to marijuana reform during last night's State of the Union address further undermined his campaign's already iffy attempt to motivate young voters, who overwhelmingly oppose pot prohibition. Biden claimed he was "expunging thousands of convictions for the mere possession" of marijuana, which is not true, and declared that "no one should be jailed for simply using" marijuana—a proposition that was on the cutting edge of drug policy half a century ago.
Contrary to what Biden said, his pardons for people convicted of simple possession under federal law do not entail expungement of criminal records because there is no way to accomplish that without new legislation. The distinction matters because Biden has emphasized that "criminal records for marijuana possession" create "needless barriers to employment, housing, and educational opportunities." His pardons do not remove those barriers. The certificates that pardon recipients can obtain might carry weight with landlords or employers, but there is no guarantee of that.
In other words, Biden has not delivered on his campaign promise to "automatically expunge all prior cannabis use convictions." Yet Biden claimed otherwise last night, conflating pardons with expungements that would mean people convicted of simple possession no longer "have it on their record."
What about the idea that people should not be arrested simply for using marijuana? During his 2020 campaign, Biden promised to "decriminalize the use of cannabis." His pardons do not accomplish that goal either. Federal law still treats simple marijuana possession as a misdemeanor punishable by a minimum $1,000 fine and up to a year in jail. In any event, all but a tiny percentage of simple possession cases are prosecuted under state law.
"Biden made two promises on marijuana reform on the 2020 campaign trail—to decriminalize marijuana use and expunge records—and he has failed to deliver either," notes Cat Packer, director of drug markets and legal regulation at the Drug Policy Alliance. "Biden's pardons haven't released anyone from prison or expunged anyone's records."
We might credit Biden for at least having his heart in the right place if he had ventured to say that marijuana use should not be treated as a crime back in the 1970s, when that idea first gained traction. In 1972, the same year that Biden was elected to his first term in the U.S. Senate, the National Commission on Marihuana and Drug Abuse recommended decriminalization of marijuana possession for personal use. It also recommended that "casual distribution of small amounts of marihuana for no remuneration, or insignificant remuneration, no longer be an offense."
Those recommendations were especially striking in light of the commission's composition. Most of its members had been appointed by President Richard Nixon, a law-and-order Republican, and it was chaired by Raymond Shafer, a Republican who had just completed a term as Pennsylvania's governor.
That decade, nearly a dozen states, beginning with Oregon in 1973, took the commission's advice, typically changing low-level possession from a criminal offense to a civil violation punishable by a modest fine. President Jimmy Carter endorsed decriminalization in 1977, when he told Congress that "penalties against possession of a drug should not be more damaging to an individual than the use of the drug itself."
That wave of reform was followed by an anti-drug backlash in which Carter's successor, Ronald Reagan, figured prominently. So did Biden. "We have to hold every drug user accountable," he declared in a 1989 speech that faulted Republicans for not being tough enough on the issue, because "if there were no drug users, there would be no appetite for drugs, and there would be no market for them."
Biden now presents himself as a recovering drug warrior who has seen the error of his ways. During his 2020 campaign, he conceded that the scientifically baseless penal distinction between crack and cocaine powder, which resulted in glaring racial disparities, was "a big mistake." He switched from pushing mandatory minimums to advocating their elimination. And he said the federal government should "leave decisions regarding legalization for recreational use up to the states."
That last promise cannot be fulfilled as long as federal prohibition remains in place. Until marijuana is descheduled, state-licensed marijuana businesses will remain criminal enterprises under federal law, which makes it hard for them to obtain financial services and exposes them to the risk of prosecution and civil forfeiture. For businesses that serve the recreational market, prosecutorial discretion is the only protection against that risk.
Reclassifying marijuana as a Schedule III drug, another move that Biden touted last night, would leave federal prohibition essentially untouched. It would not decriminalize the cannabis industry or remove the various legal disabilities triggered by participation in that industry or by cannabis consumption, such as the loss of Second Amendment rights and ineligibility for admission, legal residence, and citizenship under immigration law. Rescheduling would not even make marijuana legally available as a prescription medicine, which would require approval of specific products by the Food and Drug Administration.
Until marijuana is "removed from the Controlled Substances Act entirely," Packer notes, "federal criminalization will continue to ruin countless lives, create barriers to jobs, housing, food, and education and disproportionately harm Black and Brown communities. If Biden is truly committed to ending the failures of federal marijuana criminalization he should: expand pardons and commutations beyond simple possession cases; end marijuana-based deportations of noncitizens; direct his administration to revise policies related to marijuana, including access to housing and food assistance programs; and call on the DEA and Congress to federally decriminalize marijuana by descheduling it."
Biden has stubbornly resisted federal legalization, saying he is worried that marijuana might be a "gateway" to other, more dangerous drugs—an argument that pot prohibitionists have been deploying since at least the early 1950s. That position flies in the face of public opinion. According to the latest Gallup poll, 70 percent of Americans, including 87 percent of Democrats, favor legalization.
Support for repealing pot prohibition is especially strong among younger voters, whose behavior in November could be crucial to Biden's reelection. It is therefore not surprising that his campaign is trying to boost turnout among those voters by bragging that Biden "changed federal marijuana policy" (which so far is not accurate) because "nobody should have to go to jail just for smoking weed," which almost never happens under current law and won't happen less often as a result of Biden's pardons or rescheduling.
Even if Biden had the power to unilaterally decriminalize low-level marijuana possession, that step would not address today's central cannabis issue, which is the conflict between federal law and the laws of the 38 states that have legalized marijuana for medical use, including two dozen, accounting for most of the U.S. population, that also allow recreational use. Instead of addressing that issue, which is what an overwhelming majority of his supporters would like him to do, Biden is acting as if it is still 1972.
Hunter Biden zinged Matt Gaetz yesterday during the House Oversight Committee's closed-door session when he told the alleged coke party connoisseur to "look me in the eye." An even better phrase would have been, "Look at yourself in a mirror."
The heated exchange began when the Congress performer asked about Biden's former drug use. — Read the rest
"I'm just floored and shocked," Rankin County, Mississippi, Sheriff Bryan Bailey said last August after five of his former deputies admitted to punching, kicking, tasing, torturing, and humiliating two men during an unlawful home invasion the previous January. "This is a perfect example of why people don't trust the police, and never in my life did I think it would happen in this department."
According to an investigation by The New York Times and Mississippi Today, however, Bailey had plenty of reasons to think something like this would happen in his department. Similar things had been happening in Rankin County "for nearly two decades," the Timesreported in November.
"Narcotics detectives and patrol officers, some [of whom] called themselves the Goon Squad, barged into homes in the middle of the night, accusing people inside of dealing drugs," the paper said. "Then they handcuffed or held them at gunpoint and tortured them into confessing or providing information."
The Times and Mississippi Today corroborated "17 incidents involving 22 victims based on witness interviews, medical records, photographs of injuries and other documents." Those cases almost always involved "small drug busts," and the accusers "described similar tactics." Deputies "held people down while punching and kicking them or shocked them repeatedly with Tasers." They "shoved gun barrels into people's mouths." Three people "said deputies had waterboarded them until they thought they would suffocate," while "five said deputies had told them to move out of the county."
Although the federal charges that drew national attention to police brutality in Rankin County involved two black victims, Bailey's deputies were equal-opportunity abusers. They "appear to have targeted people based on suspected drug use, not race," the Times said. "Most of their accusers were white."
The deputies' pattern of abuse was reflected in complaints and lawsuits. "More than a dozen people have directly confronted Sheriff Bailey and his command staff about the deputies' brutal methods," the Times noted, and "at least five people have sued the department alleging beatings, chokings and other abuses by deputies associated with the Goon Squad."
Bailey said he had never heard of the Goon Squad and had no reason to think his deputies were abusing their authority. "Nobody's ever reported that to me," he said in August, and he "never, ever could've imagined" that the five convicted deputies, who included a man he said he knew "well" and had chosen as investigator of the year in 2013, were capable of "these horrendous crimes."
Bailey, who was reelected in November after running unopposed, rejected calls for his resignation. "I'm going to fix this," he promised. "I'm going to make everyone a whole lot more accountable."
This morning, on the Orders List, the Court denied a motion to intervene filed by Missouri, Kansas, and Idaho. These states argued that the should be allowed to intervene so as to ensure that the requirements of Article III standing are met so that the Court can reach the merits. (This is, I take it, a tacit admission that the plaintiffs' standing claims are quite tenuous, as I have argued at length in some of the poses linked below.) The states base this argument, in part, on their successful motion to intervene in the trial court (which Adam Unikowsky dissects here). In any event, the Court rejected the motion.
The Court also ruled on two applications to file late-submitted amicus briefs, one from the American Bar Association and one from former Commissioners of the FDA. Interestingly enough, the Court rejected the former brief, but accepted the latter. Looking at the two briefs, this seems like a reasonable call. The FDA Commissioners brief provides relevant expertise that might be absent from other filed briefs. The ABA brief, not so much. Indeed, one has to wonder why the ABA brief was filed at all, as this case does not relate (even tangentially) to the needs or interests of the legal profession and does not add much given what has already been filed on the FDA's behalf in this case. Moreover, filing briefs like this is something the ABA should avoid if it wants to be seen as an apolitical organization that represents the legal profession and can speak to questions relating to the practice of law with any degree of authority.
The Court also denied a motion to intervene filed by Gregory J. Roden as "Next Friend of Americans en ventre sa mere." No surprise there.
For those interested in more about this case, yesterday I participated in a panel discussion on this case with my colleague Jessie Hill, sponsored by the Law-Medicine Center at the Case Western Reserve University School of Law. Video of that program may be viewed here.
Also, here are my prior blog posts about this case and the issues it raises:
Inflation stressing you out? Making you wish you had just a touch of nicotine in your system? Unfortunately, that'll cost a lot. While prices economywide have risen 3.1 percent in the last year, cigarette prices have jumped 8 percent. On top of federal and state taxes that often make up half the price of a pack, tobacco companies tend to raise their prices faster than inflation to make up for declining sales volume. These and the rest of the numbers in the Reason Sindex use data from November 2023.
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