The Volokh Conspiracy

This Vancouver Sun article reports that dogs are much more effective at sniffing out meat than drugs [HT: Steve Bainbridge]:

Federal search dogs at international border entry points have a penchant for sniffing out one thing more than anything else: meat.

In fact, dogs trained to find animal products turn up meat around 20 times more frequently than drug-sniffing dogs find narcotics, according to government documents obtained by Postmedia News under access-to-information legislation.

The release of the data comes as federal officials question the necessity and effectiveness of the dogs, with the Canada Border Services Agency dismantling some of its search-dog teams over the past year – a move the federal union believes will erode the ability to quickly search incoming cargo and seize drugs and firearms.

The article gives lots of explanations for this entirely unsurprising finding. But it ignores the obvious points that dogs like meat a lot more than drugs. Meat is edible while drugs (usually) are not. Thus, your average canine has evolved to be a much better meat detector than drug detector. In addition, as I discussed in this post, drug-sniffing dogs often err because their main objective is to please their human handlers rather than find the drugs as such; as a result they tend to signal “false positives” if they sense that that’s what the handler wants. By contrast, meat-sniffing dogs have reasons of their own for finding meat. The point is so glaringly obvious that this could be considered a dog-bites-man story – except that it is actually much more common for dogs to bite pieces of meat than humans.

Unfortunately, there is a more serious side to the story. Despite the fact that drug-sniffing dogs have a high error rate, government policy – and even Supreme Court decisions - are often based on the assumption that they are far more accurate than the evidence shows.

A common trope of many Second Amendment advocates is to urge more vigorous enforcement of existing federal gun control laws, as the alternative to enacting additional laws. Rhetorically, that’s very effective. But as a policy matter, it is not always a good idea. Consider legislation recently considered by the Senate:

The Manchin-Toomey amendment was supported by the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA), although the group later dropped its support for reasons unrelated to the issues raised in this post. Section 102(3) of Manchin-Toomey was the finding that “Congress believes the Department of Justice should prosecute violations of background check requirements to the maximum extent of the law.”

The alternative to Manchin-Toomey was the Grassley-Cruz substitute, which was supported by the National Rifle Association. Grassley-Cruz had a much more detailed program, with supporting funding, to increase federal prosecutions for violations of 18 U.S. Code 922 (the section which defines most of the prohibited acts by persons who are not licensed firearms dealers) and section 924 (the penalties section, with penalties for the various offenses by licensed dealers and by other persons, as well as definitions of some additional crimes). The beefed-up enforcement is in pages 15-26 of Grassley-Cruz.

Both Manchin-Toomey and Grassley-Cruz included a variety of other changes in federal gun laws, and some of them were very constructive. But as for the prosecution provisions, I think they were dubious.

To begin with, much of what is in section 922 is possessory offenses, occurring entirely within a single state. Supposedly, these provisions are enacted under Congress’s power “to regulate Commerce...among the several States.” I realize that Supreme Court since 1937 has usually been reluctant to rule that a federal criminal statute is outside the interstate commerce power. However, that judicial deference to congressional statutes is premised on the notion that Congress itself has carefully considered the constitutionality of a statute. Chief Justice Marshall’s opinion in McCulloch v. Maryland expressly discussed this point (regarding the Necessary and Proper Clause). President Andrew Jackson’s subsequent veto of the re-charter of the Second Bank of the United States cited the McCulloch opinion to make his point that the political branches must exercise their own constitutional judgment; that a deferential court has not stricken a particular type of law does not excuse Congress and the President from the task of making their own judgments about whether a particular bill is constitutional.

During the latter 20th century, the Supreme Court was fairly reticent about the meaning of the Second Amendment, but many legislators and citizen activists opposed particular anti-gun bills because they believed that such bills violated the Second Amendment. Even when there was no realistic prospect that the Supreme Court would strike down a federal law on Second Amendment grounds (e.g., in 1975), it was legitimate for legislators and citizens to oppose a bill because of Second Amendment scruples.

Accordingly, it is equally legitimate to oppose a bill today because of Commerce Clause scruples. I believe that Justice Thomas’s concurrence in Printz v. United States raised a useful question. While he joined the majority opinion (Congress cannot order local law enforcement to carry out federal background checks), he also wondered if Congress’s power over interstate commerce really permitted Congress to prescribe how a firearms retailer in one state would sell an item to a consumer in that same state. A fortiori, there are even more serious questions about federal laws regarding the mere possession of firearms intrastate, or setting conditions for firearms transactions among two people in a single state, neither of whom is engaged in interstate commerce. (The Federal Firearms Licensee is, at least, someone who is actively engaged in commerce, and who frequently receives firearms in interstate commerce, even though his subsequent sales may be only intrastate.)

Many of the provisions of sections 922 and 924 which apply to purely intrastate and non-commercial activity might well be legitimate subjects of state legislation. For example, every state has laws against gun possession by convicted felons.

But not everything in 922 would be a good idea for any level of government, and a blanket increase in enforcement of all of 922 would harm innocent people. For example, 18 U.S.C. 922(x) bans handgun possession by persons under 18. There are certain exceptions to the prohibition, but they require “the prior written approval of the juvenile’s parent or legal guardian.” Now in the United States, do you think that when 17-year-olds on a ranch take a handgun with them in the pick-up truck to go check on the cattle at night, that their parents have given them “prior written approval”?

Lack-of-written-permission prosecutions under 922(x) are close to nil, and they ought to stay that way. Demanding more 922 prosecutions could have the unintended effect of giving U.S. Attorneys and BATFE (Bureau of Alcohol, Tobacco, Firearms and Explosives) agents an incentive to boost their numbers by bringing such cases.

Or let’s consider the call for greater prosecutions of people who fail the National Instant Criminal Background Check System (NICS), when they try to buy a gun in a store. The vast majority of such situations do not result in a prosecution. Is it possible that some more of them should? Yes, to the extent that some of these people are genuinely dangerous. However, I suggest that the reason that many people submit to a background check in the first place–sometimes waiting hours or days for the FBI or its state counterpart to conduct the “instant” check, is that they have no idea that they are a prohibited person.

For example, in 1979, a young man gets in a loud argument and shoving-match with his live-in girlfriend. The neighbors in the apartment next door are annoyed by the clamor, and they call the police. The young man spends a night in jail, pleads guilty to disturbing the peace, and pays a $100 fine. He may have actually been innocent, since the girlfriend shoved first. But the cost of hiring a lawyer to take the case to trial was more than he could afford. Thereafter, he stays out of trouble. He buys a gun in 1985. In 1994, when his state (let’s say it’s Virginia) now has a functioning instant check system, he buys another gun, and is duly approved. In 1996, Congress changes the law to prohibit gun possession by domestic violence misdemeanants, and make the prohibition retroactive to misdemeanors from before 1996. 18 U.S. Code 922(g)(9).

By 2013, BATFE has scoured state records of misdemeanor convictions, and decided which cases it will classify as “domestic violence.” So now the man is on the FBI’s prohibited persons list. When he tries to buy a gun in 2013, he is rejected. You can argue the pros and cons of whether he ought to be prohibited, but to me, it seems very unfair for him to be prosecuted for a federal felony.

There are many, many other examples of people who can be prohibited persons without realizing it. The Iraq War veteran who received some mental health benefits, and then the Veterans Administrations gave his name (and the names of thousands of other similar veterans) to the FBI. The woman who is a lawful user of medical marijuana pursuant to her state law, and did not know that the federal government had obtained the state list of persons with medical marijuana cards.

For above examples, it is really not a problem that no federal prosecution results when they fail the NICS check.

To the extent that federal incentives is meant to drive up the numbers for prosecutions of 922 in general, some of these people would be prosecuted even if they were not attempting to buy a gun. Perhaps one of them is driving home from a day at the target range, and a police officer pulls them over for a traffic violation, and sees the unloaded rifle in the rack of the pick-up truck. The officer runs the person’s name through the databases, and then apprehends a prohibited person in possession of a gun. A very easy federal felony prosecution, and the kind that would happen more often when federal incentives are trying to boost the number of cooperative state-federal prosecutions under 922.

I agree with the federal circuit cases that have held that illegal aliens do not have a Second Amendment right to possess firearms. But the fact that a law is constitutionally legitimate does not mean that maximizing prosecutions is always a good idea. For example, in United States v. Huitron-Guizar (10th Cir., 2012), the defendant had been brought to the United States when he was three years old. His sister was an American citizen, but he was not.  When he was 24 years old, he was discovered to have in his home a rifle, a shotgun, and a handgun. He was sentenced to 18 months in federal prison.

Grassley-Cruz put its greatest efforts into increasing prosecutions for convicted felons and fugitives. These are categories for which firearms prohibition, as a general matter, is plainly allowed under District of Columbia v. Heller. However, there’s a difference between prosecuting the guy who was released from prison for armed robbery four months ago, and is found to be illegally carrying a handgun outside a liquor store — and the guy who was convicted of tax evasion or marijuana possession three decades ago, and whose home is found to contain the unloaded hunting rifle he inherited from his father one decade ago.

The National Rifle Association  and CCRKBA have quite persuasively documented the tendency of BATFE to, at least some of the time, try to boost its numbers by concentrating enforcement efforts on easy-to-prosecute technical violations, rather than on situations where there is a real danger to public safety. Enacting new laws demanding “maximal” enforcement of NICS, or trying to increase the prosecutions for 18 U.S.C 922 & 924 across the board, would be a poor use of criminal justice resources, and would inflict very excessive penalties on many people who are harmless. If proponents of increased federal prosecution can document a large number of cases which really should be prosecuted, and which are not being prosecuted, the best solution would be a new President who would appoint a BATFE Director and U.S. Attorneys who would bring the cases which really help public safety–and who would also know that not every violation of every iota of sections 922 and 924 is worth making a federal case.

More and more states are stepping back from waging war against marijuana, legalizing medicinal use and minor possession, and popular support for decriminalization appears to be growing.  Thus far, the federal government has sought to stamp out such efforts.  Writing in the Washington Post, Jonathan Rauch suggests Washington should tak a different tack.

Squashing the states, however, is easier said than done. All but a small fraction of the people who enforce the marijuana laws work for state and local governments and answer to state law. Although states cannot break federal law, neither must they step in and enforce it. Federal prosecutors probably could shut down regulated marijuana distributors in Colorado and Washington with relative ease by sending threatening letters to landlords and bankers. But that would leave those states, and others that follow, with the option of legalizing marijuana without regulating it, because unconditional legalization under state law is indisputably within the states’ power. The effect of removing states’ troops from the battlefield would be to strand the federal government with marijuana laws it could not enforce.

The chaos that might result would be counterproductive even (or especially) for drug hawks. Instead of shutting down the states’ experiments, then, the federal government might better serve the policy goals of the Controlled Substances Act by working with Colorado and Washington to concentrate federal and state enforcement on high federal priorities, such as preventing legalized marijuana from spilling across state borders.

Rauch also notes that state-level marijuana policy experimentation could be quite revealing, much as it has been in the case of same-sex marriage.

 localizing the dispute gave people across the country time to work out what they think and to adjust policies as public opinion changed. Had the country locked in a federal constitutional amendment banning gay marriage in the mid-2000s, policy and public opinion would today be drifting inexorably into conflict.

State leadership on marijuana policy has all of the same advantages as on marriage. It contains conflict by reducing the stakes; educes knowledge about what happens if marijuana policy is changed; and allows incremental adjustment to social change. For the federal government, yielding some measure of control over marijuana policy to the states is not a threat; it is an opportunity to manage change and preserve options. Painting federal policy into a corner serves no one, not even drug warriors

Issues like gay marriage and marijuana decriminalization are really something of a litmus tests for the conservative commitment to federalism.  Those conservatives quick to embrace federal authority in each area reveal themselves to be fair-weather federalists, as they advocate decentralization only when it serves their immediate policy objectives.

A district court recently ruled that Congress’s power to “Define and Punish... Felonies on the High Seas” extends beyond the high seas, to conduct entirely within a foreign country (on dry land), with no U.S. nexus. The case is U.S. v. Carvajal, 2013 WL 619890 (Feb. 20, 2013).

The Maritime Drug Law Enforcement Act (MDLEA) allows for the projection of U.S. narcotics law to foreign vessels on the high seas. Routinely the law is applied to the crews of vessels captured on the high seas near Latin American countries with no evidence they were headed our shores. I have argued in a series of papers that such universal jurisdiction over drug trafficking exceeds Congress’s powers under the Felonies power, which presumes a U.S. nexus. While the 11th Circuit has not been swayed from its longstanding prior precedent by these views, other federal judges have increasingly endorsed them.

Yet last November, the 11th Circuit in U.S. v. Bellaizac-Hurtado limited its prior cases by ruling that the Felonies Clause would not apply to conduct in foreign territorial waters, which are not part of the “high seas.”

Caravajal involved a defendant even further from international waters than those in Bellaizac-Hurtado: all of his activity took place in Columbia. But he was charged with conspiracy for a long-standing business of sending vessels through international waters.

The District Court acknowledged the novelty of applying the Felonies Clause to activities in foreign territory. But it concluded that the Felonies Clause reached such activity because the defendant’s co-conspirators committed acts on the high seas. Thus the defendant, who never entered the high seas, could be charged as if he had. (I do agree with the district judge that as far as the vessel goes, it is enough that it entered the high seas on the particular voyage, and it need not be arrested there.)

The Court’s reasoning simply restates the substantive theory of conspiracy liability. It does not explain why conspiracy principles can be used to expand the jurisdictional bounds of a constitutional provision. That is, what gives Congress the power to project federal conspiracy law past the high seas and into the foreign territory to conduct without a U.S. nexus.

Federal criminal law’s broad notion of conspiracy cannot necessarily be read back into the Constitution. This is particularly true when the constitutional provision has a specific jurisdictional provision – “the high seas.” The Framers surely understood that a piratical or felonious act on the high seas could be planned abroad, but chose to define jurisdiction by the locus of the defendant’s conduct.

Put differently, Congress’s ability to “Define” felonies is limited to those on the “high seas.” If Congress can define felonies on land as being connected to the high seas by conspiracy principles, it can presumably go even further – since conspiracy has no special constitutional status. Thus could it define conduct in a foreign country, with no U.S. nexus, that has some effect on the high seas (perhaps affects shipping) as a crime under the clause?

The Carvajal opinion does address my work on the Define and Punish Clause, which it declines to follow because while it “reflects extensive research, it ultimately simply reflects an “opinion of what the law ought to be, not what it is.” Given that my analytic approach the Clause is primarily originalist, I am not sure what this means. Certainly the 11th Circuit has not followed the broader implications of the understanding I develop, though it did accept the narrower ones regarding territorial waters. But the 11th Circuit already had a lot of water under the bow on application of the MDLEA to vessels on the high seas, which it could not easily disregard. Carvajal, however, is a case of first impression, and not in the 11th Circuit.

Indeed, Carvajal is in serious tension with another recent case in the D.C. District, U.S. v. Ali, 885 F.Supp.2d 17 (July 13, 2012), where another judge reached the opposite conclusion recently as to whether land-based conspiracy could be prosecuted as a high seas piracy. That case turned principally on the definition of piracy in international law, but also explicitly invoked constitutional avoidance principles, suggesting that federal conspiracy principles do not get read into the “Piracy on the High Seas” power. The Court in Ali also relied heavily on the Charming Betsy cannon, finding that it would violate international law to apply U.S. law to such conduct. It would equally violate international law principles of jurisdiction to apply U.S. law to a drug conspiracy in a foreign country – but the MDLEA explicitly rules out international law as a defense.

It is a neat coincidence that such cases of first impression concerning conspiracy and the High Seas crimes would arise within a few months of each other. And of course, all these extraterritorial issues are being decided in the shadow of Kiobel, where the distinction between the high seas and foreign territory has been argued quite sharply.

That’s the title of a new article by Trevor Burrus (Cato) and me, forthcoming in a symposium issue on drug policy, from the Albany Government Law Review. The symposium title is “Overdose: The Failure of the US Drug War and Attempts at Legalization.” Here is an excerpt from the introduction:

In this Article we discuss the synergistic relationship between the “wars” on drugs, guns, alcohol, sex, and gambling and how that relationship has helped illegitimately increase the power of the federal government over the past century. The Constitution never granted Congress the general “police power” to legislate on health, safety, welfare, and morals; the police power was reserved to the States. Yet over the last century, federal laws against guns, alcohol, gambling, and some types of sex, have encroached on the police powers traditionally reserved to the states. Congress’s infringement of the States’ powers over the “health, safety, welfare, and morals”6 of their citizens occurred slowly, with only intermittent resistance from the courts. In no small part due to this synergistic relationship, today we have a federal government that has become unmoored from its constitutional boundaries and legislates recklessly over the health, safety, welfare, and morals of American citizens.

In part I we discuss how the Taxing Clause was the original conduit for congressional overreach. In part II we analyze the Interstate Commerce Clause’s role in augmenting government power. Part III examines how that overreach has affected citizens’ property rights, and Part IV looks at how civil liberties, particularly Fourth Amendment protections, have been negatively affected by the federal government’s synergistic wars against sex, drugs, gambling, and guns.

This 20-page article is certainly not a comprehensive survey of the synergistic effects of the constitutional damage caused by the federal wars on drugs, guns, alcohol, sex, and gambling. It is a start at a topic that is worthy of much additional scholarly exploration.

Committees in the Hawaii and New Mexico state legislatures recently approved bills that would decriminalize the possession of marijuana [HT: Tom Angell of Law Enforcement Against Prohibition]. Unfortunately, the bills would only decriminalize possession of small amounts of marijuana. Nonetheless, they would be a major change from the status quo. If the laws are enacted, these states would add to the momentum for legalization created by the recent passage of referendum initiatives legalizing marijuana in Colorado and Washington. Both public and elite opinion is gradually turning against the War on Drugs.

Obviously, even if these and other states legalize marijuana, it would remain illegal under federal law. But, as more and more states legalize marijuana, it will make it difficult for the federal government to continue the federal “war” against it, and possibly increase political pressure for repealing the federal ban entirely.

Deroy Murdock has an interesting National Review column describing the rise of abusive, military-style police raids:

Overarmed federal officials increasingly employ military tactics as a first resort in routine law enforcement. From food-safety cases to mundane financial matters, battle-ready public employees are turning America into the United States of SWAT.

FBI agents and U.S. marshals understandably are well fortified, given their frequent run-ins with ruthless bad guys. However ... armed officers, if not Special Weapons and Tactics crews, populate these federal agencies: the National Park Service; the Postal Inspection Service; the Departments of Health and Human Services, Agriculture, Labor, and Veterans Affairs; the Bureaus of Land Management and Indian Affairs; the Environmental Protection Agency; and the Fish and Wildlife Service. Even Small Business Administration and Railroad Retirement Board staffers pack heat!

These “ninja bureaucrats,” as [Quin] Hillyer calls them, run rampant. They, and often their local-government counterparts, deploy weapons against harmless, frequently innocent, Americans who typically are accused of non-violent civil or administrative violations.

Murdock describes many disturbing examples of such raids, such as this one:

On July 13, 2010, a dozen St. Paul, Minn.–area policemen and a federal Drug Enforcement Agency officer assaulted Roberto Franco’s home. Clad in Army fatigues, they rousted all nine people there, including three children. “Each plaintiff was forced to the floor at gun and rifle point and handcuffed behind their backs,” states Franco’s $30 million federal lawsuit against these authorities. “Defendants shot and killed the family dog and forced the handcuffed children to sit next to the carcass of their dead and bloody pet for more than an hour while defendants continued to search the plaintiffs’ home.”

According to the complaint, one young girl who “was handcuffed and prevented by officer from obtaining and taking her medication thus induced a diabetic episode as a result of low blood-sugar levels.”

As Murdock points out, such brutal military-style tactics are incentivized by the War on Drugs, and by federal subsidization of state and local law enforcement agencies’ acquisition of military training and military weapons. They are also exacerbated by the criminalization of an extraordinarily wide range activities that should either be completely legal or at least are better dealt with through civil penalties.

UPDATE: I have changed “militaristic” in the title of this post to “militarized.”

UPDATE #2: I should spell out the fact that the reason why overcriminalization contributes to this problem is that, if there were fewer crimes on the books, agencies such as the Education Department and the Agriculture Department would have no reason to maintain militarized law enforcement units. And there would also be fewer opportunities to engage in abusive raids for those military-style law enforcement units that would still exist.

In this Wall Street Journal column, Nobel Prize-winning economist Gary Becker and his colleague Kevin Murphy do an excellent job of summarizing the failures of the War on Drugs:

President Richard Nixon declared a “war on drugs” in 1971. The expectation then was that drug trafficking in the United States could be greatly reduced in a short time through federal policing—and yet the war on drugs continues to this day. The cost has been large in terms of lives, money and the well-being of many Americans, especially the poor and less educated. By most accounts, the gains from the war have been modest at best....

The total number of persons incarcerated in state and federal prisons in the U.S. has grown from 330,000 in 1980 to about 1.6 million today. Much of the increase in this population is directly due to the war on drugs and the severe punishment for persons convicted of drug trafficking. About 50% of the inmates in federal prisons and 20% of those in state prisons have been convicted of either selling or using drugs. The many minor drug traffickers and drug users who spend time in jail find fewer opportunities for legal employment after they get out of prison, and they develop better skills at criminal activities....

The paradox of the war on drugs is that the harder governments push the fight, the higher drug prices become to compensate for the greater risks. That leads to larger profits for traffickers who avoid being punished. This is why larger drug gangs often benefit from a tougher war on drugs, especially if the war mainly targets small-fry dealers and not the major drug gangs. Moreover, to the extent that a more aggressive war on drugs leads dealers to respond with higher levels of violence and corruption, an increase in enforcement can exacerbate the costs imposed on society.

As Becker and Murphy point out, the costs of the War on Drugs abroad are even greater than in the US:

Mexico offers a well-documented example of some of the costs involved in drug wars. Probably more than 50,000 people have died since Mexico’s antidrug campaign started in 2006. For perspective, about 150,000 deaths would result if the same fraction of Americans were killed. This number of deaths is many magnitudes greater than American losses in the Iraq and Afghanistan wars combined, and is about three times the number of American deaths in the Vietnam War. Many of those killed were innocent civilians and the army personnel, police officers and local government officials involved in the antidrug effort.

Over the last few years, both public and elite opinion have begun to turn against the War on Drugs. This has already led a few states to legalize marijuana. In time, it will hopefully lead to broader change.

In the wake of the Newtown massacre, there has, understandably, been a new wave of advocacy of policy proposals aimed at preventing future incidents of the same kind. However, gun violence in schools is already extremely rare, with the average child far more at risk of dying in a car accident or backyard pool accident than in school. And we are unlikely to reduce the already low incidence of mass shootings by gun control or other policy changes. Fortunately, as Yale law professor Dan Kahan explains at the Cultural Cognition Project blog, we can achieve a significant reduction in gun violence by legalizing drugs:

[W]hile the empirical evidence on the relationship between gun control and homicide is (at this time at least) utterly inconclusive, there certainly are policies out there that we have very solid evidence to believe would reduce gun-related homicides very substantially.

The one at the top of the list, in my view, is to legalize recreational drugs such as marijuana and cocaine.

The theory behind this policy prescription is that illegal markets breed competition-driven violence among suppliers by offering the prospect of monopoly profits and by denying them lawful means for enforcing commercial obligations.

The evidence is ample. In addition to empirical studies of drug-law enforcement and crime rates, it includes the marked increase in homicide rates that attended alcohol prohibition and the subsequent, dramatic deline of it after repeal of the 18th Amendment.

Kahan makes a number of other good points in his post, and cites lots of additional evidence. As they say, read the whole thing.

As an extra bonus, this approach to reducing gun violence doesn’t threaten anyone’s civil liberties or Second Amendment rights. It would actually increase protection for civil liberties by cutting back on the many abuses associated with the War on Drugs, such as bogus asset forfeitures and paramilitary police raids that often kill or injure innocent people, and the erosion of the Fourth Amendment. And, unlike stepped-up gun control or “zero tolerance” policies of the sort we got after Columbine, it would actually save the government a great deal of money by reducing expenditures on enforcement efforts and prisons. Drug legalization would also help promote family values in poor communities, which is both good in itself and might help reduce violence still further.

As President Obama said in Newtown, “we can do better than this” when it comes to curbing gun violence. Cutting back on the War on Drugs is a great place to start. Polls show that marijuana legalization, at least, is rapidly gaining in popularity. That might give the president and other politicians the chance to effect change we can believe in in this field.

UPDATE Mark Kleiman briefly responds to this post and Kahan’s here:

Dan Kahan and Ilya Somin are entirely correct. If you simply ignore all the negative consequences of legalizing cocaine, including the violent crimes likely to result from combination use of cocaine and alcohol, then legalizing cocaine looks like a good idea.

But Kleiman doesn’t actually cite any evidence proving that legalizing cocaine will result in any increase in violent crime other than an article showing that people who use alcohol and cocaine simultaneously experience increased “violent thoughts”. There is a big difference between having a thought and actually acting on it, and the article itself is actually agnostic on the question of whether the increase in violent thoughts actually results in increased violent behavior. It notes that the two studies that suggest a link between the combination of alcohol and cocaine and increased violent thoughts are “difficult to interpret due to lack of appropriate control groups.” Kleiman also doesn’t present any evidence suggesting that legalization of cocaine would lead to a significant increase in simultaneous use of cocaine and alcohol. Most importantly, many drugs, including the use of alcohol by itself, increase violent thoughts. That did not prevent the end of Prohibition from causing a major reduction violent crime. The extremely limited evidence cited by Kleiman gives us little if any reason to believe that the results of legalizing cocaine would be different.

At Reason.com, Mike Riggs takes apart another Politifact fact-check fail, this one concerning President Obama’s drug policies.

A recent poll conducted by Democratic-leaning Public Policy Polling indicates that 58% of Americans support the legalization of marijuana. This is consistent with other recent survey data showing that public opinion is moving in a pro-legalization direction. In 2011, a Gallup poll showed 50% support for legalization for the first time. As with other recent surveys, the PPP polls finds that support for legalization is highest among younger people. But this is a generational effect in which each generation is more supportive of legalization than the one that came before, rather than a cohort effect in which the young are pro-legalization, but quickly turn against it once they get older. In the PPP survey, even people between the ages of 46 and 65 are far more likely to support legalization (44%) than those over 65 (32%).

The overall level of support for legalization in this poll is somewhat higher than in other surveys. We should be cautious about inferring that the true level of support is really as high as 58% unless and until we get confirmation from other polls. Nonetheless, the PPP poll is yet another indication that public opinion is moving in a pro-legalization direction.

The PPP survey also finds a 47-33 plurality that wants Obama to allow Colorado and Washington to implement their recently adopted referenda legalizing marijuana under state law, rather than use federal power to block them. Even 35% of Republicans agree that he should do so (though 46% of of them favor a federal crackdown).

As in many other surveys, PPP finds that Republicans (53%) are more likely to oppose legalization than Democrats (28%) or independents (38%). In this case, they are also more likely to support federal intervention against legalization at the state level – a paradoxical position for the party that claims to champion federalism. I summarized various conservative arguments for legalization here. See also this article by the late William F. Buckley.

I should emphasize that it is not my view that legalization is a good idea because a majority of the public now supports it. I believe majority public opinion is wrong about a great many things, including in opposing the legalization of many other drugs. For decades, it was wrong about marijuana legalization too. The fact that 50% or more of the public supports a given policy is only a very modest point in its favor, especially given widespread political ignorance. But changing public opinion is important because it opens up opportunities for legalization that did not exist before. In the short run, it could at least give President Obama the political cover he needs to decide to leave Colorado and Washington alone.

In a press release last week, the President of the International Narcotics Control Board, Raymond Yans, asserted that the recent referenda legalizing marijuana in Colorado and Washington “are in violation of the international drug control treaties.” He is almost certainly wrong about that; federal drug laws keep the United States in compliance with such treaties regardless of changes in state law. But Yans then seems to suggest that the federal government could somehow override or repeal the state referenda, on the strength of these treaties. He’s almost certainly wrong about that too, as Jacob Sullum explains over at Reason (citing my Harvard Law Review article, Executing the Treaty Power).

Support for the decriminalization of marijuana, whether for medicinal or recreational use, is on the rise as state after state votes to lower (if not eliminate) restrictions on cannabis possession and use. The federal government’s response, particularly under the Obama Administration, has been to step up enforcement efforts. And what is the GOP response? Falling in line behind the Administration. Former New Mexico Governor Gary Johnson was excluded from the GOP primary debates and when vice presidential nominee Paul Ryan had the temerity to suggest states should be allowed to set their own pot policies, he was quickly muzzled by the Romney campaign. Justices O’Connor, Rehnquist, and Thomas were willing to question federal authority over local drug possession, but conservative politicians have, as a general rule, failed to follow suit.

The GOP’s dominant approach to marijuana legalization is both bad policy and bad politics. As Betsy Woodruff writes on NRO:

If the GOP is going to be competitive in 2016, it has to communicate to young people that intrusive federal government makes their lives worse. It has to communicate that it’s the party that respects personal choice and individual responsibility. And it would probably help to communicate that when in doubt, the GOP doesn’t automatically take the side of the insanely expensive branch of the federal government that breaks into people’s homes, shoots their dogs, and imprisons them because they added a funny ingredient to their brownies.

Instead, as I’ve noted before, this issue is also an opportunity for Republicans to demonstrate a commitment to conservative principle and abandon its fair weather federalism. Alas, I’m not holding my breath.

Intelligence Squared is hosting a debate on the motion “Legalize Drugs” tomorrow evening, Wednesday, November 14, 6:45-8:30pm, at the Kaufman Center, 129 West 67th Street 
(btw Broadway and Amsterdam), New York City.

For the motion: Nick Gillespie, Editor-in-Chief of Reason.com and Reason TV, and Prof. Paul Butler, my colleague at Georgetown Law. Against the motion: Asa Hutchinson, former Administrator of DEA, and Theodore Dalrymple of the Manhattan Institute.

These debates are usually quite good, and this one is particularly timely in light of the recent referenda in Colorado and Washington. (Full disclosure: my father is the Chairman of IQ2US, and I am on the Board of Advisors). One interesting feature is that the live audience votes on the motion both before the debate and after, so it is possible to know which side “won” in the sense of changing the most minds. You can also vote online, here.

Tickets are available here. If you can’t make it to the live debate, you can watch live online here, or download the NPR podcast via iTunes next week, here.

In a significant political breakthrough for opponents of the War on Drugs, Colorado and Washington voters passed referenda legalizing marijuana tonight. To my knowledge, these wins are the first time that any state has passed a referendum initiative that legalizes marijuana generally, as opposed to only for medical purposes. For reasons I outlined here, this is an important blow against the War on Drugs, and an indication that public opinion is gradually becoming more favorable to legalization. Colorado and Washington are both good-size states, and the former is a key political swing state. Massachusetts voters approved a less significant initiative that legalizes medical marijuana only.

Unfortunately it appears that Oregon voters rejected a marijuana legalization initiative in their state, and Arkansas (a very socially conservative state) has voted down the legalization of medical marijuana. Still, the overall trend is clearly positive for the legalization cause. As I explained in 2010, support for legalization has gradually been growing for decades, with each generation more supportive than their elders. For that reason, there is a good chance that we will see more progress on legalization in the future.