Category: reason

In America, “judgment” remains the sharply dominant spelling, by a factor of more than 10 to 1. The divide was even greater before about 2010:

(The graph shows the ratio of uses of “judgement” divided by the uses of “judgment,” and it’s under 10%.) The divide is likewise stark in American legal sources; a quick Westlaw search over the last week reported 2800 cases mentioning “judgment” and 72 “judgement.”

Curiously, in England, “judgement” has recently become a pretty common variant, being used for a few decades at at least half the rate of “judgment” (so that, of uses of both, a third are with the extra “e”).

I suspect that makes both standard in normal British English (I can’t speak to British legalese), much as “grey” and “gray” are both standard equivalents. But that’s only in Britain; in America, “judgment,” unusually spelled as it may be, is the dominant form, and using the spelling “judgement” is particularly likely to be seen as a mistake.

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President Joe Biden’s $1.9 trillion COVID-19 relief bill took its first major step toward passage over the weekend. But political circumstances and the current state of the pandemic suggest that Congress ought to reconsider this approach.

In comments to reporters on Saturday, Biden urged the Senate to take “quick action” to pass the bill after the House of Representatives passed it in the early morning hours that same day.

“We have no time to waste,” Biden said, according to a pool report. “If we act now decisively, quickly, and boldly, we can finally get ahead of this virus. We can finally get our economy moving again. And the people of this country have suffered far too much for too long. We need to relieve that suffering.”

Biden has been pushing this message since before he was inaugurated—the basic framework of this $1.9 trillion stimulus bill was announced in early January. He and congressional Democrats have touted the package as an urgently needed response to a still-out-of-control pandemic, a necessary step to getting schools reopened, and a way to help jobless Americans make ends meet until a full recovery is achieved.

That message is at odds with much of the bill itself, which is larded up with things like an increase to the federal minimum wage, funding for a new subway in San Jose, California, and billions of dollars in supposedly urgent school funding that wouldn’t actually be used for years to come. About $312 billion of the bill’s overall spending has nothing to do with the pandemic at all, according to an analysis by the nonpartisan Committee for a Responsible Federal Budget (CRFB), including changes to tax credit programs for parents and an expansion of the Affordable Care Act’s health insurance subsidies.

The package would also spend about $500 billion bailing out state and local governments, far in excess of what would repair COVID-19 budget holes. The American Enterprise Institute, a conservative think tank, estimates that states and local governments need about $100 billion in direct aid, while the Center for Budget and Policy Priorities, a progressive think tank, has called for $225 billion in aid. Part of the discrepancy is due to the fact that the Biden plan was built around the assumption that state budgets would be facing an 8 percent decline in revenue this year. The Wall Street Journal reports that state tax revenue declined by a mere 1.6 percent instead.

Beyond all that, a clear-eyed assessment of how the federal government should respond to COVID-19 in March 2021 must also take into account the fact that the pandemic is clearly ebbing. This weekend saw new daily records for vaccinations and the approval of a third vaccine by the Food and Drug Administration, a development that promises even more vaccine supply in the weeks and months ahead. New cases, current hospitalizations, and daily deaths have fallen to levels not seen in months. It’s not over yet, of course, but the current situation seems significantly different from where things stood in early January.

Senate Democrats appear willing to make some changes to the bill before putting it up for a vote. The much-discussed minimum wage increase is likely to be removed now that Senate Parliamentarian Elizabeth MacDonough has ruled that the wage hike could not be passed with a simple majority via the reconciliation process. Meanwhile, CNBC reported on Monday that Senate Democrats are abandoning plans to include a backdoor minimum wage hike that could have been accomplished by revoking tax breaks from businesses that pay workers less than $15 per hour.

It’s good to remove a job-killing proposal that’s completely unrelated to the pandemic. Still, more could be done. Given current economic and COVID trends, Congress could revisit a smaller, bipartisan proposal that Democratic leaders rejected in early February for being insufficiently expensive. That earlier plan would have spent about $618 billion, with the funding focused on direct payments to many Americans, expanded unemployment benefits, and money aimed at reopening schools.

Now Rep. Peter Meijer (R–Mich.) is touting a revamped version of that proposal as the Direct Dollars Over Government Excess (DOGE) plan. (Yes, it’s named for that dog meme.) Meijer contrasts it with the Biden bill, which he calls a “grab bag of gifts for special interests.”

Meijer’s plan would send direct payments of up to $2,400 to individuals who earned less than $50,000 last year and households that earned less than $100,000. That’s $1,000 more per person than the Biden plan would provide, but with payments phasing out at lower levels. The DOGE plan would also extend the boosted federal unemployment payments of $200 per week (down from the current level of $300 per week and Biden’s proposal of $400 per week) through the end of July.

Meijer says his proposal would cost about $992 billion. That means removing the chaff from the House-passed relief bill could save as much as $1 trillion from being added to the national debt—and every little bit helps, considering that COVID-19 emergency spending has already added about $3.3 trillion to the deficit, according to the CRFB.

Needless to say, Senate Democrats are unlikely to seriously consider any alternative to the House-passed bill at this stage. We’re likely instead to see some much more modest tinkering, after which the Senate will send the Biden plan back to the House, which will then pass the new version and send it to the president’s desk.

And you can expect that to happen pretty quickly now. The longer Congress delays, the more apparent it will become that the need for a major bill has evaporated.

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Rep. Ayanna Pressley (D–Mass.) has reintroduced a bill to end qualified immunity, a legal doctrine that makes it difficult for the public to hold government officials accountable for alleged misconduct.

Former Rep. Justin Amash (L–Mich.) originally unveiled the Ending Qualified Immunity Act in June 2020 after the police killing of George Floyd. Pressley signed on as cosponsor a few days after, though the bill died without ever receiving a vote.

The Ending Qualified Immunity Act of 2021, which Sens. Ed Markey (D–Mass.) and Elizabeth Warren (D–Mass.) are cosponsoring in the Senate, endeavors to do the exact thing same as its predecessor: abolish qualified immunity for all state actors.

The American public maintains the right to sue civil servants who violate their rights under Section 1983 of Title 42 of the U.S. Code. But the Supreme Court has radically limited that right over the years. First, there was the decision in Pierson v. Ray (1967), which held that public officials may avoid civil suits if constitutional violations were made in “good faith.” In Harlow v. Fitzgerald (1982), the high court took that a step further: Victims may not sue state actors for misbehavior unless that misbehavior was “clearly established” in previous case law.

In other words, in order to have the right to bring a case before a jury, a plaintiff must be able to point to a court precedent that explicitly describes the situation in question to a tee. Qualified immunity has protected two cops who stole $225,000 while executing a search warrant, a cop who damaged a man’s eye after allegedly kneeing him 20 to 30 times after he had been subdued, a prison guard who hid while an inmate raped a nurse, two cops who beat and arrested a man for standing outside of his house, a cop who ruined a man’s vehicle during a bogus drug search, a cop who shot a 10-year-old, and a cop who shot a 15-year-old.

In all of those cases, the victims were left with no avenue for recompense.

“It is the sense of the Congress that we must correct the erroneous interpretation” of Section 1983, the bill says, “and reiterate the standard found on the face of the statute, which does not limit liability on the basis of a defendant’s good faith beliefs or on the basis that the right was not ‘clearly established’ at the time of the violation.”

The Supreme Court has demurred at the opportunity to fundamentally reevaluate the doctrine. But it has started to send messages to the lower courts that the current application of qualified immunity no longer cuts it. In November, it overturned an appeals court decision that awarded qualified immunity to a group of correctional officers who forced a naked inmate into two deplorable cells, one teeming with sewage and the other with “massive amounts” of human feces. And just last month, it reversed another appeals court decision that gave qualified immunity to a prison guard who had pepper-sprayed an inmate without provocation.

Lawmakers are poised to vote soon on the Justice in Policing Act, a reform bill that would end qualified immunity for cops. Pressley’s bill eliminates it for all public officials—a relevant tidbit, when considering that the last two SCOTUS decisions on the issue pertained to correctional officers, not police officers. Moderate Democrats have begun backing away from that provision, however, in some cases because they face tough re-election challenges and want support from police unions.

Meanwhile, the GOP has largely resisted such reforms. Sen. Mike Braun (R–Ind.) did introduce a bill last summer that would have effectively paralyzed qualified immunity, but he abandoned it after scuffling with Fox News host Tucker Carlson. Amash’s bill only boasted one Republican cosponsor, Rep. Tom McClintock (R–Calif.).

But the American public is on board. The majority of the country supports reform, with high-profile attempts gaining steam. Citing Reason‘s reporting on the issue, players from the NFL, MLB, and NBA urged Congress to support Amash’s bill last June.

One big hurdle at the time was then-President Donald Trump, who said that qualified immunity reform would merit an automatic veto. Will President Joe Biden, who has said that he isn’t ready to end the doctrine, be any better? His national press secretary told me during the campaign that he wants to see it “severely reined in.” He did not provide details as to what that meant.

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Facebook has relented, somewhat, in Australia. The social media company has worked out deals with three publishers in exchange for lifting a policy banning Australian Facebook users from linking to news stories from Australia-based outlets.

It’s the latest salvo in a war over the financial disaster facing the press due to a loss of advertising revenue. The internet has overtaken traditional print outlets as the primary venue for classified advertising. Newspapers have struggled to fill this void. Many have failed.

There’s nothing wrong with introducing a better way to advertise goods and services. But media companies and allied politicians have been treating Google and Facebook as though they’ve stolen money owed to publishers. And so there’s been a push to require social media companies and search engines to make up that lost advertising revenue.

The tech companies have been resisting, noting that it’s the media outlets that have been gaining with increased readership. While this is definitely true, it hasn’t been enough to make up for the loss of ad money. So media outlets have been pushing governments to demand that tech companies subsidize them.

This hit a boiling point in Australia last month when Facebook found itself facing legislation that would force tech companies to pay for links to media outlets, with the amounts to be determined by compulsory arbitration. In response, Facebook simply stopped allowing users to share news stories from Australian media outlets. Facebook officials pointed out that their company is not Google, and that news sharing is not a significant source of its revenue or a major driver of Facebook use. The company’s critics then inaccurately accused the social media giant of censoring an entire country.

A better description of Facebook’s move would be “a negotiating stance.” Last week the proposed law was altered so that the government can force arbitration only if the two sides can’t come to an agreement, and then it was passed. That still gives government a lot of power to dictate the financial relationship between two private entities, but it seemed to be enough for Facebook. The company announced that it had signed letters of intent with three independent media outlets: Private Media, Schwartz Media, and Solstice Media.

The Associated Press observes that these deals also apparently come with promises to remove content from behind paywalls. That’s a clever demand—if the media outlets are going to insist that they need Facebook money to survive, they shouldn’t be blocking Facebook users from reading the content.

There is a big downside to these deals, beyond the fact that the government is forcing one industry to subsidize another. Not every media outlet is going to be offered these agreements, and the terms will almost certainly favor the larger media outlets. This will help entrench the media status quo and protect incumbents from upstart competition.

The New York Times reports:

Any news publisher with more than 150,000 Australian dollars in annual revenue could seek to register as a party to the code, giving it the ability to force a company like Facebook into a negotiation.

The law would also grant enormous discretion to the federal treasurer. Mr. Frydenberg would have the power to designate which companies must negotiate under the code’s provisions, while also deciding which media companies were able to register.

It’s a problem that government officials will have the power to decide who companies like Facebook and Google have to negotiate with. Nick Clegg, the former British deputy prime minister who is now Facebook’s vice president of global affairs, has noted that the Australian law demanded that Facebook “pay potentially unlimited amounts of money to multi-national media conglomerates under an arbitration system that deliberately misdescribes the relationship between publishers and Facebook—without even so much as a guarantee that it is used to pay for journalism, let alone support smaller publishers.”

Clegg also blasted News Corp. and conservative media mogul Rupert Murdoch for turning to the government to force Facebook into arbitration: “It is ironic that some of the biggest publishers that have long advocated for free markets and voluntary commercial undertakings now appear to be in favor of state sponsored price setting.”

Facebook has warned that it could still shut news linking off entirely if it doesn’t like a media outlet’s terms, government arbitration notwithstanding. We’ll have to wait to see if that actually happens.

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The Washington Supreme Court effectively decriminalized simple drug possession in that state last week by overturning a law that made possession a felony without any evidence of intent or knowledge. In an opinion issued on Thursday, the court concluded that the absence of a mens rea (“guilty mind”) requirement violated the right to due process. As a result of that decision, Washington police have stopped arresting people for simple possession, while prosecutors are dropping pending cases and seeking orders vacating past convictions under the law.

The case involved a Spokane woman named Shannon Blake, who was arrested in 2016 during a vehicle theft investigation. A corrections officer at the jail found a small plastic bag of methamphetamine in the coin pocket of Blake’s secondhand jeans, which a friend had given her two days before. Blake said she did not use meth and had no idea she was carrying it. But under Washington law, she was still guilty of possessing a controlled substance, a felony punishable by up to five years in prison and a $10,000 fine.

Washington was the only state that criminalized innocent, unknowing possession of illegal drugs. The Washington Supreme Court has repeatedly held that the statute under which Blake was convicted does not require evidence of knowledge or intent. “If the legislature had intended guilty knowledge or intent to be an element of the crime of simple possession of a controlled substance,” the court ruled in 1981, “it would have put the requirement in the act.” Twenty-three years later, the court reiterated that the legislature had made drug possession a strict liability crime.

Despite that well-established understanding of the law, the court had never before addressed the question of whether the omission of a mens rea element made the law unconstitutional. But in their decision overturning Blake’s conviction, Justice Sheryl Gordon McCloud and four of her colleagues ruled that “the state legislature’s exercise of its otherwise plenary police power to criminalize entirely passive and innocent nonconduct with no mens rea or guilty mind violates the due process clause of the state and federal constitutions.”

Writing in dissent, Justice Debra Stephens said the court could have fixed the problem by reading a mens rea requirement into the statute. But in the majority’s view, the court’s longstanding decisions that declined to do so, combined with the legislature’s failure to change the statute in light of those rulings, foreclosed that option. “We have overwhelming evidence that the legislature intends the simple possession statute to penalize innocent nonconduct,” it said, “and we have overwhelming legal authority that this violates the due process clauses of the state and federal constitutions.”

In response to the decision, the Seattle Police Department announced that “officers will no longer detain [or] arrest individuals” for simple possession. Spokane Police Chief Craig Meidl likewise said “we will still seize [controlled substances] as contraband, but there will not be any criminal sanctions.” The Washington Association of Sheriffs & Police Chiefs told its members that “law enforcement officers are no longer authorized to conduct a criminal investigation, effect an arrest, seek a search warrant or take any other law enforcement action for simple possession of controlled substances.”

The Associated Press reports that the Washington Association of Prosecuting Attorneys “instructed its members to immediately drop any pending cases for simple drug possession, to obtain orders vacating the convictions of anyone doing time for simple drug possession, and to recall any arrest warrants issued in such cases.” The article adds that “people who were subject to forfeiture cases could seek redress for the loss of their property.”

The state legislature can—and probably will—recriminalize simple possession by amending the statute to include a mens rea element. A bill introduced by state Sen. Steven Hobbs (D–Lake Stevens) would add the word knowingly to the provision making it “unlawful for any person to possess a controlled substance” without a prescription. “Right now, you can have controlled substances and not get arrested,” Hobbs told KOMO News on Friday. “It’s kind of crazy. I know several states have gone through this very problem before and now it’s our turn, and we have to fix it right away.”

A bill narrowly approved by the House Public Safety Committee on February 15 offers an alternative: Like a ballot initiative that Oregon voters passed in November, the Pathways to Recovery Act would eliminate criminal penalties for possessing “personal use amounts” of drugs while expanding addiction treatment services. The bill envisions a program of “peer-driven, noncoercive outreach and engagement” for people with drug problems.

As it stands, Oregon and Washington are the only states where drug use is not treated as a crime. Rep. Lauren Davis (D–Shoreline), the main sponsor of the Pathways to Recovery Act, thinks drug use should instead be treated as a disease. “It is imperative that we stop handing down felony possession convictions that compound shame and create barriers to recovery,” she told Marijuana Moment. “We must stop criminalizing symptoms of a treatable brain disease.” Her bill likewise says “substance use disorder is among the only health conditions for which a person can be arrested for displaying symptoms.”

This view mistakenly describes a pattern of behavior as a brain disease. As Davis’ bill notes, people choose to take drugs for identifiable reasons. For example, “People use drugs to escape the painful reality of their lives and circumstances, including trauma that has never had a chance to heal.” Characterizing those decisions as the product of a disease denies the autonomy and moral agency of drug users, implying that their choices not only do not matter but, strictly speaking, do not even exist.

Although Davis, to her credit, favors a “noncoercive” approach to addiction, many other politicians, including President Joe Biden, think drug users should be forced into treatment under the threat of incarceration, then locked in “rehab centers” rather than jails or prisons. They counterintuitively present that policy as an enlightened and humane alternative to criminalization.

The focus on addiction as a brain disease also ignores the experiences of most drug users, who neither want nor need the “help” that Biden would like to foist upon them. The injustice of our drug laws should be clear from the simple fact that they authorize the arrest and imprisonment of people for peaceful conduct that violates no one’s rights. That policy is morally abhorrent regardless of whether its victims qualify for a diagnosis of “substance use disorder.”

Sen. Hobbs thinks “it’s kind of crazy” that people cannot be arrested and locked in a cage for possessing an arbitrarily proscribed intoxicant. To the contrary, it’s the policy Hobbs supports that is manifestly irrational.

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