Category: reason

A bill moving through the Tennessee state legislature would reform the state’s harsh drug-free school zone laws, which were the subject of a 2017 Reason investigation.

The Tennessee House Judiciary Committee advanced a bill last Wednesday, sponsored by Republican state Rep. Michael Curcio, that would reduce the sizes of the zones. They currently cover the area within 1,000 feet of any school, park, library, or day care; the legislation would reduce that to 500 feet. It would also remove the mandatory minimum sentences for drug offenses within the zones and give judges discretion to waive sentencing enhancements in certain circumstances.

Tennessee’s laws blanket large swaths of the cities, turning minor drug violations into mandatory sentences that rival—and sometimes exceed—punishments for rape and murder.

“While this was well-intentioned, unfortunately this policy has not been accomplishing the outcome that the legislature intended,” Curcio said during Wednesday’s committee hearing. “The main reason for this failure is that drug offenders are not often affected by deterrence-based policies.”

“It would also be my argument today that these zones cast far too wide a net in our communities,” Curcio continued. “While 1,000 feet might not sound like a lot, over a quarter of the state’s total land area within city limits are within a zone.”

Curcio cited Reason‘s data showing that more than a quarter of the state’s total land area within city limits is covered by drug-free zones. For example, drug-free zones cover 38 percent of Memphis and 58 percent of East Knoxville.

Drug-free zones spread across all 50 states throughout the 1980s and ’90s, as legislators clamored for ways to keep drugs away from children. But civil liberties groups, and even some prosecutors, say the laws are rarely if ever used in actual cases of dealing drugs to minors. 

In Tennessee the laws apply even when school is out of session, when the defendant is in a private residence, or he or she just happens to be driving through a zone.

“The unintended consequence of such a large zone is that the law affects more individuals than the general assembly meant to target,” Curcio said.

One such case was Calvin Bryant, who at age 20 was sentenced in 2008 to 17 years in Tennessee state prison—15 of them mandatory—for selling ecstasy to a confidential informant out of his Nashville apartment, which happened to be within 1,000 feet of a school.

If Bryant had been convicted of second-degree murder, he would have been eligible for an earlier release. That crime carries a minimum 15-year sentence but includes a possibility for release within 13.

After serving 10 and a half years in prison, Bryant was released in 2018 after prosecutors struck a deal to release him on time served. Bryant now mentors inner-city youth through a nonprofit organization he started.

“I hold myself accountable for participating in a drug transaction, but do I feel like I should have gotten 17 years?” he testified at Wednesday’s hearing. “I don’t.”

Reason found another case of 20-year-old first-time offender who was sentenced to a mandatory 15 years in prison for selling psychedelic mushrooms to a confidential informant for $80.

Bryant told lawmakers that while he was incarcerated, he and other drug-free school zone offenders were ineligible for classes or other educational programming because of their mandatory minimum sentences.

“There were no chances for me to take classes with this charge because I was serving 100 percent, a mandatory minimum,” Bryant testified. “Due to us not earning good time, we don’t get to participate in classes, so it’s hard to better yourself in that kind of situation.”

Currently, 358 Tennessee inmates are serving sentences for drug-free school zone offenses, according to data from the Tennessee Department of Corrections obtained by Lauren Krisai, a senior policy analyst at the Justice Action Network. (Krisai is also the former criminal justice director of the Reason Foundation, which publishes this website, and she co-authored Reason‘s 2017 investigation.)

That number does not include cases where prosecutors dropped school zone charges in exchange for a guilty plea. The threat of a drug-free school zone charge gives prosecutors enormous leverage to extract plea deals.

“With the enhancement, what was happening was somebody might have a couple grams of cocaine, and they’d go to court, hoping to get probation for simple possession,” Nashville District Attorney Glenn Funk told Reason in 2017. “Their lawyer would then tell them it’s a school zone case, and they’re looking at 15 to 25 years in prison. The state offers them eight years to serve at 30 percent, or a 10-year probationary period or something. If the client persists, the lawyer has to say, ‘Do you feel lucky? Because if you go to trial and lose, you won’t be home for the next couple of decades.'”

Part of Funk’s platform when he ran for district attorney included prosecuting drug-free school zone offenses only in cases that involved child endangerment. 

State lawmakers introduced similar legislation in 2018, but that bill died in committee when district attorneys pulled their support.

Bryant told state legislators that he hopes future bills will include relief for those still incarcerated.

“It’s kind of rough when you’re sitting in prison and your injustice is being used for other people’s justice that haven’t really committed crimes yet,” Bryant said. “I pray there’s some relief for them down the line.

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People say a lot of things about the coronavirus. For instance, that the United States should “lock down our borders” in response, or that the Trump administration has recklessly “gutted” the Centers for Disease Control, or that the rubes have foolishly stopped drinking Corona for health reasons instead of taste reasons.

Nonsense cubed, argue Peter Suderman, Katherine Mangu-Ward, Nick Gillespie, and Matt Welch on a particularly metaphor-crazed Reason Roundtable podcast today. What is the “libertarian response to pandemics”? You’ll have to listen to find out. Other topics coming up for discussion: the unbearable oldness of the Democratic presidential field, the increasing sourness of sci-fi legend William Gibson, and whether baseball, Batman, or The Omega Man provide the surest blueprint for our times.

Audio production by Ian Keyser and Regan Taylor.

Music credit: ‘What It Is’ by Silent Partner.

Relevant links from the show:

“No, Trump Didn’t Cut the CDC’s Coronavirus Budget. No, People Aren’t Blaming Corona Beer for the Disease,” by Eric Boehm

“Political Opportunists Are Using Coronavirus Fears To Push Whatever Policies They Already Wanted,” by Eric Boehm

“Coronavirus: Is It Time To Panic?” by Elizabeth Nolan Brown

“Big Biotech Is Hustling To Beat Coronavirus,” by Ronald Bailey

“Joe Biden Wins South Carolina Primary, Slowing Bernie Sanders’ Momentum Before Super Tuesday,” by Eric Boehm

“Pete Buttigieg Drops Out of Presidential Race Following Poor South Carolina Showing,” by Scott Shackford

“Bloomberg Is a Statist, Not a Centrist,” by Matt Welch

“Klobuchar’s Tough-on-Crime Past Finally Comes Back to Bite Her,” by Elizabeth Nolan Brown

“The Cyberpunk Future That Wasn’t,” by Jesse Walker

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Now that COVID-19, the coronavirus disease that has infected an estimated 89,000 people worldwide, seems to spreading within the United States, we will hear more discussion of coercive measures aimed at curtailing it, including increased use of quarantines and mandatory cancellation of large-scale public events. In principle, an actual epidemic—as opposed to metaphorical “epidemics” of self-endangering behavior—can justify the use of force to protect the public against a potentially deadly threat that moves from person to person. But deciding whether a particular intervention is appropriate requires weighing several factors.

How easily is the disease transmitted?

While some pathogenic microorganisms, such as the Ebola virus, spread primarily through direct contact with the blood, bodily fluids, and skin of infected individuals, COVID-19, like the common cold, can be transmitted via airborne particles. According to the U.S. Centers for Disease Control and Prevention (CDC), COVID-19 “is thought to spread mainly from person to person” through “close contact,” defined as prolonged proximity within six feet. The virus also can spread through respiratory droplets generated by coughs and sneezes. The CDC adds that “it may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes, but this is not thought to be the main way the virus spreads.”

Although COVID-19 is easier to catch than Ebola, it is far less contagious than, for example, measles. “Measles is so contagious,” the CDC says, “that if one person has it, up to 90% of the people close to that person who are not immune will also become infected.” According to commonly cited estimates, the average measles carrier can be expected to infect 12 to 18 people in a susceptible population. The World Health Organization estimates that the corresponding number for COVID-19 is between 1.4 and 2.5, compared to roughly 1.3 for influenza.

How deadly is the disease?

The current estimate of fatalities caused COVID-19 is about 3,000 out of 89,000 identified cases, which suggests a death rate of 3.4 percent. But there is a lot of uncertainty about the denominator, since not all cases are confirmed and many cases in asymptomatic individuals probably have not been detected yet. A study of more than 72,000 COVID-19 patients in China, reported in The Journal of the American Medical Association, puts the fatality rate at 2.3 percent, essentially the same as the rate among 355 cruise ship passengers infected with the virus, according to a study published in the International Journal of Infectious Diseases.

The vast majority of cases (more than 80 percent in the China study) involve mild symptoms, and the death rate varies widely by age. In the China study, the death rate was 8 percent for patients in their seventies and nearly 15 percent for patients 80 or older. The death rate also was especially high among people with pre-existing medical conditions: 10.5 percent for cardiovascular disease, 7.3 percent for diabetes, 6.3 percent for chronic respiratory disease, 6 percent for hypertension, and 5.6 percent for cancer. No deaths among children 9 or younger were reported.

The 2.3 percent overall case fatality rate (CFR) for COVID-19 is much lower than the rates for the SARS (severe acute respiratory syndrome) outbreak of 2003 (9.6 percent) and the ongoing MERS (Middle East respiratory syndrome) outbreak (34.4 percent). Estimated CFRs for the 2009 influenza pandemic vary widely, with some studies reporting rates as high as 10 percent. The CFR for the 1918 Spanish flu pandemic, which affected about one-third of the world population and caused some 50 million deaths, was somewhere between 2 percent and 5 percent.

How long is the incubation period?

The World Health Organization says someone can be infected by COVID-19 for up to 14 days without showing symptoms.

How severe is the proposed intervention?

The Chinese government imposed a quarantine on the area around Wuhan, a city of 11 million that was at the center of the COVID-19 outbreak. It also imposed travel restrictions that have affected around 780 million people. In the United States—where 90 cases have been reported so far, including six fatalities—such interventions have been much more narrowly tailored, limited to restrictions on foreign visitors, isolation of hospitalized COVID-19 patients, mandatory quarantines of travelers returning from areas affected by the epidemic, and voluntary home quarantines of people who have been infected but do not require treatment.

The legal authority for such measures is broad. The Public Health Service Act empowers the secretary of health and human services to “to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.”

In Washington, the first state to see signs of COVID-19 transmission within the local community, the state board of health is charged with writing “rules for the imposition and use of isolation and quarantine.” Under the board’s rules, a local health officer, “at his or her sole discretion,” can issue “an emergency detention order causing a person or group of persons to be immediately detained for purposes of isolation or quarantine” when he “has reason to believe” that they are infected by a “communicable disease” and that they “would pose a serious and imminent risk to the health and safety of others if not detained for purposes of isolation or quarantine.”

A health officer also can seek an ex parte court order to enforce isolation or quarantine, which the court “shall issue” if there is a “reasonable basis to find that isolation or quarantine is necessary to prevent a serious and imminent risk to the health and safety of others.” Those orders last up to 10 days but can be extended up to a month by a court, based on “clear, cogent, and convincing evidence that isolation or quarantine is necessary to prevent a serious and imminent risk to the health and safety of others.”

There are several restrictions on that authority. The health officer must first make “reasonable efforts, which shall be documented, to obtain voluntary compliance” or else determine, “in his or her professional judgment,” that “seeking voluntary compliance would create a risk of serious harm.” The rules also specify that “isolation or quarantine must be by the least restrictive means necessary to prevent the spread of a communicable or possibly communicable disease to others.” The health status of individuals subject to orders “must be monitored regularly to determine if they require continued isolation or quarantine,” and they “must be released as soon as practicable” when the health officer determines that they no longer pose a threat. Quarantined or isolated individuals have a right to petition for release, with the assistance of court-appointed counsel, in which case the government has to “show cause” for their continued detention.

Is the intervention likely to be effective?

It remains controversial whether China’s quarantine of the Wuhan area and the associated travel restrictions did much to slow the spread of COVID-19. Critics of the Chinese quarantine argued that it entailed a massive violation of civil liberties and was in some respects counterproductive.

“There have, in fact, been numerous, and in some cases fatal, unintended knock-on effects of the quarantine,” Sharon Begley noted last month in a STAT News story. “People were unable to reach sick, elderly parents in Wuhan, let alone take them out of the city for treatment of heart disease, cancer, diabetes, and other illnesses. This week, UNAIDS announced that one-third of people in China who are living with HIV reported that because of lockdowns and travel restrictions they were at risk of running out of their HIV medications within days. And China’s economy has slowed to a crawl.”

Nor is it clear that the more targeted approach in the United States will have much of an impact. “A substantial proportion of secondary transmission may occur prior to illness onset,” three researchers at Japan’s Hokkaido University wrote in an analysis published last month. “Pre-symptomatic transmission…may even occur more frequently than symptomatic transmission.” Quarantine and isolation cannot reach carriers who do not seem to be sick and have no known risk factors, such as visiting the Wuhan area or interacting with COVID-9 patients.

Are quarantines a proportionate response to the threat that COVID-9 poses in the United States? “I don’t think that we have seen enough proof, in any cases, that quarantine is necessary for this particular virus,” bioethicist Kelly Hills told Business Insider last month. “It doesn’t meet what we would consider the minimum standards necessary for violating somebody’s civil rights.”

In a Journal of the American Association commentary published last month, bioethicists Lawrence Gostin and James Hodge argued that “quarantines of passengers arriving from mainland China appear excessive and are inconsistent with available epidemiologic data.” They noted that “thousands of US residents who have returned from China are already sheltering at home,” adding that “home quarantine orders are lawful, effective, and more respectful of individual rights to liberty and privacy than restrictive, off-site measures.”

The Cato Institute’s Alex Nowrasteh argues that “extreme options like travel and immigration bans” would be more expensive than can be justified based on what we currently know about COVID-9. “The cheapest and most effective way to combat the transmission of flu-type viruses is proper hand hygiene,” he notes, recommending increased use of hand sanitizers, especially at airports and nursing homes.

Nowaresteh also notes that mass quarantines can backfire. “It’s difficult to know who is sick and who is not, so quarantines end up locking many sick people in with many healthy people,” he writes. “Healthy people and those who think they are healthy understand accurately that they would reduce their chance of becoming ill if they emigrate. By doing that, some people transmit the disease. Under some scenarios, the stricter the quarantine, the more people invest in emigrating. Sometimes, this behavioral response results in wider transmission of the disease.”

In a society that values civil liberties, forcibly detaining people who may be carrying a disease that is readily transmissible but has a relatively low case fatality rate is not a step that should be taken lightly. And assuming it can be justified, the burdens it imposes should be mitigated as much as possible.

The New York Times recently highlighted the case of Frank Wucinski, a Pennsylvania native who was evacuated from Wuhan with his 3-year-old daughter in early February. They spent 14 days in quarantine, including two mandatory stays at a children’s hospital near San Diego. Afterward Wucinksi was billed about $4,000 for medical services he was forced to receive. People deprived of their freedom for the benefit of the general public through no fault of their own should be indemnified against such costs.

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After 2017’s mass shooting in Las Vegas, Donald Trump vowed to use the powers of the presidency to ban bump stocks, a type of firearm accessory that the shooter reportedly used. “We can do that with an executive order,” Trump declared. “I’m going to write the bump stock; essentially, write it out….They’re working on it right now, the lawyers.”

What the lawyers at the Department of Justice ultimately came up with was a new rule amending “the Bureau of Alcohol, Tobacco, Firearms and Explosives regulations to clarify that [bump-stock-type devices] are ‘machineguns’ as defined by the National Firearms Act of 1934 and the Gun Control Act of 1968” because “such devices allow a shooter of a semiautomatic firearm to initiate a continuous firing cycle with a single pull of the trigger.” The federal ban on machine guns, in other words, would now be interpreted by the Trump administration to cover bump stocks too.

“Where was Congress in all of this?” you might ask. “Isn’t it the job of the legislative branch—not the executive—to change the meaning of a federal law?” Not according to Trump’s Department of Justice. In the final bump stock rule published in the Federal Register, the agency justified its actions by invoking a controversial Supreme Court opinion that says the executive should enjoy broad deference when interpreting the meaning of “ambiguous” federal legislation. “When a court is called upon to review an agency’s construction of the statute it administers,” the bump stock rule states, “the court looks to the framework set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.”

Today, Justice Neil Gorsuch threw a little shade at the Trump administration for unilaterally rewriting federal gun laws. “The agency used to tell everyone that bump stocks don’t qualify as ‘machineguns.’ Now it says the opposite. The law hasn’t changed, only an agency’s interpretation of it,” Gorsuch wrote. “How, in all of this, can ordinary citizens be expected to keep up—required not only to conform their conduct to the fairest reading of the law they might expect from a neutral judge, but forced to guess whether the statute will be declared ambiguous….And why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?”

Gorsuch’s statement came attached to the Supreme Court’s denial of certiorari in Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives. Damien Guedes, who challenged the legality of Trump’s bump stock ban, recently lost before the U.S. Court of Appeals for the District of Columbia Circuit, which said the ban was entitled to judicial deference under the Chevron precedent. The Supreme Court today declined to hear Guedes’ case.

Gorsuch agreed with that. “Other courts of appeals are actively considering challenges to the same regulation,” he wrote, and “before deciding whether to weigh in, we would benefit from hearing their considered judgments.” But, he added, waiting for the right case to come along “should not be mistaken for lack of concern.”

In fact, Gorsuch suggested, the right case could not come along fast enough. “The law before us carries the possibility of criminal sanctions,” Gorsuch wrote. “Before courts may send people to prison, we owe them an independent determination that the law actually forbids their conduct. A ‘reasonable’ prosecutor’s say-so is cold comfort in comparison.”

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Sunday night’s rally in the Minneapolis suburbs was supposed to be a warm welcome home for U.S. Sen. Amy Klobuchar (D–Minn.) ahead of Minnesota’s primary tomorrow.

Instead, crowds of protestors compelled Klobuchar to cancel the event. Less than 24 hours later, her campaign for the presidency is over—the Associated Press, CNN, and other outlets are reporting that Klobuchar will officially drop out of the race later tonight. She is expected to endorse former Vice President Joe Biden, The New York Times reports.

The fact that her campaign comes to an end on the eve of what was supposed to be a home state primary win is somewhat fitting. It was the people who know Klobuchar the best who dealt a final blow to a campaign that was already running out of steam, despite a decent showing in Iowa and a surprising third-place finish in New Hampshire.

Sunday’s protests sought to call attention to Klobuchar’s record on criminal justice issues, including the role she played, as a Hennepin County prosecutor, in the 2003 conviction of Myon Burrell, who was given a life sentence for the killing of an 11-year old girl struck by a stray bullet. Evidence suggests Burrell may have been wrongly convicted, and the case has become a lightning rod for Klobuchar’s critics since she boasted about Burrell’s conviction on the campaign trail.

Indeed, as Reason‘s Elizabeth Nolan Brown noted back in March 2019, Klobuchar is a cop too, just like fellow former candidate Kamala Harris. And while it took a little longer for her record to catch up with her than it did for Sen. Harris (D–Calif.), Klobuchar was ultimately undone by the gap between her record at home and the persona she peddled on the campaign trail. In Iowa and New Hampshire, she was the Midwestern Mom making bad jokes, talking about hot dish, and offering pragmatic alternatives to the pie-in-the-sky promises made by the candidates arrayed to her left. But she could never really escape the gravitational pull of her record as a county prosecutor who protected cops who killed innocent black men, opposed ending the wars on drugs and on sex work, and, as the Burrell case shows, favored harsh sentences even for underage offenders. If you didn’t hear a lot about Klobuchar’s record, that’s only because she was never viewed as a serious enough contender for the other campaigns to spend much time going after her.

As long as there wasn’t a clear sense of who would emerge as the centrist alternative to Sen. Bernie Sanders (I–Vt.), Klobuchar at least had a chance to hang around in the race. Saturday’s results in South Carolina—where Klobuchar finished a distant sixth with just 3.2 percent of the vote, while Biden finally seized his opportunity to take control of the Democrats’ moderate lane—meant it was really just a matter of time before she suspended her campaign.

Aside from her strong finish in New Hampshire, the high point of Klobuchar’s campaign was also probably the first time many Americans had met her. At a CNN town hall in February 2019, just after she’d entered the race, Klobuchar stood out for breaking with progressive Democrats on several big issues, like the Green New Deal and free college tuition.

“If I was a magic genie and could give that to everyone and we could afford it, I would,” she told CNN’s Don Lemon. “I’ve gotta tell the truth. We have a mountain of debt that the Trump administration keeps making worse and worse, and I don’t want to leave that on the shoulders of these kids too.”

There are no candidates in the Democratic field that can be rightfully considered deficit hawks, but Klobuchar might have been the next closest thing. She actually had a plan to tackle the growing debt—by establishing a dedicated fund to make a down payment on the debt, seeded with $300 billion she’d get by raising the corporate tax rate. And when other candidates promised trillions in new spending, it was often Klobuchar who would question how all that could be paid for.

She memorably clashed with former South Bend Mayor Pete Buttigieg at a number of debates, culminating in a series of particularly nasty personal attacks on one another in early February. Buttigieg ended his campaign on Sunday night, so Klobuchar can go back to the Senate knowing that she at least outlasted him.

In the end, Klobuchar’s 2020 campaign looks a lot like the underdog effort made by former Sen. Rick Santorum (R–Pa.) in 2012. Though Santorum lasted longer than Klobuchar, both were buoyed by an unexpectedly strong showing in Iowa, and both came across as likeable-if-unlikely alternatives to their heavyweight competitors. Santorum ended his challenge to eventual nominee Mitt Romney on the eve of the Pennsylvania primary, when polls suggested that his home state—which had handed Santorum a historically large landslide defeat for an incumbent senator in 2006—still wasn’t a fan of his.

Klobuchar probably wouldn’t have suffered the indignity of losing her home state on Tuesday, but she was unlikely to come close to winning anywhere else. And the protests at Sunday’s rally suggest that she may have work to do at home before facing the voters again in 2024, when she’s due to run for reelection to the Senate (or might make another bid for the White House).

Klobuchar’s exit will come with an endorsement for Biden, but it may end up boosting Sanders more. The self-proclaimed socialist from Vermont is running second in Minnesota in most polls, with Biden a distant third or fourth. Sanders won the state by a large margin in 2016, when Minnesota used caucuses before switching to a primary this year.

There are 75 delegates up for grabs in Minnesota on Super Tuesday, and Klobuchar’s sudden, unexpected departure means a race that not many may have been watching will now be one of the main prizes in what is increasingly looking like a two-horse race to the finish.

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