How Truth Became a Casualty of the War on Smoking

The Rediscovery of Tobacco: Smoking, Vaping, and the Creative Destruction of the Cigarette, by Jacob Grier, Kindle Direct, 267 pages, $14.99

The Cigarette: A Political History, by Sarah Milov, Harvard University Press, 394 pages, $35

When Clara Gouin started running the Group Against Smokers’ Pollution (GASP) out of her College Park, Maryland, living room in 1971, she was rebelling against social norms she deemed oppressive. “Gouin was a housewife and the mother of two daughters, the youngest of whom had an allergy to smoke,” University of Virginia historian Sarah Milov writes in The Cigarette: A Political History. “The child’s reaction to cigarettes was so severe that it prevented the family from going out to eat. Even worse than being restricted in public was the expectation that nonsmokers had to accommodate smoking guests in their own homes. Ashtrays in the homes of nonsmokers were monuments to smokers’ supremacy. ‘What doormats we were!’ Gouin recalled thinking as she lay awake one night contemplating nonsmokers’ powerlessness.”

The understandable grievances of put-upon nonsmokers like Gouin gave birth to a movement that ultimately banished smokers from nearly every place they might want to light up. In many jurisdictions, that includes outdoor spaces. Sometimes it even includes smokers’ own homes. Half a century after Gouin founded GASP, as Jacob Grier shows in The Rediscovery of Tobacco, the dwindling minority of cigarette smokers (15 percent of American adults in 2019, per Gallup, down from 45 percent in 1954) is the group with the more plausible complaint of oppression.

Grier—a writer, bartender, and cocktail consultant who enjoys the occasional cigar and pipe but says humanity would have been far better off if the mass-produced cigarette had never been invented—is by no means calling for a return to the situation that Gouin found intolerable. “The proper path,” he says, “lies somewhere between ignorant pleasure and outright prohibition.”

Grier argues, for example, that state and local governments should allow smoking among consenting adults in certain contexts, such as bars and restaurants that want to offer the option. Even that modest plea is bound to provoke the ire of activists who will settle for nothing less than the “smoke-free society” that C. Everett Koop, surgeon general during the Reagan administration, deemed achievable “by the year 2000.” Unlike Milov, who tells the story of the anti-smoking movement mainly as a triumph of public-spirited citizens over conniving capitalists, Grier details the costs of that victory, including unjustified coercion, politicized science, and a fanatical refusal to admit that different kinds of nicotine consumption pose different levels of risk.

Even Milov acknowledges that the push for smoking bans sometimes got ahead of the science concerning the dangers of secondhand smoke. Koop’s “rather sweeping statements” on the subject in the preface to his 1986 report The Health Consequences of Involuntary Smoking, she notes, “gave way in the subsequent 300 pages to much more hedged and nuanced interpretations of scientific studies.” At that point, she says, secondhand smoke was “an issue where actual uncertainty existed, where scientists of good faith disagreed on the magnitude of the risk if not on the existence of risk itself.”

Although Milov leaves readers with the impression that the uncertainty was subsequently eliminated, Grier shows that the scientific case against secondhand smoke has never been as strong as activists and public health officials claimed. He notes a telling 2013 article published in the Journal of the National Cancer Institute under the headline “No Clear Link Between Passive Smoking and Lung Cancer.” The article described a large prospective study of 76,000 women that “confirmed a strong association between cigarette smoking and lung cancer but found no link between the disease and secondhand smoke.” While “we don’t want people to conclude that passive smoking has no effect on lung cancer,” one of the researchers said, “this analysis doesn’t tell us what the risk is, or even if there is a risk.”

An expert quoted by the journal, University of Chicago oncologist Jyoti Patel, “said the findings were not new,” adding: “Passive smoking has many downstream health effects—asthma, upper respiratory infections, other pulmonary diseases, cardiovascular disease—but only borderline increased risk of lung cancer. The strongest reason to avoid passive cigarette smoke is to change societal behavior: to not live in a society where smoking is a norm.” Another expert, Medical University of South Carolina internist Gerard Silvestri, said “it’s only the heaviest exposure that produces the risk.” He added that we “kind of knew that before.”

Those measured remarks, published by an eminent journal, came after decades when activists successfully lobbied for smoking bans by implying that the slightest whiff of tobacco smoke just might kill you, emphasizing the lung cancer risk in particular. The overriding goal, as Patel acknowledged, was not to dispense scientifically informed health advice but to denormalize smoking.

Having won that war, tobacco controllers can afford to speak a bit more candidly about the hazards of secondhand smoke. “In previous decades,” Grier notes, “any researcher caught saying such a thing would have been hounded relentlessly by their peers and scrutinized for the most tenuous ties to Big Tobacco. What changed? Not the science, but the politics.”

Some activists, such as Stanton Glantz, a co-founder of Americans for Nonsmokers’ Rights who now directs the Center for Tobacco Control Research and Education at the University of California, San Francisco, went beyond downplaying the subtleties of the scientific evidence. Since 2003, Glantz has been promoting the highly implausible claim that bans on smoking in bars and restaurants cause immediate and dramatic reductions in heart attacks—as large as 60 percent, according to his initial report. While substantial post-ban drops can be observed in small, cherry-picked cities, those putative effects disappear when researchers look at large populations or large numbers of jurisdictions and take into account pre-existing trends.

The claim that smoking bans instantly and conspicuously reduce heart attacks was nevertheless parroted by advocates of such laws, credulously reported by news outlets, and even endorsed by a 2009 Institute of Medicine report, which omitted one of the most important countervailing studies. “The myth that banning smoking in bars and restaurants will bring about astounding reductions in the rate of heart attacks is now dead and buried in the scientific literature,” Grier observes, “but for years the false promise of heart miracles has influenced public debate.”

Grier also considers attempts to generate alarm about “thirdhand smoke”: tobacco combustion residue lurking in rooms where people have smoked or on the clothing and bodies of smokers themselves. If “fear of secondhand smoke alienated smokers by forcing them to step outside,” he writes, “fear of thirdhand smoke makes them untouchable pariahs.” Such fearmongering “exposes the extent to which the anti-smoking movement has abandoned scientific credibility,” he says. “Prominent anti-tobacco researchers…will promote any finding that helps delegitimize tobacco use, no matter how far-fetched or unsupported by the evidence.”

That trend also disturbs Boston University public health professor Michael Siegel, a longtime anti-smoking activist and former Glantz protégé who nowadays regularly criticizes the alarmist claims and ad hominem reasoning of his erstwhile allies. Siegel is especially dismayed by the anti-smoking movement’s irrational resistance to e-cigarettes as a harm-reducing alternative to conventional, combustible cigarettes.

“Driven by an almost puritanical inability to accept the fact that a person could obtain pleasure from nicotine without it killing them,” Siegel says in a blog post that Grier quotes, “we have made the demonization of vaping the solitary goal of the movement, at the direct expense of what I always believed was our primary goal: to make smoking history.” For dissidents like Siegel, it’s clear that vaping—which is indisputably far less dangerous than smoking—should be embraced as a public health boon by people who say they want to reduce the death and disease caused by cigarettes.

Grier, who disdains cigarettes but would like to encourage an appreciation of high-quality tobacco products akin to the “slow food,” craft cocktail, and microbrew movements, does not exactly share Siegel’s goal of making smoking history. But both critics agree that activists have gone too far in stigmatizing smokers, sacrificing truth on the altar of ideology, and reflexively tarring anyone who disagrees with them as shills for Big Tobacco. The anti-smoking establishment’s generally hostile reaction to e-cigarettes, which superficially resemble the real thing but contain no tobacco and do not burn anything, is a sure sign that something has gone terribly wrong with a movement that once claimed to champion science.

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L.P. Presidential Hopeful Lincoln Chafee Is Against Iraq War and Drug War

Lincoln Chafee, the former Republican senator from Rhode Island (and former independent governor of the state) who is running for the Libertarian Party (L.P.) presidential nomination, is no fan of what he calls “the failed drug war.”

When he announced his presidential run earlier this week, he spoke out forcefully against the Iraq War and other military operations, telling Reason‘s Brian Doherty, “I am enthusiastically absolutely dedicated to not getting us into these quagmires overseas and ending foreign entanglements.” In the same interview, he said the Bush administration’s contention that Saddam Hussein possessed weapons of mass destruction was “the biggest lie in American history.”

Now, he’s speaking out against the drug war in similar fashion, tweeting, “The truth is that there is another war that needs to end. The failed war on drugs.”

He also told Marijuana Moment‘s Kyle Jaeger:

Internationally, our policies of eradication, substitution and interdiction are an abject failure and have caused vastly more harm than good…. At home our prisons are full of non-violent drug offenders. What we need is an active, open-minded discussion in this country that results in real criminal justice reform—and that includes decriminalization…. There are other models around the world, whether it’s Portugal or Uruguay or Holland, and we can learn from them.

Jaeger notes that during Chafee’s time as Rhode Island’s governor, he signed legislation decriminalizing marijuana possession “and urged the Drug Enforcement Administration to reschedule cannabis under federal law.” In 2016, during his short and extremely unsuccessful run for the Democratic presidential nomination, Chafee called the legalization of medical and recreational pot at the state level a series of “interesting, positive experiments.”

Whether Chafee ends up winning the L.P. nomination, which will be settled in May, is anyone’s guess. But his anti-prohibition views, especially coming from a former senator and governor, are a sign of immense progress when it comes to rethinking drug policy.

Watch the latest video at foxnews.com

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L.P. Presidential Hopeful Lincoln Chafee Is Against Iraq War and Drug War

Lincoln Chafee, the former Republican senator from Rhode Island (and former independent governor of the state) who is running for the Libertarian Party (L.P.) presidential nomination, is no fan of what he calls “the failed drug war.”

When he announced his presidential run earlier this week, he spoke out forcefully against the Iraq War and other military operations, telling Reason‘s Brian Doherty, “I am enthusiastically absolutely dedicated to not getting us into these quagmires overseas and ending foreign entanglements.” In the same interview, he said the Bush administration’s contention that Saddam Hussein possessed weapons of mass destruction was “the biggest lie in American history.”

Now, he’s speaking out against the drug war in similar fashion, tweeting, “The truth is that there is another war that needs to end. The failed war on drugs.”

He also told Marijuana Moment‘s Kyle Jaeger:

Internationally, our policies of eradication, substitution and interdiction are an abject failure and have caused vastly more harm than good…. At home our prisons are full of non-violent drug offenders. What we need is an active, open-minded discussion in this country that results in real criminal justice reform—and that includes decriminalization…. There are other models around the world, whether it’s Portugal or Uruguay or Holland, and we can learn from them.

Jaeger notes that during Chafee’s time as Rhode Island’s governor, he signed legislation decriminalizing marijuana possession “and urged the Drug Enforcement Administration to reschedule cannabis under federal law.” In 2016, during his short and extremely unsuccessful run for the Democratic presidential nomination, Chafee called the legalization of medical and recreational pot at the state level a series of “interesting, positive experiments.”

Whether Chafee ends up winning the L.P. nomination, which will be settled in May, is anyone’s guess. But his anti-prohibition views, especially coming from a former senator and governor, are a sign of immense progress when it comes to rethinking drug policy.

Watch the latest video at foxnews.com

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In a Win for the Gig Economy, California Judge Exempts Truckers From Problematic Assembly Bill 5

A judge has ruled that truck drivers in California are not subject to Assembly Bill 5 (AB 5), a new gig economy law that seeks to reclassify many contractors as employees. 

The regulations, which went into effect January 1 of this year, were drafted in response to Dynamex Operations West, Inc. v. Superior Court of Los Angeles. Filed by Los Angeles City Attorney Mike Feuer, the landmark court case established a three-pronged “ABC test” to determine if an individual is properly labeled as an employee versus a contractor: a contractor must control their workload, not perform work within the business’s primary scope of operations, and be “customarily engaged” in the occupation. Companies are trying their level best to circumvent that standard, which would unravel large portions of the gig economy. 

Enter Judge William Highberger of the Los Angeles Superior Court. Highberger did not find that truckers specifically pass the ABC test, but that the test itself “clearly run[s] afoul” of federal law. He cites the 1994 Federal Aviation Administration Authorization Act, which stipulates that the “use of non-employee independent contractors (commonly known in the trucking industry as ‘owner-operators’) should apply in all 50 states to increase competition and reduce the cost of trucking services.”

Feuer plans to appeal the decision, according to The Los Angeles Times.

Businesses in other industries, though, must still deal with blowback from the law, which has caused issues across the state. Uber and Lyft have a pending lawsuit against the legislation, arguing that their contractors pass the ABC test. Freelance workers—from journalists to translators and digital content creators to transcribers—find themselves especially hamstrung by the new regulations, which prohibit any person from submitting more than 35 assignments in a year to the same company or publication if the outfit does not hire them on as an employee. 

Although the law is in its early stages, companies have already decided not to hire freelancers but to instead end their contracts. Vox Media, for example, which hosts the site SB Nation, laid off 200 California freelancers at the start of the year, telling them that the working relationship would become financially untenable. The company will replace those contractors with 20 part-time and full-time positions. Several other companies, such as Rev and Scripted, have also severed ties with their California freelancers and will instead opt to work with contractors who live outside the state.

“These were never good jobs,” Assemblywoman and AB 5 author Lorena Gonzalez (D–San Diego) said earlier this month. “No one has ever suggested that, even freelancers.”

Freelance workers seem to disagree, however. Alisha Grauso, an entertainment journalist who identifies as a progressive, told Reason that the bill hurts the vulnerable groups it wants to help. 

“The reality is it still falls primarily on women to be the caretakers and caregivers of their families, and freelancing allows women to be stay-at-home mothers or to care for an aging parent,” Grauso notes. “Being made employees kills their flexibility and ability to be home when needed. I cannot stress enough how anti-women this bill is.”

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In a Win for the Gig Economy, California Judge Exempts Truckers From Problematic Assembly Bill 5

A judge has ruled that truck drivers in California are not subject to Assembly Bill 5 (AB 5), a new gig economy law that seeks to reclassify many contractors as employees. 

The regulations, which went into effect January 1 of this year, were drafted in response to Dynamex Operations West, Inc. v. Superior Court of Los Angeles. Filed by Los Angeles City Attorney Mike Feuer, the landmark court case established a three-pronged “ABC test” to determine if an individual is properly labeled as an employee versus a contractor: a contractor must control their workload, not perform work within the business’s primary scope of operations, and be “customarily engaged” in the occupation. Companies are trying their level best to circumvent that standard, which would unravel large portions of the gig economy. 

Enter Judge William Highberger of the Los Angeles Superior Court. Highberger did not find that truckers specifically pass the ABC test, but that the test itself “clearly run[s] afoul” of federal law. He cites the 1994 Federal Aviation Administration Authorization Act, which stipulates that the “use of non-employee independent contractors (commonly known in the trucking industry as ‘owner-operators’) should apply in all 50 states to increase competition and reduce the cost of trucking services.”

Feuer plans to appeal the decision, according to The Los Angeles Times.

Businesses in other industries, though, must still deal with blowback from the law, which has caused issues across the state. Uber and Lyft have a pending lawsuit against the legislation, arguing that their contractors pass the ABC test. Freelance workers—from journalists to translators and digital content creators to transcribers—find themselves especially hamstrung by the new regulations, which prohibit any person from submitting more than 35 assignments in a year to the same company or publication if the outfit does not hire them on as an employee. 

Although the law is in its early stages, companies have already decided not to hire freelancers but to instead end their contracts. Vox Media, for example, which hosts the site SB Nation, laid off 200 California freelancers at the start of the year, telling them that the working relationship would become financially untenable. The company will replace those contractors with 20 part-time and full-time positions. Several other companies, such as Rev and Scripted, have also severed ties with their California freelancers and will instead opt to work with contractors who live outside the state.

“These were never good jobs,” Assemblywoman and AB 5 author Lorena Gonzalez (D–San Diego) said earlier this month. “No one has ever suggested that, even freelancers.”

Freelance workers seem to disagree, however. Alisha Grauso, an entertainment journalist who identifies as a progressive, told Reason that the bill hurts the vulnerable groups it wants to help. 

“The reality is it still falls primarily on women to be the caretakers and caregivers of their families, and freelancing allows women to be stay-at-home mothers or to care for an aging parent,” Grauso notes. “Being made employees kills their flexibility and ability to be home when needed. I cannot stress enough how anti-women this bill is.”

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‘It’s a Lie, but It’s Fun’: An Officer’s Falsified Report Leads to a Man’s Suicide

The Seattle Office of Police Accountability (OPA) concluded late last year that a Seattle police officer’s decision to lie about the victims of a car crash led the offending driver to commit suicide. The Seattle Times reported this week that the Seattle Police Department (SPD) responded to the finding by suspending the officer in question for only six days without pay.

The SPD’s East Precinct officers were investigating a hit-and-run collision in May 2018. No injuries were sustained in the crash and the vehicles involved were still drivable. The East Precinct tasked two officers from the Southwest Precinct to locate the offending driver as records indicated that the driver might live in the area. The report says the Southwest Precinct officers were “aware that they were investigating a hit and run collision with no injuries.”

Prior to approaching the residence, one of the officers said he would use a ruse in the questioning, saying, “it’s a lie, but it’s fun.” A woman answered the door and informed the officers that while she knew the driver, he did not live at the house. He was a friend and she allowed him to register his car at her address since he didn’t have a fixed residence.

The unnamed officer told the woman that her friend “was involved in a hit and run earlier that left a woman in critical condition and he left her.” The officer added that the woman “might not survive.”

The OPA, which issued a report in November 2019 about the unnamed officer’s actions, reviewed body camera footage from the interaction. It noted that the woman was “clearly emotionally affected by the information provided to her.”

The woman contacted her friend and repeated the story provided by the officer. She advised that he get an attorney and speak with his mother. At first, the driver was unconcerned as he did not recall being in an injury-causing collision. He said he had, at most, a “minor fender-bender.” When they spoke again the next day, the driver became more concerned that he hit someone without realizing it.

OPA also noted that the driver was a heroin addict and had previous trouble with the law. The driver denied to a friend that he was high at the time of the collision as he had a new job and was saving money. Both he and the woman attempted to find more information about the crash, but grew concerned when they couldn’t find anything. They thought the lack of information meant it was being held for a criminal investigation. The driver “seemed increasingly despondent regarding the collision and the possibility that he had killed someone,” according to the OPA. 

The woman called another friend, who reached out to the driver about the collision. The second friend recalled the driver crying on the last day they saw each other. The driver left a bag of his personal belongings and addressed a note to the second friend, saying, “If you don’t see me, keep this stuff.”

Believing that he caused a severe injury that he couldn’t recall, the driver committed suicide. His body was found on June 3, 2018. His family and friends continued to believe the version of events shared by the officer until they did their own investigation. After realizing the officer embellished his story, the woman who was initially interviewed by police contacted OPA on March 12, 2019.

During the investigation, the officer told OPA that he was aware that ruses, while allowable, were not supposed to “shock fundamental fairness.” He also maintained that the woman was “kind of impeding the investigation,” even though OPA found that the woman went through her phone when asked about a way to contact the driver. The officer responded to this by saying he didn’t have time to wait for the information.

OPA determined that even if the driver hadn’t committed suicide, the officer “engaged in unprofessional behavior” by using the ruse. OPA also concluded that the ruse “ultimately contributed” to the driver’s suicide.

Chief Carmen Best agreed with the findings and suspended the officer for six days without pay, Detective Patrick Michaud of SPD Public Affairs confirmed to Reason.

“The officer’s actions did not meet SPD’s standards of acceptable use of discretion and were not consistent with the standards of professionalism or training,” he said. “In 2019, the Seattle Police Department provided in-service training to all sergeants, officers, and detectives on the appropriate use of ruses during criminal investigations.”

The Times, which initially broke the story, reached out to the department to uncover Best’s rationale for the sentence. The Times reports that the department declined to provide a disciplinary action report. The department also declined to disclose the names of the officer and the driver.

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‘It’s a Lie, but It’s Fun’: An Officer’s Falsified Report Leads to a Man’s Suicide

The Seattle Office of Police Accountability (OPA) concluded late last year that a Seattle police officer’s decision to lie about the victims of a car crash led the offending driver to commit suicide. The Seattle Times reported this week that the Seattle Police Department (SPD) responded to the finding by suspending the officer in question for only six days without pay.

The SPD’s East Precinct officers were investigating a hit-and-run collision in May 2018. No injuries were sustained in the crash and the vehicles involved were still drivable. The East Precinct tasked two officers from the Southwest Precinct to locate the offending driver as records indicated that the driver might live in the area. The report says the Southwest Precinct officers were “aware that they were investigating a hit and run collision with no injuries.”

Prior to approaching the residence, one of the officers said he would use a ruse in the questioning, saying, “it’s a lie, but it’s fun.” A woman answered the door and informed the officers that while she knew the driver, he did not live at the house. He was a friend and she allowed him to register his car at her address since he didn’t have a fixed residence.

The unnamed officer told the woman that her friend “was involved in a hit and run earlier that left a woman in critical condition and he left her.” The officer added that the woman “might not survive.”

The OPA, which issued a report in November 2019 about the unnamed officer’s actions, reviewed body camera footage from the interaction. It noted that the woman was “clearly emotionally affected by the information provided to her.”

The woman contacted her friend and repeated the story provided by the officer. She advised that he get an attorney and speak with his mother. At first, the driver was unconcerned as he did not recall being in an injury-causing collision. He said he had, at most, a “minor fender-bender.” When they spoke again the next day, the driver became more concerned that he hit someone without realizing it.

OPA also noted that the driver was a heroin addict and had previous trouble with the law. The driver denied to a friend that he was high at the time of the collision as he had a new job and was saving money. Both he and the woman attempted to find more information about the crash, but grew concerned when they couldn’t find anything. They thought the lack of information meant it was being held for a criminal investigation. The driver “seemed increasingly despondent regarding the collision and the possibility that he had killed someone,” according to the OPA. 

The woman called another friend, who reached out to the driver about the collision. The second friend recalled the driver crying on the last day they saw each other. The driver left a bag of his personal belongings and addressed a note to the second friend, saying, “If you don’t see me, keep this stuff.”

Believing that he caused a severe injury that he couldn’t recall, the driver committed suicide. His body was found on June 3, 2018. His family and friends continued to believe the version of events shared by the officer until they did their own investigation. After realizing the officer embellished his story, the woman who was initially interviewed by police contacted OPA on March 12, 2019.

During the investigation, the officer told OPA that he was aware that ruses, while allowable, were not supposed to “shock fundamental fairness.” He also maintained that the woman was “kind of impeding the investigation,” even though OPA found that the woman went through her phone when asked about a way to contact the driver. The officer responded to this by saying he didn’t have time to wait for the information.

OPA determined that even if the driver hadn’t committed suicide, the officer “engaged in unprofessional behavior” by using the ruse. OPA also concluded that the ruse “ultimately contributed” to the driver’s suicide.

Chief Carmen Best agreed with the findings and suspended the officer for six days without pay, Detective Patrick Michaud of SPD Public Affairs confirmed to Reason.

“The officer’s actions did not meet SPD’s standards of acceptable use of discretion and were not consistent with the standards of professionalism or training,” he said. “In 2019, the Seattle Police Department provided in-service training to all sergeants, officers, and detectives on the appropriate use of ruses during criminal investigations.”

The Times, which initially broke the story, reached out to the department to uncover Best’s rationale for the sentence. The Times reports that the department declined to provide a disciplinary action report. The department also declined to disclose the names of the officer and the driver.

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California Governor Proposes Millions in Public Defender Funding To Settle Sixth Amendment Lawsuit

California Gov. Gavin Newsom (D) is proposing to provide $14 million dollars in additional funding to public defender offices to settle a lawsuit by the American Civil Liberties Union (ACLU), in which the group argued that the state was derelict in its constitutional duty to provide adequate legal defense to defendants who can’t afford a lawyer. 

California is one of only four states that does not provide state-level oversight or funding of public defenders for routine trial services, but Newsom’s proposed 2020-21 budget, released today, would allocate $4 million to expand the scope of the Office of the State Public Defender (OSPD), which currently only handles death penalty appeals, and provide $10 million in grants for the state’s 58 county public defender offices.

The ACLU of Northern California, along with the law firms Morgan, Lewis & Bockius LLP and Paul Hastings LLP, filed a civil rights lawsuit against California and Fresno County in 2015. The suit argued that the lack of state-level funding and oversight created gross disparities in access to legal counsel between rich areas like San Francisco County and poorer ones like Fresno County.

The Supreme Court ruled in the landmark 1963 case Gideon v. Wainwright that the Sixth Amendment guarantees defendants’ right to effective legal counsel. However, as I wrote in a 2017 column for Reason on the “disappearing Sixth Amendment,” states “have undercut the Gideon guarantee by chronically underfunding public defender services.”

“The Supreme Court’s decision in Gideon requires states to provide lawyers to people who face criminal charges but cannot afford to hire a private lawyer,” says Emma Anderson, senior staff attorney with the ACLU’s criminal law reform project. “For decades, California has delegated this responsibility to individual counties and made no effort to ensure that these county-run systems are in fact upholding the Sixth Amendment rights of accused people. As a result, the wealth disparities that exist between different counties in California are too often reflected in the public defense services that people receive.”

The 2008 financial crisis exacerbated the problem as local governments looking to trim their budgets targeted public defender offices. As a result of staffing cuts, the lawsuit said, “felony attorneys in the Fresno County Public Defender’s Office therefore carry more open cases at any given time than the State Bar of California recommends a felony attorney handle in an entire year.”

In September 2013, the Fresno Public Defender’s Office union warned that excessive caseloads were “jeopardizing our client[s’] constitutional rights on a daily basis.” One of the plaintiffs in the lawsuit, Peter Yepez, did not see a public defender until he had spent almost a month in the Fresno County jail.

California is not alone. A 2014 study by the American Bar Association (ABA) found that in 97 percent of cases, Missouri public defenders failed to meet the ABA’s recommended minimum hours to effectively represent their clients.

In 2018, a report by the Sixth Amendment Center found that Oregon’s public defender system was plagued by bureaucracy and structural flaws that likely violated the Constitution.

And in 2016 in Louisiana, where about 85 percent of criminal defendants qualify for a court-appointed attorney, 33 of the state’s 42 public defender offices started turning away cases they no longer had the resources to handle, arguing that whatever legal assistance they could provide would be so ineffective as to violate defendants’ constitutional rights anyway.

The California government denied that its public defender system violates the Sixth Amendment, and, as part of the settlement agreement, it did not admit to any of the ACLU’s claims. The new funding is contingent on the state legislature passing Newsom’s budget.

As part of Fresno County’s settlement agreement, the county must maintain funding levels for its public defender office and conduct regular reviews of defender caseloads to make sure they are within the recommended guidelines.

“The Constitution does not permit the right to a meaningful defense and the presumption of innocence to depend on how much money you have or what county you live in,” Anderson says. “It’s past time for California to do better.”

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California Governor Proposes Millions in Public Defender Funding To Settle Sixth Amendment Lawsuit

California Gov. Gavin Newsom (D) is proposing to provide $14 million dollars in additional funding to public defender offices to settle a lawsuit by the American Civil Liberties Union (ACLU), in which the group argued that the state was derelict in its constitutional duty to provide adequate legal defense to defendants who can’t afford a lawyer. 

California is one of only four states that does not provide state-level oversight or funding of public defenders for routine trial services, but Newsom’s proposed 2020-21 budget, released today, would allocate $4 million to expand the scope of the Office of the State Public Defender (OSPD), which currently only handles death penalty appeals, and provide $10 million in grants for the state’s 58 county public defender offices.

The ACLU of Northern California, along with the law firms Morgan, Lewis & Bockius LLP and Paul Hastings LLP, filed a civil rights lawsuit against California and Fresno County in 2015. The suit argued that the lack of state-level funding and oversight created gross disparities in access to legal counsel between rich areas like San Francisco County and poorer ones like Fresno County.

The Supreme Court ruled in the landmark 1963 case Gideon v. Wainwright that the Sixth Amendment guarantees defendants’ right to effective legal counsel. However, as I wrote in a 2017 column for Reason on the “disappearing Sixth Amendment,” states “have undercut the Gideon guarantee by chronically underfunding public defender services.”

“The Supreme Court’s decision in Gideon requires states to provide lawyers to people who face criminal charges but cannot afford to hire a private lawyer,” says Emma Anderson, senior staff attorney with the ACLU’s criminal law reform project. “For decades, California has delegated this responsibility to individual counties and made no effort to ensure that these county-run systems are in fact upholding the Sixth Amendment rights of accused people. As a result, the wealth disparities that exist between different counties in California are too often reflected in the public defense services that people receive.”

The 2008 financial crisis exacerbated the problem as local governments looking to trim their budgets targeted public defender offices. As a result of staffing cuts, the lawsuit said, “felony attorneys in the Fresno County Public Defender’s Office therefore carry more open cases at any given time than the State Bar of California recommends a felony attorney handle in an entire year.”

In September 2013, the Fresno Public Defender’s Office union warned that excessive caseloads were “jeopardizing our client[s’] constitutional rights on a daily basis.” One of the plaintiffs in the lawsuit, Peter Yepez, did not see a public defender until he had spent almost a month in the Fresno County jail.

California is not alone. A 2014 study by the American Bar Association (ABA) found that in 97 percent of cases, Missouri public defenders failed to meet the ABA’s recommended minimum hours to effectively represent their clients.

In 2018, a report by the Sixth Amendment Center found that Oregon’s public defender system was plagued by bureaucracy and structural flaws that likely violated the Constitution.

And in 2016 in Louisiana, where about 85 percent of criminal defendants qualify for a court-appointed attorney, 33 of the state’s 42 public defender offices started turning away cases they no longer had the resources to handle, arguing that whatever legal assistance they could provide would be so ineffective as to violate defendants’ constitutional rights anyway.

The California government denied that its public defender system violates the Sixth Amendment, and, as part of the settlement agreement, it did not admit to any of the ACLU’s claims. The new funding is contingent on the state legislature passing Newsom’s budget.

As part of Fresno County’s settlement agreement, the county must maintain funding levels for its public defender office and conduct regular reviews of defender caseloads to make sure they are within the recommended guidelines.

“The Constitution does not permit the right to a meaningful defense and the presumption of innocence to depend on how much money you have or what county you live in,” Anderson says. “It’s past time for California to do better.”

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Atlanta Disbands Its Narcotics Unit To Focus on Violent Crimes Instead

In what we can only hope is a shift away from overly oppressive policing against low-level drug use and sales, the Atlanta Police Department is disbanding its special Narcotics Unit and shifting cops elsewhere to focus on fighting violent crime. Atlanta has seen a drop in its overall crime rate over the past two years, but homicides and aggravated assaults have both increased.

When reporter Mark Winne of WSB-TV 2 asked for confirmation, the department sent him a prepared statement confirming the news:

We know that the illegal narcotics trade is often at the center of criminal activity fueled by guns and gangs. The Department is de-centralizing its Narcotics Unit in recognition that the violence that surrounds this trade should be the focus of the entire Department, not just one team. We have had tremendous success at targeting the sale of illegal narcotics by tracking violent criminals and getting illegally-possessed guns off the streets.

Violent crime and gang activity must be the Department’s primary focus and where we will have a greater impact on the crimes affecting those most often victimized in our communities.

WSB-TV’s coverage has a slight air of disappointment, as if the station is unhappy that it won’t be able to put those photogenic bust-down-the-door raids on the evening news anymore. Winne makes a vaguely negative reference to the idea of making this change in the midst of the opioid overdose crisis.

But if the Atlanta Police Department is realizing that “zero tolerance” drug enforcement is not the solution to gang violence, that’s good news. There are indeed nasty and violent dealers out there, but decades of the drug war have taught us that a good chunk of the drug trade involves low-level dealing, often by people who are themselves addicted; harsh enforcement of drug laws has led to large numbers of nonviolent drug offenders serving long prison terms. Focusing on actual violence is surely preferable to chasing after the low-hanging fruit of undercover deals, or of raids based on info from sketchy informants with their own agendas.

It’s not clear how extensive this change might be. Atlanta has another special drug unit that participates in the federal Drug Enforcement Administration’s High Intensity Drug Trafficking Areas (HIDTA) program, which helps fund multi-agency drug task forces. The statement from the Atlanta Police Department didn’t mention whether it would stay involved with the HIDTA program, and a call from Reason to the department’s public affairs office was not returned.

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