Category: reason

This might have been a stylish little spy movie. Not a lot of expense has been spared in flying cast and crew around the usual photogenic precincts of Europe (Vienna, Berlin, Amsterdam, Prague), and some of the action stuff—especially a frantic shootout in a Viennese café—is clearly the work of top-drawer professionals.

But The Spy Who Dumped Me isn’t a spy movie—not really. There’s no charismatic secret-agentry on display, and no likable lunatic villainy, either. And the plot, involving yet another world threat from yet another hazy terrorist organization, is uninteresting even by genre standards, writes Kurt Loder in his latest review for Reason.

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A woman who was forced to give birth on the floor of the Macomb County, Michigan, jail is suing for violations of her civil rights. Jessica Preston was in jail awaiting trial for driving on a suspended license. She says jail staff did not call EMS until her baby was crowning.

Despite opposition from the Justice Department, the White House is continuing to work with Republicans in Congress to pass prison reform legislation, possibly including some elements of sentencing reform.

On Wednesday the White House hosted a meeting on criminal justice reform with key Republican senators, including Mike Lee (R-Utah), Lindsey Graham (R-S.C.), and Chuck Grassley (R-Iowa), the chairman of the powerful Senate Judiciary Committee. “We had a great meeting with President Trump on criminal justice reform this afternoon, and I think we’ve made some meaningful progress,” Lee said in a statement to Reason. According to a source familiar with the meeting, Trump agreed to support four provisions from the Sentencing Reform and Corrections Act, a Senate bill that would reduce some mandatory minimum sentences.

The move would be significant because the core group of Republicans and Democrats behind the Senate bill has insisted on including sentencing reform as part of any criminal justice legislation, but Senate Majority Leader Mitch McConnell (R-Ky.) is highly unlikely to bring a bill to the floor if there is vocal opposition from either the White House or the Republican caucus. “The question is whether there [are] enough sentencing provisions in there to make those guys happy without turning off too many Republicans and making it too toxic for McConnell to put on the floor,” says Alex Gudich, deputy director of #Cut50, a criminal justice advocacy group that has been closely following the legislation.

In May, the House passed the FIRST STEP Act, which would mandate various changes to the federal Bureau of Prisons, by a wide, bipartisan margin. Trump son-in-law and senior White House adviser Jared Kushner has been a driving force behind that bill, and Trump, joined by criminal justice advocates, evangelical organizations, and business groups, has touted prison reform as an opportunity to get formerly incarcerated Americans back on their feet and into the job market.

Progressive Democrats and groups such as the American Civil Liberties Union (ACLU) and the NAACP Legal Defense Fund said the bill fell far short of their requirements, and Grassley has been adamant that the Sentencing Reform and Corrections Act, which his committee approved in February, be included in some way. Adding sentencing reform provisions to the FIRST STEP Act would also be noteworthy because of Justice Department’s opposition to it. Attorney General Jeff Sessions, a staunch law-and-order conservative, fiercely opposes reducing mandatory minimum sentences and is no fan of the FIRST STEP Act either.

At the same time Trump was hosting a meeting on criminal justice reform yesterday, the Washington Free Beacon published a leaked letter from the Justice Department to the White House outlining its concerns about the FIRST STEP Act. “In the Department’s view,” the letter says, “this legislation, if passed in its current form, would further and significantly erode our long established truth-in-sentencing principles, create impossible administrative burdens, effectively reduce the sentences of thousands of violent felons, and endanger the safety of law-abiding citizens and law enforcement officers.”

#Cut50’s Gudich says the letter uses the same sort of “dehumanizing language and baseless fear tactics” that led to mass incarceration in the first place. He notes that the reductions in sentences resulting from the FIRST STEP Act would be insignificant. “In some cases, we’re talking about a matter of weeks,” Gudich says. “Claiming that keeping them in prison for a couple more weeks is going to keep communities safer makes no sense.”

The Justice Department letter also ties the declining federal prison population to rising crime rates, as Sessions has done in many of his public speeches. “The number of federal inmates has declined more than 16 percent since 2013 and is at its lowest level since 2004,” the letter reads. “It is likely no coincidence that, at the same time, we are in the midst of the largest drug crisis in our nation’s history and recently experienced the two largest single-year increases in the national violent crime rate in a quarter of a century.”

Conservative and libertarian groups that support criminal justice reform pushed back against the Justice Department letter today. FreedomWorks published a lengthy rebuttal. “Simply put,” it said, “correlation doesn’t equal causation.”

Those groups have been bolstered by a poll released last week by Freedom Partners, a nonprofit group that funds conservative and libertarian causes, showing 70 percent of voters nationwide think the Senate should pass the FIRST STEP Act. Opposing the bill “means accepting a status quo in which two out of every three formerly incarcerated people is rearrested within three years of their release,” former Virginia Attorney General Ken Cuccinelli, now a member of Right on Crime, another conservative criminal justice reform group, said in a statement provided to Reason. “We can’t continue treating our federal prisons like warehouses and expecting things to change.”

When reporters asked Grassley today about his former Senate colleague Sessions’ efforts to derail the legislation, he didn’t hold back. “With all that I have done to help Sessions, to keep the president from firing him, I think Sessions ought to stay out of it,” Grassley told reporters.

The White House did not respond to a request for comment.

Even when housing developments win in San Francisco, they lose. Just look at a long-planned apartment building in the city’s Mission District, which is now being scuttled a few months after the developer won permission to finally start construction.

For the last three years, the company Axis has been trying to get permission to put up a 117-unit apartment complex off Folsom Street. Any new building in notoriously anti-development San Francisco is bound to attract controversy, and the Folsom project was no exception.

When Axis first unveiled its designs at a 2015 public meeting, attendees went ballistic, unimpressed by the developer’s offer to rent out 17 of the units at below-market rates. According to Curbed, activists with the city-recognized Calle 24 Latino Cultural District waved signs saying, “No more expensive Market Rate Housing! 100% Affordable Housing now!” Others shouted chants of “give Axis the axe” or banged on drums.

The objection from these activists—the same one raised against any market-rate development in the city—is that newer, more expensive housing stock would drive out the neighborhood’s lower-income, predominantly Hispanic population. “Axis development’s cultural impacts will negatively affect the character of adjacent Calle 24,” project opponents wrote in a 2017 open letter, warning that the market-rate apartment building would attract a flood of wealthy white people who would form a new “gentry class” that would force out lower-income residents.

This anti-development coalition, which included the San Francisco Tenants Union and an affordable housing group known as the Mission Economic Development Agency (MEDA) as well as Calle 24, demanded that the city conduct a more thorough environmental review of the Axis project, taking into account its cultural impact. As illustrated by the struggles of Robert Tillman, who has been trying to turn a nearby laundromat he owns into an apartment building for nearly five years over the objections of the same activists, these demands can gum up a project for years.

Eventually tiring of fighting activist demands and endless environmental appeals, Axis agreed in May 2018 to increase the number of below-market units from 17 to 31 (23 of them in the new apartment building on Folsom, the other eight elsewhere in the city), rent 5,200 square feet of what would have been commercial retail space to a community nonprofit for a $1 a year for 55 years (which represents a huge amount of forgone revenue), and use all union labor for construction. These concessions brought activists and local politicians around, and Axis got permission to build shortly afterward. But the conditions made the project uneconomical, and Axis found it was cheaper to just sell the land.

What will now happen with the site is up in the air. Mission Local reports that affordable housing developer Mission Housing is eyeing the land for a 100 percent below-market development. MEDA might also want to snatch up the Folsom site after having done its best to sabotage Axis’ plans for it.

Either group would need some mix of city funding, publicly subsidized bonds, and tax credits to finance such a project, which could take a long time to pull together. Other market-rate developers might be interested in the site, but given local hostility they are apt to be wary.

The end result of this years-long process is that nothing gets built and no one gets what he wants. Axis will have to take a haircut on its investment. Local residents will get none of the affordable housing or community space promised them. Potential Folsom tenants will go back to competing over existing housing units, further driving up prices in one of America’s most expensive cities.

I can’t help but think that everyone in this story would be better off if we just let property owners build what they want on their own damned land.

The U.S. Court of Appeals for the 9th Circuit yesterday dealt another blow to President Trump’s plan to punish sanctuary cities by withholding federal grant money. In a 2-to-1 decision, a 9th Circuit panel ruled that the threat against cities that do not help the feds enforce immigration law is unconstitutional.

Although the appeals court agreed with U.S. District Judge William Orrick’s legal analysis in a ruling he issued last April, it concluded that he went too far by imposing a nationwide injunction. Since the challenge was brought by San Francisco and Santa Clara counties, the 9th Circuit narrowed the injunction’s scope from the entire United States to just California.

Justice Department spokesperson Devin O’Malley said the ruling was a victory for “criminal aliens in California, who can continue to commit crimes knowing that the state’s leadership will protect them from federal immigration officers whose job it is to hold them accountable and remove them from the country.”

San Francisco City Attorney Dennis Herrera had a different perspective. “When a president overreaches and tries to assert authority he doesn’t have under the Constitution,” Herrera said, “there needs to be a check on that power grab.”

In March 2017, Attorney General Jeff Sessions announced that the Justice Department would withhold $4.1 billion in federal grants from sanctuary cities. That September, a federal judge in Illinois granted a temporary injunction that halted the administration’s imposition of the penalties on Chicago.

As Reason‘s Scott Shackford reported, U.S. District Judge Harry D. Leinenweber concluded that Title 8, Section 1373 of the U.S. Code, the law on which the administration was relying, is unconstitutional. “In the end,” Leinenweber wrote, “Section 1373 requires local policymakers to stand aside and allow the federal government to conscript the time and cooperation of local employees. This robs the local executive of its autonomy and ties the hands of the local legislature. Such affronts to State sovereignty are not countenanced by the anticommandeering principle of the Constitution. Section 1373 is unconstitutional and cannot stand.”

The Transportation Security Administration (TSA) is considering a proposal to eliminate its security checkpoints at small airports. You’d think from some of the responses that the agency is planning to hire Islamic State terrorists as screeners.

According to documents that TSA officials provided to CNN, the plan would eliminate the agency’s screening services at 150 small airports across the United States. The people who fly through these airports would not necessarily be free from security-theater hassles. If they had connecting flights at a larger airport, they would have to go through that airport’s TSA-operated security. The change would affect an estimated 10,000 passengers daily, 0.5 percent of fliers.

The goal would be to “save” $115 million a year and redirect the money to security at larger airports. The proposal doesn’t really seem to be a money saver, and it’s not clear if it’s going to be much of a time saver for travelers. It’s also not clear whether the TSA is treating the idea seriously. A TSA spokesperson told CNN the agency frequently analyzes the impact of potential adjustments like this.

Under the Trump administration, the security theater at airports has been ramped upward, not downward. The administration seems intent on keeping Americans fearful that terrorists are out to get us.

Major news organizations are happy to help. Apparently CNN and The Washington Post could only find folks who think the TSA proposal is a terrifyingly bad idea with no potential benefit. Mary Schiavo, a former Transportation Department inspector general, offered the Post this overheated take:

Schiavo said people would be afraid to fly if TSA ended screenings at their local airports.

“Not only will this destroy any reasonable security over American skies, it will destroy small towns and cities across the country because they will virtually have no air service,” she said.

“You poor folks from, say, Toledo, Ohio, you only have three regional flights a day,” Schiavo said. “We’re not going to do any security for you. Would anyone fly from Toledo? Absolutely not. What does it do to Toledo, Ohio? Destroys it. You’ll have no air service. No one’s going to get on a plane without security. It’s not only terrorists, it’s nut cases.”

Schiavo bizarrely assumes that if small airports have no TSA screeners they won’t have any security, and people will be so terrified that the airports will have to shut down. Or maybe—stick with me here—maybe they’ll hire their own security? That’s a thing that happens. It was a thing that was happening prior to the September 11 attacks. While it’s true airports were much more accessible back then, there were still security checkpoints. If there’s a market for flights from these smaller airports, they will find a way to secure themselves without having to rely on the TSA.

In fact, several small (and not-so-small) airports have already replaced TSA staff with private screeners. They operate under the same security protocols as the TSA, so passengers might not even notice the difference. But such arrangements make it easier for airports to hold screeners accountable for their job performance, a welcome change in light of frequent complaints about the aggressive behavior and bad attitudes of some TSA employees.

Schiavo’s poor grasp of risk and how market pressures can provide safety solutions is nothing new. In a 1997 review of her book Flying Blind, Flying Safe, Robert Poole, director of transportation policy at the Reason Foundation (which publishes this website), took her to task for a naïve belief in more and more safety regulations, no matter their cost or effectiveness.

Investigators say an Ohio police chief may have fatally overdosed on drugs taken from his own department’s evidence room.

Kirkersville Police Chief James Hughes, 35, overdosed at his home in Reynoldsburg last May. He died of an “acute intoxication by fentanyl,” according to an autopsy by the Franklin County Coroner’s Office. Two syringes with fentanyl were found at the scene, in addition to a plastic bag with cocaine.

According to Reynoldsburg Police Department Lt. Ron Wright, some of those drugs appear to have come from the Kirkersville Police Department’s evidence room. “There was packaging that indicated that he was taking controlled substances from there,” Wright told the Newark Advocate.

Wright told The Columbus Dispatch he can’t be sure the drugs from the evidence room killed Hughes. But he said investigators “couldn’t find any indication that he went out and bought controlled substances…recently to do this.”

Reynoldsburg police plan to end their investigation soon, but Wright said he probably will refer the case to the Ohio Attorney General’s Office, which may want to examine Kirkersville’s evidence room procedures. “There appeared to be some practices happening out there that probably someone from the state AG’s office should probably look into,” Wright said.

Hughes had been serving as police chief for just a few months. “He was hired in March and wasn’t here that long, but he kept me informed [about] what was going on,” Kirkersville Mayor Terry Ashcraft said in May. “A lot of stuff goes on in this town, and he’d come and done his job and never had a complaint on him.”

Hughes might not have received any complaints as police chief, but an Advocate investigation conducted prior to his death revealed he might not have been the right person to lead a department. As a police officer at other departments, he was the subject of at least three internal investigations. A supervisor wrote in a 2012 performance evaluation that Hughes was “known to make bad decisions on and off duty.”

Hughes made one of those bad decisions in June 2013, when he admitted yelling a racial slur at a fast food worker. The Advocate reports that he eventually pleaded guilty to “a minor misdemeanor charge of disorderly conduct.”

As of Tuesday, Defense Distributed, a company dedicated to distributing software and hardware to help people make guns at home, has been under a temporary restraining order (TRO) issued by Judge Robert Lasnik of the U.S. District Court for the Western District of Washington. The TRO requires the company to behave as if a settlement agreement it reached after many years of legal wrangling with the federal government never happened, meaning it has to stop distributing software that can help people make guns at home using 3D printers or CNC mills.

Defense Distributed believed its long court fight for legal permission to distribute those files, which company founder Cody Wilson and his legal team view as constitutionally protected speech no different from a printed book or manual containing gun-making directions, was over when the federal government settled. While the government never conceded any constitutional problems with its ban on Defense Distributed’s files, the settlement explicitly allowed the company (and all Americans) to “access, discuss, use, reproduce or otherwise benefit from the technical data.”

Judge Lasnik suspended that agreement in response to a lawsuit by eight states and the District of Columbia. Defense Distributed promptly obeyed the TRO, although the files are already all over the internet for anyone who wants them.

According to the TRO, the states were “seeking a declaration that the ‘temporary modification’ of the USML is invalid and an injunction requiring the federal defendants to rescind the procedurally defective modification and refrain from acting on it.” The USML is the United States Munitions List, which defines which items are affected by the Arms Export Control Act (AECA), the law that was used to stop Defense Distributed from uploading its software.

The settlement’s impact on the USML is one of the key issues that led Lasnik to issue the TRO:

Plaintiffs have shown a likelihood of success on the merits of their Administrative Procedure Act claim insofar as the “temporary modification” has resulted in the removal of one or more items from the USML. The federal government represents that its settlement was the result of a multi-year review process which was completed in May 2018 and resulted in a determination that the type of firearms and related technical data at issue here would not provide a military advantage to adversaries and therefore no longer warrant export control under the AECA and should be removed from the USML.

In such circumstances, the governing statute, 22 U.S.C. §2778(f)(1), requires that the results of such reviews be reported to Congress and precludes the removal of any item from the USML until thirty days after such notice is given.

In a brief opposing the request on the states’ part for the TRO, Josh Blackman, one of Defense Distributed’s lawyers, argues that Lasnik’s description of the settlement is wrong:

The Settlement Agreement does not require the removal of anything from the USML…Section 1(a) of the agreement only requires that the State Department commit to draft and fully pursue removal of the technical data at issue in this action from the USML, “to the extent authorized by law (including the Administrative Procedure Act).” The proposed rule explained that the government was expressly complying with the requirements of the notice-and-comment rulemaking process, even though it determined that it was not required to do so….

The government engaged in a sterling rulemaking process, and more than adequately justified its agency action—the action is certainly not “arbitrary and capricious.” In any event, even if the State Department removed the subject technical data from the USML—it didn’t—the AECA expressly, clearly, and unequivocally precludes judicial review of such decisions:

“(h) Judicial review of designation of items as defense articles or services
The designation by the President (or by an official to whom the President’s functions under subsection (a) have been duly delegated), in regulations issued under this section, of items as defense articles or defense services for purposes of
this section shall not be subject to judicial review. 22 U.S.C. § 2778(h).”

The Plaintiffs contend that this provision is irrelevant because “the States are not challenging the federal defendants’ designation of the computer code at issue as defense articles, but instead their decision to remove the code from the USML.” We cannot repeat this point enough: Nothing has been removed from the USML! The rule is only in its proposed form.

In short, while the plaintiffs and the judge are acting as if the settlement removed the gun-making files from the USML, Blackman says the government only temporarily stopped treating them as if they were on the USML. It’s a subtle point that Lasnik may well reject at the next hearing in the case on August 10. The judge might reason that treating the files as if they are not on the USML is tantamount to removing them from the list.

But as Blackman sees things, the plaintiffs have no reason to believe the State Department will not go through all the legal requirements before officially amending the USML. Only if they fail to do so down the line would they have a legitimate procedural complaint.

That said, that arcane dispute about the niggling specifics of administrative law is far removed from the very important constitutional issues raised by the TRO. As Blackman notes, the TRO imposes “a prior restraint of constitutionally protected speech that is already in the public domain” yet Lasnik’s order does not so much as mention the First Amendment.

Reason magazine was founded 50 years ago, in 1968, by Lanny Friedlander (1947-2011), who was then a student at Boston University. As part of Reason‘s ongoing 50th anniversary celebration, I’ve been interviewing past editors of the print magazine for the Reason Podcast. Previous episodes include conversations with Robert W. Poole, Marty Zupan, Virginia Postrel, Matt Welch, and Katherine Mangu-Ward.

A few weeks ago, it was my turn to be interviewed about my time at the top of the mast. I joined the staff in 1993 as an assistant editor and served as editor in chief of the magazine and website from 2000 to 2008. Then I became editor in chief of Reason.com and Reason TV, a dual position I held until earlier this year, when I became an editor at large.

Katherine Mangu-Ward conducted the wide-ranging interview at the center of today’s episode. She zeroed in on a 1999 cover story of mine, “All Culture, All the Time,” as illuminating many of the themes that Reason would explore under my stewardship. The story celebrated what I called “cultural proliferation” and the breakdown of single standards of greatness, quality, seriousness, legitimacy, you name it. Just as the economic sector had been deregulated and liberalized in key ways during the 1970s, ’80s, and ’90s, the cultural sphere of our lives was finally deregulated. Let a 1,000 websites bloom! I likened what was happening at the turn of the century to the breakdown of state religion in 17th-century England.

From today’s podcast:

Religious freedom didn’t mean that people gave up on standards or religion didn’t matter anymore or anything like that. It meant that people could finally express themselves and create the worlds that they wanted to live in. They could debate and argue and mongrelize and hybridize things. I think that’s a really powerful way to look at the world that we’re in now. The other [main point in the story comes from] James Buchanan, the recently vilified libertarian economist who helped to create “public choice” economics and won a Nobel Prize for doing so. He talked about Albert Hirschman’s ideas of “exit, voice, and loyalty.” He used to stress in a lot of his work that when people can exit systems, it’s a good thing. That’s basically what I think cultural proliferation [does]. It allows people cultural exit. It didn’t mean they didn’t want culture. It just meant they got to embrace their own culture and their own morality and things like that. It’s an incredibly liberating and better world because of that.

Subscribe, rate, and review our podcast at iTunes. Listen at SoundCloud below:

Audio production by Ian Keyser.

Photo credit: Reason.

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Fresh off the accolades for last year’s tax cuts, the Trump administration is mulling another one. This time the target is the capital gains tax, which the administration may try to reduce without approval from Congress by changing the definition of investment profits to take inflation into account.

The capital gains tax applies to profits from long-term investments. If you buy a stock for $10 and sell it for $110, for instance, you would owe capital gains tax on the $100 in profit. The rate depends on how much non-investment income you earn that year. Individuals at the lower end of the income scale do not have to pay any capital gains tax, while those in the middle pay 15 percent and high earners pay 20 percent.

Under the policy the Trump administration is considering, the gain would be adjusted for inflation, so investors would pay taxes only on the real profit they earn. Treasury Secretary Steven Mnuchin told an interviewer at the Group of 20 summit last month in Argentina that his department might be able to make this change through regulation.

“If it can’t get done through a legislation process,” Mnuchin told The New York Times, “we will look at what tools at Treasury we have to do it on our own, and we’ll consider that.” Lawrence Kudlow, director of the National Economic Council, also supports the idea.

The idea is controversial because it disproportionately benefits the wealthy, who pay the vast majority of capital gains taxes. Wharton economic analyst John Ricco calculates that “the top one percent of tax units would receive more than 86 percent of the tax cuts,” although he adds that the administration’s proposal would do little to “meaningfully change the distribution of tax burden.”

While indexing capital gains to inflation could promote economic growth, it’s not such a good idea for the president to impose the policy unilaterally. When conservatives tried that under President George H.W. Bush in 1992, National Review‘s Ramesh Ponnuru notes in a Bloomberg Opinion column, they met with strong resistance from the Treasury and Justice departments. Even if President Donald Trump has the Treasury Department on his side this time around, enacting a major tax change without congressional approval would invite legal challenges.

Another issue is the tax cut’s fiscal impact. Last year’s tax cuts are projected to add $1.5 trillion to the deficit during the next 10 years, and that’s assuming Congress lets the cuts expire in 2025, which it is unlikely to do. Ricco estimates that indexing the capital gains tax to inflation would cost the government an additional $102 billion in revenue during the same period. That’s a small hit compared to last year’s tax cuts, but every reduction in revenue that’s not offset with cuts in spending will make the current fiscal hole that much deeper. Instead of shrinking government, Republicans are passing the burden on to future taxpayers, a dangerous and reckless policy.