Category: reason

Is it constitutional to require strippers to wear pasties and
G-strings?

In 1991’s Barnes
v. Glen Theatre, Inc, the Supreme Court ruled that go-go
dancers in Indiana could indeed be compelled to cover up their
naughty bits. The decision upholding such bans is the subject of
the provocative—and nudity-filled!—play Arguendo.

Check out Reason TV’s lastest video offering above or click the
link below for downloadable versions.

View this article.

Police in Albuquerque, New Mexico,
shot and killed 19-year-old suspected car thief Mary Hawkes
after she allegedly pulled a gun out at officers. It may have been
just another police shooting in America but for it being the third
one in Albuquerque in the last month and the first since a scathing
Department of Justice (DOJ)
report on civil rights violations and brutality in the
Albuquerque Police Department (APD).

The DOJ report stopped short of holding any actual police
officers accountable for the pattern and practice of constitutional
violations. But the fatal shooting of Hawkes highlights the
necessity of holding police officers to a high standard and
penalizing them up to the point of termination for poor conduct,
even if that conduct doesn’t rise to the level of actual crime.

Too often, cops are not accused of crimes, because such an
accusation requires a determination be made by a prosecutor who
almost always relies on cooperation from police to pursue other
cases. Prosecutors, then, aren’t usually interested in prosecuting
cops. So-called officer-involved shootings often end with
investigations partly or wholly undertaken by the departments to
which the cops under investigation belong, with prosecutors
declining to prosecute or failing to make a case to indict to a
grand jury.

By the account of the APD, the shooting of Hawkes appears
arguably justifiable. No narrative from the family, which includes
her foster father, a former judge and cop, or anyone else has
emerged to contradict the police’s story. Yet, unsurprisingly,
doubts remain about what happened, because a decades-long pattern
of abuse and brutality at the department—while police continue to
duck accountability for any wrongdoing—has eroded any constructive
relationship the police may have with the community. In this
particular shooting, the police chief, Gordon Eden, said lapel
video from Jeremy Dear, the officer who killed Hawkes, could not be
recovered and that officers who fail to activate their lapel
cams could face letters of reprimand or suspensions.

If the APD hopes to ever restore its relationship with the
community and its very integrity, it will have to treat cops who
fail to follow procedure and then kill in the line of duty far more
harshly. Dear may or may not have erred in shooting Hawkes, but he
erred in not activating his lapel camera every time he went on
duty. That negligence has now contributed to uncertainty about the
shooting, further wrecking the reputation of the APD and
exacerbating the pattern or practice of abuse, brutality, and
corruption in Albuquerque that the DOJ reported on to 

just two weeks ago. Dear may or may not belong in jail. His
dereliction of duty, however, ought to already preclude him from
continued employment with the APD. 

Last night’s episode of The Independents included a
conversation with Cato Vice President
(and Reason.com
columnist) about his
piece yesterday on President Barack Obama’s miserable
transparency record, particularly when it comes to his system for
killing people. You can watch the video below:

Today Deputy Attorney General James Cole announced
new criteria for expedited consideration of clemency applications
by President Obama, focusing on prisoners serving sentences longer
than the ones currently imposed for similar offenses.  “Older,
stringent punishments that are out of line with sentences imposed
under today’s laws erode people’s confidence in our criminal
justice system,” Cole said. “I am confident that this initiative
will go far to promote the most fundamental of American
ideals—equal justice under law.”

Cole says the Office of the Pardon Attorney, under a newly
appointed head, Deborah Leff, and with the assistance of lawyers
from other divisions of the Justice Department, will give
special attention to “non-violent, low-level
offenders” who have served at least 10 years of a
sentence that would have been shorter under current law, “do not
have have a significant criminal history,” have
“demonstrated good conduct in prison,”
and have no “significant ties to large scale
criminal organizations, gangs or cartels.” An unnamed “senior
administration official”
told Yahoo News the new guidelines could result in clemency for
“hundreds, perhaps thousands” of federal prisoners by the end of
Obama’s second term. That would be a dramatic turnaround for a
president who so far has
commuted just 10 sentences and during his first term racked up
one of the stingiest clemency
records in U.S. history.

It seems plausible that thousands of federal prisoners
could meet Cole’s criteria. According to Families Against Mandatory
Minimums (FAMM), more than 23,000 federal prisoners are serving
sentences longer than 10 years. Drug offenders, who account for
half of federal prisoners, will be the main beneficiaries of the
new policy. FAMM estimates, for example, that
8,800 federal prisoners could benefit from retroactive application
of shorter crack sentences enacted by Congress in 2010.

How many drug offenders serving more than 10 years would
meet the other criteria? A 2013
calculation by Paul Hofer, a policy analyst with Federal Public
and Community Defenders, suggests the number might be in the
thousands. Hofer was estimating the potential impact
of Attorney General Eric Holder’s new charging
guidelines for drug cases, which use criteria similar to the ones
announced today (including no violence, minimal criminal record,
and no significant ties to criminal
organizations). Hofer estimated
that the charging guidelines, if followed by U.S. attorneys,
could help about 500 drug offenders escape mandatory minimum
sentences each year, which suggests that thousands of people who
meet the new commutation criteria may be serving time
now.

Even if the number of prisoners freed under the new policy
is only in the hundreds, Obama will look much better
than any of his recent predecessors. No president has broken the
double digits with commutations since Lyndon Johnson, who issued
226 over 62 months. Since then total commutations have ranged from
a low of three under George H.W. Bush to a high of 61 under Bill
Clinton (followed closely by Richard Nixon with 60). If Obama
follows through on his promises to ameliorate some of the appalling
injustices committed in the name of the war on drugs, it will be
one of his most admirable legacies.

According to PJ columnist Andrew McCarthy, it will also be
unconstitutional. McCarthy, a former federal prosecutor,
argues that Obama’s clemency plans usurp the legislative
branch’s authority to determine appropriate penalties for actions
it decides to treat as crimes:

The pardon power exists so that the president can act in
individual cases to correct excesses and injustices. It is not
supposed to be a vehicle by which presidents rewrite congressional
statutes that they disagree with philosophically….

The Obama administration is philosophically opposed to
mandatory minimums in the federal penal law, especially in the
narcotics area….

President Obama is using the pardon power to rewrite the
statute unilaterally. The time drug offenders spend in jail will be
based on his subjective notion of fairness, not the policy embodied
in our drug statutes. This is not faithful execution of the law,
which is the president’s core constitutional duty. It is the
execution of Obama’s whims….

This is not an exercise in mitigating injustice in
individual cases. This is an abuse of political power to rewrite
the federal drug laws because, as a matter of ideology, Obama does
not agree with stern sentences for drug offenders.

McCarthy—who usually takes a broad view of presidential
power, especially in the area of national security—perceives limits
on the pardon power that appear nowhere in the Constitution. As the
Heritage Foundation
notes, “The power to pardon is one of the least limited powers
granted to the President in the Constitution. The only limits
mentioned in the Constitution are that pardons are limited to
offenses against the United States (i.e., not civil or state
cases), and that they cannot affect an impeachment
process.”

But let’s say McCarthy is right to say that clemency
(which includes “reprieves,” a.k.a. commutations, as well as
pardons) is properly used only to “correct excesses and
injustices.” That is precisely what Obama proposes to do. After
all, what does it mean to say that Obama “is philosophically
opposed to mandatory minimums” if it does not mean that he believes
they are unjust? McCarthy may dismiss the basis for that judgment
as a “subjective notion of fairness,” but any act of clemency aimed
at correcting “excesses and injustices” would be open to the same
objection.

McCarthy seems to be arguing that using commutations to
shorten sentences prescribed by law, which is exactly what
commutations are supposed to do, amounts to rewriting the law when
it is based on a judgment that the law is unjust. That claim is
especially dubious in this case, since Obama is not issuing a
blanket commutation for, say, every drug offender serving a
mandatory minimum. (If only.) He is instead “mitigating injustice
in individual cases,” based on criteria that only some people
serving mandatory minimums will meet.

Furthermore, those criteria focus on sentences that
Congress decided to change because they were unjust—in
particular, the crack cocaine sentences that Congress shortened in
2010. McCarthy discusses those changes, which Congress approved
almost unanimously, and he seems to agree that the old sentencing
rules were unreasonably harsh. But Congress did not make the
changes retroactive. So unless Congress
corrects that omission, McCarthy says, crack offenders
sentenced under the old rules are out of luck, even though pretty
much everyone now agrees their prison terms are excessively long.
If Obama commutes some of those sentences, McCarthy claims, he is
exceeding an unwritten limit on his powers. To the contrary: It is
hard to think of a clearer example of using clemency to “correct
excesses and injustices.”

Without getting sidetracked with “What
About Benghazi?” questions (which
are well worth asking), check out
this new story from The Daily Beast‘s Eli Lake. It
tells you all you need to know about the sagacity of Barack Obama’s
unilateral and unconstitutional commitment of U.S. forces in
Libya.

A key jihadist leader and longtime member of al Qaeda has taken
control of a secretive training facility set up by U.S. special
operations forces on the Libyan coastline to help hunt down Islamic
militants, according to local media reports, Jihadist web forums,
and U.S. officials.

In the summer of 2012, American Green Berets began refurbishing
a Libyan military base 27 kilometers west of Tripoli in order to
hone the skills of Libya’s first Western-trained special operations
counter-terrorism fighters. Less than two years later, that
training camp is now being used by groups with direct links to al
Qaeda to foment chaos in post-Qaddafi Libya.

Last week, the Libyan press reported that the
camp (named “27” for the kilometer marker on the road between
Tripoli and Tunis) was now under the command of Ibrahim Ali
Abu Bakr Tantoush, a veteran associate of Osama bin Laden who was
first designated as part of al Qaeda’s support network in 2002
bythe United States and the United Nations. The report said he was
heading a group of Salifist fighters from the former Libyan
base.

Well that’s just great, isn’t it?

Luckily for Obama, who replaced a terrible Secretary of State
(Hillary Clinton) with an even worse one (John Kerry), and whose
Defense Department is full of whiny crybabies (Leon
Panetta back in the day,
various officers today), nobody cares about Libya anymore.
Qaddafi could be back in power and no one would give a rat’s ass.
Because, you know, we need to fix what’s wrong in Syria. Or Crimea.
Or Ukraine. Or maybe Venezuela. Or Rhode Island. The most important
thing in U.S. foreign policy is that, like the rock band
Boston and
Satchel Paige, you should never look back. U.S. foreign policy,
like a third-rate boxer or Mad Men‘s Don Draper only goes
in one direction:
Forward.

The U.S. Supreme Court stepped gingerly into the brave new world
of cloud computing and online streaming Tuesday morning when the
justices heard oral argument in American Broadcasting
Companies, Inc. v. Aereo, a case testing the reach of
copyright law in today’s hi-tech world.

At issue is whether Aereo,
a New York-based company whose tagline reads, “Watch Live TV
Online,” is in violation of federal copyright law because it does
not pay royalties for the TV broadcasts its service allows paying
customers to watch on their smart-phones, tablets, and
computers.

“Aereo is an equipment provider,” the company’s lawyer, David C.
Frederick, told the Court. That equipment includes some 10,000
dime-sized antennas in the company’s Brooklyn facility. Those
antennas, Aereo says, operate just like the old-fashioned antennas
that were once commonly affixed to TV sets. They catch over-the-air
broadcasts and allow people to watch those broadcasts on their TVs.
According to federal law, the old-fashioned scenario raises no
copyright concerns. Aereo maintains that its hi-tech service should
be seen as the modern equivalent. “All Aereo is doing is providing
antennas and DVRs that enable consumers to do” what the law already
allows them to do, Frederick repeatedly stressed during
questioning.

But several members of the Court voiced significant doubts about
the probity of Aereo’s approach. “If every other transmitter does
pay a royalty,” observed Justice Ruth Bader Ginsburg, “you are the
only player so far that doesn’t pay any royalties at any
stage.”

Justice Stephen Breyer amplified that concern. “It looks as if
somehow you are escaping a constraint that’s imposed upon” cable
companies and satellite systems, he told Frederick. Indeed, added
Justice Elena Kagan, from the user’s standpoint, Aereo is “exactly
the same as if I’m watching cable.”

But the other side faced sharp questioning as well. Representing
ABC and several other media entities in their fight against Aereo
was Paul Clement, the former solicitor general and high-profile
conservative lawyer. He told the Court that because Aereo is
“publicly performing” copyrighted material it must pay the price.
“They provide thousands of paying strangers with public
performances over the TV, but they [claim] they don’t publicly
perform at all. It’s like magic,” he quipped.

Yet Clement’s definition of what should count as a “public
performance” of copyrighted material plainly troubled several of
the justices.

Justice Sonia Sotomayor, for example, worried that “someone who
sells coaxial cable to a resident of a building” might be “swept up
as a participant in this.” They also enable strangers to watch
public performances, she implied.

Justice Samuel Alito, who appeared visibly frustrated with
Clement’s evasive answers at one point, raised a broader concern.
“I need to know how far the rationale that you want us to accept
will go…what effect it will have on these other technologies,”
Alito declared.

Foremost among those “other technologies” is what’s commonly
called “the cloud,” a shorthand term for the ability to store and
access vast amounts of material online, including copyrighted items
such as the digital files for songs and movies.

What if, asked Justice Breyer, an anti-Aereo ruling causes
fallout for “other things that really will change life and
shouldn’t, such as the cloud?”

It’s a good question. But judging by Tuesday’s closely divided
oral argument the Court is still groping its way towards an
answer.

A ruling in American Broadcasting Companies, Inc. v.
Aereo is expected by June.

“If there
were no demand for commercial sex, sex trafficking would not exist
in the form it does today,” reads the first line of a 2013 State
Department report on curbing sexual slavery. In other words, if
only we could just stop people from wanting to pay for sex
altogether, the market for this nasty trafficking business would
disappear once and for all. Since that’s never going to happen,
Zach Weissmueller offers a real way to reduce sex trafficking: Make
prostitution legal.

View this article.

The Dayton City Paper, an alt-weekly out
of Dayton, Ohio, recently ran a “debate”
on marijuana legalization. On one side of the page, a
DCP staffer argued in favor of Ohio moving to
legalize. The other side of the page was mostly blank. 

An editor’s note on the anti-legalization side of the page says,
“On behalf of the Dayton City Paper staff, we apologize, but we
were unable to locate a debate writer who was able to submit a view
opposed to the legalization of marijuana in Ohio at this
time.” 

The paper’s plan had been to have another staff writer make an
anti-legalization argument. But a scheduling mistake prevented the
one staffer amenable to writing against legalization from filing on
time. Rather than scrap the debate—a weekly staple in the paper and
one of its most popular features—the publishers decided to have fun
with it. 

Clearly, the paper could have found a writer,
if not necessarily a staffer, to take the opposing side were time
constraints not an issue. But they were. DCP Publisher
Paul Noah points out that the editorial note merely says they
couldn’t locate someone in time. 

“We’re making a statement in a playful way,” says Noah, a
supporter of legalizaiton efforts like Colorado’s.

Not even medical marijuana is currently legal in Ohio. Three
medical marijuana amendments have had language approved by the
attorney general and the Ohio Ballot Board, but campaigners have
been unable to collect enough signatures to get these on the
ballot.

In 2013, State Rep. Bob Hagan (D-Youngstown)
introduced legislation that would allow people to grow
marijuana for medicinal use or designate a caregiver to grow it for
them, a proposal similar to existing laws in 20 states and the
District of Columbia. But after an initial May 2013 committee
hearing, there’s been no action on Hagan’s
bill. Hagan also introduced a measure to legalize, tax, and
regulate recreational marijuana, but it has met a similar
fate. 

According to a
poll released in March, 87 percent of Ohioans (including 78
percent of Republicans) think medical marijuana should be legal.
And a slight majority (51 percent) support legalizing small amounts
for personal recreational use. “Is it time?” as the Dayton City
Paper recently asked. It seems like the answer’s inching
closer to yes. 

If you and I pay the Internal Revenue Service
less than it claims it owes us, we can get slammed pretty hard with
fines,
penalties, and even
jail time. The IRS even
stages armed raids in its search for a few more sheckels to
feed the government’s appetite. We even can get dinged $5,000 for
filing “frivolous” returns that just annoy the tax
collectors.

But there is one class of people that can misbehave and even
stiff the IRS, and receive rewards in return. Who has that sweet
deal? IRS employees.

According to a press release from the Treasury
Inspector General for Tax Administration:

between October 1, 2010 and December 31, 2012, more than 2,800
employees with recent substantiated conduct issues resulting in
disciplinary action received more than $2.8 million in monetary
awards and more than 27,000 hours in time-off awards. Among these,
more than 1,100 IRS employees with substantiated Federal tax
compliance problems received more than $1 million in cash awards
and more than 10,000 hours in time-off awards.

Whoops!

Among the most serious misconduct the
full report revealed among employees who were later awarded was
“late payment and/or nonpayment of Federal taxes, Government travel
card misuse or delinquency, Section 1203(b) violations, misconduct,
and fraud issues.”

Section 1203(b)
violations include assaults on, harassment of, and retaliation
against taxpayers, if you’re curious.

To put this in context, the full report notes that for 2011, the
IRS awarded almost $92 million in cash and almost 520,000 hours of
time off to 70,500 of its approximately 104,400 employees. So there
are plenty of goodies to go around, and they’re not all going to
malefactors, as the tax agency defines them. But still, to be a tax
collector who skates along on the company credit card, abuses
taxpayers, and holds back on your own taxes while getting a pat on
the back and a bonus has to be a pretty sweet deal.

The inspector general’s office urged the IRS to consider
requiring management to take into account conduct issues resulting
in disciplinary actions, especially the nonpayment of taxes, prior
to awarding all types of performance and discretionary awards.

They’ll get right on that. Right after they finishing
scrutinizing your tax return for clerical errors.

We
voluntarily give up privacy all the time. Amazon.com keeps our
credit card info. Websites track what we read and what we buy. By
comparison, the National Security Agency’s data mining seems
relatively benign, writes John Stossel—but there’s one big
difference. We can decide whether to use Facebook or let
private sites install cookies. But we didn’t give the NSA—not to
mention the IRS, FBI, etc.— permission to access our
information. 

View this article.