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“The virus teaches us something. It’s a wakeup call,” says Philip K. Howard, the founder of the nonprofit Common Good and author of such bestsellers as The Death of Common Sense: How Law Is Suffocating America and The Rule of Nobody: Saving America from Dead Laws and Broken Government. “The reason it spread through the country is because public health officials were delayed by over a month while they waded through the red tape of Washington to get approvals to start testing.”

Howard is not a libertarian, but he believes strongly in a limited, effective government that comes close to the libertarian vision. In the video below and through an effort called the Campaign for Common Sense, Howard pulls together an interesting set of Reason-adjacent policy wonks and pols—including former Indiana Gov. Mitch Daniels, former Indianapolis Mayor Stephen Goldsmith, and Free-Range Kids author Lenore Skenazy—to push for reducing the sheer number of rules governing virtually every aspect of our personal and commercial lives. (Howard often cites “the 5,000 rules for a family-owned orchard” as an example.)

It’s an appealing vision, and one sketched out in detail in Howard’s 2019 book, Try Common Sense. (Go here for a podcast interview I did with Howard). In a recent interview with The Washington Examiner, Howard calls for a “spring cleaning” of old and outdated regulations:

I’ll give you an example of a program in Australia a couple of decades ago. They replaced their thick rulebook on nursing homes with 31 general principles. Have a home-like setting, respect the dignity of the residents, and such. Experts scoffed. But before, the nursing-home operators were getting away with murder; within the year, the nursing homes were twice as good. They ran a study, and what they found was when people came to work and they didn’t have their noses in the rulebooks, they could internalize these principles, and they could focus on what the residents needed. And they could run their nursing homes in different ways. Most states have something like a thousand rules for their nursing homes. It’s just absurd. You’ve got to have two pictures on the wall, the window has to be this big, so many peas on the plate. It’s unbelievably granular.

The policy specifics will be rolled out over the course of the summer, but some are already public. For instance, when it comes to liability issues related to COVID-19 and the welfare of workers, the group calls for a “a special administrative court [that] will achieve the reliability needed to avoid chilling recovery. It will also avoid clogging regular courts with COVID claims.” Another plank takes aim at ending unjust protections for public employees such as cops and teachers (“in a typical year, only two of California’s 300,000 teachers are dismissed for poor performance”).

If the protests in the wake of George Floyd’s killing show anything, it’s that public opinion can coalesce rapidly around longstanding grievances. It’s unlikely that the changes the Campaign for Common Sense is calling for will explode into the public consciousness the way that calls for police reform have. But in a long summer featuring two generally unpopular candidates for president, voters might be more interested than usual in hearing about sensible pragmatic reforms.

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Last night Fox News host Tucker Carlson vigorously defended qualified immunity, the doctrine that allows public officials to avoid federal civil rights lawsuits if the way they violated your rights has not been outlined with exacting detail in previous case law.

Carlson offered an alternative definition for his viewers. “Qualified immunity means that cops can’t be personally sued when they accidentally violate people’s rights while conducting their duties,” he said. “They can be sued personally when they do it intentionally, and they often are.”

There are a few problems with the statement, the largest being that it is not true.

Qualified immunity provides no distinction between accidental and intentional rights violations. A quick review of previous qualified immunity rulings proves as much. Consider the cops in Fresno, California, who were granted qualified immunity after allegedly stealing $225,000 while carrying out a search warrant.

It was not an accidental robbery, and the U.S. Court of Appeals for the 9th Circuit acknowledged as much in their ruling last September. Though “the City Officers ought to have recognized that the alleged theft was morally wrong,” the unanimous panel wrote, it concluded that they “did not have clear notice that it violated the Fourth Amendment.” They both received qualified immunity.

Translation: The officers should’ve known that stealing from someone is morally and legally indefensible. But without a court precedent spelling that out for them, the two were off the hook, leaving the plaintiffs no recourse. That is how qualified immunity works in practice.

“Civil immunity has precisely nothing to do with anything that happened in the George Floyd case,” Carlson continued. “Just in case you were wondering, that cop is in jail.”

Again, that represents a fundamental misunderstanding around where and when qualified immunity applies. The doctrine solely pertains to civil liability—a public official who breaks the law and is awarded qualified immunity is not protected from criminal prosecution. The two are entirely unrelated, although it’s worth noting that state prosecutors often decline to bring such charges in the first place.

Put more plainly, former police officer Derek Chauvin may indeed receive qualified immunity from any civil suit brought by the family of George Floyd—the unarmed man who died after Chauvin dug his knee into Floyd’s neck for almost 9 minutes—even if Chauvin’s trial yields a murder conviction.

Carlson continued:

Qualified immunity has worked so well because police officers, maybe more than anyone else in society, must make difficult split-second decisions on the job, and a lot. They do it constantly. Whether to arrest someone, whether to conduct a search, whether to use force against a suspect. Sometimes, actions they sincerely and reasonably believe are legal are found later by courts to be unconstitutional. Sometimes the very laws they enforce are struck down. That’s not their fault, obviously, but without qualified immunity, police could be sued for that personally. They could be bankrupted they could lose their homes. That’s unfair. It would also end law enforcement. No one would serve as a police officer.

There’s quite a bit to unpack there. First, as Institute for Justice attorney Patrick Jaicomo notes, qualified immunity has nothing to do with reaction times but “is about whether the right that was violated was ‘clearly established.'” That standard was established by the Supreme Court in Harlow v. Fitzgerald (1982) in spite of Section 1983 of Title 42 of the U.S. Code, the statute that previously allowed the American public to sue for violations of their constitutional rights. It’s the epitome of the high court legislating from the bench, something conservatives typically oppose.

But perhaps Carlson’s most significant misinterpretation is his claim that cops are only caught in compromising situations when they “sincerely and reasonably” believed their misconduct was both legal and constitutional. Such a claim can only be explained by a lack of familiarity with qualified immunity case law. Take the cop who received qualified immunity after shooting a 10-year-old while in pursuit of a suspect that had no relationship to the child. The officer, sheriff’s deputy Matthew Vickers, was aiming at the boy’s nonthreatening dog.

There were also the cops who were granted qualified immunity after assaulting and arresting a man for standing outside of his own house. And the prison guards who locked a naked inmate in a cell filled with raw sewage and “massive amounts” of human feces. And the cop who, without warning, shot a 15-year-old who was on his way to school. And the cops who received qualified immunity after siccing a police dog on a person who’d surrendered. It doesn’t take much thought to conclude that such courses of action were morally bankrupt.

Then there’s the notion that police officers would lose their homes and leave the force in droves should qualified immunity meet its demise. Puzzlingly, that claim hinges on the assumption that a slew of officers would lose their cases—a tacit acknowledgement that police culture needs to change.

But even so, cops themselves are almost never on the hook for the bill. Cities are. It’s certainly still not an ideal solution for taxpayers, but until police departments can grapple with reform, it’s an option that should be available for those who have their rights flagrantly violated by those that swear to protect and serve.

Incidentally, qualified immunity does not apply only to those who take that oath. It applies to all public officials. That includes, for instance, university administrators who have infringed on students’ due process rights. Carlson has been beating the campus culture war drum for a while. I assume he would not support qualified immunity in those cases, though one wonders if he knows it applies.

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There is overwhelming evidence that the criminal justice system is racist.

That was the resolution of an online Soho Forum debate held on Wednesday, June 24, 2020. It featured The Washington Post‘s Radley Balko and the Manhattan Institute’s Rafael Mangual. The debate was moderated by Soho Forum Director Gene Epstein.

Arguing that America’s criminal justice system is, in fact, racist was Radley Balko, an opinion writer for The Washington Post. A former editor at Reason, Balko is also the author of Rise of the Warrior Cop and co-author of The Cadaver King and the Country Dentist.

Defending America’s criminal justice against the charge of racism was Rafael Mangual, the deputy director of legal policy at the Manhattan Insitute, who is also a contributing editor for City Journal. Mangual’s writing has appeared in The Wall Street Journal, The Atlantic, the New York Post, the Boston Herald, and The Philadelphia Inquirer.

The Soho Forum, sponsored by the Reason Foundation, is a monthly debate series at the SubCulture Theater in Manhattan’s East Village.

Voting on this debate is open until Tuesday, June 30, 2020, at noon EST.

Produced by John Osterhoudt.

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Lester Grinspoon, a leading drug policy reformer who died yesterday at the age of 92, was an optimist. “Whatever the cultural conditions that have made it possible, there is no doubt that the discussion about marihuana has become much more sensible,” Grinspoon wrote in 1977. “If the trend continues, it is likely that within a decade marihuana will be sold in the United States as a legal intoxicant.”

It turned out that Grinspoon was off by a few decades. He did not anticipate the reaction against adolescent pot smoking that would lead to an intensified war on weed during the Reagan administration, when public support for legalization dropped after rising during the 1970s. But Grinspoon lived to see marijuana become a legal intoxicant in 11 states, nine of which have government-licensed shops serving recreational consumers. Marijuana retailers not only are legitimate businesses in those nine states; they were deemed “essential” during COVID-19 lockdowns in all but one, meaning they were allowed to stay open as other merchants were forced to close.

That is a remarkable development after a century of pot prohibition, which began at the state level in 1911 and culminated in the federal Marihuana Tax Act of 1937. The ongoing collapse of that regime is due in no small part to Grinspoon’s tenacious advocacy of a more rational and tolerant approach to America’s most popular illegal drug.

Grinspoon’s career as a reformer spanned half a century, beginning with his 1971 book Marihuana Reconsidered. When he published that book, Grinspoon was a professor of psychiatry at Harvard Medical School. That respectable perch gave him credibility as he made a case that was still highly controversial at a time when nearly nine out of 10 Americans thought marijuana should remain illegal.

Grinspoon, whose old-fashioned spelling of the drug’s name harked back to the era of Reefer Madness, originally set out to present credible evidence of marijuana’s harms to pot-smoking kids who were ignoring the government’s warnings. “I was concerned about all these young people who were using marijuana and destroying themselves,” he told me in 1993. But after examining the research on marijuana’s effects, he said, “I realized that I had been brainwashed, like everybody else in the country.” In his book, he methodically debunked many scary claims about pot, including fears that it caused crime, sexual excess, psychosis, brain damage, physical dependence, and addiction to other drugs.

The following year, the Nixon-appointed National Commission on Marihuana and Drug Abuse reached broadly similar conclusions: that the dangers of pot had been greatly exaggerated and could not justify punitive treatment of its users. The commission introduced the concept of decriminalization, which the newly formed National Organization for the Repeal of Marijuana Laws (NORML)—which early on replaced repeal with reform in its name—soon adopted as a goal. At a time when some 600,000 people were being arrested each year on marijuana charges, most for simple possession, the strategy had broad appeal. Liberals were concerned about the injustice of sending college students to jail for carrying a joint or two. Conservatives worried about the mass alienation and disrespect for the law that the policy was breeding.

In 1973 Oregon became the first state to “decriminalize” marijuana, making possession of less than an ounce a civil offense punishable by a maximum fine of $100. By the end of the decade, 11 states had decriminalized possession, a policy endorsed by President Jimmy Carter, the American Bar Association, the American Medical Association, and the National Council of Churches. Every other state had reduced the penalty for simple possession, nearly all of them changing the offense from a felony to a misdemeanor. Most allowed conditional discharge, without a criminal record.

That was the context of Grinspoon’s optimism in 1977, when he published an updated edition of Marihuana Reconsidered. But as he noted at the time, decriminalization, while a clear improvement, was not an adequate solution, and it was inherently unstable. “As long as marihuana use and especially marihuana traffic remain in this peculiar position neither within nor outside the law, demands for a consistent policy would remain strong,” he wrote. “We would have to ask ourselves why, if using marihuana is relatively harmless, selling it is a felony; then we would have to decide whether to return to honest prohibition or move on to legalization.”

Although it took longer than Grinspoon expected, Americans eventually grappled with that conundrum and resolved it in favor of legalization, which two-thirds of respondents supported in the most recent Gallup poll. Given the current climate of opinion, it is easy to overlook the courage and perseverance it took to calmly, graciously, and persistently advocate a cause that remained broadly unpopular until the last decade or so.

But Grinspoon, who served for many years on NORML’s board of directors, did more than that. In his 1993 book Marihuana: The Forbidden Medicine, co-authored by James B. Bakalar, he made the case that cannabis—which was a common ingredient in patent medicines during the 19th century, when it was extravagantly promoted as a cure for a wide range of maladies, including coughs, colds, corns, cholera, and consumption—actually had scientifically verifiable medical potential. That was three years before California became the first state to allow medical use of marijuana, a policy that was eventually adopted by 32 other states.

The significance of that development is hard to overstate, because it not only highlighted the potential benefits of a long-demonized plant but focused attention on its side effects, an obvious concern when medically frail people use it for symptom relief. The hazards of marijuana, in turned out, compared quite favorably to those of many widely prescribed pharmaceuticals. And in states like California, where loose rules allowed pretty much anyone to legally obtain marijuana as long as they had a doctor’s note, permitting medical use became a test for broader legalization. The sky did not fall—a point recognized by the voters who eventually approved tolerance of recreational use in California and elsewhere.

Grinspoon’s position on marijuana’s therapeutic potential was ultimately endorsed, to at least some extent, by such scientific authorities as the Food and Drug Administration (FDA) and the National Academies of Sciences, Engineering, and Medicine. Two years ago, the FDA, which had approved a synthetic version of THC as a treatment for AIDS wasting syndrome and the side effects of cancer chemotherapy in the 1980s, authorized the sale of Epidiolex, the first cannabis-derived medication to be approved by the U.S. government, as a treatment for two rare kinds of epilepsy.

Grinspoon’s advocacy was not limited to marijuana. In their 1979 book Psychedelic Drugs Reconsidered, he and Bakalar gave that class of psychoactive substances, which had long terrified politicians and the general public, the same sort of demystifying treatment that Grinspoon had applied to marijuana eight years earlier. As with marijuana, government officials have acknowledged at least some of the truth Grinspoon was telling. In 2018, the same year it approved Epidiolex, the FDA recognized psilocybin as a “breakthrough therapy” for depression, signaling that it might be approved as a prescription drug sometime in the next few years. Meanwhile, state and local activists are pushing for legal tolerance of nonmedical psilocybin use. They scored their first victory in Denver last year.

It is safe to say that Americans, most of whom favor the legalization of psychedelics as psychotherapeutic catalysts, are much calmer about those drugs than they were in the 1960s and ’70s. That sort of reevaluation does not come out of thin air. It is a function of the arguments and evidence marshaled by pioneering public intellectuals like Grinspoon.

Grinspoon did not simply argue that the government should allow the use of drugs that prove to be “relatively harmless,” as he described marijuana in the 1970s. In the 1984 book Drug Control in a Free Society, he and Bakalar delved into the deeper issues raised by politicians’ attempts to enforce their pharmacological prejudices.

Starting with John Stuart Mill’s On Liberty and with nods toward libertarians such as Thomas Szasz and Robert Nozick, Grinspoon and Bakalar thoughtfully challenged the case for paternalistic drug policies; questioned the conventional understanding of addiction; noted how a sweeping conception of public health becomes a license for all manner of meddling in personal choices; highlighted the arbitrary legal distinction between alcohol and other drugs; and insisted that the pleasure people get from drugs should count for something in any calculus of prohibition’s cost and benefits. It is a slim, wisdom-packed volume that is still relevant 36 years later.

Americans have mostly accepted Grinspoon’s position on marijuana, and they may be coming around on psychedelics as well. I am less hopeful that they will ever think logically, consistently, and systematically about drug policy in general. But if they do, it will thanks to dogged dissidents like Grinspoon.

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