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It’s 2020 and the leadership of the Democratic Party still cannot get it together on marijuana legalization, which two-thirds of Americans support.

According to Pew polling data, support for full legalization crossed the 50 percent threshold back in 2010 and has been growing ever since. Much like support for gay marriage recognition, this seems to be a permanent cultural shift in attitudes.

But unlike the Democratic Party’s embrace of gay marriage, its leadership cannot seem to line up behind marijuana legalization, even as the Black Lives Matter and criminal justice reform movements highlight precisely how the drug war has led to the overpolicing and harassment of black communities.

Marijuana Moment reports that on Monday the Democratic National Committee rejected an amendment to put a plank supporting marijuana legalization into the party’s platform. The final vote against, 50-106, is almost a perfect inversion of the two-thirds of the public who want legalization.

Instead, Marijuana Moment reports, the platform will retain language that Democratic nominee and former Vice President Joe Biden hammered out with a criminal justice task force that included Sen. Bernie Sanders’ (I–Vt.) supporters. It stops short of marijuana legalization but does call for federal reforms:

“Democrats will decriminalize marijuana use and reschedule it through executive action on the federal level. We will support legalization of medical marijuana, and believe states should be able to make their own decisions about recreational use. The Justice Department should not launch federal prosecutions of conduct that is legal at the state level. All past criminal convictions for cannabis use should be automatically expunged.”

It’s nice that the Democrats say that the Justice Department “should not launch federal prosecutions,” but that’s fundamentally meaningless as a policy proposal. Remember all the screaming that President Donald Trump has too much influence over a Justice Department some believe should be operating independently? Shifting marijuana so that it’s in a less restrictive schedule in the Controlled Substances Act will still give the Justice Department plenty of reasons to go after marijuana users and dealers should they choose to.

And while the Justice Department isn’t a huge driver of marijuana arrests and prosecutions these days, it does still happen, particularly when people are caught trying to transport marijuana across state lines from states where it has been legalized to states where it has not been. Just in June, for example, the Drug Enforcement Administration filed federal charges against an attorney they caught allegedly conspiring to fly cannabis oil across the country from California in a private Learjet for sale elsewhere. The man now faces a mandatory minimum sentence of five years in prison if convicted.

On the state and local level, marijuana offenses still account for 40 percent of drug-related arrests. And the vast majority of those arrests (more than 90 percent) are for possession, not manufacture or sale.

These aren’t small numbers, but Biden, after all these years, is still resistant to full marijuana legalization. He brags about being a leader in publicly embracing gay marriage, reversing his old position against it and embracing it in 2012—even before President Barack Obama would publicly do so.

But with marijuana, Biden’s historical support of harsh criminal justice tactics has weakened but not faded. And it appears that the Democratic leadership is unwilling to force Biden to accept the reality that Americans would strongly prefer marijuana to be fully legalized, not just decriminalized. While decriminalization is an improvement, it leaves in place mechanisms for unequal enforcement, and research shows that black people are more likely to still be arrested or punished for marijuana possession than white people in states where marijuana has only been decriminalized. And overall, according to the American Civil Liberties Union, marijuana arrest rates in states where the drug has been decriminalized are about eight times higher than in states where it has been fully legalized.

The federalist component of the platform is laudable from a libertarian perspective, if for no reason other than continued state-level legalization shows that the world isn’t ending in states that have given the citizenry permission to toke up. Their successes should make other states less afraid to follow suit. It’s not unlike how state-level recognition of gay marriage showed that it was ultimately not a big deal and as the public saw more of these relationships and families, resistance largely crumbled away.

Nevertheless, it’s absurd for the Democratic Party to want to use the current activism for criminal justice and police reform as a contrast to Trump’s cheerleading for crackdowns, but they can’t even force Biden to accept the simplest and most popular of drug war reforms that will—in very profound and important ways—reduce overpolicing of black communities.

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[This is a serialization, with slight updates, of my 2012 article on the subject; for the Introduction (which also discusses my ambivalence about such laws), see this post.]

We’re finishing the discussion of state laws protecting employee speech with the narrowest ones, which are limited to signing petitions or contributing to campaigns. (All states also ban employer retaliation based on how a person voted.)

[A.] Signing Initiative, Referendum, Recall, or Candidate Petitions—Arizona, D.C., Georgia, Iowa, Minnesota, Missouri, Ohio, Oregon, Washington

These laws are narrow, but have become especially relevant given the recent debates about retaliation against people who signed anti-same-sex marriage initiative petitions. For an explanation of why the laws that ban threats and intimidation, without mentioning employment, likely apply to threats of dismissal for employment, see item 8 of this post.

Arizona: A person who … threatens any other person to the effect that the other person will or may be injured in his business, or discharged from employment, or that he will not be employed, to sign or subscribe, or to refrain from signing or subscribing, his name to an initiative or referendum petition [or recall] … is guilty of a … misdemeanor.

District of Columbia: Any person who … by threats or intimidation, interferes with, or attempts to interfere with, the right of any qualified registered elector to sign or not to sign any initiative, referendum, or recall petition, or to vote for or against, or to abstain from voting on any initiative, referendum, or recall measure … shall be [guilty of a misdemeanor].

Georgia: A person who, by menace or threat either directly or indirectly, induces or compels or attempts to induce or compel any other person to sign or subscribe or to refrain from signing or subscribing that person’s name to a recall application or petition … shall be guilty of a misdemeanor.

Iowa: A person commits the crime of election misconduct in the first degree if the person willfully … [i]ntimidates, threatens, or coerces, or attempts to intimidate, threaten, or coerce, a person … [t]o sign [or refrain from signing] a petition nominating a candidate for public office or a petition requesting an election for which a petition may legally be submitted.

Louisiana: No person shall knowingly, willfully, or intentionally … [i]ntimidate … directly or indirectly, any voter or prospective voter in matters concerning voting or nonvoting or voter registration or nonregistration, or the signing or not signing of a petition, including but not limited to any matter concerning the voluntary affiliation or nonaffiliation of a voter with any political party.

Minnesota: A person may not use threat, intimidation, coercion, or other corrupt means to interfere or attempt to interfere with the right of any eligible voter to sign or not to sign a recall petition of their own free will.

Missouri: [It shall be a misdemeanor o]n the part of any employer [to] mak[e], enforc[e], or attempt[] to enforce any order, rule, or regulation or adopt[] any other device or method to prevent an employee from … signing, or subscribing his name to any initiative, referendum, or recall petition, or any other petition circulated pursuant to law … .

Ohio: No person shall, directly or indirectly, by intimidation or threats, influence or seek to influence any person to sign or abstain from signing, or to solicit signatures to or abstain from soliciting signatures to an initiative or referendum petition.

Oregon: [No person may] directly or indirectly subject any person to undue influence [defined to include “loss of employment or other loss or the threat of it”] with the intent to induce any person to … [s]ign or refrain from signing a prospective petition or an initiative, referendum, recall or candidate nominating petition.

Washington: Every person is guilty of a gross misdemeanor who … [i]nterferes with or attempts to interfere with the right of any voter to sign or not to sign an initiative or referendum [or recall] petition or with the right to vote for or against an initiative or referendum measure [or recall] by threats, intimidation, or any other corrupt means or practice … .

[B.] Giving Campaign Contributions—Louisiana, Massachusetts, Oregon

These statutes are limited to discrimination based on making a contribution. (More states ban discrimination based on a refusal to make a contribution.)

Louisiana: No person based on an individual’s contribution, promise to make a contribution, or failure to make a contribution to influence the nomination or election of a person to [any political office] shall directly or indirectly affect an individual’s employment by means of [discrimination in favor or against the person in employment, or threat of such discrimination].

Massachusetts: No person shall, by threatening to [discriminate against or in favor of an employee] … attempt to influence a voter to give or to withhold his vote or political contribution. No person shall, because of the giving or withholding of a vote or a political contribution, [discriminate against or in favor of an employee].

Oregon: [No person may] directly or indirectly subject any person to undue influence [defined to include loss of employment or other loss or the threat of it] with the intent to induce any person to … [c]ontribute or refrain from contributing to any candidate, political party or political committee.

Louisiana also has a more general protection for political activity, discussed in an earlier post, which would likely include campaign contributions.

[C.] Exercising the “Elective Franchise” or “Suffrage,” Which Might Include Signing Referendum, Initiative, or Candidate Nominating or Recall Petitions—Hawaii, Idaho, Kentucky, Tennessee, West Virginia, Wyoming, and Guam

Some jurisdictions ban retaliation or threat of retaliation related to the “free exercise of the elective franchise” or to “suffrage.” This might just mean with regard to voting, a prohibition that would rarely be triggered because voting is now generally secret.

But it could also be read as extending to the signing of referendum or initiative petitions, and perhaps to other forms of political activity, such as signing candidate nominating or recall petitions. Thus, for instance, the Wyoming Supreme Court has described—albeit in a slightly different context—the signing of initiative and referendum petitions as “relat[ing] to the elective franchise.” Maryland’s highest court likewise concluded that “the right to have one’s signature counted on a nominating petition [for a candidate] is integral to that political party member’s right of suffrage[,]” which suggests that signing a referendum petition is also included within the right of suffrage. An Oregon Attorney General’s opinion took the same view as to the signing of recall petitions, as did an Ohio court decision (though with regard to the phrase “exercising [the] elective franchise”).

The Idaho Supreme Court concluded that “[t]he right of citizens to organize, and give expression and effect to their political aspirations through political parties is inherent in, and a part of, the right of suffrage.” The Nebraska Supreme Court held that “the right of persons to combine according to their political beliefs and to possess and freely use all the machinery for increasing the power of numbers by acting as a unit to effect a desired political end” is “[i]nherent[]” in the right to “exercise of the elective franchise.” And several cases have generally endorsed the proposition that “[t]he right of suffrage includes the right to form political parties.”

For an explanation of why the statutes that generally ban threats also likely apply to threats of loss of employment, see item 8 of this post.

Hawaii: Every person who, directly or indirectly, personally or through another, makes use of, or threatens to make use of, any force, violence, or restraint; or inflicts or threatens to inflict any injury, damage, or loss in any manner, or in any way practices intimidation upon or against any person in order to induce or compel the person to vote or refrain from voting, or to vote or refrain from voting for any particular person or party, at any election, or on account of the person having voted or refrained from voting, or voted or refrained from voting for any particular person or party; or who by abduction, distress, or any device or contrivance impedes, prevents, or otherwise interferes with the free exercise of the elective franchise [shall be deemed guilty of a crime].

Idaho: Every person who, by force, threats, menaces, bribery, or any corrupt means, either directly or indirectly attempts to influence any elector in giving his vote, or to deter him from giving the same, or attempts by any means whatever, to awe, restrain, hinder or disturb any elector in the free exercise of the right of suffrage … is guilty of a misdemeanor.

Kentucky: No person shall coerce or direct any employee to vote for any political party or candidate for nomination or election to any office in this state, or threaten to discharge any employee if he votes for any candidate, or discharge any employee on account of his exercise of suffrage … .

Pennsylvania: Any person or corporation who, directly or indirectly … by abduction, duress or coercion, or any forcible or fraudulent device or contrivance, whatever, impedes, prevents, or otherwise interferes with the free exercise of the elective franchise by any voter, or compels, induces, or prevails upon any voter to give or refrain from giving his vote for or against any particular person at any election … shall be guilty of a misdemeanor … .

Tennessee: It is unlawful to discharge any employee on account of such employee’s exercise or failure to exercise the suffrage, or to give out or circulate any statement or report calculated to intimidate or coerce any employee to vote or not to vote for any candidate or measure.

West Virginia: Any person who shall, directly or indirectly, by himself, or by any other person on his behalf, make use of, or threaten to make use of, any force, violence or restraint, or inflict, or threaten to inflict, any damage, harm or loss, upon or against any person, or by any other means attempt to intimidate or exert any undue influence, in order to induce such person to vote or refrain from voting, or on account of such person having voted or refrained from voting, at any election, or who shall, by abduction, duress or any fraudulent device or contrivance, impede or prevent the free exercise of the suffrage by any elector, or shall thereby compel, induce or prevail upon any elector either to vote or refrain from voting for or against any particular candidate or measure … [i]s guilty of a misdemeanor.

Wyoming: [Criminal intimidation] consists of [i]nducing, or attempting to induce, fear in an … elector by use of threats of force, violence, harm or loss, or any form of economic retaliation, for the purpose of impeding or preventing the free exercise of the elective franchise … .

Guam: Every person is guilty of a felony who, by force, threats, menace, bribery or any corrupt means, either directly or indirectly, attempts to influence any voter in giving his vote, or to deter him from giving it, or attempts by any means whatever to threaten, restrain, hinder, or disturb any voter in the exercise of the right of suffrage.

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Among the criticisms of the deployment of Customs and Border Protection (CBP) officers to Portland is that CBP is one of the more problem-ridden federal law enforcement agencies.

CBP, the nation’s largest civilian law enforcement agency with roughly 60,000 employees, has higher termination rates than other federal law enforcement agencies, lower recruiting standards, longstanding corruption problems, and a well-documented toxic culture.

Here’s another small but notable data point:

A CBP official was referred to internal affairs investigators for allegedly telling a room full of supervisors in 2012 that if Border Patrol agents feel threatened by a migrant, they should “beat that tonk like a piñata until candy comes out.”

A CBP use-of-force instructor emailed the Immigration and Customs Enforcement Office of Professional Responsibility (OPR), which handles internal affairs for CBP, on Feb. 29, 2012, to report the potential misconduct. The complaint generated an OPR investigation report, recently obtained by Reason through a Freedom of Information Act (FOIA) request.

The instructor wrote that at a supervisors meeting the official, whose name was redacted, said during a discussion on assaults against Border Patrol agents, “you tell all the guys that if they feel threatened, they can beat that tonk like a piñata until candy comes out.”

“Tonk” (sometimes spelled “tonc”) is a slang CBP term for a migrant. It allegedly refers to the sound of hitting someone on the head with a flashlight, although some Border Patrol defenders claim it is an acronym for “Territory of Origin Not Known.” 

Last year, federal court records showed that a Border Patrol agent in Nogales, Texas, accused of hitting a Guatemalan migrant with his truck frequently used the word “tonk,” among other descriptors like “mindless murdering savages” and “disgusting subhuman shit unworthy of being kindling for a fire.” The agent, Matthew Bowen, was sentenced to probation for deprivation of rights under color of law.

Rolling Stone, in a story about the case against Bowen, described the history of the term:

A federal court case from 2004, which also centered on accusations of excessive force by the Border Patrol, includes an agent’s definition of “tonk” as “the sound heard when a ‘wetback’ is hit over the head with a flashlight.” Josiah Heyman is the chair of the anthropology department at the University of Texas, El Paso. In research on the border, he’s heard Border Patrol agents use the term “tonk”  since the early 1990s. “That’s their position in the hierarchy,” he says of undocumented migrants in relation to Border Patrol agents. “They’re hittable people.”

The word also popped up in a secret Border Patrol Facebook group, unearthed by ProPublica, that was full of jokes about migrant deaths and vulgar, sexual memes about Rep. Alexandria Ocasio-Cortez (D–N.Y.). CBP announced earlier this month that four Border Patrol agents had been fired over their posts on the Facebook group.

A CBP spokesperson told Mother Jones last year that, “there is no clear answer on where the term originated or if it was once considered an acronym, but flatly, it is now considered a derogatory term and CBP does not condone its use.”

But the complaint against the CBP official wasn’t concerned with the word so much as his encouraging illegal and excessive force against migrants.

“I, being a use of force instructor, told him that I didn’t believe that that was within the use of force policy, and I cited the use of force continuum in an attempt to clarify the issue,” the instructor’s email to OPR said. “I told him that there are indicators that can help determine if someone will become assaultive, like the thousand yard stare, but that in itself does not meet the criteria for aggressive assaultive behavior. He told me that it did and, within the confines of the supervisor meeting taking place, I relented to keep the meeting moving.”

“I believe that his statement undermines the use of force policy,” the instructor continued, “and could lead our agents into possible litigation if it is his wish that we preach this philosophy to the agents.”

Reason filed the FOIA request to see if any CBP internal investigations had ever mentioned the term. (Silly me, I requested internal affairs records between 2012 and 2019, but CBP didn’t even have an internal affairs department until 2014—11 years after it was established.)

The OPR report does not say how the case was resolved, or whether the CBP official was disciplined. CBP’s public affairs office did not immediately respond to a request for comment.

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Kris Kobach, the former Kansas secretary of state, is seeking the GOP nomination to replace retiring Republican Pat Roberts in this year’s race for Roberts’ U.S. Senate seat. And he has to thank for his campaign’s viability an $850,000 investment from controversial tech billionaire Peter Thiel.

“I think the money that that super PAC is putting into the race—primarily through this one rich guy—is absolutely the lifeblood of the pro-Kobach campaign at this moment,” Patrick Miller, a political scientist at the University of Kansas, told Recode. “You take that money away and Kobach doesn’t have a lot of campaign left.”

That Thiel—often identified, including by himself, as a libertarian—is dedicating himself to a candidate whose primary obsession is immigration restriction is a further sign of the tumultuous swirl of hypernationalism pushed by and surrounding Thiel (and discussed at length in a story in the August/September issue of Reason, now available online to subscribers).

Unnamed friends of Thiel tell Recode that Thiel “has a really strong preference for people who stick their middle finger up to the status quo and conventional wisdom. There is nobody who I think was more obviously sticking his middle finger up at conventional wisdom quite like Kris Kobach.”

Thiel back in 2016 shook up some of his libertarian fans by becoming a Trump delegate and hyping him onstage at the Republican National Convention. Thiel went on to become a poster boy for the new conservative nationalism and has been reported to be disappointed in the president lately and so far sitting out this presidential race.

Thiel had, however, reportedly began donating to immigration-restrictionist causes at least as far back as 2008, and over the years he’s given to a wide variety of GOP candidates and PACs, including $2 million to a Carly Fiorina PAC.

Thiel’s interest in Kobach is likely rooted in the same reasons he was enthusiastic about Trump. Kobach was one of the minds behind Trump’s Muslim registry and his unrepentant anti-immigration views mark him as perhaps Trumpier than Trump. (Kobach believes COVID-19 death numbers are being manipulated up to harm the president, for one.) Trump endorsed Kobach in his failed attempt to become governor of Kansas in 2018, and Thiel began funding Kobach during that race. Fellow disillusioned Trump superfan and immigration-hater Ann Coulter co-hosted a Kobach fundraiser in Thiel’s New York apartment.

Recode reports that Thiel has “cut at least three successive checks to [a pro-Kobach PAC called Free Forever], the most recent for a half-million dollars last month.” The PAC has “spent more than four times what Kobach’s campaign itself has spent on television and radio ads…The heavy amount of mailers sent by the PAC have run the gamut of attacking [Republican challenger Roger] Marshall as ‘anti-American’ for being insufficiently tough on immigration, alleging that he voted to fund ‘Rosie O’Donnell summer camp,’ ‘global warming musicals,’ and ‘transgender plays,’ and promising that Kobach will ‘stop the next Ruth Bader Ginsburg.'”

Thiel’s other candidate donations this year are going to another super immigration hawk, and advocate of sending in federal troops to quell protesters, Arkansas Sen. Tom Cotton.

Kobach is also one of the leading voices claiming American elections are rife with fraud and had his attempt to fight it when he was Kansas’ secretary of state overturned in 2018 by a federal judge who questioned the reality of the problem Kobach was allegedly solving.

The primary election for the U.S. Senate seat Kobach is vying for will be held on August 4.

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