Category: reason

The Senate Committee on Appropriations passed a transportation budget Thursday that includes $550 million in funding for the Transportation Investment Generating Economic Recovery (TIGER) grant program.

Reason has covered TIGER on multiple occasions, pointing out how the supposedly temporary economic recovery measure quickly morphed into a permanent, maladministered and heavily politicized program, which has sent a total of $5.1 billion to everything from a disastrous streetcar project in Atlanta, to decidedly non-mobile trees and street murals in Los Angeles.

The problems were so widespread and apparent both the House and the Trump Administration made a real effort to kill the program. Trump has called for it to be eliminated in both his budget proposals, something the House agreed to in their 2018 appropriations bill.

However Senate budget writers are proving less willing to part with the pork barrel spending that comes with TIGER.

Baruch Feigenbaum, a transportation policy analyst for the Reason Foundation (which publishes this website) says he’s not surprised by the move.

“In general, most folks like to get free stuff, and most senators like to please their constituents,” he tells Reason, adding that if Senators “have a program they can kind of game and make it as beneficial to themselves as possible, they’re going to stick it in the budget.”

One thing senators have certainly excelled at—particularly those on the Senate Appropriations Subcommittee for Transportation—is gaming TIGER grants for their own benefit.

The chair of the Transportation subcommittee, Sen. Susan Collins (R – Maine) brought home $10 million in TIGER grants last year for a bridge project that will connect the coastal Maine town of Jonesport (pop. 1,370) to Beals Island (pop. 507). Collins’ website proudly boasts that Maine has received $120 million in grants since TIGER began.

Ditto for Sen. Jack Reed (D – RD), the ranking Democrat on that subcommittee, whose home state was awarded $14 million in 2016 for a commuter rail station.

This ability to funnel federal dollars to decidedly local projects is certainly good politics. A small number of constituents get the benefits, the Senators get the votes, and the taxpayers get the bill.

This splurging on hyper-local projects is precisely why Feigenbaum thinks TIGER must end.

“We have a principle of federalism in this county,” he says. “We should abide by those principles and spend federal funding on federal priorities period.”

That means directing federal transportation dollars toward infrastructure that is truly interstate. Highways and freight rail for instance. Not “complete street” projects in downtown Mobile, Alabama.

Feigenbaum holds out hope that TIGER will still go down this year. The full Senate, not just the Appropriations Committee still has to vote on a transportation package, and then reconcile that with a House bill that has already calls for TIGER to be zeroed out.

Whatever ends up happening with the program, the lesson from TIGER is that bad policy is often good politics, allowing flawed spending programs to stick around well past their shelf life.

The first question any viewer is going to ask about the cable network USA’s new crime drama The Sinner is, “How are they possibly going to string this thing out for eight episodes?” A murder is committed, its perpetrator captured, and her voluntary and unambiguous confession obtained, all in the first five minutes. Even allowing for a couple of arty German-expressionist dream sequences to cryptically express her remorse and perhaps a big dance number for the warden and guards as she enters prison, what’s left to fill out the remaining seven and a half hours?

The second question, a few minutes later, is, “Are you kidding—how can we possibly get to the bottom of this in just eight episodes?” For The Sinner quickly morphs into the least forthright crime drama, an opaque and intriguingly inverted tale in which crime and punishment are difficult to tell apart. Television critic Glenn Garvin explains.

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For years, federal prisoners and their advocates have begged the Federal Bureau of Prisons (BOP) to shorten the sentences of elderly and terminally ill offenders using a provision called “compassionate release.”

With the stroke of a pen, the BOP has the power to release men like Bruce Harrison, sentenced in 1994 to 50 years for delivering cocaine and marijuana at the behest of undercover federal agents. Now 65, Harrison suffers from a heart condition and has neuropathy in his feet that makes it difficult to walk. His official release date? 2037.

Then there are prisoners like Michael Hodge, who was sentenced in 2000 to 20 years for distributing marijuana while in possession of a firearm. Hodge developed pancreatic cancer while in prison and requested to be released so he could die in the company of family. That request was denied, and Hodge died behind bars in 2015, according to the Washington Post.

In 2013, the BOP Office of Inspector General encouraged the BOP to send these kinds of prisoners home. In 2016, the U.S. Sentencing Commission went so far as to expand eligibility for the program in hopes the BOP would use it more.

But the BOP has largely ignored those recommendations. Yesterday, Congress demanded that the BOP explain why it continues to incarcerate geriatric and terminally ill prisoners who pose no threat to public safety and are unlikely to commit new crimes upon their release.

In a report accompanying the 2018 appropriations bill, Sen. Richard Shelby (R-Ala.) ordered the BOP to turn over reams of data about the compassionate release program. Including:

• the steps BOP has taken to implement the suggestions of the BOP Office of Inspector General and the U.S. Sentencing Commission
• a detailed explanation as to which recommendations the BOP has not adopted, and why
• the number of prisoners who applied for compassionate release in the last five years, as well as how many requests were granted, how many were denied, and why
• how much time elapsed between each request and a decision from the BOP
• the number of prisoners who died while waiting for the BOP to rule on their application for compassionate release

Only 10 percent of America’s prisoners are in federal prisons, but it is an increasingly old and sick population due to the disproportionately long sentences tied to federal drug offenses. As of June 2017, BOP facilities held 34,769 prisoners over the age of 51. More than 10,000 of those prisoners are over the age of 60.

Elderly prisoners pose financial and human rights problems.

“In fiscal year 2014, the BOP spent $1.1 billion on inmate medical care, an increase of almost 30 percent in 5 years,” BOP Inspector General Michael E. Horowitz wrote in prepared testimony to the U.S. Sentencing Commission. “One factor that has significantly contributed to the increase in medical costs is the sustained growth of an aging inmate population.”

“It is difficult to climb to the upper bunk, walk up stairs, wait outside for pills, take showers in facilities without bars and even hear the commands to stand up for count or sit down when you’re told,” Human Rights Watch’s Jamie Fellner told the Washington Post. “Prisons simply are not physically designed to accommodate the infirmities that come with age.”

Shelby’s letter gives the BOP 60 days from the passage of the appropriations bill to submit its data to the committee.

“Elderly and sick prisoners cost taxpayers the most and threaten us the least, and there’s no good reason they should stay locked up or die behind bars because bureaucrats can’t or won’t let them go home to their families,” Kevin Ring, president of Families Against Mandatory Minimums, said in a statement. “It’s time for someone to get to the bottom of why the BOP’s answer is always no on compassionate release.”

Disclosure: This reporter worked for FAMM from 2013-2015

District attorneys’ offices across Louisiana are offering pre-trial diversion programs for traffic tickets, according to an investigation by The Lens. Under the programs, the fines associated with the tickets go directly to the DA’s office, and drivers can avoid having their tickets treated as moving violations and thus avoid higher insurance premiums.

The hustle reveals what a central role revenue-raising plays in policing.

“This is a complete failure by the Louisiana legislature and court system to instill an accountability or control on prosecutors or sheriffs,” New Orleans criminal defense attorney C.J. Mordock, of the Mordock Law Group, tells Reason. “Had an individual assistant district attorney offered this deal, he could be prosecuted. But if a faceless unaccountable bureaucracy does it, life goes on.”

Pre-trial diversion programs were created as a way to keep first-time offenders out of the courts, “diverting” them from a trial and offering them a second chance. Some Louisiana parishes don’t even bother to require traffic violators to attend online driving schools—so long as they are willing to write a check to the DA’s office.

The fact that some moving violations can be downgraded so easily to non-moving violations suggests that they were not moving violations in the first place—that they were always primarily revenue-raising endeavors. The district attorney’s website in Caddo Parish illustrates this when it notes that no one ticketed “for any speed which is deemed excessive” would be eligible for the program. But if a speed is not excessive, what reason is there to issue a ticket other than to make money off the motorist?

What makes the situation in Louisiana worse is that it’s the only state where public defenders are largely funded through traffic tickets.

Years ago, The Lens noted, public defenders pushed to be allocated more of the money collected through court fees. They were receiving $35 per trial and were asking for $100; eventually they got $45.

That fight led to this delicious quote from E. Pete Adams, executive director of the Louisiana District Attorneys Association: “That was a theft of our portion of the fines and forfeitures. We let them steal less money than they were gonna steal from us.”

Forfeiture, of course, could also be considered “theft.” It certainly fits the definition a lot better than one component of the criminal justice system trying to get a larger slice of the revenue, particularly when it’s the only segment of the system focused on defending the rights of the accused. Shenanigans like pre-trial diversion for traffic tickets support the idea that fines could be seen as a kind of theft too—at least when they’re not levied as punishment, or to improve safety, but to fill government coffers.

Louisiana public defenders complained to The Lens that pre-trial diversion for traffic tickets means less funding for their offices, since the proceeds go directly to the DA instead of being shared. But the public defenders should not be funded through tickets to begin with. Neither should DAs or any other element of the criminal justice system. Such perverse incentives should have no place in a system supposedly dedicated to justice.

In the end, on Obamacare, Republicans accomplished nothing.

Not repeal. Not replace. Not even “skinny repeal”—the hastily constructed package eliminating a handful of discrete provisions from Obamacare that the Senate drafted, debated, and voted on last night. The measure failed by a single vote, thanks to a trio of GOP senators, including John McCain, who were worried that if it passed it might actually become law, an outcome that few if any Republicans desired. The health care law will live on, for now.

Last night’s legislative denouement mostly served to demonstrate how desperate and confused Republicans are when it comes to health care: Senate Republicans could not come up with any health care legislation that they wanted to pass, so their final push revolved around a plan to vote for legislation that they very much did not want to pass.

Let that sink in for a moment: The final Republican health care plan was to pass legislation that they did not want to become law.

The goal, instead, was to use the skinny repeal bill as a vehicle to move on a conference negotiation with the House, in hopes that some sort of common ground could be found between the two chambers. How exactly this was supposed to succeed where previous efforts failed was never clear. Senate Republicans couldn’t come up with a bill on their own; why would adding the House, which is divided by factionalism and internal disagreement, make the process any easier?

It’s not just that Republicans didn’t have a plan. They didn’t even have a plan to come up with a plan.

Part of the problem was a lack of policy leadership. President Trump does not appear to grasp the most basic elements of health care policy, or care about the details of the legislation he signs. He wanted a political win, not policy progress.

And Senate Majority Leader Mitch McConnell wanted to give it to him. McConnell is an effective congressional tactician who understands the legislative process and the pressure points it creates. But he is not a policy visionary, and the evolution of the Senate plans—from repeal and replace to clean repeal to skinny repeal—shows the limits of tactics without strategy.

For the last decade or so, Paul Ryan has served as the party’s most prominent policy entrepreneur. But the further he has risen in the party’s official ranks, the less effective he has become. Now, as Speaker of the House, his main job is to corral the party’s many confused and warring factions rather than to make the case for the bigger picture and legislation to support it. The tumult of the Trump presidency has only made this job more difficult.

So even the more detailed legislative plans that the House passed and the Senate published were little more than plans to scale back Obamacare but continue working within its essential framework.

The outcome, splayed out in the news for all to see over the last several months, was that when the party gained power and it finally came time to legislate, debate, and vote, Republicans had no shared vision, and thus no workable plans to achieve it.

The result, in other words, was total failure: to live up to the party’s most persistent political promise, to advance the nation’s health care policy in meaningful ways, or even to achieve a narrow “win” and move on to something else.

Obamacare repeal may—may—now be over. But health care policy is not going away. Half of the nation’s health care spending, give or take, flows through the federal government. The exchanges set up under the health care law are still struggling, and premiums are still rising. Many doctors still reject or limit access for Medicaid beneficiaries, and Medicare is the single largest driver of the nation’s long-term budget problems. The good news, which is also the bad news, is that there will be plenty of time and opportunities to address the nation’s health care problems in the future.

What Republicans—and Democrats and independents and anyone else interested in a health care system that is more fair, more effective, and less expensive—need to do, then, is what they have largely failed to do for so many years: Start from the ground up, think comprehensively about the health system as a whole, develop a vision, and then debate and defend plans and policies that would bring us closer to it.

Earlier this month in The New York Times, I outlined what such a vision might look like: encouraging supply side innovations, emphasizing cost-reductions instead of subsidies, seeding the idea that insurance is financial protection rather than health care, emphasizing aid to the poor and needy rather than comprehensive universal coverage, focusing on eliminating fragmentation and favoritism in a system that for decades has been defined by it.

This is the health policy long game that Republicans have never bothered to play—and that Democrats who support are larger role for government already are. Single payer, price controls, and more expansive government systems of all kinds are already in the works, especially at the state level. Republicans and others who want to limit the role of government in health care have a lot of catching up to do.

As I wrote in that piece, it won’t be quick or easy. But as Republicans have now discovered in such a public and embarrassing fashion, it never is.

A new union-backed bill in California would drive up struggling counties’ costs of providing public services.

Steven Greenhut writes:

Municipal governments exist to provide essential services, such as law enforcement, firefighting, parks and recreation, street repairs and programs for the poor and homeless. But as pension, health-care and other compensation costs soar for workers and retirees alike, local governments are struggling to fulfill these basic functions.

There’s even a term to describe that situation. “Service insolvency” is when localities have enough money to pay their bills, but not enough left over to provide adequate public service. These governments are not insolvent per se, but there’s little they can afford beyond paying the salaries and benefits of their workers.

As a city manager quoted in a newspaper article once quipped, California cities have become pension providers that offer a few public services on the side. It’s a sad state of affairs when local governments exist to do little more than pay the people who work for them.

Not surprisingly, the union-dominated California state legislature has been of little help to local officials dealing with such fiscal troubles. The state pension systems have run up unfunded liabilities, or debts, ranging from $374 billion to $1 trillion (depending on the financial assumptions one makes). But legislators have ignored meaningful pension reform. This has forced local governments to cut back services or raise taxes to meet their ever-increasing payments to California’s pension funds.

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Curious to see how criminal justice plays out when people aren’t stuck in cells simply because they can’t afford to get out? Keep an eye on New Jersey.

At the start of 2017, that state essentially eliminated cash bail. This month the authorities there looked over their numbers and determined that New Jersey’s pre-trial jail population has dropped a full 20 percent. Nearly 1,500 fewer people are stuck in jail cells waiting to be tried for criminal charges.

Instead of the old bail system, New Jersey now has a non-monetary risk assessment approach aimed at determining who actually represents a threat to the community; it includes various reporting requirements for defendants, assuming they’re considered low enough risk to be released. Whether a person can front money to cover a bail bond is no longer a factor when determining if he or she will remain in jail until trial.

Criminal reform activists are working to bring this system to other states, such as California and Connecticut. And Sens. Rand Paul (R-Kentucky) and Kamala Harris (D-California) have teamed up to introduce federal legislation that will encourage changes to how bail systems operate. Jake Tapper interviewed them recently for CNN about the push:

Proud of the bipartisan work Sen @KamalaHarris and I are doing. We joined @JakeTapper recently to discuss some much needed justice reforms. http://pic.twitter.com/PxWk6ShryL

— Senator Rand Paul (@RandPaul) July 27, 2017

The Pretrial Integrity and Safety Act would give states $10 million to spend reforming or eliminating monetary bail systems and another $5 million to help fund a national pretrial reporting program to analyze the outcomes.

It may still be too early in New Jersey to start calling trends, but it’s worth noting that there has not been a spike in crime there this year. The state appears to be continuing its trend of declining crime, and its crime levels are well below the national average.

But changes in bail systems aren’t without its challenges. Newark police reported a 44 percent increase in the number of people who have been arrested more than once during the first six months of 2017. That sounds dramatic when presented as a percentage, but the actual numbers are pretty low: It’s a jump from 105 people to 151. Police in Newark arrest 250 people a week, and the jump does not appear to have affected crime stats there.

Also, 40 of the arrests involved people initially arrested for drug crimes being arrested again for drug crimes. Only three arrests involved people charged with violent crimes committing additional violent crimes on release.

In May, New Jersey’s attorney general introduced stricter guidelines to try to make sure people the state thinks are likely to reoffend are not granted bail. He told prosecutors to try to deny bail to anybody charged with serious gun crimes, has a history as a sex offender, or is on parole or has a pretrial release for another crime.

There may yet be some necessary adjustments as the authorities try to hammer out any flaws in the system. But absent the complete abandonment of the war on drugs, we can at least hope for a criminal justice system that doesn’t lock away people charged with nonviolent vice crimes simply because they cannot afford bail.

“Hopefully, over time, [the] two parties start to fall apart,” says Rep. Justin Amash (R-Michigan) in an interview with Reason recorded last week at Freedom Fest in Las Vegas. “I can go straight to Twitter or Facebook or elsewhere and tell people exactly what I stand for.”

A critic of executive power and champion of constitutionalism, the Grand Rapids native is a thorn in the side of Donald Trump, serving as one of only two GOP co-sponsors of a bill calling for an independent, investigative commission into the president’s Russia-related behavior. He frequently calls out the administration on social media, and is on the receiving end of a White House call to get primaried.

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Today the Food and Drug Administration (FDA) said it is giving manufacturers of electronic cigarettes until August 8, 2022, to apply for approval of their products under regulations announced last year, which were widely expected to drive most companies out of business. The original deadline was November 8, 2018, and the four-year extension is supposed to provide more time for public comment and industry guidance as part of a “comprehensive regulatory plan” that aims to strike “an appropriate balance between regulation and encouraging development of innovative tobacco products that may be less dangerous than cigarettes.”

The agency says “a key piece of the FDA’s approach is demonstrating a greater awareness that nicotine—while highly addictive—is delivered through products that represent a continuum of risk and is most harmful when delivered through smoke particles in combustible cigarettes.” That is music to the ears of harm-reduction advocates who see vaping as a life-saving alternative to smoking and viewed the original FDA rules as misguided, heavy-handed, and potentially deadly meddling that effectively gave conventional cigarettes an advantage over competing sources of nicotine that are much less dangerous.

In addition to providing regulatory relief for the e-cigarette industry, the FDA will be investigating the possibility of mandating a gradual reduction in the nicotine levels of combustible cigarettes. The idea is to make cigarettes less addictive for new smokers, but the policy is apt to hurt current smokers by forcing them to absorb more toxins and carcinogens along with their usual dose of nicotine. The FDA “intends to issue an Advance Notice of Proposed Rulemaking (ANPRM) to seek input on the potential public health benefits and any possible adverse effects of lowering nicotine in cigarettes.”

The FDA’s new commissioner, Scott Gottlieb, sees a nicotine-reduction mandate as complementing the agency’s new receptivity to harm-reducing cigarette alternatives. “The overwhelming amount of death and disease attributable to tobacco is caused by addiction to cigarettes,” Gottlieb says. “Envisioning a world where cigarettes would no longer create or sustain addiction, and where adults who still need or want nicotine could get it from alternative and less harmful sources, needs to be the cornerstone of our efforts—and we believe it’s vital that we pursue this common ground.”

The FDA also seems to be contemplating flavor regulations that might favor e-cigarettes over the real thing. It says it will “seek public comment on the role that flavors (including menthol) in tobacco products play in attracting youth and may play in helping some smokers switch to potentially less harmful forms of nicotine delivery.” The Family Smoking Prevention and Tobacco Control Act, the law that gave the FDA authority to regulate tobacco products, banned most “characterizing flavors” from cigarettes but made an exception for menthol, by far the most popular one (and, not coincidentally, a big moneymaker for Philip Morris, which supported the law). It sounds like the FDA might be reconsidering that exception, while at the same time recognizing that so-called kid-friendly e-cigarette flavors are in fact very popular with adults who switch from smoking to vaping.

The FDA says it will use the reprieve it is giving e-cigarette companies to clarify what will be required to keep their products on the market. The agency also plans to develop product standards that address battery hazards and help keep e-cigarette liquids away from children.

Over all, it looks like the FDA under Gottlieb will be taking a much more practical approach to e-cigarette regulation that recognizes the realities of the existing market and the relative hazards of different nicotine sources. Instead of wrecking an industry that seems to be accelerating the downward trend in smoking, the agency may actually embrace market-driven harm reduction.

When President Donald Trump announced a ban on transgender individuals serving in the military, he specifically cited “the tremendous medical costs” that such troops impose on the Pentagon budget. This is simply false.

Barack Obama had OK’ed trans people to serve openly. According to the two most-recent studies on providing health care for trans people in the military, the costs are in fact negligible. A 2016 Rand study done for the Department of Defense calculated that between 1,362 and 6,630 trans people serve and that costs associated with transitioning would increase military health spending by between $2.4 million and $8.4 million annually. That’s an increase of 0.04 percent and 0.13 percent. A New England Journal of Medicine study from 2015 found slightly less than 13,000 transgender service members and transition-related care amounted to between $4.2 million and $5.6 million per year. The military’s annual health-care budget is around $48 billion a year.

Those numbers are small enough on their own, but they shrink even more when put into context of other medical expenditures. For instance, the Pentagon spends about $42 million a year on the erectile-dysfunction drug Viagra and another $23 million on Cialis. According to one estimate, the Navy spends $115 million a year simply to transfer pregnant women from active duty back to land.

Politico reports that Trump’s motivation to ban trans troops was driven by his desire to save a House spending bill that provided money for his wall on the U.S. border with Mexico. While the GOP leadership had no brief against trans armed forces, enough lower-ranking members did that the president decided to soothe them with a “snap decision” delivered via Twitter. Although he claimed to have consulted with his “Generals and military experts,” CNN reports that the Joint Chiefs of Staff, including the group’s chairman, was “blindsided” by the announcement. And Sen. John McCain (R-Ariz.), who chairs the Senate’s Armed Services Committee, has said that Defense Secretary James Mattis was “surprised” by the announcement. Mattis had recently extended a six-month study about trans troops that was underway. From McCain:

I think generally speaking, it’s accepted you consult the secretary of defense before you make a decision that has to do with defending the nation. Mattis was going through a study that they’d done for six months, and he had just extended.

I know what Mattis said, that he wanted to complete the study, and he was surprised.

Military brass are asking for a written directive beyond random tweetstorms and despite huzzahs from presidential advisers, it’s far from clear whether such a policy is legally enforceable.

Under @realDonaldTrump we refuse to treat the American military as an ideological petri dish.

Obama-era social engineering is over. https://t.co/2tkGIH9OPW

— Sebastian Gorka DrG (@SebGorka) July 28, 2017

Beyond the immediate issues at hand, the ban on trans military personnel underscores at least two problems for the the president and the Republican Party.

First, Trump’s sheer impetuousness when it comes to policy pronouncements is wearying not just to the public but to government actors. Surprising the very people who are supposed to implement and enforce a policy is no way to win friends and influence people. For many reasons—most of which I agree with and support, by the way—Trump has been alienating the deep state (particularly in terms of foreign policy and interventions). This sort of action will exacerbate those tensions and regrettably in a way that will make him less likely to effectively discombobulate the military-industrial complex. The whiff of basic incompetence emanating from the Oval Office (recall the hastily issued immigrant and refugee bans that went nowhere due to rushed wording) is already strong enough; there’s no need to triple down on it anymore.

Second, this sort of action shows that the Republican Party has drawn the wrong lesson from Trump’s super-tight victory, which is almost certainly the last of its kind for a GOP that remains fixated on culture war issues such as bathroom exclusivity, the war on pot, immigration, and gay marriage. The libertarian position on all these issues—the state should treat all individuals equally under the law, immigrants are a good thing for the country, businesses should create their own policies when it comes to who flushes whast toilet, it’s time to focus on more important issues than punishing people who smoke weed—are broadly popular with the American public. Each pulls clear and growing majorities. If the GOP remains the party of the past, it will certainly have trouble topping Trump’s 46 percent of the popular vote in 2020 and beyond. That’s especially true when Republicans, who control all branches of the federal government, have manifestly failed in repealing Obamacare, passing anything like a “skinny” budget, or generating the conditions for economic growth.

Yes, the the Party of Lincoln has gone exceptionally far on no positive accomplishments in the 21st century (other than ushering endless war, a surveillance state, Sarbanes-Oxley, light-bulb bans, massive deficits, and the like). But eventually Republicans will have to have a message that is more than just “We’re not as bad as Hillary or the Democrats.” Beyond disrespective individual rights—why shouldn’t anyone who wants to serve their country?—the ban on trans service members get Republicans any closer to a vision that might win them the next election.