Will America Become Detroit, Part 4: The End of the Victimless Crime Spree

"Even if one takes every reefer madness allegation of the prohibitionists at face value, marijuana prohibition has done far more harm to far more people than marijuana ever could."
- William F. Buckley, Jr.

"Oh what a delight to
Be given the right to
Be care free and gay once again"
- From "Cocktails for Two" by by Arthur Johnston and Sam Coslow

Some of humanity's greatest advances emerged from severe crises. As bad as the looming U.S. debt crisis is, it will force badly needed reforms in our criminal code. This nation devotes and a tremendous amount of resources prosecuting victimless crimes, especially the war on drugs. This relentless pursuit of adults engaging in consensual behavior is wasteful, ineffective, and frequently violates our civil liberties. But this particular form of government overreach will almost certainly end, and it will do for a rather mundane reason: the state simply won't have the funds to continue.

Prohibition Repeal as the Ultimate Rent Party

There is a historical precedent for the immanent demise of most victimless crimes. Consider the Volstead act, commonly known as prohibition. This forerunner of the war on drugs banned intoxicating alcoholic beverages. Even though the failures of this act became apparent soon after the act's passage in 1919, it was not repealed until 1933. What happened in 1933 that finally did in the Volstead act?

In part, prohibition was ended by the great depression. At a time when the economic downturn was drying up tax revenue, governments were saddled with the substantial costs of enforcing prohibition. Moreover, keeping bars and liquor closed also closed off a badly needed source of tax revenue. When it became clear that prohibition could only be continued by asking an impoverished public to tighten their belts still further, the prohibition repeal effort passed overwhelmingly.

The Volstead Act on Crack

If 1930's depression era America found prohibition too dear a luxury, then twenty-first century debt crisis America will almost certainly reject its even more expensive offshoot, the war on drugs. Essentially, the war on drugs is the Volstead Act on Crack. Consider these expenses:

Jail House Rock

Key element of the war on drugs is harsh minimum sentences for drug offenses and extremely aggressive enforcement. Since President Nixon kicked off the war on drugs in 1971, American incarceration rates have more than quadrupled. We now hold the dubious distinction of having the highest incarceration rate in the world. We have more prisoners than all of China, which has four times our general population. We jail a larger portion of our black population than did Apartheid era South Africa.

The costs of all these prisoners is straining state budgets.
California pays $45,563 a year to keep a man in prison, so now the Golden state spends more on jails than it does on universities. And that does not even could the loss of tax revenue from taking these prisoners out of the economy. Longitudinal studies show an even greater expense: those serving lengthy drug sentences are less likely to ever become a productive member of society.

In the past, the mantra of the drug warrior has been that it is important to "send a message" to users of illicit drugs. But as states such as California and Michigan face the threat of default, they are bound to ask if we could please send this message via Western Union.

Putting the War into "The War on Drugs"

The war on drugs quickly took up a large portion of law enforcement efforts at all levels. It even has its own enforcement agency, the DEA, which has spend $536 billion on drug enforcement since its inception in 1973. (See the suitable tacky DEA museum gift shop). But victimless crimes are notoriously hard to enforce. When this effort fell short, harsher tactics such as SWAT teams and no-knock raids were tried. Some police departments have even acquired military equipment from the DOD. When they called it the "War on Drugs", they were not kidding!

Like most wars, this one has had plenty of collateral damage. There have been raids on the wrong house that have resulted in innocent people or even pets getting shot. To be fair, raids on real drug dealers are highly dangerous operations, so police are bound to make mistakes in these high stress situations. But this is a danger of our own making. The day prohibition was repealed, the bootlegger gangs went out of business, and with their demise, there was a marked decrease in gang violence. Drug decriminalization would likely have the same effect, saving us both money and lives.

Too Poor to Keep Screwing Up

Due to budget constraints, Detroit has had to make cuts in its police force. In order to protect themselves, some of this city's citizens have formed a citizen's group called Detroit 300 that patrols the streets that Detroit's finest used to patrol. Not surprisingly, all the crimes that Detroit 300 deal with are crimes with victims: rape, robbery, assult, murder, etc. They are not chasing down dope smokers. When hard choices have to be made, enforcing victimless crimes is the first thing to go.

As the nation's debt crisis comes to a head, we will forced to take the same approach as Detroit 300. There are many better reasons to end the war on drugs, but it will definitely end for one reason: we cannot afford it. Lack of funds will force our government to do the right thing.

Speaking of victimless crimes, check out the documentary Derrick J's Victimless Crime Spree, where one activist gets into an amazing amount of legal trouble for peaceably protesting his local public officials.

Occupy Boston Versus What Occupies Mayor Menino's Soul

"Men at some time are masters of their fates:
The fault, dear Brutus, is not in our stars,
But in ourselves, that we are underlings."
- From "The Life and Death of Julies Caesar", Act I Scene II

"Take a step outside yourself
Then you turn around
Take a look at who you are
It's pretty scary"
- From "Turn Around" (1980) lyrics by Mark Mothersbaugh and Gerald Casale

The "Occupy Wall Street" movement has spread to many big cities, including Boston. Recently Boston Mayor Thomas Menino has ordered the arrests of "Occupy Boston" protesters. On the surface, the Mayor has some valid charges: the protest was spilling over onto the Rose Kennedy Greenway, in violation of zoning rules. The protests have disrupted commercial activity. In particular, a lucrative food festival was cancelled because the protesters had taken over the space where the event would have taken place. Yes, we have the irony that an event that would have provided a lot of temp jobs was cancelled so that people could protest unemployment.

But cry no tears for the his honor the Mayor. The blame for the current lawlessness goes beyond the young people he is arresting. The true cause of the "Occupy Boston" controversy can best be explained by the following facts about Massachusetts politics:

1. Massachusetts is basically a one-party state, so much so that almost all elections are considered over after the Democratic primary;
2. This lack of any political challenge has created unusually powerful and long tenured public officials; and
3. Perhaps because of facts 1 and 2, the commonwealth of Massachusetts has suffered more than her fair share of government corruption (the last three House Speakers are all convicted felons).

Mayor Menino is the archetypical Massachusetts politician. First elected in 1993, Menino has rarely encountered more than token opposition in subsequent elections. He is popular for taking a no-holds-barred approach to the challenges of the office, often at the expense of our constitutional rights.

In 2005, there was a popular line of tee shirts emblazoned with the words "Stop Snitchen'". Menino condemned these shirts as discouraging cooperation with the police. When some Boston stores wanted to sell these shirts, the Mayor vowed to send officers into the stores to seize the shirts. Menino was advised that such a seizure would raise free speech issues, so he tried another tact. City inspectors discovered (who knew?) that the clothing stores that wanted to carry the shirts (and only those stores) had code violations. And once the orders for "Stop Snitchen'" shirts were cancelled, the inspectors found that these stores were up to code after all! Score 1 for Mayor Menino, 0 for the first amendment.

In January of 2007, the Mayor was rightly concerned that after an AFC playoff game, Patriot fans might engage in violence. The Mayor felt that TV news coverage of sports bars might inflame the fans. Lesser men might have urged TV newscasters to be cautious, but not our Honor the Mayor. With all the boldness of a honey badger, he told the Boston bar and tavern owners, a group that is even more under the city's thumb than clothing stores, to not allow TV crews into their establishments. With the fear of losing their precious liquor licenses, TV journalists were shut out of Boston bars. So much for an independent fourth estate; it's good to be the king.

When the Tea Party demonstration (the recent one, not the 1773 party) took place in Boston, the Mayor insisted that they needed permits and that they need to pay a substantial fee to cover expenses that Boston might incur. The idea that we have to get permits and pay fees in order to exercise our constitutional right to assemble is problematic, but there is an even more disturbing aspect to the Boston protest permit and fees system. Before "Occupy Boston", Mayor Menino enthused over the ideas that the protestors would be advancing. So unlike the Tea Party, no permits or fees were required of the Occupy Boston organizers. Civil rights attorney Harvey Silverglate, founder of the campus free speech organization F.I.R.E., is appalled that these fees and red tape are applied at the whims of the Mayor, even though he sympathizes with "Occupy Boston". This is not about protecting city finances: in police overtime alone, "Occupy Boston" has far exceeded all expenses related to the Tea Party event. This is about directing the city's finances to the political causes that the Mayor favors. These arbitrary fees and permits represent a new low in the abuse of power, even by Bay State standards.

So even after giving the "Occupy Boston" people a pass, his honor the Mayor is miffed that the demonstrators circumvent or ignore the laws that they don't like. Sorry Mayor, you do not have my sympathy. If you want Bostonians to show more respect for the law, you should model that behavior by showing some respect for the most important set of laws for our government officials: the U.S. constitution. The constitution asserts that all of us, as part of our basic nature, have certain inalienable rights, including the right to free speech and to assemble. Mayor Menino, could your persistent violations of the spirit, if not the letter, of the first amendment be viewed by the young men and women protesting that the law is not worth taking seriously? If the Mayor were to ask the arrested protestors where they learned to disrespect the law, they could justifiably respond with the 1980's Ad line, "I learned it from watching you!".

For the lighter side of Thomas Menino, check out the Official Mumbles Menino web site. The mayor speeches are filled with many inadvertent malaprops, spoonerisms, and novel phrasing, so the news commentators that cover them often have to do double duty as cryptographers. It appears that he has as much trouble with his own speech as he has with others. The "Mumbles Menino" site includes the funniest and / or most WTF Menino utterances.

On the heavier side of Tom Menino, in recent years he has suffered from significant weight gain. Imagine an overweight autocratic leader who speaks in a way that many people find hard to understand. That image seems familiar; I think I remember where I've seen it:

Warring Tribes Join Forces To Fight Smut!

"Pornography is now considered as addictive as drugs"
- Rev. Jimmy Swaggart

Katie: The internet is really really great,
Trekkie Monster: For porn!
Katie: I've got a fast connect, so I don't have to wait!
Trekkie Monster: For porn!
- From "The Internet Is For Porn" by Robert Lopez and Jeff Marx

It is hard to think of a time when pornography was not in the news. When the navy seals found Bin Laden, they found a stash of pornography in his lair. Several weeks ago, Sen. Orrin Hatch sent a letter to Attorney General Eric Holder demanding more obscenity prosecutions. Going back to the 1980's, Ronald Reagan's Attorney General Ed Meese created a Commission on Pornography. A presidential commission on pornography was assembled in the late 1960's, but when this commission recommended legalization, then President Richard M. Nixon rejected the commission's findings. In the mid-sixties, financier Charles Keating (a man who later had his own ethics issues) bankrolled an anti-pornography drive.

The most interesting anti-smut movement in my lifetime was the Women Against Pornography group formed in the late 1970's. Before this group was formed, most of the support for obscenity laws came from conservative religious groups. These early Christian right groups used to argue that pornography should not be given first amendment protection because it subconsciously alters the mind, causing both addiction and a host of anti-social behaviors. Reverends Pat Robertson, Jimmy Swaggart, Jerry Falwell etc. asserted that if pornography were legal, we would see a dramatic increase in rape, adultery, divorce, teen pregnancy and wife beating.

I was in college in the 1970's, and there was strong support for civil liberties and free speech on the campuses of that era. That ended with the arrival of Women Against Pornography, a group founded to advance the work of feminist authors Andrea Dworkin and Catharine McKinnon. Dworkin and McKinnon argued that smutty books, magazines and films, and even publications as innocuous as Playboy were a crime against women. What I found remarkable about this group's arguments on the porn issue was how close it was to the case made by the religious right. These feminists said that pornography had special mind-altering properties, that pornography is like an addictive drug, and that it causes a plague of social ills. Attending one of their rallies, I felt like I was hearing Jimmy Swaggart and Jerry Falwell dressed up in drag (sorry for that rather unpleasant imagery). To be fair, the anti-porn feminists did come up with one argument not previously made by the religious right: they argued that porn convinces men that women are only good for sex, and hence porn consumers will not accept females in professional positions. I didn't find this argument convincing, but at least it was original.

Amazingly enough, this group had a profound impact on college campuses. I was astounded with how many students and professors did a 180 degree turn on obscenity laws, and doing so on the basis of arguments that were soundly rejected a few years ago. It was not as though everyone had just discovered the genius of Pat Robertson. So what happened to the ideals, such as free speech, civil liberties, and sexual freedom, that we used to share? This experience demonstrated an important principle. Although most people think that their political / social / religious views are shaped by their ideals, what really shapes their views is group identity, also known as tribalism. They feel the pressure to conform with the prevailing opinion of the social group that they are members of. The Women Against Pornography story is really about one tribe (feminists) joining forces with an enemy tribe (the religious right) in order to fight a common enemy, smut peddlers. And as a committed civil libertarian, I found it appalling that this would be the issue that brought these sides together.

Fortunately, Women Against Pornography disbanded in the late 1980's, so now only the social conservatives carry on the battle against smut. The right has lost a lot of its enthusiasm over this issue: if P. J. O'Rourke and Greg Gutfeld got together to discuss porn, they'd probably end up talking about where to find the really good stuff. But frankly, this issue was settled in the 1990's with the invention of the internet. The internet made pornography more available than ever. If there was anything to the right (or left) case against porn, then the rise of the on-line community would have been accompanied by large increases in rapes, divorces, teen pregnancies, etc. But as this Hit and Run post pointed out, all of these social ills have actually lessened since 1991.

To this, I would add that the internet also disproved the theory that porn consumers could not accept that women can be good for something besides sex. Since web browsing hit the big time, women have been swelling the ranks of many professions. And as a man, I am happy to report that the popularity of the Chippendales has not produced a hoard of women who think that men are only good for the full monty.

Texas School Children: Flex Your Rights!

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
- Amendment 4 to the U.S. Constitution

"In 1787 I'm told Our founding fathers did agree
To write a list of principles For keepin' people free"
- From "Preamble", written by Lynn Ahrens for "Schoolhouse Rock"

This site's previous post discussed how some Texas school districts are now enforcing discipline using the criminal justice system. As noted in the Texas Appleseed report, this overly severe form of punishment poses a burden on poor families, is unfair to racial minorities, and adds to the already considerable challenges facing handicapped students. Is there any bright side to this criminalization of student behavior?

Yes there is. The ticketing of Texas students gives us an ideal platform to teach our children the importance of the U.S. constitution. Sadly, most adult Americans are quite ignorant of the workings of our democracy, especially our constitution. Civil libertarian Steven Silverman was shocked to discover how often people would unknowingly waive their constitutional rights, so in 2002 he founded the non-profit educational organization Flex Your Rights to educate the public on their constitutional protections. Flex Your Rights produced the video BUSTED: The Citizen's Guide to Surviving Police Encounters, which I heartily recommend.

Our schools have been doing a poor job of teaching the constitution. I would recommend that we work with the Flex Your Rights folks to develop a course on the constitution for Texas students. If the Texas school systems refuse to teach the constitution, perhaps Texan libertarians could present constitution lessons outside of school system (think of it as a Texan version of Dumbledore's Army). Armed with the Flex Your Rights curriculum, Texan students could both protect themselves from the excesses of the ticketing system and learn a valuable civics lesson in the process.

For example, the Appleseed report tells of a girl who was given a $200 ticket when a school officer searched her purse and found a cigarette butt. Had she known about the fourth amendment, she would have known that the search could almost certainly be prevented if she politely but clearly told the officer "I do not consent to a search of my purse". Unless the officer has a warrant for searching her purse, any search of her purse would be illegal, the cigarette butt could not be admitted as evidence in court, and the school officer could be be held liable for the illegal search.

The most effective learning technique is to learn by doing. Imagine what students would learn about civics by actually applying the Flex Your Rights curriculum for their own protection. This whole affair could have one really positive effect: a generation of Texas students with a full appreciation of our founding documents.

Why the Fairness Doctrine is Unfair to the Left

"Error of opinion may be tolerated where reason is left free to combat it."
- Thomas Jefferson, First Inaugural Address, 04 March 1801

"So let's leave it alone, 'cause we can't see eye to eye.
There ain't no good guys, there ain't no bad guys.
There's only you and me and we just disagree."
- From "We Just Disagree" by Billy Dean

The absolute worst laws are passed as a quick response to a crisis. In a heightened sense of urgency, lawmakers are willing to pass some extreme, simplistic solution whose faults become apparent only after the crisis has passed. The 9/11 attacks gave us the PATRIOT act and the TSA, and our civil liberties have suffered ever since. In 2008, the housing bust was addressed with two complex, obscenely expensive and hastily composed programs, the stimulus package and TARP. These programs did not prevent a severe economic downturn, and will be paid for by generations born long after this crisis has passes.

Which brings us to the latest crisis: the tragic shooting in Tucson, Arizona of Rep. Gabrielle Giffords and others. The instant analysis of the shooter's motivation was that it was a product of a harsh political environment. This has lead two Democratic representatives, Rep. Jim Clyburn (SC) and Rep. Bob Brady (PA), to propose reinstating the fairness doctrine. This FCC policy, first instated in 1949 and dropped in 1987, required broadcasters to present controversial issues of public importance in way that the FCC board finds to be honest and balanced. Supporters argue that a revived fairness doctrine would keep Rush Limbaugh, Glenn Beck, and Bill O'Reilly off the air, resulting in a more civil political discourse.

Hopefully, cooler heads will prevail and the fairness doctrine will remain dead. The history of this doctrine indicates that it leads to ersatz censorship, and that it is especially unfair to the left. The problem with the fairness doctrine is that FCC officials of the current administration determines what is "honest and balanced" coverage, and inevitably their definition of balance reflects the administrations' point of view. The temptation to abuse this doctrine is hard to resist; Arthur Larson, a Democratic official from the JFK / LBJ years, admitted to using the doctrine to suppress right wing broadcasters. Larson regretted this censorious use of the FCC, especially after Richard Nixon used the fairness doctrine to suppress his critics. Shows such as "The Smothers Brothers Comedy Hour" and the TV documentary "The Selling of the Pentagon" came under FCC scrutiny for their perceived left tilt. The liberal publications of that time (e.g. The Nation or Ramparts) decried the fairness doctrine on free speech grounds.

The democrats may control the FCC for now, but political fortunes can change on a dime. Remember back in 2004, when the Democratic party was given up for dead? In 2008, a mere 4 years later, political pundits declared that the Republicans would be a political minority for at least a generation. Then came the 2010 elections, and the tables turned once again. Who knows which side will control the FCC in 2013? Keep in mind that an FCC with the power to boot Rush Limbaugh, Glen Beck and Bill O'Reilly off the air also has the power to silence Keith Olbermann, Chris Matthews, and Rachel Maddow.

The fairness doctrine unfairly favors the status quo over the agents of change. Liberal support for this doctrine is therefore self defeating. We should not use this crisis to weaken our first amendment protections.

2010: The Year of Voters Behaving Badly

"If the ruler is upright, the people will do things without being ordered; if the ruler is not upright, even though he orders people to do something they will not comply."
- Analects of Confucius

"There's something wild about you child
That's so contagious
Let's be outrageous
--let's misbehave!!!"
- "Let's Misbehave" by Cole Porter.

The June 8th South Carolina Democratic senatorial primary is an important harbinger of the fall elections. Vic Rawl, the candidate supported by most of the Democratic party leaders, was expected to handily win the nomination. In a stunning upset, Rawl lost in a landslide to Alvin Greene, an unemployed veteran who did no fund raising, virtually no conventional campaigning, and whose campaign had neither a twitter account nor even a website. How could this happen?

Greene insists that he won with old fashioned stumping, driving across the state and meeting with the voters. As appealing as this explanation is, Greene does not appear to have the charisma to pull this off in his post-primary interviews. Some S.C. Democrats speculate that Greene is a Republican plant. This seems unlikely for a number of reasons. Pollsters agree that Senator Jim DeMint will almost certainly win re-election. Why would the S.C. Republicans take the risk of cheating when they can win honestly? Also, the only outside support that Greene allegedly received was the payment of his filing fee. If some conspirators came up with that fee, why didn't they back up their investment with some campaign funds? But more importantly, even if Alvin Greene were a plant, why did nearly 60% of S.C. Democratic voters pull the lever for him?

The answer is as simple as it is troubling for the major political parties. South Carolina voters resented the idea of anointing the Democratic leadership pick of Vic Rawl, and they resented it so much that they were willing to pick any other name on the ballot, even if it was someone they never heard of. This is part of a trend this year: voters in this year's primaries and special elections are refusing to follow the unwritten rules of behavior.

• The special election to fill late Senator Ted Kennedy's seat was widely expected to be over with the Democratic party primary. Conventional wisdom said that solidly Democratic Massachusetts would never replace the late senator with a Republican. Conventional wisdom was wrong; Republican Scott Brown won that race.
• In the Utah Republican senate primary, the party leaders lined up behind the incumbent Senator Bob Bennett. The Republican voters of Utah disagreed, deciding that they preferred a newcomer over their sitting senator.
• Much of the Democratic establishment, including the President, welcomed Senator Arlen Spector into their ranks and endorsed his bid to be the Pennsylvania Democratic nominee. A group of liberal Democrats disagreed, and successfully defeated Spector's nomination.
• In Arkansas, local labor groups ignored pleas from the national party and President Obama and campaigned against the re-nomination of Rep. Blanche Lincoln. Lincoln just barely won the nomination, but the aggressive primary fight has made her defeat in the general election an almost certainty.
  

This trend cuts across both party and ideological lines. Voters of all stripes are refusing to obey the unwritten rules. What has made this year's voters so ornery?

Maybe the problem could be traced to our leaders. After all, they also have unwritten rules. How good have they been at following them? Let's take a look at the Republicans. The rules say that the Republicans will avoid foreign entanglements, support free markets, cut excessive regulation and reduce deficits. For six years under the previous administration, Republicans held the presidency and a majority in both houses, and in those years:

• We entered two wars that have no clear end date;
• Congress enacted the most strongly protectionist policies since the Hoover administration, including high steel tariffs and farm subsidies;
• From 2001 to 2007, our supposed de-regulators actually added another 13,652 pages of regulations to the Federal registry; and
  
• By any measure, the federal deficit rose to a historic high.

It is interesting to note that on several of these issues (free trade, deregulation, balancing the budget), the Clinton administration had a better record of following the Republican rules than the Republicans did!

Now let us take a look at the Democrats. The rules say that Democrats will bring the troops home, counter corporate influence over our government, reign in executive power, and protect our civil liberties. Well, let's look at the record:

• In Obama's first year, he increased Afghanistan troop levels substantially;
• More than 40 former lobbyists hold senior positions in the current administration;
• Despite candidate Obama's criticism of G.W. Bush's use of the constitutionally dubious practice of evading executive limits through "signing statements", president Obama is now embracing the practice; and
• the Democrats actually worsened the already abysmal civil liberties record of the Bush administration by extending the use of warrantless wiretaps, opposed informing suspected terrorists of their Miranda rights, and even authorizing the execution of an American citizen!
  

Given the Obama record, it is no surprise that Daniel Ellsberg, the man behind the Pentagon Papers, said in a recent Der Spiegel interview

"I think Obama is continuing the worst of the Bush administration in terms of civil liberties, violations of the constitution and the wars in the Middle East."

The question is not why voters are so contrarian this year. The real mystery is why voters have been so obedient for so long. As Confucius taught us more than two thousand years ago, politicians will see better behavior only after they model better behavior themselves. In the mean time, voters will continue to reason that "If our leader won't follow the rules, why should we?"