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Uncle Sam's Medical Marijuana Program

jsullum@reason.com (Jacob Sullum) — Fri, 09 May 2008 11:12:00 EDT

In a recent letter, House Judiciary Committee Chairman John Conyers (D-Mich.) asked Michele Leonhart, acting head of the Drug Enforcement Administration, to explain her agency's use of "paramilitary-style enforcement raids" and threats of property forfeiture to suppress the medical use of marijuana in California. "Do you think the DEA's limited resources are best utilized conducting enforcement raids on individuals and their caregivers who are conducting themselves legally under California law?" he asked. The San Francisco Chronicle reports that "agency spokeswoman Rogene Waite declined to comment on the questions Wednesday, saying only that 'the federal government does not recognize medical marijuana....The DEA, of course, would be part of the federal government.'"

If the federal government does not recognize medical marijuana, why does it send pot to patients? As the Marijuana Policy Project notes, tomorrow marks the 30th anniversary of the federal government's own medical marijuana program, under which four patients regularly receive joints from Uncle Sam. Theoretically, they are experimental subjects in a Compassionate Investigational New Drug (IND) Program, but the government has never bothered to publish any research based on their experiences. At its peak, the IND program for marijuana covered no more than a dozen or so patients, and in 1992 the George H.W. Bush admistration closed it to new applicants after receiving a flood of requests from AIDS patients. But the existing enrollees were grandfathered in, and those who are still alive continue to get a supply of marijuana grown by University of Mississipi scientists under contract with the U.S. government. "Most Americans would be shocked to know that the federal government supplies medical marijuana to patients while claiming that marijuana is a harmful drug with no medical value," says MPP's Rob Kampia. "If federal officials believe their own statements, they're knowingly poisoning four innocent people."

[Chronicle story via The Freedom Files]

The Drug War in Black and White

jsullum@reason.com (Jacob Sullum) — Thu, 08 May 2008 15:29:00 EDT

In yesterday's column, based on a recent report from the New York Civil Liberties Union, I noted how racially skewed the Giuliani-Bloomberg anti-pot crusade has been. Two studies published this week highlight the racially disproportionate impact of the war on drugs generally. Between 1980 and 2003, the Sentencing Project reports, the rate of drug arrests rose by 70 percent among whites and 225 percent among blacks. Looking at data for 34 states, Human Rights Watch finds that "a black man is 11.8 times more likely than a white man to be sent to prison on drug charges, and a black woman is 4.8 times more likely than a white woman."

Drug warriors presumably would argue that such disparities reflect blacks' greater propensity to be involved in the illegal drug trade. Human Rights Watch is a bit evasive on that point. "Although whites commit more drug offenses," it says, "African Americans are arrested and imprisoned on drug charges at much higher rates." Or as the group's senior counsel, Jamie Fellner (who wrote the report), puts it, "Most drug offenders are white, but most of the drug offenders sent to prison are black."

It's true that blacks and whites are about equally likely to use illegal drugs. Whites, being the majority, therefore commit "more drug offenses" and account for "most drug offenders." This comparison is directly relevant in evaluating the fairness of New York City's crackdown on pot smokers: As I noted in my column, blacks are much more likely than whites to be arrested for marijuana possession in New York even though they are no more likely to be pot smokers (and therefore, presumably, no more likely to be carrying small quantities of marijuana in public). But comparable drug use rates do not mean that blacks and whites are equally likely to commit the sort of drug offenses for which people tend to go to prison. For a variety of reasons, including a lack of appealing economic alternatives in inner-city neighborhoods, blacks are disproportionately represented among the low-level drug dealers who are most conspicuous and easiest to catch. That's the main reason they're disproportionately represented among drug offenders who get arrested and go to prison.

If, instead of going after street dealers, police raided homes at random throughout the country, the drug offenders (including users) they nabbed would be more representative of the general population. Needless to say, this is not a change in strategy anyone should be advocating for the sake of racial justice. As Fellner says, "The solution is not to imprison more whites but to radically rethink how to deal with drug abuse and low-level drug offenders."

In a 2006 review of Nate Blakeslee's book about the Tulia, Texas, drug bust scandal, I argued that the drug war's racial impact is just one aspect of a broader injustice.

Addendum: Bill Piper of the Drug Policy Alliance points out that a 2000 Human Rights Watch report cited data on the prevalence of drug dealing among blacks vs. whites:

During the period 1991-1993, SAMHSA [the Substance Abuse and Mental Health Services Administration] included questions about drug selling in the annual NHSDA [National Household Survey on Drug Abuse, which has since been replaced by the National Survey on Drug Use and Health]. Although the responses are best seen as a rough approximation of drug selling activity, they are nonetheless highly suggestive. On average over the three-year period, blacks were 16 percent of admitted sellers and whites were 82 percent.

So it may well be that whites (currently about 80 percent* of the U.S. population) are just as likely to sell drugs as blacks (about 13 percent of the population) yet much less likely to be caught doing it, perhaps because they are less likely to do it frequently (the survey question asked whether the respondents had sold drugs at all in the previous year), less likely to do it in public, and/or less likely to do it in neighborhoods with a heavy police presence.

[*This figure includes Hispanics who do not identify themselves as black or African American.]

Inhale Your Vapor If You've Got It

jsullum@reason.com (Jacob Sullum) — Wed, 07 May 2008 12:47:00 EDT

The Colorado Springs Gazette reports that at least two companies are selling electronic nicotine inhalers shaped like cigars, cigarettes, and pipes as tobacco substitutes. The manufacturers aim to avoid FDA regulation by marketing the devices not as a quitting aids (or, as the FDA would see it, treatments for the disease of nicotine addiction) or as safer (and therefore disease-ameliorating) alternatives to cigarettes but as a way to get your nicotine fix when you're not allowed to smoke. The article quotes one anti-smoking activist, Bill Godshall of Smokefree Pennsylvania, who welcomes the inhalers, and another, Alan Blum, director of the University of Alabama Center for the Study of Tobacco and Society, who sounds ambivalent. But both are mavericks within the anti-smoking movement: Godshall also favors smokeless tobacco as a harm-reducing alternative to cigarettes, and Blum at one point was sympathetic to that idea.

I predict most anti-smoking activists will be outraged by these products. First, they will argue (as they do with respect to smokeless tobacco) that the inhalers give smokers a way to endure smoke-free environments more comfortably and therefore blunt the effectiveness of smoking bans as a way of encouraging smokers to quit. That's probably true, but from a "public health" point of view you'd have to weigh the people who continue to smoke because of these products who otherwise would have quit against the smokers who switch mostly or entirely to the inhalers, thereby dramatically reducing their intake of toxins and carcinogens. Second, many, if not most, anti-smoking activists are uncomfortable with the idea of continuing to use nicotine indefinitely, regardless of the health consequences, because they view drug addiction as inherently bad. In their view, complete abstinence is the only acceptable alternative. Again, from a "public health" perspective, which seeks to minimize morbidity and mortality, this stance is highly questionable, since it could well result in more disease, not less.

From a libertarian perspective, of course, the issue is easy: Let manufacturers sell whatever tobacco or nicotine products they choose, as long as they're honest, and let consumers make their own tradeoffs between risk and pleasure, regardless of the impact on collective measures of health. That's not likely to be the way this shakes out, of course. I suspect the manufacturers of nicotine gum and patches, who not only had to get pre-market approval for their products but waited years before they were allowed to sell them over the counter instead of only by prescription, will be irked by the competition from non-FDA-regulated nicotine inhalers. All of these companies are selling essentially the same thing, however they choose to describe it, and it's quite common for people to use patches and gum as long-term cigarette substitutes, as opposed to "cures" for nicotine addiction. It seems like the artificial regulatory distinctions among different nicotine products can't last. Then again, our drug laws are riddled with such inconsistencies.

'How Would You Like It If You Went to a Wine Tasting and You Couldn't Taste the Wine?'

jsullum@reason.com (Jacob Sullum) — Tue, 06 May 2008 14:53:00 EDT

The Chicagoland International Pipe & Tobacciana Show, held over the weekend in St. Charles, Illinois, was smoke-free this year, thanks to a state smoking ban that took effect in January. Organizers of the event, the country's largest pipe show, had hoped attendees would be allowed to light up as members of a private club:

The hall is strictly staffed with volunteers, convention-goers were to pay $15 to join the club, and attendees were to sign a waiver stating they "freely and willingly accept all the risks of smoking, second-hand smoke, third-hand smoke, and all other risks, both real and imagined, regarding smoking tobacco."

But St. Charles police, DuPage County health officials and anti-smoking advocates didn't buy it.

"This is the first time we've seen such a blatant attempt . . . to actually undermine the law through legal sophistry," said Mike Grady, the American Cancer Society's Illinois director of public policy. "We're very happy with the outcome. This is the perfect example that the law is being enforced."

Pipe smokers, banished to tents outside the convention center, were understandably irked. "How would you like it if you went to a wine tasting and you couldn't taste the wine?" said one. "It's a freedom issue."

[Thanks to Rick Newcombe for the tip.]

D.C.'s Homicide Rate May Be Through the Roof, but Montanans Kill Themselves a Lot

jsullum@reason.com (Jacob Sullum) — Mon, 05 May 2008 15:21:00 EDT

Citing a connection between gun ownership and "firearm death rates," the Violence Policy Center concludes that the U.S. Supreme Court should uphold the District of Columbia's gun ban:

The five states with the highest per capita gun death rates were Louisiana, Alaska, Montana, Tennessee and Alabama. Each of these states had a per capita gun death rate far exceeding the national per capita gun death rate of 10.32 per 100,000.
By contrast, states with strong gun laws and low rates of gun ownership had far lower rates of firearm-related death. Ranking last in the nation for gun death was Hawaii, followed by Massachusetts, Rhode Island, New Jersey and New York.
VPC Legislative Director Kristen Rand states, "Blind allegiance to the Second Amendment comes at a deadly price. Many residents in pro-gun states cheer the possibility of a June Supreme Court ruling that could place gun controls across the nation at risk, never realizing that those states stand as proof of the need for such laws."

Using state-level data for this comparison is problematic, since it ignores intrastate differences in gun control and gun ownership—between New York City and upstate New York, for instance, or between Chicago and downstate Illinois. In any case, the VPC's full table suggests that the relationship between gun ownership and gun-related deaths is not quite as neat as the group's press release implies. North Dakota, Kansas, Utah, Wisconsin, Maine, Vermont, Minnesota, and Iowa all have relatively high gun ownership rates (above 40 percent), but all have firearm death rates below the national average.

Nor is it clear that the firearm death rate—which includes suicides and accidents as well as homicides but excludes deaths caused by other means—is the correct way to measure the success of a policy (gun control) that presumably aims to achieve a net reduction in deaths, not merely a change in the mixture of methods. Nine out of the 10 states with the lowest overall murder rates—Vermont, Iowa, Utah, Montana, Maine, Wyoming, Hawaii, North Dakota, South Dakota, and New Hampshire—have relatively loose gun rules. States with relatively strict gun control do look better in the overall suicide rankings. Presumably suicide is the reason why a state like Montana, which ranks near the top in gun ownership, 44th for murder, and first for suicide, comes in third on the VPC's list of states with the highest gun death rates.

It's not clear, of course, whether Montanans' propensity to kill themselves is caused by all those guns. With any comparison like this one, we need to keep in mind that correlation does not prove causation—especially when the correlation is based on a cherry-picked outcome measure and a simplistic top five, bottom five comparison. Even given those parameters, the VPC's presentation of the data is skewed by its decision to leave out a jurisdiction that has both the country's strictest gun control and by far its highest murder rate—more than twice the rate of its nearest competititor. The omission is especially puzzling because it was the controversy over this jurisdiction's gun laws that evidently prompted the VPC to assemble its table.

Speaking of which, shouldn't the constitutionality of D.C.'s gun ban hinge on the Constitution, as opposed to the suicide rate in Montana? By cautioning against "blind allegiance to the Second Amendment," the VPC essentially concedes that D.C.-style gun control is unconstitutional, while arguing that it should be upheld anyway.

The VPC press release prompted a credulous, one-sided UPI story and a Honolulu Star-Bulletin editorial crowing about the superiority of Hawaii's gun laws.

[Thanks to Dan Gifford for the tip.]

Sage Advice: Check State Law Before You Order

jsullum@reason.com (Jacob Sullum) — Fri, 02 May 2008 13:06:00 EDT

Spurred on by horrific YouTube images of teenagers falling over and giggling, the Salvia divinorum crackdown proceeds apace. The Florida legislature recently approved a ban by a nearly unanimous vote, and the Drug War Chronicle reports that police in North Dakota have made what appears to be the first salvia arrest. Kenneth Rau, a Bismarck bottling plant worker with an interest in altered states of consciousness, is charged with possession of salvia with intent to distribute, a Class B felony, based on eight ounces of leaf he bought on eBay for $32. Rau, who faces up to 10 years in prison, complains that police are falsely portraying him as a dealer. He says he bought the psychedelic herb, which has been used by shamans in Mexico for centuries and is also known as Diviner's Sage, for his own chemically assisted self-exploration. North Dakota's salvia ban, approved last year, took effect on August 1, and Rau says he was unaware of it. "I've never been a drug user, never been arrested," he told the Chronicle. "I started experimenting with this stuff because I thought it was legal. I didn't want to get into trouble, but now they're treating me just like some meth dealer."

My previous posts on the anti-salvia crusade are here and here. The Salvia Divinorum Research and Information Center has a recently updated overview of the plant's legal status in various jurisdictions.

Opening Up the Dental Market Is Like Pulling Teeth

jsullum@reason.com (Jacob Sullum) — Fri, 02 May 2008 11:44:00 EDT

Years ago I wrote an article for reason (not available online) that explored the cost-controlling potential of allowing nurse practitioners, physician assistants, and other non-M.D.s to offer services traditionally performed by doctors. Not surprisingly, organized medicine tends to resist these inroads, especially when it comes to operating independently and prescribing drugs. But judging from a recent New York Times story, dentists have been even more effective at fighting off competition from people who have less than the conventional seven or eight years of post-secondary education. The Times reports that "dental therapists," who undergo two years of intensive training after high school, can do basic dental work such as filling cavities and extracting teeth, serving people who otherwise might not get dental care at all. If you've never heard of dental therapists, that's not surprising: Although research indicates their work is just as competent as the average dentist's, they are permitted to operate only in Alaska, under a federally funded program serving people in sparsely populated areas.

Even this limited experiment has drawn fierce opposition from the Alaska Dental Society and the American Dental Association, which say dental therapists threaten ~~dentists'~~ ~~income~~ patients' welfare:

The opposition to therapists follows decades of efforts by state dental boards, which are dominated by dentists, to block hygienists from providing care without being supervised by dentists.
The dental associations say they simply want to be sure that patients do not receive substandard care. But some dentists in public health programs contend that dentists in private practice consider therapists low-cost competition. In Alaska, the federally financed program that supplies care to Alaska Natives pays therapists about $60,000 a year, one-half to one-third of what dentists typically earn....
The American Dental Association...says it does not fear lower-cost competition but instead wants to protect patients from inadequately trained therapists, who may not be able to handle the emergencies, like uncontrolled bleeding, that sometimes occur during routine procedures.

So it's better for someone with a bad cavity to suffer constant pain or yank his own tooth than it is to run the risk of "uncontrolled bleeding" during a visit to a dental therapist. The other argument against dental therapists is even more blatantly paternalistic:

In the long run, the only way to improve dental health is encourage people to take better care of their teeth, Dr. [Amid] Ismail [an ADA consultant] said.
"I'm not in favor of training just to fill teeth, because a solution of filling teeth is not going to reduce disease," he said. "The patients will go home, and they will drink six cans of soda a day, and they will come back with more cavities."

But if the government forces them to suffer with unfilled cavities by blocking access to low-cost dental care, maybe they'll learn to lay off the soda and brush and floss regularly. They'll be better off in the long run!

'There Is No Reason for This Stuff'

jsullum@reason.com (Jacob Sullum) — Thu, 01 May 2008 18:01:00 EDT

A British law criminalizing the possession of "violent and extreme pornography" is expected to take effect next week. The bill, a response to the 2003 murder of Brighton schoolteacher Jane Longhurst by a man who liked violent pornography, would ban simulated sexual violence as well as images of the real thing. The prohibited material includes images of "an act which threatens or appears to threaten a person's life"; "an act which results in or appears to result in serious injury to a person's anus, breasts, or genitals"; "an act which involves or appears to involve sexual interference with a human corpse"; or "a person performing or appearing to perform an act of intercourse or oral sex with an animal" (emphasis added). Critics worry that the definition is too broad and too vague and that the law will punish people for engaging in consensual activities that do not actually harm anyone. "If no sexual offense is being committed," one M.P. who opposed the bill told the BBC, "it seems very odd indeed that there should be an offense for having an image of something which was not an offense."

But the Justice Ministry insists that "pornographic material which depicts necrophilia, bestiality or violence that is life threatening or likely to result in serious injury to the anus, breasts or genitals has no place in a modern society and should not be tolerated." The M.P. who led the fight for the bill in the House of Lords promises the government will target only images that are "grossly offensive and disgusting." Jane Longhurst's mother, who campaigned for the ban, has little patience with the critics:

Speaking from her home in Berkshire, Mrs. Longhurst acknowledges that libertarians see her as "a horrible killjoy." "I'm not. I do not approve of this stuff, but there is room for all sorts of different people. But anything which is going to cause damage to other people needs to be stopped."
To those who fear the legislation might criminalise people who use violent pornography as a harmless sex aid, she responds with a blunt "hard luck."
"There is no reason for this stuff. I can't see why people need to see it. People say what about our human rights but where are Jane's human rights?"

[Thanks to Daniel Reeves for the tip.]

Class Action Lawyers Get Creative

jsullum@reason.com (Jacob Sullum) — Thu, 01 May 2008 17:09:00 EDT

The good thing about class action lawsuits is that they allow enterprising lawyers to consolidate many small claims, any one of which would not be worth pursuing on its own, and win settlements for consumers who may not even realize they've been injured. The bad thing about class action lawsuits is that they allow enterprising lawyers to consolidate many small claims, any one of which would not be worth pursuing on its own, and win settlements for consumers who may not even realize they've been injured. Which category does Vibhu Talwar and Patrick Finkelstein v. Creative Labs fall into?

According to the settlement agreement, the lead plaintiffs, who filed their federal lawsuit in California, alleged that Creative had misled consumers by exaggerating the capacity of its MP3 players. The fraud allegation hinged mainly on two different definitions of gigabyte. According to the decimal definition (the only one I knew until today), a gigabyte is 1 billion (10⁹) bytes. According to the binary definition, a gigabyte is 1,073,741,824 (2³⁰) bytes. While Creative used the decimal definition in its advertising, the settlement says, "certain computer operating systems report hard drive capacity using a binary definition." On those systems, a 20GB Creative Zen player would register as only 18.6GB or so, about 7 percent less than advertised.

I see the potential for confusion (I'm confused just trying to explain the grounds for the suit), but I'm not sure this amounts to fraud, or that consumers have suffered an injury, or if they have that the injury amounts to anything in practical terms. I've got 8,346 tracks on my 40GB Creative Zen Nomad Jukebox (which for some reason registers on my computer as 38.1 GB, 2 5 percent less than advertised), and I still have 18.4GB to spare. I suspect the machine will die before I fill it up.

Still, according to the email notice I received today, I'm eligible for "a 50% discount off the price of a new 1 GB MP3 player" (which I have no interest in purchasing) or "a discount certificate good for 20% off the price of any single item purchased at www.us.creative.com" (which I might actually use). I guess the measliness of the settlement, which few "class members" will bother to collect, matches the imperceptibility of the injury pretty well. As usual in this sort of class action, the real beneficiaries are the lawyers, Brian Strange and Barry Fisher of Los Angeles, who will collect $900,000 for their trouble.

At least Strange and Fisher have done a public service by encouraging companies to be more honest. Or maybe not. As of 2003, Creative has included in its packaging a notice informing consumers that "1GB = 1,000,000,000 bytes," that "available capacity will be less" than total capacity (because of the operating software), and that "reported capacity will vary." But Creative offered that clarification two years before Strange and Fisher sued the company. I wonder where they got the idea for the lawsuit.

That Lethal British Marijuana

jsullum@reason.com (Jacob Sullum) — Thu, 01 May 2008 15:20:00 EDT

In 2004 the British government downgraded marijuana from a Class B to a Class C drug, making simple possession of small quantities a "non-arrestable offense." The current prime minister, Gordon Brown, seems bent on reversing that reform, saying "we really have got to send out a message to young people [that] this is not acceptable." Shortly after taking office, Brown asked the Advisory Council on the Misuse of Drugs to take another look at cannabis policy. Although the council reportedly has recommended that marijuana remain in Class C, Brown is expected to ignore its advice. On Tuesday he said:

I don't think that the previous studies took into account that so much of the cannabis on the streets is now of a lethal quality....I have always been very strongly of the view that cannabis is unacceptable and we have got to send a message.

According to Reuters, "Brown said he was particularly worried about the growing use of skunk cannabis, which he described as 'more lethal.'" There has never been a documented case of death by marijuana overdose. Based on extrapolations from animal studies, the ratio of marijuana's lethal dose to its effective dose is something like 40,000 to 1 (compared to between 10 and 20 to 1 for aspirin and between 4 and 10 to 1 for alcohol). So even if the average THC content of marijuana has increased as dramatically as drug warriors claim (and it hasn't), and even if pot smokers did not adjust their intake accordingly (and they do), there would be no practical effect on marijuana's toxicity. The chance of a lethal overdose remains, for all intents and purposes, zero. And no matter what kind of stoned logic Brown favors, zero is not more than zero.

[Thanks to NORML's Paul Armentano for the tip.]

It's Safe to Read Again at Indiana University

jsullum@reason.com (Jacob Sullum) — Thu, 01 May 2008 12:24:00 EDT

Remember Keith Sampson, the janitor at Indiana University-Purdue University in Indianapolis (IUPUI) who was accused of racially harassing his co-workers by reading a scholarly book about the Ku Klux Klan? When I last discussed the case, IUPUI's Affirmative Action Office had backed off its initial charge—not because Sampson has a First Amendment right to read whatever books he wants at a state-run university but because the office could not determine exactly what he had been thinking while reading the book about the Klan. The implication was that if he ever read another book that a co-worker considered offensive, he could be investigated again and might be subject to disciplinary action if he displayed clearer signs of racial insensitivity than he did the first time around. But in a recent response to a letter from the Foundation for Individual Rights in Education (FIRE), IUPUI Chancellor Charles Bantz suggests the university has seen the light:

I can candidly say that we regret this situation ever took place and that IUPUI takes this matter very seriously. IUPUI is committed to ensuring that its future approach to such matters is consistent with and affirms the long-standing commitment of this campus to the principles of freedom of expression, lifelong learning, and respect for the rights of all members of the IUPUI community. In the near future, IUPUI will be reexamining the campuswide affirmative action processes and procedures related to internal complaints.

This is probably as close to an apology as Sampson is going to get. FIRE notes that IUPUI's reconsideration of its harassment-by-reading theory came only after the American Civil Liberties Union of Indiana repeatedly contacted the university on Sampson's behalf.

The Investigation Continues, but Here Are a Few Reckless Allegations

jsullum@reason.com (Jacob Sullum) — Thu, 01 May 2008 11:18:00 EDT

Yesterday, attempting to retroactively justify the wholesale removal of children from the Yearning for Zion (YFZ) Ranch, Carey Cockerell, commissioner of the Texas Department of Family and Protective Services, insinuated that children at the ranch, which is owned by the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS), had been beaten severely enough to break their bones. According to The Salt Lake Tribune, Cockerell told a state legislative committee "at least 41 children from the polygamous YFZ Ranch have had broken bones," which he said was "cause for concern." Yet USA Today reports that the medical textbook Fractures in Children "cites data that suggest 42% of boys and 27% of girls suffer at least one fracture before age 16." According to the latest official count, the state of Texas has taken custody of 464 minors who lived at YFZ, ranging in age from less than 1 to 17. If 41 of them have had broken bones, that's less than 10 percent over all, which, pace Cockerell, does not seem to be "cause for concern."

FLDS attorney Rod Parker notes that some of the children at YFZ suffer from brittle bone disease:

That makes some of the children more susceptible to broken bones. The mothers told CPS about that when they were taken in. They've known all along that the reason they might see higher incidence of broken bones was due to this condition. They have no evidence to support the implication it is due to child abuse.

Lloyd Barlow, a physician who lives at YFZ, said he'd seen no signs of abuse:

"Probably over 90 percent of the injuries are forearm fractures from ground-level or low level falls," Barlow told The Associated Press from his office at the Eldorado ranch. "I can also tell you that we don't live in a community where there is a pattern of abuse."
Barlow said he is an FLDS member but also a licensed physician in Texas and Utah and is required by law to report suspected abuse.
"What they are saying is that in the history of the lives of 400 some-odd children, there have been injuries. They are not saying they have 41 [current] fractures," he said.

Cockerell's department later backed away from his insinuation that the fractures were evidence of beatings:

Patrick Crimmins, a spokesman for the Child Protective Services division, said the state was still investigating and Cockerell's comments were not meant to be an allegation of abuse.
"This is pretty early in this investigation, particularly given the number of children we've been interviewing," he said. "We are just looking into it."

This is pretty sleazy: There seem to be a lot of broken bones (though not any more than you'd expect in a random sample of American kids), and we're concerned about that, but we're not saying the kids were abused. We're just strongly implying it.

Cockerell also said "interviews with children and journals found at the ranch" have led investigators to believe some of the boys may have been sexually abused. Anyone who is familar with episodes like the trumped-up McMartin Preschool prosecutions understands how easy it is for social workers, through leading questions and repeated allegations, to elicit testimony from little kids that supports their preconceptions. As for the journals, since Cockerell says only that abuse may have occurred, I assume the written evidence is ambiguous as well.

Although it may turn out that some of the children at YFZ were abused physically and/or sexually, I don't trust Cockerell's investigators to find the truth, because I don't think they see that as their mission. Instead they are intent on showing, in the face of widespread criticism, that the state was right to separate all the children from their parents, even though there was no evidence of abuse in the vast majority of cases. The thing is, they will never be able to show the state was right, no matter what they find. At the time they forcibly removed these children, state officials conceded they had no reason to believe anyone was being beaten or that sexual abuse extended beyond the underage marriage of teenaged girls (the extent of which is disputed by FLDS members). As I noted in my column yesterday, in more than nine out of 10 cases their argument for separation hinged on the idea that bringing children up according to FLDS teachings was inherently abusive. If they subsequently find evidence of physical or sexual abuse, that does not make their rationale for removal any more legitimate.

John McCain's Plan to Keep Employer-Provided Health Insurance While Moving Away From It

jsullum@reason.com (Jacob Sullum) — Wed, 30 Apr 2008 18:11:00 EDT

Severing the government-supported, market-distorting connection between health insurance and employment would promote choice, allowing people to select the medical plans that best suit their circumstances, and security, addressing one of the main anxieties about health care by making coverage portable. This is one of the few areas where the Bush administration was on the right track, and I'm glad to see John McCain picking up the idea. But I wish his talk were a little straighter on this subject. Here is how he describes the current system, in which most Americans with health insurance get it through their employers, and the change he'd make:

Under current law, the federal government gives a tax benefit when employers provide health-insurance coverage to American workers and their families. This benefit doesn't cover the total cost of the health plan, and in reality each worker and family absorbs the rest of the cost in lower wages and diminished benefits. But it provides essential support for insurance coverage. Many workers are perfectly content with this arrangement, and under my reform plan they would be able to keep that coverage. Their employer-provided health plans would be largely untouched and unchanged.
But for every American who wanted it, another option would be available: Every year, they would receive a tax credit directly, with the same cash value of the credits for employees in big companies, in a small business, or self-employed. You simply choose the insurance provider that suits you best. By mail or online, you would then inform the government of your selection. And the money to help pay for your health care would be sent straight to that insurance provider. The health plan you chose would be as good as any that an employer could choose for you. It would be yours and your family's health-care plan, and yours to keep.
The value of that credit—$2,500 for individuals, $5,000 for families—would also be enhanced by the greater competition this reform would help create among insurance companies. Millions of Americans would be making their own health-care choices again. Insurance companies could no longer take your business for granted, offering narrow plans with escalating costs. It would help change the whole dynamic of the current system, putting individuals and families back in charge, and forcing companies to respond with better service at lower cost.

Although you might not guess it from McCain's gloss, the "tax benefit" in question goes to employees, not employers. Companies can deduct money spent on employee compensation as a business expense whether it takes the form of wages or health benefits. But since the government does not treat employer-provided health insurance as taxable income, there's an artificial incentive for employees to prefer compensation in that form, rather than the cash equivalent. If both kinds of compensation were treated the same, most employees presumably would prefer the money; employers would respond by ditching health benefits and offering higher wages instead. Equal tax treatment could be accomplished either by taxing the health benefits as income or, as McCain seems to be proposing, making the money an employee independently spends on health insurance tax-free as well.

Although the policy change has to do with taxes paid by employees, The New York Times has McCain "eliminating the tax breaks that currently encourage employers to provide health insurance for their workers," which makes it sound as if employers are the ones getting the breaks. And the McCain campaign seems to be downplaying the impact that equalizing the tax treatment of health benefits and wages would have on the prevalence of employer-provided medical coverage. According to the Times, McCain's domestic policy adviser "said he believed that many employers would still offer health insurance to try to attract the best workers." McCain himself says "employer-provided health plans would be largely untouched and unchanged" for the "many workers" who "are perfectly content" with the status quo. Maybe this is just his way of reassuring people that changes in the compensation mix would be driven by employee preferences. But the main economic rationale for eliminating the health-benefit tax preference is to make employer-provided medical coverage the exception rather than the rule; otherwise we would still have a system in which medical coverage is both artificially expensive, since patients have little opportunity or incentive to economize, and insecure, since losing a job often means losing health insurance.

New York City's 'Marijuana Arrest Crusade'

jsullum@reason.com (Jacob Sullum) — Wed, 30 Apr 2008 11:36:00 EDT

In an eye-opening new report for the New York Civil Liberties Union (noted by Radley Balko earlier this morning), sociologist Harry G. Levine and drug policy activist Deborah Small call attention to a "marijuana arrest crusade" in New York City that began under Rudy Giuliani and continues under Michael Bloomberg:

From 1997 to 2006, the New York City Police Department arrested and jailed more than 353,000 people simply for possessing small amounts of marijuana. This was eleven times more marijuana arrests than in the previous decade, and ten times more than in the decade before that.

Marijuana arrests have been rising nationwide since the early 1990s, but the increase in New York City has been much more dramatic. Levine and Small say the surge in arrests is largely a byproduct of an aggressive "stop and frisk" program in which police pat down young men they (supposedly) suspect of criminal activity, ostensibly to make sure they're not carrying weapons. The targets of these pat-downs are disproportionately black and Hispanic, and so are the people arrested for marijuana possession. Between 1997 and 2006, blacks, who represent 26 percent of New York's population, accounted for 52 percent of the marijuana arrests; Hispanics, about the same share of the population, accounted for 31 percent of the arrests; and non-Hispanic whites, about 35 percent of the population, accounted for just 15 percent of the arrests. Yet survey data indicate that, if anything, whites smoke pot at higher rates than blacks and Hispanics.

Although New York State decriminalized possession of small amounts of marijuana (less than seven-eighths of an ounce) in 1977, Levine and Small report, New York City marijuana busts typically result in a trip to the police station, fingerprinting, and a night in jail. Instead of charging people who are carrying a little pot with possession, a citable offense simlar to a traffic violation, police typically accuse them of having marijuana "open to view," a misdemeanor, often after tricking or intimidating them into revealing their stash. In the vast majority of cases, the arrestees are not caught smoking pot in public, and the marijuana charge is the most serious offense.

Levine and Small note several incentives that encourage police to hassle pot smokers:

Narcotics and patrol police, their supervisors, and top commanders in the police department benefit from the marijuana possession arrests. The arrests are comparatively safe, allow officers and their supervisors to accrue overtime pay, and produce arrest numbers that show productivity. When needed, commanders can temporarily shift narcotics police off making the misdemeanor possession arrests and assign them to other duties, which provides considerable flexibility. The marijuana arrests are also the most effective means available for obtaining information (including fingerprints, photographs, and potentially DNA samples) from people never before entered in the criminal justice databases.

For the arrestees, by contrast, getting busted is not only humiliating, expensive, inconvenient, and embittering; it gives them a criminal record that can hamper their educational and employment prospects for the rest of their lives.

One Vice at a Time, Please

jsullum@reason.com (Jacob Sullum) — Fri, 25 Apr 2008 11:53:00 EDT

This week the Atlantic City Council voted unanimously to ban smoking on casino floors. Although the rationale is employee protection, casinos that elect to build separately ventilated smoking lounges, as permitted by the ordinance, have to make sure no gambling occurs there, even the automated kind. Urging the Casino Association of New Jersey to file a lawsuit challenging the ban, Donald Trump complains that it gives slot parlors in the Philadelphia area an unfair competitive advantage.

Meanwhile, The New York Times reported yesterday that charitable groups in states such as California, New York, New Jersey, Washington, and Minnesota have seen a sharp drop in bingo attendance and revenue in the wake of smoking bans:

Managers of charity bingo games...say smoking goes with bingo like peanut butter with jelly. Michael J. Surwill, bingo chairman at Elks Lodge No. 2501 in Ocean Springs, Miss., estimated that smokers outnumbered nonsmokers three to one at the lodge's weekly game....
Charlie Lindstrom, who runs the bingo nights at an American Legion post in Fergus Falls, Minn., said some of his former customers now drove to casinos on Indian reservations, where they can puff away, or across the border to Fargo, N.D., where veterans' organizations are exempt from that state's smoking ban.

One possible solution: allow smoking among consenting adults. Another one: impose a nationwide smoking ban, which would also take care of the accidents caused by drunken smokers looking for bars where they can light up. Which do you think is more likely?

When Government Is Stupid, Be Grateful for Its Inefficiency

jsullum@reason.com (Jacob Sullum) — Thu, 24 Apr 2008 16:20:00 EDT

According to a new report from the Government Accountability Office, since 2001 U.S. Customs and Border Protection has failed to collect more than $600 million in duties that should have been imposed on imported goods "to remedy injurious unfair foreign trade practices." Specifically, the goods, mainly food products from China, were sold at "unfairly low prices," thereby violating "anti-dumping" rules. Due to CBP's dereliction of duty, American consumers presumably paid less than the government thinks they should for garlic, honey, mushrooms, and crawfish tail meat. This is the sort of bureaucratic inefficiency I can get behind.

John Yoo's Right to Give Bad Advice

jsullum@reason.com (Jacob Sullum) — Thu, 24 Apr 2008 15:41:00 EDT

At a Manhattan Institute website devoted to higher education, civil libertarian (and reason contributor) Harvey Silverglate takes a skeptical look at calls to discipline, disbar, fire, or prosecute former Justice Department attorney John Yoo, now a Berkeley law professor, for his advice regarding the president's authority to torture prisoners and otherwise flout the will of Congress and/or the Constitution. Although severely critical of Yoo's views on executive power, some of which he calls "laughable" and "ludicrous," Silverglate approaches the issue as "both a criminal defense lawyer, with a vested interest in ensuring that a fellow member of the bar is dealt with fairly, and as a frequent critic of higher education's often evident contempt for academic freedom." He argues that proving Yoo gave his legal advice in bad faith, as required for prosecution and probably for disbarment as well, would be very difficult. Silverglate also warns that an investigation by his employer could have a chilling effect on academic freedom and set a bad precedent for partisan attacks disguised as ethical policing. Such inquiries would in any case be fundamentally misguided, I think, given the impressive ability that human beings have to convince themselves that what's convenient for them (or their bosses) is also what's right.

John Yoo's vision of presidential power scares me, but so do partisan attacks on freedom of speech.

The Long and the Short of Prison Sentences

jsullum@reason.com (Jacob Sullum) — Wed, 23 Apr 2008 15:07:00 EDT

New York Times legal writer Adam Liptak digs a little deeper into the story of America's astonishingly high incarceration rate and finds that the main explanation is longer sentences, as opposed to more frequent sentences or a higher crime rate:

People who commit nonviolent crimes in the rest of the world are less likely to receive prison time and certainly less likely to receive long sentences. The United States is, for instance, the only advanced country that incarcerates people for minor property crimes like passing bad checks...
Efforts to combat illegal drugs play a major role in explaining long prison sentences in the United States as well. In 1980, there were about 40,000 people in American jails and prisons for drug crimes. These days, there are almost 500,000.
Those figures have drawn contempt from European critics. "The U.S. pursues the war on drugs with an ignorant fanaticism," said [prison researcher Vivien] Stern of King's College....
It is the length of sentences that truly distinguishes American prison policy. Indeed, the mere number of sentences imposed here would not place the United States at the top of the incarceration lists. If lists were compiled based on annual admissions to prison per capita, several European countries would outpace the United States. But American prison stays are much longer, so the total incarceration rate is higher.

Burglars in the United States serve an average of 16 months in prison, according to Mr. Mauer, compared with 5 months in Canada and 7 months in England.

The longer U.S. sentences are due largely to legislators who pass mandatory minimum statutes and judges (frequently elected) who err on the side of severity. Both groups are responding to a perceived public demand for tough-on-crime policies.

While any sentence for nonpredatory "criminals" such as drug offenders is too long, it's less clear whether U.S. penalties for crimes such as burglary and robbery are excessive. As Liptak notes, "there is little question that the high incarceration rate here has helped drive down crime," whether through incapacitation, deterrence, or both. Liptak quotes former federal judge Paul G. Cassell, a conspicuous critic of draconian drug sentences, who writes that "a good case can be made that fewer Americans are now being victimized" as a result of harsher sentences. Cassell says the evidence "should give one pause before too quickly concluding that European sentences are appropriate."

In a column last month, I discussed the Pew Center's recent report on incarceration rates, upon which Liptak draws heavily. Several years ago in reason, I noted criminologist John DiIulio's acknowledgment that the cost-effectiveness of incarceration depends on the system's ability to distinguish between predatory criminals and "drug-only" offenders.

Dealing With Drugs at the L.A. Times

jsullum@reason.com (Jacob Sullum) — Wed, 23 Apr 2008 11:12:00 EDT

This week I'm debating drug policy with the Heritage Foundation's Charles Stimson in a Los Angeles Times "Dust-Up." Monday's posts dealt with the distinction between decriminalization and legalization, and yesterday's posts addressed the conflict between federal and state governments regarding the medical use of marijuana. Later today there will be an exchange on the subject of politicians' drug use. Thursday's posts will focus on drug-trade-related violence, and on Friday we're supposed to lay out our visions of an ideal drug policy.

Update: Part III is up now.

Self-Refuting Drug Warriors

jsullum@reason.com (Jacob Sullum) — Fri, 18 Apr 2008 19:02:00 EDT

A new analysis of data from the National Survey on Drug Use and Health once again confirms a point I emphasize in my book Saying Yes: The vast majority of illegal drug users do not fit the stereotype of addiction and degradation promoted by the government and the news media. Based on data from the 2004, 20005, and 2006 surveys, the Substance Abuse and Mental Health Services Administration (SAMHSA) calculated the percentage of people who became "dependent" on various drugs within two years of trying them. Here are the dependence rates, in ascending order:

Inhalants: 0.9%

Tranquilizers (nonmedical use): 1.2%

Psychedelics: 1.9%

Sedatives (nonmedical use): 2.4%

Painkillers (nonmedical use): 3.1%

Alcohol: 3.2%

Cocaine Powder: 3.7%

Stimulants (nonmedical use): 4.7%

Marijuana: 5.8%

Crack Cocaine: 9.2%

Heroin: 13.4%

In some ways these results track conventional wisdom. Heroin comes out on top, which conforms to traditional thinking if not to more recent scare mongering about crack and methamphetamine, each of which was said to be at least as addictive, if not more so. But even in the case of heroin, a large majority of users were not deemed "dependent," and most (69 percent) had not even used the drug in the previous year. Likewise, crack looks more addictive than cocaine powder, but 76 percent of the people who tried crack were not using it at all a year later, quite a feat with a drug that's said to be instantly addictive. The comparable rate for cocaine powder was 58 percent, which could mean that a) people find it more appealing than crack, b) people find it easier to integrate into their lives because the experience is less intense, or c) people find it more appealing because it's easier to integrate into their lives. I think most people would be surprised to see that "stimulants," which included methamphetamine, rate lower on this addiction scale than heroin, crack, and even marijuana, and that narcotic painkillers, described as overwhelming and irresistible in press coverage of the OxyContin "epidemic," look no more addictive than alcohol.

A few notes of caution:

1. SAMHSA measures drug dependence through questions based on the American Psychiatric Association's diagnostic criteria, which require three or more of seven indicators: 1) tolerance, 2)withdrawal, 3) taking the drug in larger amounts or over a longer period than intended, 4) a persistent desire or unsuccessful efforts to cut back, 5) a lot of time spent getting, using, or recovering from the effects of the drug, 6) disruption of important social occupational, or recreational activities, and 7) persistent use despite serious drug-related physical or psychological problems. To qualify for the label, a patient is supposed to be suffering from a "maladaptive pattern of substance use" that leads to "clinically significant impairment or distress," which is difficult to assess at a distance through a survey. But the major line of criticism I've seen indicates that, if anything, applying the "clinically significant" criterion would generate lower rates of substance dependence.

2. This particular analysis covers just a few years, and serious drug problems may take longer to develop (although that's certainly not the impression left by the government's anti-drug propaganda). Studies covering longer periods, such as the National Comorbidity Survey (which I cite in my book), do find higher addiction rates. But they still indicate that addiction is not a typical result of drug use.

3. It's risky to assume that the addiction rate associated with a substance has to do with its inherent properties, as opposed to the sort of people who like to use it. It seems plausible that people who are attracted to an extreme, notorious practice like heroin injection, for example, are different from people who aren't in ways (tastes, preferences, personality traits, circumstances) that affect their likelihood of using the drug heavily.

[via the Drug War Chronicle]

'That's a Very Serious Marker'

jsullum@reason.com (Jacob Sullum) — Fri, 18 Apr 2008 13:00:00 EDT

Remember the 13-year-old girl who was strip-searched because her vice principal thought she might be hiding ibuprofen in her underwear? The rationale in that case (to the extent that one can be divined) was that, while you can't actually use ibuprofen tablets to get high, they sorta look like things (hydrocodone, Valium, MDMA, etc.) that you can use to get high. A similar kind of quasi-reasoning was behind the three-day suspension of an 8-year-old boy from Harris Park Elementary School in Westminster, Colorado, for the offense of marker sniffing:

[Eathan] Harris used a black Sharpie marker to color a small area on the sleeve of his sweatshirt. A teacher sent him to the principal when she noticed him smelling the marker and his clothing.

"It smelled good," Harris said. "They told me that's wrong."...
[Principal Chris] Benisch stands by his decision to suspend Harris, saying it sends a clear message about substance abuse.

"This is really, really, seriously dangerous," Benisch said.

In his letter suspending the child, Benisch wrote that smelling the marker fumes could cause the boy to "become intoxicated."

A toxicologist with the Rocky Mountain Poison Control Center says that claim is nearly impossible.

Dr. Eric Lavonas says non-toxic markers like Sharpies, while pungent-smelling, cannot be used to get high.

"I don't know whether it would be possible for a real overachiever to figure out a way to get high off them," Lavonas said. "But in regular use, it's just not something that's going to happen."

"If you went to Costco and bought 50 bags of Sharpies and did something to them, maybe there's a way to get creative and make it happen," Lavonas said.

Adams County School District 50 leaders were unfazed by the poison control center's medical opinion.

"Principals make hundreds of decisions everyday based on our best judgment. And in that time, smelling that marker, I felt like, 'Wow, that's a very serious marker,'" Benisch said.

After all, the kid admits the marker "smelled good," which means he enjoyed sniffing it, which means it chemically stimulated the pleasure center of his brain, which makes its impact biochemically indistinguishable from that of a drug. I assume Harris Park Elementary School also bans flowers, perfumes, and fragrant food.

Have you ever heard of a case like this where school officials apologized and admitted they overreacted? Instead they circle the wagons and insist that their actions, no matter how objectively idiotic, were perfectly justified in the circumstances, what with the grave danger that [fill in the blank] poses to the youth of America. In this respect public school officials resemble the Transportation Security Administration. But at least the TSA has been known to change stupid policies once in a while, even if it doesn't admit how stupid they were to begin with.

[via The Freedom Files]

Lift a Joint to PUMRAA

jsullum@reason.com (Jacob Sullum) — Thu, 17 Apr 2008 16:45:00 EDT

Presumably because April 20 is a Sunday, Rep. Barney Frank (D-Mass.) today introduced his briefly anticipated marijuana decriminalization bill. Dubbed the Personal Use of Marijuana by Responsible Adults Act of 2008, it would eliminate federal criminal penalties for possession of up to 100 grams (about three and a half ounces) of marijuana and the nonprofit transfer of up to an ounce. This is similar to the change recommended by the Nixon-appointed National Commission on Marihuana and Drug Abuse (a.k.a. the Shafer Commission) 36 years ago. As in the case of online gambling, Frank sounds libertarian on this issue:

To those who say that the government should not be encouraging the smoking of marijuana, my response is that I completely agree. But it is a great mistake to divide all human activity into two categories: those that are criminally prohibited, and those that are encouraged. In a free society, there must be a very considerable zone of activity between those two poles in which people are allowed to make their own choices as long as they are not impinging on the rights, freedom, or property of others. I believe it is important with regard to tobacco, marijuana and alcohol, among other things, that we strictly regulate the age at which people may use these substances. And, enforcement of age restrictions should be firm. But, criminalizing choices that adults make because we think they are unwise ones, when the choices involved have no negative effect on the rights of others, is not appropriate in a free society.

Guess who the lone co-sponsor is.

Behind the Red Door

jsullum@reason.com (Jacob Sullum) — Thu, 17 Apr 2008 12:21:00 EDT

In the London Times, Steve Boggan describes his experience taking tea with Santo Daime followers in Brazil:

I am deep in the Amazon rainforest, anxiously losing my mind as the world begins to disintegrate. Around me, all sense of distance is wrapping itself up like spatial origami, slowly shrinking until an entire dimension has disappeared. A moment ago, I was surrounded by 200 people dressed in white and singing like angels, but now they occupy the same space as me.
Wherever I look, that is where I am. I can see everything from every angle, all at the same time. In fact, I feel I am everywhere. Outside, in the forest, the thrum of frogs and cicadas drowns out the sound of shrieking monkeys. Below me, the floor is shimmering, vanishing in waves like a spent mirage. Behind, I feel a cold vibration on my neck and sense a growling malevolence. I turn and see a red door, bulging at the hinges. Overcome with dread, I push hard to keep it closed, and all the while I feel a horrible nausea.

The tea in question, ayahuasca, contains the psychedelic dimethyltryptamine (DMT), which is legal for religious use in Brazil but banned in most of the world, including the U.K., where hundreds of Santo Daime adherents meet clandestinely to take their sacrament. The religion also has attracted followers elsewhere in Europe but is legally protected only in the Netherlands. And in the U.S.—maybe. As I reported in my June 2007 reason article about religious use of drugs, Uniao do Vegetal, another Brazilian sect that uses ayahusca, has won relief from government harassment under the Religious Freedom Restoration Act. Logically speaking, the law also should protect Santo Daime, which has similar beliefs and practices, but the question has not been litigated.

Still, here is one way in which the U.S. is more civilized/enlightened/tolerant (take your pick) than most of Europe. Not only did a tiny, obscure sect win the right to use an otherwise illegal drug through a unanimous Supreme Court interpretation of a statute that passed Congress almost unanimously, but it did so with the support of mainstream religious groups such as the Roman Catholic Church, the Baptists, the Presbyterians, and the National Association of Evangelicals. You can mention this counterexample the next time you hear a Europhilic progressive bemoan our lack of socialized medicine and fondness for guns.

But Officer, the Seat Belt Doesn't Fit Over My Explosive Vest

jsullum@reason.com (Jacob Sullum) — Thu, 17 Apr 2008 10:41:00 EDT

We must be turning the corner in Iraq, because police in Baghdad have begun enforcing a law that requires drivers to wear seat belts. "Some might say that there are more pressing issues," The New York Times concedes, "like the car bombs that can turn a morning commute into a nightmare of blood and body parts, the daily killings and kidnappings, the political and sectarian infighting." Then again, maybe the seat belt law reflects Iraqis' aspirations to be like the peaceful, affluent countries of the West:

"It is a symbol of civilization," said a taxi driver, Ahmed Wahayid, whose 1993 Hyundai Elantra was stuck in a long line of cars waiting to clear a checkpoint. "Western people in Europe and America have it, so we are like them."

But forcing people to wear seat belts may represent the wrong kind of normality:

Brig. Gen. Zuhair Abada Mraweh, traffic commander for the capital's Rusafah district...said that the seat belt legislation—which applies only to drivers, not passengers—was in effect during the government of Saddam Hussein.

According to the Times, by the way, Mraweh "said that there were no dependable statistics on traffic accidents, but that enforcing the law would reduce them by 70 percent." If seat belts in Iraq prevent crashes, I guess that's why car bombers don't wear them.

Supreme Court Upholds Lethal Injection

jsullum@reason.com (Jacob Sullum) — Wed, 16 Apr 2008 15:26:00 EDT

Today the U.S. Supreme Court upheld lethal injection, the execution method used by nearly every state with capital punishment, against a challenge by two Kentucky murderers who argued that it violates the Eighth Amendment. Seven justices agreed that the three-chemical lethal injection method, which involves a barbiturate for anesthesia, pancuronium bromide to paralyze the muscles, and ~~sodium~~ potassium chloride to stop the heart, is not "cruel and unusual punishment." But they disagreed about the proper standard to apply in reaching that conclusion.

The plurality opinion by Chief Justice John Roberts, which was joined by Justices Anthony Kennedy and Samuel Alito, says Kentucky's execution method passes muster because it does not pose a "substantial risk of serious harm": Although it's true that a condemned man will experience suffocation and pain if he is not given an adequate dose of the anesthetic, the odds of such a mistake seem to be pretty low. In a concurring opinion, Justice Stephen Breyer says there is not enough evidence to conclude that the three-drug method poses even "a significant risk of unnecessary suffering," a more easily satisfied test for cruel and unusual punishment. While expressing reservations about the use of pancuronium bromide (which, among other things, prevents the prisoner from signaling his discomfort if he does not get enough of the barbiturate) and about the death penalty generally, Justice John Paul Stevens agrees that there isn't enough evidence on the record to overturn the procedure. Justices Antonin Scalia and Clarence Thomas say an execution method violates the Eighth Amendment "only if it is deliberately designed to inflict pain." The two dissenters were Justices Ruth Bader Ginsburg and David Souter, who favored remanding the case for consideration of whether Kentucky's failure to adopt safeguards used by other states to make sure the prisoner is unconscious "poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain."

Here is my last comment on the subject, which includes links to earlier reason coverage.