Well folks, thanks for letting me part of the Overlawyered community for a week. Though come to think of it, I have been part of the Overlawyered community on the reading side for the entire year or so since I discovered blogs, and hope to continue in that role for a long time. If you have suffered through my guest posts, things are looking up for you as the guest guard changes. (Incidentally, a guest blogger at Crescat Sententia has some musings on guest blogging generally; he also has been thinking about blog crushes.) If you ever find yourself nostalgic for vice talk, please visit us at Vice Squad.

I’ll depart with one further observation, one that shouldn’t be surprising given my week o’ posts, or to anyone who follows Vice Squad. Here are some of the happenings during the past week — happenings so common, so mundane, that they almost manage to fly under the radar: 38 arrested in Chicago; 42 arrested in Chatham County, Georgia; 4 arrested in Reno; 10 arrested in Decatur, Alabama; 9 arrested in Willimantic, CT; 16 arrested in Elmore County, Alabama?

And what is the noble purpose served by this frenzied feeding into the maw of the insatiable criminal justice system? To make it a little bit harder for some of our friends and neighbors to consume a substance that they choose to consume.

Thanks again to Walter Olson and Ted Frank, and be sure to check in tomorrow for a new, improved guest blogger.

OK, I am feeling a little guilty that during my week of guest blogging I didn’t really focus on core Overlawyered topics. To make partial amends, let me ask a couple of questions drawn from the intersection of Overlawyered’s and Vice Squad’s areas of interest. Should drug users be held responsible for their decisions to use drugs? Should addicts be held accountable for other criminal acts that are undertaken either under the influence of drugs, or to serve the needs of drug acquisition? If addiction is a disease, shouldn’t addicts be excused for their habits or for their actions, even otherwise criminal actions, that flow from their addictions?

With respect to serious crimes, the law agrees with our general intuition: a condition of intoxication or addiction is not an excuse for criminal behavior. Nevertheless, many people are willing to be indulgent of less serious social indiscretions if the perpetrator “had a bit too much to drink.” Chronic addicts, however, often become unsympathetic characters — even compassionate social workers find themselves “blaming the victim” (the client or patient) when they deal extensively with junkies.

Many treatment programs, including Alcoholics Anonymous, Narcotics Anonymous, and Gamblers Anonymous, explicitly adopt a disease perspective towards their respective addictions. Nevertheless, these programs do not absolve the addict of responsibility for his or her behavior — quite the contrary, they emphasize personal accountability. Even if biological conditions make drug use a nearly overwhelming necessity for some addicts, it is the drug use which is the necessity — not bank robbery or car theft or other crimes. And generally even the drug use will be deterred if a police officer is standing over their shoulder.

Incidentally, in the mid-1960s it looked as if the US Supreme Court might make the status of addiction an excuse for some sorts of crimes. This impression was squelched via the 1968 case of Powell v. Texas.

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Last night I mentioned some of the difficulties in trying to justify racial profiling on the grounds of efficient policing. I just wanted to add a few more comments. First, in my paper with Mike Alexeev, our generally anti-profiling “results” apply to situations where the probability of being stopped is relatively low, as it is in standard highway enforcement. If the police can stop a substantial proportion of folks (a’ la airport screening), then our results are not applicable. Second, choosing whom to stop is the first stage, but as or more important is the next stage, how those who are stopped are treated. Is the stop limited in time and intrusiveness? (Here’s one way not to treat people.) Further, is the goal that ostensibly is being served actually benefiting from the profiling? In a fine paper that looks very closely at Maryland’s I-95 stops, Samuel R. Gross and Katherine Y. Barnes attack Maryland’s stop-and-search policy partly on the grounds that it accomplishes essentially nothing in impeding the flow of drugs to Baltimore and Washington, DC. Third, I am almost ashamed to admit that my own views on racial profiling changed a bit when I found myself to be a “profilee.” (I briefly recounted the tale during an earlier guest-blogging appearance at Crescat Sententia – oh no, I don’t want to develop a reputation as someone who blogs around!) Funny how it is easier to suport a policy (our drug war comes to mind) when you are pretty sure that you and yours will not bear the costs of it.

Should the police use race as one of the characteristics upon which they make decisions about stopping and searching motorists or pedestrians? (The question assumes, of course, that the police are not operating from a description of a specific individual believed to be involved in a crime.) Among those who have answered “no” to a question of this sort is our nation’s Attorney General. Others think that the practice is OK, as long as it is consistent with efficient policing: after all, you wouldn’t want to focus lots of law enforcement on groups that are rare offenders, such as elderly women. But is it right that a black driver on I-95 in Maryland in the late 1990s was five times more likely to be subject to a search than was a white driver?

Those who take the “efficient policing” position often say that the disproportionate number of stops is OK, as long as the probability that a searched motorist is carrying contraband (in the case of anti-drug enforcement, the aim of most of the highway searches) is about the same for blacks as for whites. (This probability is sometimes called the “hit rate.”) By this reckoning, if only 5 percent of the blacks who are searched are found to be carrying drugs, while 20 percent of the whites searched are carrying, then the racial disparities in searches are not consistent with efficient policing and should be curtailed, eliminated, or reversed. On the other hand, if the hit rate for searches is about 20 percent for both groups, then the use of race as an indicator might be acceptable.

But I and my co-author, Michael Alexeev of Indiana University, think that this standard “efficient policing” story is mistaken, for reasons that I will mention after the “Continue reading…” link.

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Starting in late October, Brazil intends to shoot down planes flying within its airspace that it suspects of drug trafficking. The story began to receive publicity about a week ago, and today’s New York Times has an article. Brazil’s decision stirs memories of the tragic killing of a US missionary and her child under a similar policy in Peru in 2001.

The Times article includes a couple of quotes from “Gen. Mauro Jos? Miranda Gandra, a former chief of the air force who is now director of the Air Institute at Est?cio de S? University in Rio de Janeiro.” Gen. Gandra is concerned, it seems, that the shootdown policy will not be applied to any planes with children in them:”‘This really left me perplexed, because it practically undermines the very purpose of the decree,’ General Gandra said. ‘What you’re doing is creating a safe-conduct pass for drug-smuggling aircraft carrying kids and creating the possibility that children will be kidnapped and used as human shields.’”

Yes, drugs are so evil that you have to be willing to shoot down planes with children in them to combat drug trafficking. Anything short of that is a dangerous half-measure.

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Now I am no lawyer (we are overlawyered anyway, right?), so don’t rely upon this information, but I don’t think you can legally set up a clown mannequin on your property near the street and booby trap it in such a way that if a little kid walks up to the clown, he will, say, fall into a deep ditch. It’s called an attractive nuisance, and your argument that you should not get in trouble, that the kid was himself behaving illegally by trespassing, is likely to fall upon deaf ears.

But if we are the government, what can we do? We can make it illegal to traffic in a commodity that many people want to consume. Then, a black market will develop, and of course it will develop primarily in bad neighborhoods where schools are rotten and legal earning prospects are poor. Then, we will occasionally police the black markets, and any young men who actually are tempted to sell the verboten commodity we label as reviled “drug pushers” or maybe even “drug kingpins,” and we put them away for a long, long, time. And the penalties applied to adults will be so significant, in fact, that 12 and 13 and 14-year old kids in these poor neighborhoods will have a comparative advantage in working in the trade, so we will have to arrest them, too, even if we can’t lock them up for quite so long. And we will shake our heads at the immorality of those folks in the bad neighborhoods who allow their youngsters to become drug pushers.

And while we are at it, we can set up ongoing integrity tests for the police, too. As drug transactions are voluntary, they generally don’t involve a direct victim who has incentives to go to the cops (especially if the transaction is not creating a public nuisance). A less-than-vigilant drug enforcement officer will not have complaints piling up on his sergeant’s desk, as he might if he neglected to investigate robberies, say. Anti-drug officers will quickly learn that their own efforts aren’t going to alter much of anything, that people will still buy and sell drugs, anyway, and that the drug use in and of itself only directly harms the user. And the officers also see that they can earn a lot of money, maybe thousands of dollars a month, by turning their heads at the appropriate times. Some of them do, and some of those get caught, and we are happy to label them “corrupt cops” and “bad apples,” and ship them off to prison, too, shaking our heads at their immoral acts that have brought shame upon our nation’s finest.

Now I am no lawyer, but maybe we should think about extending this notion of attractive nuisance to some of our drug laws, too.

Singapore executed a man last week after he was caught with 6 pounds of marijuana. In the more enlightened US of A, he would have been unlikely to receive more than 20 years in prison.

Surely, if marijauna use would have been widespread during the Scottish enlightenment, Adam Smith would never have written about a smuggler in the terms that he actually did use in 1776: “a person, who, though no doubt highly blameable for violating the laws of his country, is frequently incapable of violating those of natural justice, and would have been, in every respect, an excellent citizen, had not the laws of his country made that a crime which nature never meant to be so.”

My initial Overlawyered guest post calling for higher excise taxes on alcohol in the US motivated a particularly thoughtful and lengthy reply from Radley Balko over at The Agitator, and his post has been followed by a fair number of comments. While I agree with many of the arguments that Radley and his commentators raise, there are a few points of contention. I will make a couple of remarks here, and then move any further discussion on my part to Vice Squad. If you are already tired of this, do not click on the ?Continue reading?? link.

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While national alcohol prohibition in the US is widely (if not quite universally) regarded as a failure, there remains substantial support for our current tragic folly, drug prohibition. The respective prohibitions are not identical, however, and I want to point out two ways in which drug prohibition is worse than alcohol prohibition. First, during alcohol Prohibition, purchase and (for the most part) possession of alcohol were not crimes. (People often seem surprised to learn this these days, as if the drug war has made a firm link in their minds between prohibition and the criminalization of possession and purchase.) In other words, what we refer to as a “decriminalization” regime with respect to drugs today is pretty much what we had with alcohol prohibition: drug prohibition is much more severe than alcohol Prohibition.

The second major difference is that alcohol prohibition was restricted to a handful of countries, whereas drug prohibition is global. As a result of the limited geographical scope, there was plenty of legally produced alcohol during Prohibition, such as that made in Canada (and then illegally smuggled into the US) by Seagrams. But more importantly, the fact that other countries had legal alcohol — and were often just as successful in reducing consumption and alcohol-related problems as the US — provided ongoing evidence of the extent to which Prohibition was a policy blunder. With global drug prohibition, we are very limited in the types of policy experiments that can be run; even in the Netherlands, marijuana is technically just as illegal as it is in the US. This helps to explain the odd “self-justifying” nature of drug prohibition. Bad outcomes under drug prohibition should tend to discredit prohibition as a policy. This is what would likely occur if there were a visible alternative policy with outcomes that were better. Instead, bad outcomes under drug prohibition are met with the logic that if there were fewer drugs, there would be fewer bad outcomes. So to reduce bad outcomes under prohibition, we need… a stronger, more committed prohibition!

Ambulance drivers dealing with emergencies have been known to put on their lights and sirens, followed by occasional speeding and the running of red lights. Police generally do not pull over the ambulances and fine the drivers who are behaving in this fashion. But police officers have human discretion, while cameras that automatically record speeding or red-light running offenses do not.

In Britain, where speed cameras are pretty common, ambulance drivers have been receiving hundreds of speeding tickets each week. It should come to an end now, at least in England and Wales, because at the beginning of July the police reached an agreement with the health minister calling for a cessation to the tickets — as long as the ambulance’s blue emergency lights are visible in the photograph. The agreement was spurred by a particularly notorious case, as reported in this article from the Guardian on July 3: “Pressure for a change to the penalty procedure mounted last year after Mike Ferguson, a Bradford ambulance driver, was charged with speeding as he delivered a liver for a transplant operation in Cambridge.”

So, man triumphs over unfeeling machine — but maybe we shouldn’t be too pleased with ourselves. In the pre-camera days of the 1960s, British law against red-light running did not include an exception for emergency vehicles. As with the recent circumstances with the cameras, the 1960s situation placed drivers of fire engines in a quandary: their licenses (and hence livelihoods) were at risk, while some chief officers of fire departments mandated that their drivers ignore red lights. An exception to the red-light law was finally carved out for fire engines and other emergency vehicles, first in the common law — in 1971! — and later by an Act of Parliament.

Britain is rethinking its strategy towards regulating a variety of vices, from gambling, to marijuana, to alcohol, to prostitution. In all of these areas, changes under consideraton are quite far-reaching, almost revolutionary. (A smaller change, concerning an issue raised here yesterday, is this week’s announcement by the British communications regulatory agency of its intention to curtail television alcohol advertising that might appeal to underage drinkers in a variety of ways.)

Revolutions in vice regulation are not uncommon. A Chicagoan who turned 100 years old today would have lived through times when heroin was legal, prostitution was legal, marijuana was legal, cigarettes were illegal, alcohol was illegal, novels like Lady Chatterly’s Lover were illegal, state lotteries were non-existent, out-of-wedlock sex that involved crossing state lines was illegal, etc. There is no reason to believe that our current legal line drawing in the vice world will prove any more stable.

Vice Squad has looked at some of the pressures for vice laws (here) or their associated punishments (here) to change.

You probably heard a couple of months ago that the state of Arkansas decided to start providing the parents of school children with “report cards” on their kids’ weight. School children will have their “Body Mass Index” (BMI) measured at school, and the results sent home. What I just learned today, from this MSNBC story, is where the funding originated for the obesity report cards: “The BMI test came into existence as a result of a cash windfall to the state from a tobacco lawsuit settlement tagged to fund public health programs.”

It’s particularly ironic because decreased smoking, apparently, is one of the major factors promoting the American obesity epidemic.

Walter Olson has brought my attention to this recent article on alcohol promotion lawsuits; the article is by Doug Bandow of the Cato Institute and it appears in The American Spectator. I share many of the concerns about the lawsuits, but the claims that advertising has no effect on overall drinking or on problem drinking seem overstated to me. For instance, here?s the abstract of a recent working paper that suggests that higher alcohol advertising is associated with higher youth consumption (even though the advertising is not targeted at kids). One of the co-authors of that paper earlier found, in a cross-country study (abstract here — oops, and another one here), evidence that total alcohol consumption decreases following a ban on alcohol advertising.

Bandow makes another argument about the Constitutional protection of commercial speech: “The Constitution protects freedom of speech, and that includes commercial speech by alcohol producers. We punish brewers and distillers for selling their legal products at our peril, since there’s no reason to assume that the regulatory paternalists won’t soon find another unpopular vice to penalize.” Again, I share the concern that it shouldn’t be the case that simply by labeling an activity a vice, the government gains carte blanche to control advertising of that activity. But imagine and compare three broad alternatives in regulating vice: (1) laissez faire: the vice is legal and advertising is legal; (2) the vice is legal and advertising is controlled or banned; (3) the vice, and its advertising, is illegal.

I generally prefer option (2), to be honest, but my point here is that those of you who prefer option (1) might not want to push too hard against option (2) ? or you might end up with option (3). (Now, I don?t believe that the government actually has the right to ban adult vice consumption, but when we are arresting 1.5 million people per year on drug offenses and another 90,000 or so on prostitution-related charges, what I believe is not all that important.) I think that the history of vice regulation suggests that vice is legally tolerated only when it is made palatable to the non-customers, and in-your-face vice advertising has a way of getting folks riled up. And for those of you who now think that I am a hopeless statist, let me mention that John Stuart Mill, who would have no truck with making prostitution or alcohol or drugs illegal, did not view advertising restrictions as manifestly unjust infringements upon personal liberty — for him, it was a close call, as he makes clear in Chapter V of On Liberty.

Vice Squad has struggled with advertising controls in the past, including on November 19, 2003 and (briefly) on April 9, 2004.

Hello folks, my name is Jim Leitzel and I generally hang out at Vice Squad. But the Overlawyered denizens have been kind enough to share their pixels with me this week, so here I am. I’ll probably talk mostly about vice, but I am an economist, not a lawyer, so I won’t be able to hold up my end of the lawyerly dialogue.

I’ll start with a quiz (though I won’t vouch for the correctness of my suggested answer). Imagine that you are concerned about three U.S. health-related problems: suicide, cancer, and sexually-transmitted diseases. Alas, you are limited to implementing only one policy reform. What should you do? To build suspense (is it working?), I’ll put my suggestion after the break…

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