Reason Roundup

Backpage Judge Accused of Bias Will Remain on Case

Plus: Effort to decriminalize psychedelics gains traction in California, crony capitalism at its worst, and more...

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1402181_569686799746259_686648021_o(1) | AG Brnovich/Facebook
(AG Brnovich/Facebook)

Appeals court rejects petition to compel judge to step down. Former Backpage.com executives are set to go to trial in August, after having the trial delayed multiple times in the three years since they were arrested for allegedly facilitating prostitution through the platform's online classified ads. The judge on the case will be someone whose spouse has repeatedly helped spread anti–sex work propaganda, including claims that sites where sex workers advertise are hot spots of human trafficking.

The defendants—including Backpage founders and veteran journalists Michael Lacey and James Larkin—asked last fall for U.S. District Judge Susan M. Brnovich to recuse herself. Brnovich is married to Arizona Attorney General Mark Brnovich, whose office for years has spread myths about sex trafficking, including the idea that "Backpage.com is where the vast majority of all advertisements were posted for sex trafficking."

The defendants suggested this presents a conflict of interest, or at least an "appearance of partiality," for Brnovich—who as a state judge appeared in at least one of her husband's campaign ads for attorney general and was regularly pictured alongside him, including at fundraising events, before being confirmed as a federal judge in 2018.

Any actions sympathetic to the Backpage defendants could appear as Brnovich suggesting her husband is a liar, and perhaps be bad for his future political prospects.

Under U.S. law, having any "interest that could be substantially affected by the outcome " of a case and having a spouse whose "interest that could be substantially affected by the outcome of the proceeding" are both grounds for recusal. In addition, the law states that "any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

But Brnovich refused to recuse herself, and the defendants appealed to the U.S. Court of Appeals for the 9th Circuit, asking that the higher court compel Brnovich's recusal.

On April 5, the 9th Circuit rejected their request.

Brnovich "committed no clear error" in refusing to recuse herself, a three-judge panel wrote in their opinion.

Some—including a representative for the judge's husband's office—are attempting to spin the request for recusal as some sort of anti-feminist outrage, instead of the standard operating procedure for federal judges who could so much as appear to have a conflict of interest. Katie Conner, a spokeswoman for the attorney general, told the Associated Press, "it's abhorrent that the defendants in this case insinuate a woman can't speak and think for herself."

The Backpage trial is slated to start on August 23. For more background, see:

FREE MINDS

Will California decriminalize shrooms? "The effort to decriminalize psychedelic drugs in California gained momentum Tuesday after a key state Senate committee voted in favor of allowing adults to freely use and possess magic mushrooms and LSD," reports Courthouse News Service. More:

Mirrored after similar criminal justice reform measures recently approved in Oregon and various U.S. cities, Senate Bill 519 would decriminalize several drugs currently listed as Schedule I controlled substances by the federal government — including psilocybin, LSD, ketamine, DMT, MDMA, ibogaine and mescaline. In addition to decriminalizing psychedelics or hallucinogens for people over 21, the bill calls for the expungement of old criminal records, penalties for furnishing drugs to minors and a new working group to further study the safety and efficacy of psychedelic use in the Golden State.

"By decriminalizing we're not inviting people to use," state Sen. Scott Wiener (D–San Francisco), the bill's sponsor, told the committee. "We're taking, instead of a criminal approach to drug use, a health-minded approach."

"Lawmakers also OKd plans to allow San Francisco and Los Angeles to run overdose prevention programs commonly known as safe injection sites," notes Courthouse News Service reporter Nick Cahill on Twitter. "People could use heroin and other drugs under trained supervision under SB 57," a measure also sponsored by Wiener.

But not all California legislators have learned the right lessons from the drug war. Another measure under consideration by legislators would ratchet up criminal penalties for any substance containing fentanyl.

FREE MARKETS

Crony capitalism at its worst: Trade associations want to gang up with the government to take down a competitor. With recent fervor in Congress for enhanced antitrust action, business groups and trade associations representing small businesses are hoping to pressure lawmakers to rewrite these laws to their advantage.

"The effort is being launched Tuesday by trade groups that represent small hardware stores, office suppliers, booksellers, grocers and others, along with business groups from 12 cities," the Wall Street Journal reports:

Merchants plan to push their congressional representatives for stricter antitrust laws and tougher enforcement of existing ones.

The groups, which collectively represent thousands of businesses, want federal legislation that would prevent the owner of a dominant online marketplace from selling its own products in competition with other sellers, a policy that could effectively separate Amazon's retail product business from its online marketplace.

QUICK HITS

• Hawaii may broaden the definition of criminal domestic violence to include "coercive control." But "criminalization hasn't stopped more obvious, easier to identify forms of abuse," so "why would it stop coercive control?" asks law professor and feminist writer Leigh Goodmark. 

• And update from the trial of Derek Chauvin, the police officer who killed George Floyd: "Minneapolis Police Chief Medaria Arradondo yesterday refuted Derek Chauvin's claim that he followed department policy and training when he pinned George Floyd to the pavement with his knee for more than nine minutes."

• A study from the American Civil Liberties Union of Ohio found the longer a person arrested for a misdemeanor crime was held detained in jail pre-trial, the worse the outcomes of their case. "Those who spent two weeks or more in the Franklin County jail while their misdemeanor cases were pending were 40% more likely to be convicted than those who were in jail for three days or fewer," reports The Columbus Dispatch.

• "Libertarianism is inherently feminist—and it always has been," writes Kat Murti (my Feminists for Liberty co-conspirator) in a new column for America's Future.

• More evidence suggesting that black Americans are disproportionately harmed by the criminalization of marijuana:

• "The arrest and shocking death of Marvin Scott III in police custody have put a spotlight again on the racial disparities for marijuana arrests," notes ABC News.

• Marijuana legalization lessons: "Three recently approved plans show what politicians have learned (or failed to learn) since Colorado became the first state to allow recreational use," suggests Reason's Jacob Sullum.