16 April 2008

Child Rape Death Penalty Tea Leaves

A proposal to impose a death penalty in Colorado with support from both a Democrat and a Republican failed in committee this legislative session. The U.S. Supreme Court considered the matter in oral arguments today in a Louisiana case.

All eyes were on perrenial swing vote, Justice Kennedy.

Justice Anthony M. Kennedy, perhaps once again holding the decisive vote, spent considerable effort looking for ways to allow a death sentence for child rape, but only in narrow, strictly confined circumstances.


This would suggest that the Louisianna statute, which is among the broadest, might be struck down, but that other child rape death penalty statutes might be upheld if limited in some way.

Justice Kennedy asked him to discuss how the Louisiana death law for child rape could be narrowed. It could be narrowed, the Justice said, by imposing death only for a repeat offender (as other states with the death penalty for child rape do), but are there any other ways to narrow it? Fisher said it could be limited to situations that were “particularly heinous…something like torture or extraordinarily serious harm.”

Louisiana’s lawyer, assistant district attorney Juliet L. Clark of Gretna, opened by a graphic description of the severe injuries done to the child rape victim in Patrick Kennedy’s case — an indication that the state’s argument was going to be focused mainly on how deserving Kennedy was of capital punishment.

Justice Stephen G. Breyer soon brought up a “slippery slope” point, suggesting that, if the Court were to uphold a death penalty for a crime in which the victim was not killed, “I can think of horrible things all over the place” that the states would begin to make capital crimes. Legislatures all over the country, Breyer said, would take up the seeming invitation. The Justice also discussed a variety of molesting instances which, if committed against a child, would qualify the perpetrator for punishment, as a rapist, with death.

Somewhat surprisingly, Justice Scalia suggested to Clark that, while he did not agree with the Court’s past precedents on the need to narrow those who would be eligible for capital punishment, that requirement was there as a limiting factor on jury discretion. With some help from the Chief Justice, Clark said that Louisiana’s death for child rape law did provide for sufficient narrowing, because it limited it to children victims of a young age.


The full transcript is here.

Today's SCOTUS Rulings in Colorado

The U.S. Supreme Court made three sentencing rulings today. Two are largely irrelevant to Colorado. A third will impact many federal drug cases by producing harsher sentences for defendants with prior convictions for drug misdemeanors.

* In Baze v. Rees, the high court upheld a specific execution protocol, and the pendency of this case has produced a de facto execution moritorium in the United States. The fractured opinions included a three justice plurality opinion that sets a fairly clear and lenient standard for execution protocals. Two more justices concurred in result but argued for an even more deferrential standard. Thus, the plurality opinion standard is sufficient to receive majority support for an execution protocol going forward.

But Baze has very little impact on Colorado because the state has only two men on death row, neither of whom are close enough to execution for Baze to delay their executions. One is a death penalty volunteer, the other, a Chucky Cheese mass murderer, is nearing the end of his appeals. If Baze had been decided the other way, Colorado would have had plenty of time to make adjustment to its execution protocal, if necessary, to comply with the case's demands.

* In Begay v. United States the high court held that felony DUI is not a violent felony under the armed career criminal act. This is irrelevant in Colorado because the most serious penalty available for DUI in Colorado is 1 year in jail. Colorado has vehicular assault and vehicular homicide statutes which are felonies, but not a felony for a mere repeat DUI offender.

* The high court's ruling in Burgess v. United States, in contrast, which was unanimous, will have a major impact in Colorado. It held that a drug offense punishable by more than one year in prison is a drug felony for federal drug sentencing purposes, even if it is classified as a misdemeanor under state law. The law in question was substantially similar to the class 1 misdemeanor laws in Colorado in all pertinent respects.

All of Colorado's non-marijuana drug misdemeanors are class 1 misdemeanors punishable by up to two years in jail, even though sentences of a year or more are unusual in such cases. So all non-marijuana misdemeanor drug convictions count as felonies for federal sentencing purposes, no matter how minor, or what sentence was imposed. Possession of one to eight ounces of marijuana is also a class 1 misdemeanor in Colorado (and hence a drug felony for federal sentencing purposes).

The only drug conviction in Colorado which will not count as a prior drug felony for federal sentencing purposes is poessions of less than one ounce of marijuana.

Under the pertinent federal law, a defendant with only prior misdemeanors faces a ten year minimum sentence on the current drug conviction, while a defendant with a prior drug felony (including almost all state law misdemeanor drug convictions in Colorado) faces a twenty year minimum sentence.

The classification issue was the subject of a circuit split with the 4th and 5th Circuits taking the position that ultimately prevailed, and the D.C. Circuit taking a more lenient position. The 10th Circuit did not have binding precedent on this issue prior to today's ruling.

Federal Mandatory Minimums In Drug Cases In A Nutshell

Federal mandatory minimums for drug offenders are summarized here, but do not apply to defendants who have prior state drug convictions in Colorado (other than less than an ounce of marijuana).

A unarmed non-violent defendant with no prior misdemeanor or felony drug conviction possessing the lower tier quantity of drugs in question faces a mandatory minimum five year sentence. A "safety value" sentence is available to defendants with no prior drug convictions who do not possess firearms, did not engage in violence, and have only minimal prior criminal records if the defendant discloses all of his involvement to the Government. Typically, a defendant with a low tier possession amount who qualifies for the safety value will receive a 30-37 months sentence pursuant to the sentencing guidelines.

An unarmed non-violent defendant with no prior misdemeanor or felony drug conviction possession the higher tier quantity of drugs in question faces a mandatory minimum ten year sentence. The safety value is also available for defendants in this category, although the guideline sentence is likely to be marginally longer for defendants in this category who qualify for the safety valve.

A unarmed non-violent defendant with one prior misdemeanor or felony drug conviction in Colorado possessing the lower tier quantity of drugs in question faces a mandatory minimum ten year sentence.

An unarmed non-violent defendant with one prior misdemeanor or felony drug conviction in Colorado possession the higher tier quantity of drugs in question faces a mandatory minimum twenty year sentence.

An unarmed non-violent defendant with more than one prior misdemeanor or felony drug conviction in Colorado possession the higher tier quantity of drugs in question faces a mandatory life sentence.

The lower tier and higher tier amounts by type of drug are as follows:

First tier
LSD 1 gram. 10 to 20 doses if carrier weight included.
Marijuana 100 plants or 100 kilos.
Crack cocaine 5 grams. 1 to 10 day supply for heavy user.
Powder cocaine 500 grams
Heroin 100 grams
Methamphetamine 5 grams. 3 to 10 day supply for heavy user.
PCP 10 grams

Second tier
LSD 10 grams
Marijuana 1000 plants or 1000 kilos
Crack cocaine 50 grams
Powder cocaine 5 kilos
Heroin 1 kilo
Methamphetamine 50grams
PCP 100 grams

Equal weights of crack cocaine and powder cocaine have essentially the same chemical effect. As a result, the crack cocaine mandatory minimums apply for a much smaller number of typical doses of the drug than any of the other mandatory minimum guidelines.

Possession of a gun during a drug offense, even if not brandished, adds five years to the mandatory minimum sentences described above (or more if the individual is a felon prohibited from possessing a gun under federal law).

Subtantial assistance reductions are permitted with prosecutorial permission for cooperating in the prosecution of another.

Good time can reduce a mandatory minimum sentence by up to about 15%.

The vast majority of mandatory minimum sentences in the federal system involve one of the minimum sentences described above, or firearms possession by someone prohibited by federal law from possessing a firearm. There are, however, also a number of other far less frequently used federal mandatory minimum sentence provisions, such as one for organized crime cases.

The Irrelevance of Political Parties

Colorado law gives political parties in the state among the most powerful political parties in any state in the nation. A closed caucus process is the primary means of placing candidates on the ballot, giving Colorado political parties a very high level of control over who ends up on the ballot representing them compared to many states. A petition alternative is available, but it is burdensome and those who choose it have a mixed record of success in the closed primaries where voters registered in a party can select from caucus or petition nominated candidates. State party chairs in the state have also developed a tradition of using the post as a bully pulpit that the mass media often choses to heed.

But what political parties lack in Colorado is money. Through February 2008, the Colorado Democratic Party has just $99,450 of cash on hand. The Colorado Republican Party had $166,400 of cash on hand, but also $360,173 of debt, leaving it with a net $243,773 negative financial net worth. These cash on hand numbers do not reflect many of the substantial costs associated with holding state party conventions in May.

County parties and party organs have additional funds, with reports for most of them in the first quarter due by May 1, 2008. But these parties also had to pay out of their own pockets for all of the costs of holding just completed caucuses, county assemblies, state house district assemblies, state senate district assemblies and judicial district assemblies. For most, high turnout produced high contributions which made 2008 a good year, but these party entities are not flush in either party.

Democratic candidates for federal offices (excluding one leading candidate for whom numbers weren't available) had over $6 million of cash on hand.

Republican candidates for federal offices had more than $1.2 million in cash on hand (excluding four major candidates for federal office).

On top of this there has been significant fundraising for district attorney, state senate and state house races, as well as CU Regent and State Board of Education races in both parties, and there has been fund raising by independent bodies as well.

Simply put, the overwhelming majority of partisan political money in the state goes to candidates, 527s and other independent political committees, while a mere pittance goes to the political parties themselves.

Some of this is due to Amendment 27 (Colorado Constitution Title XXVIII), which regulates state level campaign finance, and parallel legislation at the federal level. No individual can give more than $3000 per year to all organs of a single political party combined in a given year, from caucus buck bags, to house district organizations, to special interest groups like the Denver Young Dems, to county parties, to the state party. But while it is an accounting nightmare to coordinate Amendment 27 reporting for these myriad entities, as treasurer of the largest county party organization in the state I can say with reasonable comfort that I can count on my fingers the number of donations that we have been forced to turn away as a result of the $3,000 cap. The political parties would get a boost if the cap were removed, but it would be a modest one.

Candidates have all the money, and hence are largely free from control or guidance from their political parties.

15 April 2008

Practical Psychohistory

Issac Asimov's Foundation series has as a central element the social scientific discipline of pyschohistory, a mathematically refined applied sociology that allowed its practitioners to manipulate the course of human history. Psychohistory was a sort of Illuminati for nerds. Frank Herbert employed a similar device with his Bene Geserit religious order, in which an organized group of mystically and scientifically trained women used genetics and cultural manipulation to shape history's course.

Could Psychohistory Be Possible?

Is pyschohistory possible? And, if so how?

Humanity, or at least its intelligentsia, has probably never been more self-aware than it is today. While both academic and popular non-fiction is full of sterile and useless dreck, there are also an abundance of deeply insightful examinations of what makes us tick as individuals, in social situations, in groups, in large organizations, as nations, and at the level of broad world and cultural movements. We have looked at history with rigor and scientific care. Genetic advances have informed and explained our previous understandings of individual human behavior.

Serious efforts have been made to apply the what we think we know about economics and psychology, although the social scientific knowledge applied to policy is often outdated or a crude misunderstanding of the current state of these disciplines. Sociology and government have been less successful in this regard. But this doesn't seem to be for want of material. Sociologists and political scientists are often quite adept at explaining why things that happen occur, and what is going on in the ponderous organizations and intellectual movements that shape our world.

Suppose one could distill this knowledge, and more importantly, find a way to apply it. Suppose one could find a large enough lever and a place to stand.

Could one, for example, head off China's budding imperialist tendencies and set it on a more internationalist course? Could one turn the American evangelical Christian movement into a force for positive social change instead of a force for propagating hate? Could one engineer a sudden rise in secularism, or a modern movement similar to the Protestant reformation within Islam to blunt the threat of Islamic fundamentalism? Could one craft a sense of community sufficient to build sufficient political support to implement universal health care? Could one crystallize a social movement that would modernize Africa from within in a genuinely authentic African fashion? Could one redesign the process by which we handle failing marriages that would better discrimination between marriages which should be saved and those which should not be saved, and make the experience less traumatic for all involved? Are there fundamental principals by social change occurs that could provide an underlying basis for accomplishing all of these ambitious tasks, each of which amounts of many life works alone?

Movement Politics Matters

History is full of social movements that came seemingly out of nowhere and changed whole societies. Almost every major religion and major religious sect has at its root such a powerful formative movement initiated by a small number of people. The New Deal in American history, was more than just one President's agenda, it encompassed a widespread fundamental rethinking at the grass roots level about the appropriate place of government in society and made the FDR's Democratic party the dominant force in American politics for a couple of decades. We forgot about the power of movement politics, of politics directed at securing a change in grass roots opinion for a while, but the civil rights movement, the cultural revolutions of the 1960s that followed the model of the civil rights movement, and the Christian right counter-revolution that followed in the 1980s (as well as the counter-counter revolution of the gay rights movement) have reminded us of the importance of social movements.

The cynical narrow minded politics of short term coalition building is at a loss to convincingly explain how the franchise was expanded voluntarily from a small white male landed gentry to almost the entire adult population, or why absolute monarchs and dictators voluntarily relinquish their powers. Yet, the former has been the big picture story of the last two centuries, and the latter has happened three times this spring alone and scores of times in the last decade. Similarly, a narrow view of politics is incapable of explaining why post-WWI Germany, with the most modern and democratic constitution in Europe cast aside those institutions in favor of a dictator.

Simply acknowledging the existence and importance of overarching social and political movements that transform history, however, is a far cry from explaining how they come about and whether they can be consciously and intentionally put in motion. Historians are forever split between the view that great men (and sometimes great women) shape the eras that they live in, and the view that broad inevitable social forces drive history with individuals notable in those movements serving as mere figureheads and local color in the inexorable tide of progress.

Where Does Massive Social and Political Change Come From?

Those who attribute broad historical movements to small, self-aware groups acting secretly with Machiavellian calculation are usually dismissed as conspiracy theorists forcing implausible interpretations upon the historical record in ways that overstate the importance of minor players in the historical saga. Even in movement politics, where credit does not always go to people holding formal positions of political power, history tends to assign credit and blame to the formal leaders of the organizations in civic society that led those social movements. We revere and acknowledge Martin Luther King, Jr. and Gandhi, despite the fact that neither man ever held public office, mostly because the organizations that each man led were instrumental in bringing about the social movements these men are revered for leading.

Many transformative social movements can be explained through the efforts of a small number of civic organizations with dynamic leaders. Solidarity and the Catholic Church in Cold War Poland. Several groups, including the YMCA, in South Korea's resistance to Japanese occupation and movement towards more democratic government. The Student Non-Violent Coordinating Committee in the anti-Vietnam war movement. ACT UP in the early 1980s gay rights movement. The early Christian church with its four Latin doctors. The list could go on and on and on.

But not all dramatic social transformations are associated charismatic leaders of non-governmental organizations. The Soviet Union, seemingly, collapsed of its own weight by informal general consensus, in the absence of any really organized effort to bring it down. The feminism and sexual revolution that so deeply transformed America in the 1960s was considerably less formally organized than the civil rights movement or the anti-war movement. Yes, there was the National Organization for Women, but it was hardly as central to the changes that took place as the NAACP was in the civil rights movement, for example. And, the existence of organizations at the vanguard of these various social movements still doesn't solve the chicken and egg question of why these particular movements thrived at particular moments in history.

Some social movements, both environmentalism and feminism in the 1960s, for example, seems to have been triggered as much by well written books released at just the right time, as by organizational efforts.

Not Everything Is Possible

Asmiov's psychohistorians had their limits. They could not prevent the galactic empire from falling. They merely strove to limit the dark ages that followed to 1,000 years, instead of 10,000 years.

One suspects that any group of people aspiring to change the course of history would likewise have limits. One might nudge religious sentiment in a more conservative or liberal direction, for example, but no amount of manipulation is capable of causing the majority of the American people to become Amish. It might so happen that consensus on universal health care is impossible until there is wider agreement on immigration, even though the two issues might not seem on the surface to be directly related -- the early adopters of universal health care system with ethnically homogeneous low immigration societies. Some political forces that seem powerful today, like those backing a strong unitary executive with broad powers to torture, spy and ignore Congress, might collapse in a manner not unlike the Soviet Union with the departure of a handful of politically adept and well placed individuals like Vice President Cheney, a few Senators, and a few influential federal appellate judges.

The Importance of Timing

The hard sciences bear witness to the notion that breakthrough ideas sometimes don't bear fruit until their time has come. The scientific basis for radar stealth in aircraft design, and the seminal works in fractals and chaotic dynamics were both produced decades before they gained relevancy. Scientific proof that the world was round existed for more than a millennium and a half before Columbus was able to apply that theory by sailing across the Atlantic. The craftsmanship and practical knowledge of kite design necessary to make hang gliders existed for centuries before someone woke up to the notion that human flight could learn more from kites than imitating birds and bugs with flapping wings. Jules Verne described the submarine and manned missions to the moon long before we had the ability to carry out those technological tasks.

On the other hand, when the time is ripe, ideas like Darwin's theory of evolution can catch on like wildfire and forever change how large portions of educated society views the world.

Social movements are probably similar. It took a century of feminist writing and seemingly futile efforts by suffragettes, before women got the vote, and the Married Women's Property Acts gave women formal economic rights a century before a large percentage of women started to enter the work force on anything approximating an equal basis with men. It took a century of emancipation for the civil rights movement to really take hold.

Not all movements take such a long time to gather speed, however. It had never occurred to me until well into high school that homosexuality was anything other than a character flaw or conscious social choice to be unmanly because one was inadequate in manly virtues, despite the fact that I grew up in a college town. One of the very liberal justice of the U.S. Supreme Court around the same time took it as obvious in a key opinion that homosexual acts were abominable and well within the province of government to forbid. A few decades later, that Justice regretted his opinion and our understanding of homosexuality as something that is legitimate and in many ways less socially constructed than racial identity has completely supplanted the older view among decent intelligent people.

The different time lines may have little or nothing to do with the merits of the leaders of the respective movements. Many of the prominent early supporters of women's suffrage and equal rights, and of racial equality, were formidable and charismatic individuals who had wide followings of equally committed and well organized movement members. Indeed, it might be the case that the reason that the women's rights and civil rights movements achieved significant formal legal success long before those legal achievements had their full measure of practical impact on daily life, is because this formidable individuals were able to win over politically influential people to their cause even though the general public was not yet ready to accept their ideas.

The Impact of Technology

Another factor may be technological. Mass communications, and more recently, the Internet, have been instrumental in all modern social movements. Histories of the civil rights movements are replete with references to the importance of television coverage to changing the hearts and minds of average people about the justice of Jim Crow laws in the South and the righteousness of the Vietnam War by bringing compelling images of each to their living rooms. Video clips have emotional power that no amount of prose can match.

The L.A. riots arose more or less spontaneously and without central organization, as a result of visceral emotional reactions to the way a jury ruled in the face of unambiguous videotaped evidence of racially biased police brutality. Nixon fell from public grace in part because the way he communicated his protests of innocence on television put the lie to his words. FDR's fireside chats, on national radio, marks the very first really effective use of mass media to change the hearts and minds of people across the nation, and helps explain how he mobilized the change in political sentiment that made the New Deal possible. The most recent Rwandan genocide was incited and coordinated by the African equivalent of conservative talk radio shock jocks.

Before the advent of mass communications, intellectual movements were geographically discrete when they began. Much of our inheritance from the classical Greeks we owe to Athens alone. The Roman Catholic Church's seminal steps in its evolution took place in the small early Christian community in the Roman empire's capitol city, starting half a century or more after its namesake's purported death and resurrection when anyone who could have been an eyewitness was dead. The Renaissance started out as a Northern Italian phenomena, then passed the torch to the Dutch. Calvin transformed Geneva before Calvinism spread across Europe. There would have been no French revolution without the ferment of unrest that brewed in Paris. Boston and Philadelphia were flash points of the American revolution. Even Einstein would probably not have been able to make his twin contributions to general relativity and quantum mechanics had talk of both fields not been circulating in the patent office where he worked.

Now, social movements can arise globally in a matter of days or weeks.

On the other hand, neither television nor radio are quite as potent political forces as they used to be in the United States. The current generation filters the information it receives more skeptically than the first generations to encounter mass media. Cable television, satellite TV, iTunes, DVD rentals, CD sales and Internet media channels broken up our society into countless media niches that are buffered from each other, in contrast to earlier days when a small number of television networks and a common musical top 40 vocabulary dominated the airwaves. Current events, like 9-11, can briefly unite the nation's attention, but even then, the spin that comes with these events quickly diverges in different niches. Far more of us have our ten minutes of fame than used to be the case, but fewer people are watching all but the most famous of us.

Turning Points

This isn't to say that some sociological equivalent to fate exists. Almost all of the fiction writers who have imagined some manner of psychohistorians (and this post is hardly a comprehensive listing of them) have adopted a turning point view of history, in which societies make pivotal choices about their futures that have widely divergent consequences, in narrow windows of time and place, sometimes obviously important, but at other times in decisions whose importance was not at all clear at the time.

Almost everyone recognizes that the decisions made on the eve of and in the wake of the American Civil War had profound implications and involved real choices between widely divergent possible outcomes. But probably relatively few people at the time realized what a long term impact the division of Latin American between the Portuguese and the Spanish, or the various treaties that resulted in the acquisition by the United States of most of its land area (or similar treaties in the wake of World War I in areas outside Europe) would have on the lives of hundreds of millions of people. The people negotiating these arrangements were certainly aware of the comparatively modest but important short term stakes of their decisions. But they probably didn't realize how irreversibly they would shape the long term cultural geography of the world. Probably few people at the time realized how much of a long term impact formative line drawing decisions between the Air Force and the Army, and early hiring decisions in the CIA and FBI would have on how those institutions evolved.

Conclusion

What is the bottom line for practical, would be psychohistorians?

1. A key element of any strategy for intentional social change is to identify turning points in history and to comprehend the long term implications of the choices that can be made at those points in history. One must know when the time is ripe and what is within the realm of the possible in those extraordinary moments.

a. First in time decisions made in any institution or social arrangements that ultimately become important often have profound long term consequences hard to judge at the time when the immediate stakes are small.

b. Decisions made in connection with wars and their aftermath also often have profound impacts.

c. Well timed social movements with charismatic leaders can bring about major social change even in the absence of formative decision making opportunities and immediate and direct connections to war making, but ill timed social movements often secure formal legal change without practically changing real life circumstances a great deal.

d. Out of step systems often collapse when their handful of powerful sponsors lose power.

2. At critical moments in history the most common triggers for change (sometimes in combination) seem to be:

a. civic organizations with charismatic social leaders,

b. well timed and well expressed sentiments in books (fictional or non-fictional -- the modern American anti-nuclear power movement and the reinvigoration of the KKK in the 1920s are both widely attributable to the timing of fiction released at the time),

c. the composition of often low profile groups of people, often political committees ad hoc or otherwise, tasked with making important but mundane decisions at a critical juncture.

d. the death or removal from office of key individuals who are barriers to change.

The most effective agent of change appears to be closely linked to the reason that a moment is a turning point in history.

3. Communications technology greatly impacts the pace and the diffusion of social change.

China Still Barbaric But Improving

China's record on the death penalty is abysmal, and 2007 repeated the same old story, although gains are being made there.

Our so called ally, Saudi Arabia was one of just three countries in the world that executed juveniles in 2007. Iran and Yemen were the other two.

The U.S. is fifth in the world in executions, but had the lowest execution rate in 15 years and has recently ceased to execute those who were juveniles when the crime was committed and those found to be mentally retarded.

Where Do Our Federal Tax Dollars Go?

A simple summary of where our federal tax dollars go is found here.

Defense and security: In 2007, some 22 percent of the budget, or $590 billion, went to pay for defense, homeland security, and security-related international activities. . . .

Social Security: Another 21 percent of the budget, or $586 billion, went to Social Security . . . .

Medicare, Medicaid, and SCHIP: Three health insurance programs — Medicare, Medicaid, and the State Children’s Health Insurance Program (SCHIP) — together accounted for 21 percent of the budget in 2007, or $572 billion. . . .

Safety net programs: About 9 percent of the federal budget in 2007, or $254 billion, supported programs that provide aid (other than health insurance or Social Security benefits) to individuals and families facing hardship. . . .

Interest on the national debt: The federal government must make regular interest payments on the money it has borrowed to finance past deficits — that is, on the national debt. In 2007, these interest payments claimed $237 billion, or a little less than 9 percent of the budget. . . .

As shown in Figure 2, the remaining 18 percent of federal spending goes to support a wide variety of other public services.


Third Time The Charm?

The Wash Park Perk & Pub pioneered the coffee shop business at 835 E. Ohio Avenue in Denver a few years ago. It expanded to new locations, then went bust.

Heirloom Cafe followed at the same location and similarly tumbled.

But hope springs eternal. Wash Perk opened two weeks ago at the same location, remodeled to allow for more interior space and a more conventional modern coffee shop look than Heirloom sported.

The adjacent space, previously a laundrymat, is now an antique shop. I wish them the best of luck.

14 April 2008

Wrongful Convictions

My criminal procedure professor from law school has made one of the most comprehensive surveys of data pertinent to estimating wrongful conviction rate ever prepared.

He concludes that wrongful conviction rates for murders and rapes are on the order of 2.3%-5%, and that wrongful conviction rates for other serious felonies are probably somewhat lower (since weak cases are less often pursued) but that it is harder to determine precisely what error rate is involved since the legal process and civic activism rarely takes the time and resources necessary to consider wrongful juvenile convictions or wrongful convictions for less serious crimes.

He also notes the difficulties involved in correcting some of the more common causes of wrongful convictions, and notes that race is a significant factor in many, and that coerced confessions from youths are another common cause.

Inescapable Words

Even when you leave the church, some oft repeated phrases stay with you forever. The one that for some reason is forever embedded in my consciousness, and which I sometimes invoke in slightly modified form when I want to convey obsequious formality, is this one:

It is indeed right and salutary that we should in all times and in all places give thanks . . .


I don't know why this phrase stuck while others have grown obscure in my memory.

Monday Blue Streak

Colorado's Blue Laws

In about two hours, Governor Ritter plans to sign a law ending the "Blue law" that prohibits the liquor stores from staying open on Sundays (effective July 1, 2008). This will devistate the artificial market for 3.2% alcohol beer at supermarkets and convenience stores on Sunday when 80% of that abomination is sold, suggesting that a more than 75% drop in 3.2 beer sales is likely. It will also make my weekend far more convenient and will make Colorado the 35th state with Sunday liquor sales.

Supermarkets and convenience stores will try next session to win permission to sell stiffer alcohol. Given that the alcohol in 3.2 beer is the same as the alcohol in stronger beer, wine and liquor, there is on logical reason for making the distinction (and stores that sell stronger stuff, like the Supertarget store in Glendale show that it is not distruptive to the neighborhood), but liquor stores have established an entire industry based upon the exclusion of grocery stores from their market, so it would be a hardship to them.

The only notable remaining Blue law in Colorado will be the ban on Sunday car sales. Maybe next session. The car dealers have a far less convincing argument for a Blue law than liquor stores due, because few are family operations with no employees, because no one inclined to revering a Sunday sabbath considers buying a car to be immoral, and because shopping for a car takes far longer than picking up beer and wine which makes the one day of daytime shopping per week available under the current law to working families looking for a car far more of a hardship.

Snail Mail and Taxes

While ranting about time and hours, I should also take a moment to despair at the decline of light night postal service. The post office at 20th Street is now open only until 7 p.m. or so, and the only post office in the Denver area (and quite possibly in the state) that is open later is deep in a warehouse/postal sorting facility near North Quebec street between Stapleton and Dick's Sporting Goods field, the new soccer complex in Commerce City. It is open, at least, until midnight, but is a hike. Once upon a time there were two late hour post offices downtown, one of which was open until something like 11 p.m. The April 15th evening tax rush has grown increasing worse over time.

If the postal service wants to stay in business, it really needs to invest in little things like a handful of more convenient late night post offices.

I got my personal taxes done almost a week early this year (and Colorado's e-filing service is much improved and superior to the free service available from the IRS), but still have filings for entities that I am affiliated with to do.

Frontier's Bankruptcy

The holder of about 10% of Colorado based Frontier airline's stock, Yongping Duan, seemed surprisingly upbeat when interviewed for the Denver Post in a story that appeared this morning, going so far as to praise the CEO, saying "I think Sean is a good CEO so far." I wouldn't be so upbeat about someone whose decision just wiped out my investment of tens of millions of dollars in company (bankruptcy law cancels all outstanding common stock in a Chapter 11 bankruptcy in all but the most unusual circumstances). Perhaps Duan owns Frontier bonds as well (which often are traded for equity in Chapter 11, particularly in cases like this one where the debt is convertible).

The Rocky Mountain News coverage of the Frontier bankruptcy (and I must say that I greatly preferred my friend David Milstead's reporting at the Rocky much more than Kelly Yamanouchi's at the Post, I would like to hope based on merit rather than friendship), revealed some interesting facts about Frontier's finances. Frontier had about three and a half times as much (or more) debt secured by collateral (mostly airplanes) as it did unsecured debt (about $93 million). It had surprisingly little trade credit with its next largest debts each in an amount less than $4 million. Indeed, the amount of float Frontier receives from credit card payments between the time of payment and an actual flight, of more than $75 million, rivaled that of its entire bond holdings.

Frontier's employees, unlike those in many other recent airline bankruptcies, were also far less exposed to big losses (other than the risk of being laid off) from the bankruptcy, because Frontier has a 401(k) plan for its employees, rather than a defined benefit plan. Defined benefits plans look increasingly unattractive in the airline industry where bankruptcy seems to be the norm. Passengers also have modest risks because few people buy lots of tickets at once, and most passengers buy tickets with credit cards which provide refunds if the flights don't fly (the risk that First Data was allegedly hedging against, despite the fact that most flights go even in a bankruptcy, which is why the First Data demand was not listed as an unsecured debt).

My bankruptcy professor in law school once remarked that we subsidized the railroads with land grants, the highways with the interstate highway system bill, and the airlines with Chapter 11. As the Post explains, airlines ATA and Aloha are currently in bankruptcy, Delta, United, Northwest and U.S. Airways have all emerged from bankruptcy within the past two and a half years, and Continental, Eastern, Pan American and Trans World were all in bankruptcy court before them. American Airlines recently took a big hit when it had to cancel a good share of two days of flights for maintenance inspections. Delta and Northwest are allegedly on the verge of agreeing to merge, and United is also looking for a merger partner but has been waiting to see how the Delta-Northwest talks turn out. Negotiating seniority disptues between the pilots of merging airlines has been one of the biggest issues in these kinds of mergers.

A modest bond issue would be enough to secure funds to assauge First Data's concerns, given the several months that it takes to do a public issue of bonds, but that still wouldn't address the deeper problem of Frontier' mounting losses which reached a record high in the most recent quarter.

I've long wondered if a mutual company, in which passengers air the airline, the airline charges above market rate fares, and then the airline issues rebates to customers each year in proportion to purchases based upon the airline's annual profit, wouldn't be a more stable way to organize such a company than the third party shareholder model that currently dominates the industry. Similar approaches have worked in the farm sector, with credit unions, and in the insurance industry. In the finance and insurance sector, a major motivator was the desire to avoid the waves of consumer losses in bankruptcies that were common before the FDIC was established, and the co-ops in the farm sector were likewise partially a response to financial distress in the Depression era dust bowl.

Efforts at employee ownership at United contributed to United's bankruptcy, in part, because the multiple groups of employees who were owners had different priorities for the company. Transportation industries that have seen successful employee owned enterprises, like some mutual taxi companies, have been helped by the fact that all employees have had similar owners, and have typically not included mechanic's or dispatchers, for example, in the ownership structure. A mutual company owned by passengers, however, would not share these problems.

Coffee Shops

With Scooter Joe's gone, the question is where to go now. I'm currently experimenting with two independent coffee shops in my neighborhood.

Aviano's in the Beauvillion between 9th and 10th Street on Lincoln is a relatively high end shop with a particular attention to beautiful foam art, a thriving following with some interesting characters, and free Wi-Fi. It also lacks free parking.

Sparrow is at 7th and Grant. It has opened under new management. The grapevine has it that the previous owner simply disappeared one day leaving the fully outfitted shop in place mid-lease, and that this has been assumed by the new owners. It does a very light morning trade, but service is friendly and it also has free Wi-Fi with a password made available to customers. Sparrow has a wider food selection and some free street parking in the neighborhood.

Both shops are more appropriate for a sit down coffee than a "to go" as both are fairly slow in serving up their coffee.

Spanish

My wife and I have insisted that our children learn a foreign language while they are in elementary school when it is far easier to do so than at a more advanced age. Since it is offered as a tuition based after school program at their school (the Kid's Speak Spanish program also found in Boulder and some other DPS schools), Spanish was the obvious choice. My wife lived abroad in Spain briefly and took Spanish at an advanced level in college, so she is passable and gets continued practice in and around Denver and on Spanish speaking radio. As a result, she can give them additional practice by speaking in Spanish to them at home. A good share of the daily drill of chores and the like comes in Spanish at our house.

All this is good and well, except for one key issue. I was a dismal failure at languages. The language I did take, moreover, was French. It was my weakest subject in high school, and I limped through one more 200 level course in college, pass-fail, which I think that I passed mostly through regular attendance and diligence, as opposed to competence. My assignments always came back smothered with red ink. My Spanish, of course, is even more dismal than the average person who has received no formal instruction in the language.

The kids now run circles around me chattering away at the grocery store, beyond parental understanding and supervision. Their particular favorite game at the moment is to ask for purchases not on the list in Spanish. This is fairly harmless, as I always answer them with a "no" and I don't really mind. My kids are ethnically half-Korean and half-European-American by descent (hence my hyphenated name), which in practice means that they also have something of a Hispanic look, an impression accentuated through context when they speak Spanish. This isn't very notable in the central Denver stores where we usual shop, but I suspect it would pull some funny looks if we lived in the suburbs.

I still can't figure out, however, why foreign language instruction isn't a standard part of the curriculum in every elementary school. If one is going to offer language at all, elementary school, rather than high school or college, is the place to start. In the same way, I strongly support the notion of putting elementary schools on the early morning schedule, and high schools on the later starting schedule. Both moves are well supported by research. Changing school schedules is essentially cost free, and while language instruction certainly would cost money, the results would be well worth it. There are so few clearly proven ways to improve the quality of education that we should seize upon then when we can.

Vista Revolt Continues

The Denver Post today also notes a movement by Windows XP users to prevent it from being phased out in favor of Windows Vista, an inferior new Microsoft operating system. I continue to be stunned at the degree to which a technologically inferior company can be so successful financially.

Microsoft share prices have been falling since an October 2007 peak, but it is hard to tell if that has anything to do with Microsoft in particular, or is simply due to an overall economy that is weakening. Its recent efforts to acquire Yahoo don't seem to have had a notable positive effect on the company's share price.

Nepal

Maoists appear to have won a plurality in Nepal's first ever Democratic election after a prolonged period of absolute monarchy. (Nearby Bhutan is also doing something similar). Western political theorists still haven't come to terms with the notion that even a free and fair election like this one (or the one that put less democratic powers in place in Russia in the first place, who in turn rolled back democratic reforms there), can show that people don't really want a Western style democracy.

11 April 2008

Frontier's Collapse

Frontier Airlines has Denver International Airport as its biggest hub. We learned today that it filed for bankruptcy under Chapter 11 and that the immediate cause was that credit card processor First Data (also based in Colorado) had decided to give it less of the float from credit card payments to actual flights.

But it turns out that trouble has been brewing for some time at Frontier in the eyes of those paying attention. Its shares had lost about 75% of their value between the end of 2007 and the month before the bankruptcy filing (i.e. early March). Frontier has had net losses and cash flow problems ever since 9-11, five and a half years ago. Those problems have mounted rather than declining. Rising fuel prices are probably part of the problem, although probably not the only problem.

This makes what looks at face value like a mere "liquidity bankruptcy" considerably more troubling. In the absence of the First Data action Frontier probably could have held on for a number of months longer, but the First Data action appears to be a symptom of a larger problem, if applied rather crudely and precipitously, rather than the real underlying cause of Frontier's financial troubles.

Trademark Dilution Explained

Everything you ever wanted to know about the law of the trademark dilution in the United States can be found at the online proceedings of a recent conference on the topic.

Trademark dilution is a concern because on its face it is a very broad prohibition on free speech, so its limitations, such as a use requirement are critical:

Unlike traditional trademark infringement – in which confusion over source or sponsorship lies at the heart of the claim – dilution turns on murkier concepts of “blurring” and “tarnishment” that do not on their face depend on consumer perceptions as to the source of a defendant’s product. Dilution, moreover, does not involve deceptive or confusing speech, or any “fraud on the consuming public.” As a result, a broad, open-ended dilution statute could target any unauthorized use of a famous trademark, almost without limitation.


Dilution by tarnishment, which is use of a trademark not otherwise infringing which gives a trademark a negative association commercially, is problematic from a free speech perspective.

Tarnishment is defined as a third party use that creates an association that “harms the reputation of the famous mark.” Although this clarifies that dilution by tarnishment is indeed actionable, the definition is hardly self-limiting, a feature that has always made tarnishment potentially overbroad. And the lack of any articulated theoretical basis for tarnishment means that courts cannot infer limits by providing a purposive gloss to the definition. Instead, courts seeking to cabin the tarnishment cause of action will likely rely on the revised affirmative defenses or develop a trademark use requirement (discussed below). A theoretical basis for those defenses does exist (e.g., free speech values), even if their application is often contested.


The 2006 statutory reform of trademark dilution does include, at least, a statutory fair use defense.

Federal Circuit In Denial

The Chief Judge of the Federal Circuit is oblivious to the serious problems with the current patent law system in the United States.

Get McCain A Program

Republican Presidential candidate John McCain can't keep the facts straight about Iraq. He has screwed up key points (often the same ones) over and over again. He doesn't know who is who, how key recent events turned out, or what we have and have not achieved there.

In an mere mortal, this kind of flaw is tolerable. The Iraq War is a very complicated matter. But in someone who is campaigning to be a commander-in-chief who plans on fighting this war indefinitately, it is really worrisome. If one doesn't understand the basic facts, how can one be expected to formulate good policy? Yet, the conduct of the Iraq War is an area where the President has more unilateral authority in practice than almost any other issue the President is likely to face. In most domestic policy matters, Congress has a much bigger say through the legislative process.

The Iraq War is one of the biggest issues facing the nation. It is too important for someone who wants to be a commander-in-chief to pawn off on aides. Also, given that McCain no longer has a primary challenger, now is that time that he ought to be boning up on the policy issues who might face if he is elected President, even if that means a temporary lull in campaigning intensity.

We can't afford another four years of non-reality based policy on Iraq.

House Considers Small Business Tax Breaks

The U.S. House of Representatives in considering seven new tax breaks for small businesses:

1. Simplify the "Home Office" deduction provisions.

2. Allow taxpayers who can prove substantial business use of electronic equipment to deduct a greater portion of the cost without having to keep detailed records.

3. Allow a small business person who uses an automobile for work-related purposes over 75% of the time to recover the true cost of the vehicle (with a price of at least $25,000) during the standard 5-year recovery period. Continue to adjust the price for inflation.

4. Allow small firms to use shorter depreciation schedules--that are in line with today's technological and market realities.

5. Allow self-employed entrepreneurs to deduct cost of health insurance premiums in the same manner as large firms.

6. Raise the small business limit for deduction of business meals and entertainment to 80% or 100%.

7. Restore incentives to prompt those with capital to invest their money in U.S. small businesses.


From the Tax Profs Blog.

I have previously gone on record supporting proposal #5.

I am modestly supportive of proposals #1, #2 and #3 which are simplification measures for tax breaks that a currently highly policed by the IRS because they are often abused to treat personal expenses as business expenses. The changes would provide a framework for allowing non-abusive deduction amounts that provide rough justice, and would allow IRS enforcement to focus on more serious compliance issues. The price floor on the deduction in #3, however, is particularly irksome, as it encourages businesses to overspend on business vehicles in a way that tends to also be environmentally unfriendly.

#4 is largely irrelevant because small businesses tend to expense most of their capital expenditures rather than depreciating them. Honestly, relief from the amortization period for organizational costs would be more useful. The most legitimate reason for depreciation and amortization rules to be more lenient for small businesses has nothing to do with technological or market realities. It flows from the fact that the average small business survives less than five years.

I oppose #7, a capital gains tax break for investments in small corporations, which is an unnecessary sop to lucky and rich investors. The current capital gains tax rate for gain on C corporation stock in small businesses under Section 1202 is already a mere 14% and is self-employment/FICA tax free. Dropping that rate to 7.5% or less isn't going to make a big difference to investors.

Also, capital gains on pass through entity investments are less of a concern, because ownership interests in partnerships, limited liability companies and S-corporations receive basis adjustments (i.e. increases in the deemed purchase price for capital gains tax purposes) equal to a pro-rata share of undistributed income that are not available to C corporation share owners, so the 15% capital gains tax rate applicable to closely held businesses is imposed on a gain much smaller than the difference between the purchase price and the sale price of the investment in most cases. Colorado also already provides tax breaks for local capital investments that produce gains.

Investors in small businesses are far more motivated by loss limitations (which are appropriately present in the tax code to prevent tax shelter abuses), by the possibility of phantom tax liability (taxes on undistributed profits), and by non-tax considerations than they are by the happy possibility that they might have to pay a 20% combined state and federal income tax on a large capital gain.

I strongly oppose #6 which leads to abusive expense account living.

Two more tax bills that recently cleared the Ways and Means committee in the U.S. House of Representatives are discussed here.

10 April 2008

Adam Aircraft To Hire 100

Returning Colorado's general aviation industry from the brink, the new Russian private equity firm owners of Adam Aircraft plans to hire 100 employees within the month according to the Denver Business Journal. The sale was approved by the bankruptcy court yesterday, and the sale will close on April 15, 2008.

Many former Adam Aircraft employees have been maintaining informal networks, many over the Internet, in the hope of snatching up opportunities to be rehired in the post-bankruptcy company. Others have found employment in other firms eager to have lateral talent to hire in circumstances where there is no reason to believe that the lateral hire resigned in lieu of being fired at a previous employer.

McCain No Academic

John McCain was "894th out of 899 in his graduating class at Annapolis. (Jimmy Carter was 59th in his class of 820. Dwight D. Eisenhower was 61st of 164 in his West Point class. Even Ulysses Grant was 21st of 39 at West Point.)"

From NewMexiKen.

NewMexiKen also faults McCain for citing Ronald Reagan, who tripled the federal deficit during his tenure, as his model for how to balance the federal budget.

Barack Obama was President of the Harvard Law Review and was a law professor at the elite University of Chicago Law School before entering politics. Hillary Clinton was likewise academically excellent (and went to Yale Law School) and was a corporate lawyer.

09 April 2008

Lincoln and Religion

Lincoln wrote to his life long friend, Judge J.A. Wakefield, this “testament” of his beliefs:

“My earlier views of the unsoundness of the Christian scheme of salvation and the human origin of the Scriptures, have become clearer, and stronger, with advancing years, and I see no reason for thinking I shall ever change them.”

Lincoln’s law partner, William Herndon, in the years following the assassination, said:

“Mr. Lincoln was an infidel, sometimes bordering on atheism.” “He never mentioned the name of Jesus, except to scorn and detest the idea of a miraculous conception.” “He did write a little work on infidelity in 1835-6, and never recanted. He was an out-and-out infidel, and about that there is no mistake.”

When Lincoln was asked why he includes God stuff in some of his speeches “Oh, that, is some of Seward’s (Secretary of State) nonsense, and it pleases the fools.”

“When Dr. Holland asked Mr. Herndon about his partner’s religious convictions, Mr. Herndon replied that he had none, and the less he said on that subject the better. ‘Oh well,’ replied Dr. Holland, ‘I’ll fix that.’”

— Franklin Steiner, The Religious Beliefs of Our Presidents, p. 112, on Dr. Josiah G. Holland, later editor of Scribner’s Monthly, having spent only two weeks interviewing Lincoln’s friends before preparing his Biography, in which Holland fabricated accounts of Lincoln’s piety

“No one of Lincoln’s old acquaintances in this city ever heard of his conversion to Christianity by Dr. Smith or anyone else. It was never suggested nor thought of here until after his death…. I never saw him read a second of time in Dr. Smith’s book on Infidelity. He threw at down upon our table — spit upon it as it were — and never opened it to my knowledge.”

— William Herndon, quoted in Franklin Steiner, The Religious Beliefs of Our
Presidents, p. 124


Found in a comment at about.com by a poster identified as "Freethinker" and corrected for spelling. A balanced evaluation of the matter can be found at Wikipedia.

The claim that Lincoln was an atheist seems unlikely, but that notion that he identified as a Christian for any substantial portion of his adult life seems doubtful as well.

08 April 2008

Hillary Clinton's NPR Interview

Hillary Clinton was interviewed on National Public Radio today. Her answers about campaign related issues were exasperatingly non-responsive and evasive in a way that makes her come across as dishonest. I was disappointed, although not terribly surprised.

Democratic legislator spews anti-atheist hate

This particular Democrat, Monique Davis, is a state representative in Illinois.

How do you teach people like this just how mistaken they are in the beliefs about who atheists actually are?