31 August 2007

Good News From Texas

Every once and a while, good news comes out of Texas. Governor Perry commuted a death sentence to life in prison for a man convicted of felony murder for driving a getaway car during a spree of robberies, the last of which involve a co-conpsirator killing the victim. The Governor cited the unfairness of having the same jury at the same trial convict and sentence both the triggerman and the accomplice.

The Governor was entitled to act only because the board of pardons and paroles recommended the action (it voted 6-1 in favor of some form of clemency). He did the right thing in this case.

Wisdom From Markos

Delicious tortilla soup and laptop computers don't mix. You've been warned. So warned, I keep my laptop far away from the kitchen table last night at dinner time to protect it from my delicious tortilla soup. No guidance is available at this time on the threat posed by yucky, moldy old tortilla soup to your laptop.

30 August 2007

One For The Road?

Middle East analyst and blogger Juan Cole reports on credible rumors of an effort by the Vice President's office to stir up a significant minority is support of going to war with Iran, on top of the war with Iraq, starting the week after Labor Day 2007.

What the hell? The President is a lame duck, so from his perspective, why shouldn't he start one more war in his last sixteen months in office against a country he proclaimed to be evil when he started the job? He's already secured regime change in both of Iran's biggest neighbors . . . he probably sees it as a manifest destiny thing at this point.

My first response is, "with what Army?" We have no ground troops to spare for an invasion of Iran, given that we already have troops overtaxed trying to maintain wars in Afghanistan and Iraq, and other foreign deployments in places like South Korea on top of those deployments. Of course, the United States does have an Air Force and a Navy that are not overtaxed. Stranger things have happened, and the Democrats who control Congress are notoriously spineless. So, such an effort, if it does manifest, isn't necessarily dead on arrival, as it should be. If I were an oil futures trader, it would be enough to make me want to lock in relatively low prices now before this possibility manifests more seriously.

29 August 2007

Republican Congressional Scandals

Why does the Republican party have a reputation for corruption? Perhaps because they've earned it. Last cycle a key lobbyist of Congressional Republicans and two sitting members of Congress went to prison. In addition, four Republican Representatives and a Senator failed to return in large because due to scandals.

This year, you need a program to keep track of the Republican Congressional scandals:

1) Sen. Larry Craig (R-ID) and 2) Sen. David Vitter (R-LA) with their sex scandals (the attempted restroom tryst and numerous successful hotel room trysts, respectively). . . .

3) Sen. Ted Stevens (R-AK) and 4) Rep. Don Young (R-AK) are under investigation for their ties to the oil company Veco (though that's just the tip of the iceberg for Young). 5) Reps. Tom Feeney (R-FL) and 6) John Doolittle (R-CA) have found themselves the focus of a reinvigorated Abramoff investigation (though Abramoff is in prison, he's still busily cooperating). 7) Rep. Rick Renzi (R-AZ) had his house raided. 8) The FBI is investigating Rep. Gary Miller's (R-CA) land deals.

And then there's 9) Sen. Lisa Murkowski (R-AK) whose land deal with a businessman and campaign contributor became such a scandal that she finally just sold back the plot of land. . . .

12) Sen. Pete Domenici (R-NM) and 13) Rep. Heather Wilson (R-NM) in my original round-up. Both are facing ethics committee investigations for their calls last October to former U.S. attorney David Iglesias about his office's investigation of a state Democrat. . . .

And there are a couple holdovers from 2006, of course; scandal figures who've stuck around and managed to keep a relatively low profile. 10) Rep. Jerry Lewis (R-CA) is still apparently under federal investigation. And 11) Rep. Ken Calvert's (R-CA) land deals are still winning scrutiny.


There are 49 Republican Senators and 202 Republican representatives in Congress right now. There are five Republican Senators (more than 10% for the math challenged) and eight Republican Representatives (about 4%) currently under investigation in various scandals right now.

Like Katrina But Without The Wind and Water

Will it ever look up in Detroit? Its taken decades, but Detroit has lost as much population on a percentage basis as New Orleans did in Hurricane Katrina. Other problems have accompanied this decline.

The price of a house there is down 11% from a year ago, the largest percentage of the top twenty metropolitan areas. Detroit real estate prices are now about where they were in the period from January 2001 to April 2001. In inflation adjusted terms, Detroit real estate prices are now at levels they were last at sometime in 1998. The price of a house in the Detroit metro area is down 15.2% from its December 2005 peak. Detroit housing prices rose on the national loose credit binge and fell on the subprime mortgage market collapse.

Housing prices weren't that high in Detroit to start with either. At the start of the year, the median housing price in the metro area was about $131,000, and there are allegedly "more than 3,000 homes listed for sale alone in Detroit under $30,000." Of the top 25 metro areas, Cleveland, Pittsburgh and St. Louis started the year with even lower housing prices, but they aren't seeing their housing prices fall as fast as Detroit.

This is logical -- Detroit probably has lots of subprime mortgages which have gone bad which have driven down prices. And, the American automobile industry, which still defines the city, has continued to contract. I also wouldn't be surprised if the jumbo mortgage crunch that followed in the wake of the subprime mortgage collapse has also disproportionately hurt the Detroit metropolitan area -- it exemplifies American in having not only an underclass that is losing ground, but also a superwealthy executive elite in the suburbs.

Indeed, over the longer haul, Detroit could have done worse.
The have risen about 85% since January of 1991. In the same time period, inflation (measured by the national consumer price index for urban consumers) has been 54%. So, since 1991, metro Detroit real estate has had a real rate of return of 31%.

The annualized real return of 1.8% is nothing to write home about. But, when you consider that most home owners are leveraged at 5:1 to 20:1 rates when they start out (and leverage acts on nominal and not real appreciation), this is competitive with a great many financial investments. The benefits are particularly great because returns on home equity are generally tax free, and that it is generally possible to defer capital gains taxes on investment real estate as long as you stay in the investment real estate market with a 1031 exchange, in theory, until your death when all unrealized capital gains tax liability is forgiven.

The trouble is, that if you go into the Detroit real estate market in 1998 or later, you haven't gained anything, and tax breaks only mean something if you are making a profit. If, you had anything less than a conventional loan's 20% equity in the Denver real estate market at its peak in late 2005, you are upside down now. If you have a conventional 20% down payment, you have lost 75% of your investment, and you would be upside down after realtor's commissions and closing costs if you tried to sell today. There is also no reason to think that housing prices in Detroit have hit bottom yet. They declined significantly from June to July, for instance.

The data don't break down the trends within particular housing markets. But, it is also possible to make some safe inferences. In Colorado, and in many other markets, the housing price collapse has been driven by the bottom of the market, and to a lesser extent by the top of the market, while the middle market which has not experienced the same financing distress, is relatively stable.

This means that suburban starter homes and small urban homes, the latter largely in Wayne County which is home to Detroit, have probably been hit hardest.

28 August 2007

Israel Better Than U.S. on Human Rights

Before the current Bush Administration, few people would have claimed that Israel was better in the human rights department than the United States, particularly when it comes to judicial protection of individual rights. But, the President's "enemy combatant" policy changed all that. An amicus brief from Israeli military experts in the Boumediene case pending before the U.S. Supreme Court lays out the inferiority of the President's policies at protecting human rights, when compared to the Israeli standard, point by point. (More briefs can be found here).

Of course, nobody is arguing that Israeli law is in any way precedential in U.S. Courts. Instead, the point of the brief is to counter the parade of horribles trotted out by the Bush Administration that claims that the courts can't play a meaningful role in supervising the military detention of alleged combatants in the face of a terrorist onslaught, and that torture is necessary. The brief argues that significant, meaningful judicial review of military detentions is feasible and even worthwhile, and that legalized torture is not necessary to fight terrorism.

Hat Tip to the SCOTUS Blog.

Unmanned War Planes

Unmanned stealth war planes seem like something in the distant future. But, testing of prototypes has gone remarkably smoothly. The main obstable seems to be either political effort to protect its manned fighter budget, or a possible transfer of a program to covert status. The Air Force cancelled the X-45C program described below (a flying wing drone) last year. The Navy is still moving ahead with its X-47 version. The Russians recently displayed their similar contender, which is a couple of years behind in development, at an airshow.

Carrier landing software has already been tested, but in manned aircraft, with pilots ready to take over at any moment. So far, these tests have been successful, but the acid test will be a UCAV actually landing on a carrier, without a human on board as a backup.

The X45A had passed tests for formation flying, and dropping a JDAM (actually the new 250 pound SDB version).


The X-45C was a well developed concept:

[The X45C] was designed to weigh 19 tons, have a 2.2 ton payload and be 39 feet long (with a 49 foot wingspan.) . . . [and] would be able to hit targets 2,300 kilometers away and be used for bombing and reconnaissance missions. Each X-45C would probably cost about $30 million[.]

Freedom Star Crossed

Life isn't looking good for the Littoral Combat Ship "Freedom" which was christened last September (I, incorrected, said in the headline that it was commissioned then).

The Lockheed Martin designed ship was to be the first of two prototypes in its class, in a competition against the Indepedence Class (LCS-2) interpretation of the Littoral Combat Ship by rival defense contractor General Dynamics. The Lockheed Martin design looks more or less like a conventional frigate (from which the LCS concept differs mostly because it has a higher peak speed, a shallower draft, a smaller core crew, and more versatility due to a modular mission package).

But, Congress cancelled funding of the second ship in the Freedom class (LCS-3) because the project was overbudget on April 12, 2007. Then, on April 25, 2007, Freedom caught fire in the course of outfitting work, causing significant damage to a project that was 80% complete. Furthermore, and the Saudis are more interested in buying a version of the innovative General Dynamics trimaran design which is still under contruction.

The official U.S. Navy fact sheet comparing the Lockheed Martin and General Dynamics designs superficially seems to favor the General Dynamics design because the trimaran has less displacement, more deck space to accomodate helicopter landings, more range, and a smaller core crew. Other differences don't obviously favor one ship over the other to the untrained observer. Despite being first built, the Freedom still doesn't have an officially designated weapons control system, while the General Dynamics veresion does. And, of course, General Dynamics hasn't gone so far overbudget that its second ship has been cancelled.

I don't pretend to know which ship is actually better. Short fact summaries are easy to twist to favor one ship over another, which is part of what makes the official summary so telling. But, Lockheed Martin's situation looks grim. It is fair to say that General Dynamics will probably get the contract barring a major screw up on its part, and that the purchase of the Freedom LCS-1 is simply a way for the Navy to cut its losses from a class of ships that will be abandoned -- a sting less bitter because the competition was designed for one of the teams to fail anyway. Freedom has, in a sense, already served its primary purpose by keeping the General Dynamics team relatively honest in its dealing with the Department of Defense so far.

"Fair Tax" Doomed

All it takes to see that the so called "fair tax" is doomed is a very swift summary of the proposal provided by NewMexiKen:

Say something costs a dollar. You will pay (not counting state sales tax) $1.30. . . . the proposal would tack the 30% on everything — new houses, tanks and airplanes the government buys, school buses and school books, new cars, clothes, food, medical care!


The proposal's 30% rate also ignores things like that fact that some economically purchases would in practice be exempted from the tax, and the fact that there will not be 100% compliance. A more realistic revenue neutral number is far in excess of 30%.

24 August 2007

Quick And Easy Gifted Education?

From Time Magazine, via NewMexiKen:

[Her mother] doesn't want her daughter's IQ published, but it is comfortably above 145, placing the [Annalisee Brasil, age 14] in the top 0.1% of the population. . . .But until last year, Annalisee's parents . . . couldn't find a school willing to take their daughter unless she enrolled with her age-mates. None of the schools in Longview--and even as far away as the Dallas area--were willing to let Annalisee skip more than two grades. She needed to skip at least three--she was doing sixth-grade work at age 7. Many school systems are wary of grade skipping even though research shows that it usually works well both academically and socially for gifted students--and that holding them back can lead to isolation and underachievement. . . . [I]t would have been fairly simple (and virtually cost-free) to let her skip grades, but the lack of awareness about the benefits of grade skipping is emblematic of a larger problem: our education system has little idea how to cultivate its most promising students. . . . since at least the mid-1980s, schools have often forced gifted students to stay in age-assigned grades--even though a 160-IQ kid trying to learn at the pace of average, 100-IQ kids is akin to an average girl trying to learn at the pace of a retarded girl with an IQ of 40.


The story features a charter school in Reno, Nevada:

They are kids from age 11 to 16 who are taking classes at least three years beyond their grade level (and in some cases much more; two of the school's prodigies have virtually exhausted the undergraduate math curriculum at the University of Nevada, Reno, whose campus hosts the academy). . . . At the academy, the battered concept of IQ--complicated in recent years by the idea of multiple intelligences, including artistic and emotional acuity--is accepted there without the encumbrances of politics. The school is a rejection of the thoroughly American notion that if most just try hard enough, we could all be talented. Many school administrators oppose ability grouping on the theory that it can perpetuate social inequalities, but at the Davidson Academy, even the 45 élite students are grouped by ability into easier and harder English, math and science classes.


My take?

1. IQ is real, and whatever its source and basis, is a powerful predictor of academic progress fairly early, probably by mid-elementary school, under normal conditions.

2. A child's abilities and inclinations have much more to do with their academic success, at least, for the middle 95% of kids in the middle 85% of schools. Very bad school conditions drag kids down. Phenomenally good school conditions can have a positive effect. Kids at the very bottom and at the very top of academic ability are poorly served by most schools. But, within these fairly relaxed conditions, a kid's individual academic progress will not be very impacted by school quality.

3. Allowing kids to skip ahead in grades is frequently the best reasonably practicable option in a public school system for high IQ kids. The number of kids who are three or more grade levels beyond their age is very small -- in a big school district like Denver's, you are talking about 5 kids at any given age -- so individually pairing those ahead of grade level kids with experienced teachers capable of maintaining social harmony in their classrooms in the face of a kid who is somehow different in some respects isn't hard within the normal student assignment process. For kids who are ahead a grade or two, the number of kids impacted is much greater, but, the social risks that have discouraged moving kids ahead of their grade level are also much diminished. This doesn't have to be taken to the extreme of having every kid in a classroom exactly tailored to that child's grade level, but it isn't so much to ask (and costs essentially nothing) to have every kid in a classroom no more than a couple of years behind their grade level.

4. Schools are right to spend more money on kids who are behind grade level, but do a poor job of that as well. While putting kids a grade or two ahead is pretty easy, putting kids several grades behind is potentially more problematic.

The Iowa Presidential Nomination Race

Via Zogby (hat tip to Tancredo Watch):

Republicans--Aug. 17--May 15
Romney---------33%-------19%
Giuliani-------14%-------18%
Fred Thompson--12%-------9%
Huckabee--------8%-------2%
McCain----------6%-------18%
Tommy Thompson-Out-------4%
Brownback-------4%-------2%
Tancredo--------3%-------3%
Paul------------3%-------<1%
Hunter----------1%-------<1%
Someone else----2%--------3%
Not sure--------14%-------22%

The Newsmax/Zogby telephone survey, conducted August 17-18, 2007, included 487 likely Republican caucus-goers in Iowa and carries a margin of error of +/- 4.5 percentage points.


The GOP nomination is Romney's to lose. Other polls have shown McCain and Guiliani falling even faster than Zogby's does. A commentator at Tancredo Watch thinks Brownback is on the verge of getting out of the race. Fred Thompson still hasn't officially announced, officially denying that he is officially running as recently as August 1, 2007, and Hamlets don't become Presidents. Tancredo is and always has been a joke as a Presidential candidate. Paul would run into the same roadblocks that Giuliani did once GOP voters got to know him, if they ever did. Everyone else is too far back to start now.

Huckabee could give Romney a run for his money. But, Romney should have an edge in New Hampshire where he is probably better known by the locals than any of the other candidates. If Romney secures a solid first place finish in Iowa and New Hampshire, group think will take over, even in a compressed primary season.

The New Victorians

Why are Islamists the New Victorians, and why does it matter?

The world is too complex to understand in all of its myriad details. We manage it with oversimplifications, heuristic explanations, and metaphors that often work. But, the flip side of this way that we interact with the world is that a bad metaphor can do a world of harm, when it becomes the basis of policy.

I've complained before about the harms done by the notion of "intellectual property" driving inappropriate property law based solution to handling innovation, and the "war on terror" is another whipping boy for metaphor abuse. Today, I'd like to tackle another, the cliche that Islamists are "medieval", which fosters a misunderstanding of one of the most political and social struggles in the world today, which will define our era as the "Cold War" defined the last one.

The notion that fundamentalist Islam is medieval promotes all sorts of misconceptions. It falsely implies that the Islam of the Taliban and Iran, in fact recent in its ascendancy, is centuries old and traditional. It promotes hopelessness in working for political and social change because it suggests that Islamic societies are fundamentally static. It implies a far less complex relationship between what Imans and political leaders are saying and what people are actually doing than actually exists. It suggests that Islamists can't understand modern technology, and are basically dumb and uneducated. And, it promotes a model of Islamic thinking so remote that most people who adopt the metaphor simply give up trying to understand.

The natural first reaction to these flaws in the Islamists as medieval meme is to condemn people who use it for being uneducated and to insist that anyone who wants to have an opinion needs to learn Arabic, live in Turkey, have an Islamic significant other and meet the family, and get a PhD in Islamic studies before they can offer anything meaningful to the debate.

This isn't fair or practical either. Only a handful of people can gain that kind of expertise, but the United States, and the Western world generally, is democratically governed. We don't leave big decisions on foreign policy, immigration and social policy to the experts. The questions are too important for that. Only policies that can be explained to the masses, or at least to the class of educated and politically aware people who vote, influence policy makers and drive public opinion, can prevail. So, rather than simply killing the Islamists are medieval heuristic, the path to greater understanding needs to provide an alternative, albeit imperfect, alternative hueristic that is closer to the truth.

The metaphor that explains much better what is going on is the notion of the Islamists as the New Victorians.

Outwardly, both Islamists and the old Victorians were pious and put women on a pedestal, while emphasizing their continuing subordination to men in the public shpere. Both made modest a high virtue.

But, the Victorian era was also an age of rampant hypocrisy, something we seem in the modern Islamic world in the recurrant tales of Saudi Arabian brahmins decadant trips to the West to shop and enjoy forbidden pleasures out of sight, restoring themselves outwardly to respectability on their return flights.

The Victoria era didn't emerge in a vacuum. Like Islamic fundamentalism, it emerged just as literacy was starting to become much more widspread, among other things, allowing the masses to access religious texts directly and unmediated by the traditional wisdom of religious leaders who learned doctrines and intrepretation which had balanced apparently harsh pronouncements. The religious revival that produced fundamentalist Christianity in the Second Great Awakening has similar roots, and while that fundamentalist Christian view failed to take hold in most of the world outside the American South, at the time it was emerging it seemed to be everywhere, including England, which has since emerged to have some of the "tamest" Christians on the planet.

As was the case with the Victorian era in the West, the Islamist movement has come at a time when women are concommittently with increasing literacy also starting to gain more legal rights and economic status outside the home, and are on the verge of gaining actually political rights.

Indeed, not only did women's rights start to emerge in the Victorian era, the broadbased franchise did, and much of the Islamic world is starting to come to terms with a transition from government by a narrow aristocratic and monied elite, to a broader based polity. The coincided, across the Western world, with the economic transformations associated wit hthe indusrial revolution. Politically liberalization progressed hand in hand with economic development.

Every revolution has a counterrevolution. Perhaps, susbstantive progress must be matched by symbolic regression to make it tolerable to society. Maybe the restaint and respect for fine manners or parallel extreme regulation of public behavior that Islamists have pushed for must enter a culture's DNA, before more casual and less definitively defined mutual respect can be established.

At any rate, the big power of the New Victorian metaphor is that is recognizes the genuine causes for hope in a trend that otherwise might seem to offer only a bleak dystopian future for the Islamic world.

We may be just a generation or so (the Islamist movement really took off in the late 60s and in the 1970s, and has simply been gathering steam since then) from the Islamic answer to the American "Roaring '20s" when the covert hedonism of the filthy rich transformed into the covert headonism of the mass, and when the standards of modesty, while still still by contemporary standards started to ease. We may see a parallel emergence of an era like that seen at the end of the Victorian era, where adult women are no longer seen as needing adult chaperones when they are in public and where women actually get the vote. We may see another era, as we did then, where previous generations of religiously different immigrants and their children, while still discriminated against, start to really assimilate much more widely into mainstream society.

The Victorian era was also marked by the dominance of political machines who rand dominant party system that provided far more than get out the vote assistance for candidates for public office. These patronage and social service oriented parties look a lot like the Hamas party, Egyptian ruling party, and Baath party that characterize the so called democracies of much of the Islamic world. Of course, the Victorian era was also the last era in which the West has any monarches with real power, just as the Islamic world does today.

Is the Egyptian Islamic Brotherhood the Islamic answer to the progressive movement? It is worth noting that the Victorian era progressive movement, unlike its modern namesake, was decidely religious, morally strict and deeply wedded to temperance. Are Islamist undergronds, ironically in concert with the other big dissenting group, the secularists, the progressives, muckrakers and goo goos that will destroy the Islamic world's answer to the political machines?

You can leapfrog eras of technological progress -- starting your phone system with cell phones and fiber optics, instead of copper wire landlines. But, it isn't at all obvious that the same is possible for social or cultural progress.

The Victorian era saw the elimination of slavery in the Reconstruction era American South. But, the formal legal change imposed by force of arms didn't penetrate deep below the surface into the general public. The reforms enacted by the carpetbaggers were swiftly repealed when they left. Jim Crow laws and Plessy v. Ferguson keep a deeply segregated society where slavery era attitudes and distinctions were maintained by force of law a century after the last slave was freed. Indeed, it is fair to guess that while ending slavery may have been worth it, that force feeding the change upon the South by force of arms may have spurred a resistence that greatly delayed social progress.

It similarly took social progress in this period to end the practice of dueling which seems an anarchonism today, but was a hallmark feature of many progressive era state constitutions. Will the parallel stuggles in the Islamic world be those to end "honor killing" and blood fueds settled with forced marriages?

Even the drugs are the same. The signature drug of the Victorian era was heroin from the poppy plant. Today, 95% of illegal heroin from the poppy fields of Afghanistan, which, until the U.S. invaded, has a Taliban government that was the crowning achievement of the Sunni Islamist world.

The future is never certain, but a different, Victorian, metaphor for what is going on in the Islamic world can provide better insight and intuitions about what is happening and what might be profitable in efforts to guide our foreign policy approaches to it, than the medieval metaphor that seems to be the order of the day in conventional wisdom today.

21 August 2007

Bad Cops In Denver

There is a place for unions in our economy. The place for unions is to maintain decent working conditions, to get a fair share of the enterprise's revenues for workers, to protect employees from unjust employee discipline, and to lobby politically for the political interests of workers.

But, I draw the line at aggressive efforts to protect employees who are public menance or pose a danger to general public from discipline or termination. As the Denver Post reports, and I can corroborate from having followed the issues for a decade, the Denver Police Protective Association, which is the police union in Denver, is an abomination of a union that has declared war on the ordinary people of Denver by protecting bad cops.

Mayor Hickenlooper's safety manager, Al LaCabe, deserves kudos for standing up to the insanity that the Denver Police Protective Association has insisted upon by using the Denver Civil Service Commission to force the city to impose ridiculously lenient discipline on bad cops in the name of "comparative discipline." While, it is late in coming, LaCabe is entirely reasonable in proposing that police offers face "presumptive termination" for "most police officers who break the law, 'depart from the truth' during investigations, commit sexual misconduct or improperly use force when they kill a suspect, under a draft proposal to overhaul Denver's discipline system for police." He has it right, in particular, when he states that:

Discipline for police has to reflect the values and priorities of the department, which also must reflect the values and priorities of the whole external culture.


and that

The best way is to notify an officer before an event happens as to what will be the likely penalty.


Firing someone whom the city suspects of being a bad cop shouldn't require proof beyond a reasonable doubt, and it shouldn't tolerate behavior that may not even rise to the level of criminality, if it shows bad judgment or a temperment ill suited to the job.

The Denver Post article on Sunday, looking at some of the bad cops the city has tolerated over the past decade, shows just how deeply flawed the system is right now. For example:

The Denver police force includes an officer found to have held a cocked gun to his wife's head, another who pushed a pregnant teen into concrete stairs, then placed his knee on her belly, and another with 21 disciplinary actions against him and 50 total complaints. . . .

At least 25 officers remained on the force from January 1997 through September 2006 after they were punished for what the department calls "departure from the truth." In some other police departments, such a complaint, if sustained, can lead to immediate dismissal because it can be used by defense lawyers in criminal cases to challenge an officer's court testimony.

And the force also has persistent repeat offenders. Of 16 officers with 10 or more sustained complaints against them in the time period, only one has been fired. Three of those repeat offenders resigned, and one retired during that time.


It is a crying shame that we keep rogue cops on the streets. It undermines public confidence in the force. It hurts the ability of the police to convict criminals in court. It causes the community to refuse to cooperate with the police. And, it breeds cynicism about the system and undermines the rule of law. It is corruption by another name. Police misconduct is no myth. It happens here in Denver, the City knowns about it, and it is encouraged as a policy matter by the City through a systematic proces of giving bad cops slaps on the wrist instead of stern discipline.

It isn't even a matter of justice for workers. There are plenty of honest, qualified people in Colorado who want to be police officers. But, every bad cop on the force reduces the number of honest rookies who can be hired to replace their dead weight. Every bad cop the city shelters steals of decent job from someone who actually deserves one.

I hope that Chris Nevitt and Paul Lopez, the two new labor backed candidates on City Council, have the good sense to take the Denver Police Protective Association to the woodshed and wake them up to the fact that they are shooting themselves in the foot and endangering the bulk of the 1,400 cops on the street in the city by standing up for a few dozen bad cops, so that a deal can be brokered with a minimum of fuss.

Excess Tanks

The Army and Marines bought way to many M-1 tanks.

Nearly 9,000 M-1s were manufactured during the 1980s and 90s. The U.S. Army and Marines only use about 1,600 now, with foreign operators accounting for another 1,500.


This works out to about 1 tank per 100 troops deployed in counterinsurgency operations.

From here.

The Army and Marines are considering scrapping plans for a next generation tank and instead upgrading existing ones for:

an M1A3 version of the M1 in the works. This would be a radical upgrade, compared to previous ones. It would even be possible to make the 62 ton M-1A2 a few tons lighter. This would involve a lightweight 120mm gun, which would allow for the installation of an autoloader, new fiber optic wiring, and new (and lighter) armor. A new engine and running gear would also save weight. The M-1A3 might get down to 55 tons, or less.

But the most important changes would be the new computers, communication, sensors and navigation gear intended for the unrealized FCS tank. The FCS vehicle was to use new heavy weapons, that fire guided projectiles to a range of 12 kilometers. These can also be mounted in the M-1A3.


The upgrade would be expected to stay in use for 40 more years.

TSA Still Stupid

Seven year olds, even seven year old Muslims who share a name with suspected terrorists, aren't a threat to air travel.

20 August 2007

Statistics About Recycling

About 44 percent of eligible residents [in Denver] - those in single-family homes or small, multi-unit buildings - have signed up for the program. . . .

Last year, Denver recycled only 10 percent of its municipal waste stream. That's less than Colorado as a whole, which recycled only 12.5 percent of its waste . . . . Colorado's recycling efforts rank it the 12th worst in the nation. . . . In contrast, Oregon recycled nearly 46 percent of its waste and Minnesota, more than 43 percent. . . . other Colorado cities have successful recycling programs including Boulder, Fort Collins and Loveland, which diverts more than 50 percent of its municipal waste from landfills. . . . In Denver, city officials hope to introduce other programs that would capture organic materials and waste from large, multifamily buildings. By 2011, the city hopes to divert 30 percent of the waste stream away from landfills. . . .
U.S. recycling rate: 28.5%
Colorado recycling rate: 12.5%
U.S. per capita annual garbage generation: 1.3 tons
Colorado per capita annual garbage generation: 1.7 tons
U.S. garbage land-filled: 64%
Colorado garbage land-filled: 87%


From here.

17 August 2007

Jose Padilla Convicted On All Counts

Jose Padilla was convicted on all counts by a Miami jury after brief deliberations yesterday. He faces life in prison on charges that he conspired with a terrorist group to commit murder. Sentencing is set for early Decemeber. The guideline sentence is, at the very least, very long, and quite possibly life in prison. It remains to be seen if the judge will consider the uncharged conduct alleged by the government that constituted a basis for his enemy combatant detention. U.S. law permits acquitted and uncharged conduct to be considered by a judge at sentencing, so long as consideration of it does not increase the maximum sentence for the offense.

His co-defendants have planned to appeal, I suspect that he will as well. The strongest argument on appeal is probably that a conspiracy to murder charge requires more proof of either an agreement to conduct murder, or an attempted or completed murder arising from the conspiracy than was shown at trial and proved beyond a reasonable doubt.

An appeal in one of the most conservative court of appeals circuits in the country has an uncertain prospect of success.

14 August 2007

Building The Rule Of Law

U.S. Supreme Court Justice Kennedy is no liberal. But, he isn't a hard core conservative either. His take on the law is typical of rank and file registered Republicans, and on the moderate end of what elected officials running on the GOP ticket espouse. There are probably fewer than 40 Democrats in Congress who even approach his level of conservatism. But, he is also a good example of the fact that there are some issues that are widely bipartisan, even if the fringes of the Republican party don't agree. One of those issues is the rule of law, principle that only the powerful but tiny Dick Cheney wing of the Republican party seriously disagrees with in principle.

Justice Kennedy recently spoke on the issue (Hat tip to SCOTUS Blog) to the American Bar Association, as it presented the most powerful judge in America (because he is the swing vote on the highest court) an award.

"In the developing world, there are not enough lawyers, there are not enough paralegals, there are not enough college-educated persons to make such a system work," Kennedy told delegates . . . In some countries, he said, half to three-quarters of the population works in the "shadow sector," with no licenses or legal regulation, and half the people have no official birth records. Lawyers can't merely advise millions of young people in those nations to wait decades while the groundwork for a legal structure is established, Kennedy said.

But he said lawyers are well-suited to educate and recruit those young people to promote law by fighting lawlessness - families in Asia that sell their young daughters into the sex trade, an African nation that charges fees to women who want rape complaints investigated, nations that hold prisoners incommunicado and without charges for a decade, "the ongoing and looming greater disaster in Darfur."

Lawyers should tell their listeners, "Here is a cause for your passion and your anger and your youth and your energy," Kennedy said. And he said U.S. lawyers must also realize that "the rule of law cannot stand here unless you address those problems in other nations."


The issue he charged American lawyers with is not an easy one. How do you build a legal system with few or no lawyers?

The most recent serious effort to try to do so has been in China, with decidely mixed results. But, the absence of formal legal education doesn't mean that a society has to be without lawyers all together.

The Washington Post recently highlighted the remarkable authority that a "Children's Parliament", run, as the name suggests, by children, in Goma, Congo has developed (as modest as it is) amidst a failed overall legal system, largely on the strength of the fact that it is not corrupt and makes a good faith effort to apply the law to the facts, despite the fact that its opinions are not themselves binding.

Prior to 1890, when New Hampshire adopted one, there was no such thing as a bar exam; every state, but one, had one by 1915. A college education wasn't a prerequiste to law school in the United States until about 1900 (and is still not in most of the world). When Yale Law School was founded in 1843, there were only eight law schools in the country and many lawyers learned the profession in another lawyer's office rather than in a law school. From 1779 to 1817, there was only one law school in the United States (at the College of William and Mary). Harvard Law School, founded in 1817, was the second.

Also, as far removed from actual practice as American law schools are, they are far closer than their civil law cousins, who lean on bar exam preparation courses even more heavily to teach students substantive law than do American law schools.

Early Americans were actually far more litigious than we are today, but most of the cases would have been considered small claims and were dealt with in the style of a modern small claims court. For every day legal purposes, the "Justice of the Peace" concept, in which lay persons met out justice in minor civil and criminal cases, are considered a pretty abysmal failure compared to status quo alternatives in places like New York State, where professional judges with graduate degrees in law in well organized state courts of record do a far better job. But, compared to a system like that of Liberia, which has only 22 judges (about a tenth of the number of judges per capita as Colorado), it looks attractive.

Both the civil law system, and the British, distinguish between a core group of litigators, and other lawyers with less formal credentials, reducing the size of the core group -- although the civil law system achieves this partially by having far more judges than common law systems do, per capita, and by entrusting much transactional legal work to the notary public's office.

The Roman legal system, one of the earliest, referred essentially all private law cases to rent-a-judges paid by the parties and largely independent of a formal court system, much like modern day arbitrators, another attractive option in a country with a weak state.

English law has its roots in the Norman Conquest, after which the occupying Army, itself in a military hierachy, divided up the conquered territory among Army officers, creating the foundations of the modern aristocracy, and granted each aristocrat the authority to met out justice in his own territory. Originally, this was mostly done directly by nobles hearing disputes between his subjects, but, eventually, this task became specialized and largely delegated to skilled specialist servants of the local ruler. The early Islamic empire, which fused religious and political authority followed a similar pattern, allocating the power to mete out justice largely to local rulers who often acted on the advice of educated servants.

Justice by general purpose local political leaders is another attractive alternative to bureacratic lawyer based justice, which, while it has its flaws, also offers a desirable alternative to the anarchy that prevails in much of the world today.

The notion that law without lawyers is a desirable thing is mostly a hoary myth that ignores the downside of that approach. But, as Justice Kennedy appropriately points out, the Rule of Law is a necessity that the much of the world can't afford to conduct American style.

Then again, as in the health care area, one wonders at what we get for our money, partially due to Justice Kennedy's own personal dithering. When he bemoans "nations that hold prisoners incommunicado and without charges for a decade," I have a hard time looking anywhere but in the mirror.

13 August 2007

Taking Responsibility

A general is a high ranking military officer, a senior employee of the United States government, just a couple of steps in the chain of command from the President, who often has authority over thousands of people whom he has the power to order to kill people. As a senior government employee he has a personal responsibility to make the system work.

For someone at this level to have his attorney advise Congress that the General intends to hide from process servers is not just a matter of playing games, it is conduct unbecoming an officer of the United States military and should be punished accordingly. He gets his authority via the rule of law, and the authority to wage the wars he's waged from Congress. To flout that authority is a form of insubordination that threatens the Republic and cannot be tolerated.

A Rare Moment Of Federal Court Sanity

On rare occassions, a federal court in a criminal case will consider the circumstances of a case to prevent an unexpectedly harsh result. This was one such case:

Mooney of Huntington, W.Va., was charged as a felon in possession of a weapon, which carries a mandatory minimum sentence of 15 years. He seized a .38-caliber revolver from his drunken ex-wife as she held the gun to his temple . . . . She had a "propensity to brandish and shoot guns at the men in her life," [the appellate judge] wrote.

Mooney tried to call police to turn over the gun but his wife disconnected the 911 calls and Mooney, who worked at a nearby bar, ultimately called his boss to say he would bring it to the bar to turn it over to police there. When he arrived at the bar, police were waiting, tipped by his former wife, and he was arrested for possession.

Although Mooney believed that his possession was justified under the circumstances, and that he "did the right thing," his original attorney advised him to plead guilty because the government had to prove only that Mooney was a felon and had a firearm, according to Niemeyer.

"Mooney told me that his appointed counsel had no criminal experience," [his appellate lawyer, a law student,] said.

Mooney had three prior convictions dating back 25 years, including burglary, robbery and the last an attempted robbery in 1989. He developed the original motion in the federal district court seeking to reverse his 2003 guilty plea and that gave a very clear picture of what happened, Poirier said.

Despite Mooney's repeated attempt to protest his innocence when he appeared in court to plead guilty, and again at sentencing, his lawyer advised the court that the law did not allow a justification defense. "It was patently inaccurate for Mooney's counsel to have advised Mooney and to have represented to the court that no such defense was ever available," [the appellate judge] wrote.


Mr. Mooney has so far served more than four years of his fifteen year sentence, largely as a result of the ineffective assistance of defense counsel that he received.

This case also demonstrates, once again, a gross abuse of discretion by the U.S. Attorney involved. Why do prosecutors feel compelled to try to a put a guy who was in this situation away in prison for another fifteen years?

The full court ruling, via How Appealing, is here.

Why Does Texas Execute So Many?

Via Reuters UK (Hat tip to Sentencing Law and Policy Blog):

Governor Perry is a devout Christian, highlighting one key factor in Texas' enthusiasm for the death penalty that many outsiders find puzzling -- the support it gets from conservative evangelical churches.

This is in line with their emphasis on individuals taking responsibility for their own salvation, and they also find justification in scripture.

"A lot of evangelical Protestants not only believe that capital punishment is permissible but that it is demanded by God. And they see sanction for that in the Old Testament especially," said Matthew Wilson, a political scientist at Southern Methodist University in Dallas.


Many people call themselves Christian, but the label obscures a variety of de facto religions, some relatively mild mannered and merciful, others full of wrath.

Snark, Tolerance and Ambivalence

A reader comments on my previous post (fairly, civilly and raising good points):

Ok, I read the synopsis of the Book of Genesis and I understand the point the writer was trying to make.

Mr. Oh-Willeke, it is time for a brief discussion of tolerance if you will indulge me.

I have been reading your blogs for the past few months and I appreciate your impassioned pleas for tolerance in America. I agree we need more tolerance. At the same time I read your blogs with titles such as "Another Reason to Hate Texas". I read you belittle anyone who lives below the Mason-Dixon line, anyone who holds God and country dear, anyone one who has ever voted Republican, anyone who has not achieved the level of education you have because of their inability to understand "complex" issues and anyone who has ever lived in Grand Junction Colorado.

Mr. Oh-Willeke, you probably think I am some kind of red-neck because I am a working-class guy living on the other side of the river from Wash Park who is, politically, a bit to the right of you. I love Texans and Vermonters, people of faith and atheists, gays and straights, republicans and democrats and the people of Grand Junction. I am proud to live in America with all her diversity. My only intolerance is towards those, by their misconduct, who have committed serious crimes and have shown disrespect for law and order. I guess that comes from having three burglaries at my home, three attempted burglaries, being assaulted (with battery) in my backyard plus numerous vandalisms. But I digress.

My point is I am tolerant of 85 to 90% of the people of this country and based on your blogs I would set your tolerance level to 5 to 10% percent of Americans.

Mr. Oh-Willeke, can we give up on red state/ blue state America and endeavor to create a purple America where all people can work together to arrive at real solutions to our nation's problems?

Thank you for your time,

Rick Taylor


My immediate response was:

Thank you for you empassioned and civil comment, which deserves a front page post response, which I will post. You make good and fair points.


The issue Mr. Taylor raises deserve quite a bit of analysis, response and explanation.

This blog is frequently raw. It comes with the genre. The rawness is more snark than serious. But, beneath it, is a far deeper issue. As I noted two posts ago, in Against Nihilism, I do not believe that "a 'true morality' does not exist, and secular ethics are impossible; therefore, life has no truth, and no action can be preferable to any other."

I believe, that many of the public policies of Texas are not just different, but are "wrong" in some more absolute sense, in much the same way that a much larger swath of people believe that the public policies of the Confederate States of America(and its predecessor slave states within the United States) and the post-reconstruction Jim Crow policies that followed were wrong. I believe that many policies of the Republican party are just plain wrong headed, and that many of their leaders are corrupt. I believe that belief in God is, at best, the wrong reason for doing the right thing, and at worse, a justification that trumps law and common sense for doing the wrong thing (religion comes in many flavors). I believe that blind patriotism, while often harmless, can be a dangerous thing and warrants suspicion. While I don't believe that education or extraordinary intelligence is necessary to understand "complex issues", I do believe that information is often necessary and that many bad policy decisions are driven by a lack of that information; and I believe that many people lack relevant information because they actively resist it. I think that Grand Junction is on the whole a healthy small community (and I enjoyed my time there) but that it is a poor place to raise children if you want them to be ready to function at their best in the wider world (particularly if they are multiracial).

I am no friend to crime or criminals, but recognize that people commit them for reasons that make their crimes more understandable than people are often comfortable admitting.

Of course, I don't really hate anybody (well, maybe one or two or three individual people, and certainly not you or anyone you know). Still, I don't actually hate Texas, I actually rather like Grand Junction, and I am myself born in the Georgia where I lived in my younger years.

The deeper question is how to balance my deep movement politics desire to change hearts and minds by illustrating how deeply wrong some of the alternatives are, with civility and tolerance.

Tolerance, by the way, is not the same as acceptance and welcoming. It means leaving others alone in matters that are their province, not embracing or condoning their way of life. It means maintaining civility and basic respect for someone, as a person, while trying to change their views. I'm sure I cross that line from time to time, and even when it is snark, it can be grating to those on the receiving end. On the other hand, humor and outrageous incidents often make good conversation starters for getting at more common and serious issues. Some posts, like my last one, are more in the nature of editorial cartoons than serious reasoned argument, because emotional buy in is often as relevant as rational buy in.

The core of civility, in my mind, is trying to stick to "fair" criticism. Normally, this means ad hominem arguments are out, although hypocrisy can make them relevant. Generally, this means that I try not to raise objections about policies that I don't genuinely believe are the real problems, even if the real problems are less "sexy."

While my instinct is to myself work on low profile constructive change (for example, technical fixes in private civil law), i.e., the "purple America" consensus choices, I don't think that this is an approach that is sufficient to bring positive change to this country. We need change that a lot of red state America is instinctively averse too. Most of the decisive positive changes in American policy history have come from one party being right and securing large majorities by implementing those policies on a partisan basis, not through broad consensus building. Social security, for example, may be a a consensus program now -- indeed, it is the third rail of American politics -- but, partisan politics got it into place.

Also, it is worth noting that while my views are generally in the middle of the American left (although I have probably more bipartisan readership than most left wing political blogs, in part because of my science, health and military coverage), that in the international political world, I am quite centrist. By international standards, the American right, both religiously and politically, is extreme.

Texas, for example, is a frequent subject of notice on this blog, in part, because it, by itself, is the source of a large share of all non-Chinese executions in the world, and is the leading source of executions in the developed world. Similarly, the American South is the only place in the developed Christian world where there is widespread belief in Creationism.

The balance between tolerance and civility on one hand, and active evangelization for a secular humanist worldview which is more morally sound and empirically based than many opposing views, isn't easy. I stumble, and it is fair to call me on it. But, open mindedness doesn't mean being so open that your brain falls out, and I'm not going to depart from pointing out the failures of the "red state" approach to governing and living.

One of the most cogent criticisms of the "mainstream media" has been its nihilist tendency to treat all opinions as equal, when often, there is one person's view, another person's view, and the facts, which often clearly lean towards one view or another. All opinions are not equal in merit, and people people deserve tolerance, opinions and policies that flawed, do not.

12 August 2007

The Snark In Genesis

Who said reading the Bible builds faith? Genesis certainly tends to have the opposite effect.

Against Nihilism

Nihilism . . . is a philosophical position which argues that the world, especially past and current human existence, is without objective meaning, purpose, comprehensible truth, or essential value. Nihilists generally assert some or all of the following: there is no reasonable proof of the existence of a higher ruler or creator, a "true morality" does not exist, and secular ethics are impossible; therefore, life has no truth, and no action can be preferable to any other.


From Wikipedia

Not every question has a right answer, but a great many questions in life, both factual and philosophical have wrong answers. Indeed, a belief that mere mortals are capable of discerning metaphysical truth is axiomatic to the atheism that is supposedly a predicate to nihilism. Metaphysics, of course, like physics, biology, chemistry and history viewed as a set of true statements about factual reality, differs a great deal from branches of philosophy and theology concerned with the meaning of law, its purpose, and morality.

Science can tell you how sharp a knife is, how strong it is, and whether it will tarnish in the dishwasher. It won't tell you what the best knife is, however, because that depends upon what the person using it needs. A knife too sharp can easily cut you. A knife too rigid is a poor choice to fillet a fish. You can cast that as moral issues which science can't answer. But, you can also cast that as an issue of context. Different answers make sense for different contexts -- but that doesn't mean that there isn't such a thing as a perfect fillet knife.

The notion that "true morality" does not exist or that secular ethics are impossible, while reasonable on the surface from the point of view of a secular worldview, appears less sensible when put into practice. While there are fine points where the common sense muddling through approach to secular humanist morality doesn't resolve well, developing a wide consensus on what is right and wrong, even on a vast international and multicultural scale, is far less of an ambitious thing than the nihilism suggests that it should be.

Often, the issues that are hardest to resolve as right or wrong are so hard to resolve because they are unimportant practically, and hence can't be subjected to empirical analysis. The death penalty, for example, in controversial, in part, because it impacts so few cases and has such a small impact on crime rates. No one disputes the people who commit heinous murders need to be removed from society, at least until they are too feeble to represent a continued threat to society.

At other times, divisions exist because the conventional wisdom of a large group of people is factually wrong in their beliefs. A majority of people on the eve of the Iraq War thought that Iraq played a part in 9-11. Most supporters of abstinence only education sincerely believe that contraception education causes teens to increase their sexual activity because there is official recognition of the legitimacy of teen sex. Few Creationists have a firm grasp on the science behind evolution. Most people who play the "Socialized medicine" card in the health care debate have little first hand experience of how well those systems actually work.

Jump ahead a moment. Suppose that, even if there is not necessarily one "true morality" that there is, at least, vast swath of moral territory which is immoral, through some combination of the hard wiring that comes with our species and the conclusions inevitably reached from living in the social communities that are for us, as social animals, our natural state.

It follows that the positivist view of law is wrong. There is some measure of natural law. To describe a law as a "bad law" or "unjust" isn't a inherently subjective rabbit hole.

Likewise, Democracy, in the absence of a nihilist worldview, means something very different than a political scientist's nihilist democracy, in which the majority view (or perhaps a utilitarian Pareto-optimal state) in ipso facto right. Voters, in a non-nihilist democratic model, are not principals. They are people who, like other actors in the political sphere, have a duty to act with reasonable care and a loyalty to the public good to secure a better regime, even despite their own narrow self-interests.

Political leadership, likewise takes a very different character in a non-nihilist worldview. The job of a political leader, is not just to carry out the will of the people, who are his or her masters, but to discern where the good society lies and persuade the people to go there. In this view, the politicians job is to get the people to buy into what is already right -- to educate the people.

A view that natural law exists in some form has explanatory virtue. For example, it makes it much easier to explain the voluntary democratic expansion of the franchise in the past two centuries. It isn't the only explanation, but it is a straight forward one.

Of course, if there is a secular natural law, one also needs a secular counterpart to original sin and the Tower of Babel. If there is a right and wrong in the world, why is it so hard to reach a consensus upon its terms?

But, sometimes, political division looms large only because we are focused on it. We lavish attention on flash points -- 5-4 decisions in the Supreme Court and party line votes in legislatures. But, a very large share of any court docket is decided unanimously, and the greater share of the legislative agenda in any session is dispatched with minimal dissent.

American political liberals and conservatives may seem hopelessly at odds, but there is widespread consensus on a great many issues. Democrats and Republicans may fight over how long sentences should be in absolute terms, but in the case of traditional violent and property crimes there is little dispute over what should and should not be criminal, and over the relatively seriousness of reasonably similar crimes.

Public policy empiricists are increasingly breaking political deadlocks. They are driving more public health oriented approaches to drug laws, a boldness in restricting without banning smoking, and increased regulation of teen drivers. They illustrate the failures of laws banning sex offenders from living in certain areas and disparate sentencing of crack and powder cocaine offenders. They are helping to make clear that our health care system is broken. They are cementing the notion that homosexuality is an inherent part of a person, rather than a "lifestyle choice", and that homosexual families can provide good homes for children. They assail worthless abstinence only education, and highlight the downsides of strict abortion bans.

Reality based public policy hasn't proven to be a terribly swift force for correcting political imbalance, but it has established a powerful new way to build consensus. Empirical analysis of public policy often informs the debate to make the moral disagreements trivial. Partisan ideas are increasingly being revealed as differences in empirical assumptions rather than differences in values.

Certainly, there are people who believe weird things and have moral systems at odds with those of almost everyone else. But, while they are disproportionately represented in politics, it takes rigorous indoctrination to bring someone to this state. A politics without dissent isn't possible or desirable. But, people of good will can, with good evidence, come closer together on most issues, because they often don't differ that much in their sense of right and wrong, if they perceive the same facts. The differences are often more over policy applications than in core principals, missions and values. Changing conventional wisdom about what works based upon empirical evidence is the challenge. Political leaders must evangelize discovered wisdom to secure political change, not just marshal majority coalitions of the status quo.

09 August 2007

Preschool Works.

Preschool makes huge differences in how well you succeed in life, at least if you are starting out at the bottom of the socio-economic pyramid. According to the source cited in the link above:

By age 24, children who had participated in the Child-Parent Center preschool were:

* More likely to have finished high school (71.4 percent vs. 63.7 percent) and to be attending four-year colleges (14.7 percent vs. 10 percent)
* More likely to have health insurance coverage (70.2 percent vs. 61.5 percent)
* Less likely to be arrested for a felony (16.5 percent vs. 21.1 percent) or incarcerated (20.6 percent vs. 25.6 percent)
* Less likely to have depressive symptoms (12.8 percent vs. 17.4 percent)
* Children who participated in the program during preschool and early school years also were more likely to be working full-time (42.7 percent vs. 36.4 percent), have completed more years of education and have lower rates of arrests for violent offenses (13.9 percent vs. 17.9 percent), and were less likely to receive disability assistance (4.4 percent vs. 7 percent).


These differences were still measurable two decades after the pre-school program.

Immigrants Are Less Likely To Commit Crimes

The facts showing that immigrants are less likely to commit crimes are here.

Iowa GOP Race Gone Nuts

The latest poll of registered Republican in Iowa (July-August 2007) about the Presidential race is very bad news for certain candidates. The results:

Romney 21.8%
Giuliani 10.0%
Obama 6.7%
Thompson 5.2%
McCain 1.8%

When a Democrat is out polling two of the four front runners for the Republican Presidential nomination in Iowa among registered Republicans, this is really bad news for Republicans. Support for Romney has grown, while support for Giuliani and McCain has plummeted.

Republicans who intend to go to the Iowa caucuses are less anomolous:

Romney 26.9% (rising)
Giuliani 11.3% (falling)
Thompson 6.5% (rising)
Tancredo 4.2%
Brownback 4.2%
McCain 3.2% (falling)

While it is too early for Romney supporters to celebrate, with the undecided ranks still large, Giuliani and McCain's stars waning, and Thompson so far back, Romney is clearly the man to beat on the Republican side of the Presidential race.

It also doesn't hurt Romney that the Iowa caucuses are followed by the New Hampshire primary, which is right in his backyard.

Among all registered voters polled in Iowa on the Democratic side, Clinton (rising support) led Obama (rising support) who was ahead of Edwards (falling support) who led Richardson (stable).

State Pardons

Republican Governor Ted Kulongoski of Oregon has granted six pardons in the past 4 1/2 years. There have been 301 appplications. His predecessors in office also granted only a small number of pardons:

In his eight years in office, Democrat John Kitzhaber was less lenient, granting only four of 528 applications—less than 1 percent. But Democrat Barbara Roberts, in her single four-year term, gave pardons to 16 out of 177 applicants—over 8 percent[.]


In addition to the six pardons:

Kulongoski has also commuted two sentences, both affected by Measure 11 [which instituted mandatory sentencing for violent offenders and was sponsored by the Governor] for crimes committed by minors:

David Gene Thomas robbed a corner grocery when he was 17. He was incarcerated until Kulongoski commuted his sentence June 3, 2005, two days before his 25th birthday.

Samihe Damian Zarif was convicted of second-degree robbery at age 15. Kulongoski commuted his sentence Oct. 10, 2003, five months before his 70-month sentence was to end, when Zarif was 20.


Who got the six pardons?

Four of the six are immigrant women who have lived in the state 20-plus years. They are people who, after a relatively minor infraction of the law, faced the threat of deportation to their native countries—or, if traveling abroad to visit family, the likelihood they would not be allowed back into the country each had called home for most of their lives.


One was convicted in 1991 of delivering cocaine. She "was 24, homeless and spoke no English when she accepted an offer to stay at a stranger's house fresh after arriving in Eugene from Mexico. The trouble started when her hosts got a delivery of cocaine. 'The woman who rented the residence was pregnant and did not get around easily,' Morales wrote in her pardon application. 'I offered to go outside and retrieve the drugs for her.' Morales retrieved them from an undercover cop and was arrested. She received probation. Then, in 2001, Morales was mistakenly arrested and charged with possession and intent to deliver meth until her attorney got a video of the drug deal that showed Morales wasn't involved. But even though the charges were dismissed, immigration began deportation proceedings against her and her three daughters based on the 1991 conviction."

A second involved "a 45-year-old native Norwegian, was detained at Seattle-Tacoma International Airport for three weeks in 2003 on her way back to Oregon from Norway. Deportation proceedings began against her after authorities realized she had a 10-year-old drug conviction, when she and her husband were busted with six pot plants. Rein's case stirred The Oregonian's editorial page to implore Kulongoski to keep 'this Oregonian wife and mother in Oregon.'"

The third woman, who was "31, fled Guatemala to Northeast Portland with her family at the age of 6. In 1991, at age 20, she was arrested after trying to steal some clothes from Meier & Frank and some sausages and a video of The Usual Suspects from Cub Foods in Tigard, among other items totaling about $75. When immigration officials began efforts to deport her, they called the attempted thefts 'crimes of moral turpitude.' [She] turned to the pardon process, saying in her application that she had endured years of sexual abuse from family members before the attempted thefts."

The last woman "wanted to go home to Wales to visit her elderly parents," but she knew that she would not be able to return because she was convicted of growing more than 100 marijuana plants in 1987, and was granted a pardon after multiple attempts when "[h]er parents, both in their 80s, were ailing," almost 50 letters of support poured into the governor's office from friends and family of 'Fliss.'"

Two more pardons were granted to native Oregonians:

After repeated applications, one pardon was granted to a woman who

was newly divorced and trying to care for her daughter and dying 92-year-old grandmother. Slowly becoming buried in debt, she couldn't secure the higher-paying legal jobs she was trained for due to her [1989 meth conviction].


The last was a man who had a drug conviction in 1986. He was well connected and barred by law from having a video poker machine in his bar because of his prior conviction. It turns out that a rules change adopted 14 months before he got the pardon would have allowed him to have a video poker machine anyway.

The linked article also sums up data from other Pacific states:

In Washington, former Gov. Gary Locke pardoned 56 people during his tenure between 1997 and 2005. Current Washington Gov. Chris Gregoire has pardoned 11 people in her 2 1/2 years in office. Washington doesn't have statistics for how many applications each governor received.

California Gov. Arnold Schwarzenegger, in office just under four years, has pardoned four people out of what his press office estimates are thousands of applicants.


Personally, I favor statutory, more or less automatic relief from all state and federal collateral effects of criminal convictions for ex-felons who have been crime free for an extended period on the order of ten years or so after incarceration has ended, which are the kind of cases that make up the bulk of executive pardons. This would refocus attention on the cases that matter most, which are questionable convictions, excessive judicial sentences, and true hardship situations for people with relatively recent convictions.

Another Renegade Trademark Suit

In proof that the trademark law of the United States is broken Johnson and Johnson is suing the American Red Cross for using the red cross logo that Johnson and Johnson uses to sell its products.

The irony is that Johnson and Johnson stole the logo from the Red Cross, which used it first, quite possibly for the purpose of appropriating the charity's public good will, and then apparently entered into a licensing agreement in 1895 for which it apparently pays no royalties. This suit apparently claims that the Red Cross violated the licensing agreement in 2004 by allowing others to produce products under Red Cross license. It also seems to claim that the American Red Cross is barred by its charter from licensing products (despite the fact that Johnson and Johnson itself is the beneficiary of such an arrangement and has been for more than a century).

There is a tradition, which may or may not have case law support, that a lease more than 99 years was historically invalid under the rule against perpetuities. I'm not aware of any cases that apply that rule to trademarks, but this would be the ideal case to explore the idea. Absent the 1895 agreement, it looks to me as if Johnson and Johnson would have no right to sue the American Red Cross for trademark violations, as the Red Cross is the senior user of the mark.

It also isn't obvious to me that the red cross symbol hasn't been diluted to the point of no longer having a secondary meaning associated only with the charity and Johnson and Johnson. My perception is that the symbol used widely by a variety of ambulance companies and hospitals, apparently without objection or a formal license, as a symbol that they are medical service providers.

Advertising works two ways. It both gives a mark secondary meaning that makes it protectable, and it catapults that mark into our general popular culture. The notion that company should own rights to something that is part of our popular culture is repugnant to free speech ideas, which is why trademark dilution is recognized as a legal doctrine.

At any rate, one thing the case does illustrate well is that there is no fixed durational limit on a trademark, even though both copyrights and patents have fixed durations (not necessarily a bad legal principle). Trademarks lapse only when they are abandoned, which happens rather frequently, because most businesses that obtain trademarks go out of business years or decades after they are founded.

Even more troubling, to my sensibilities, is the relief requested, which makes all sorts of sense from a crude property law analogy, but is, in practice, horribly wasteful and makes little economic sense in the intellectual property context. Johnson and Johnson is asking "that all the goods be destroyed and that all profits from the goods, along with costs and punitive damages, be awarded to Johnson & Johnson." This case is an excellent one to illustrate how an disgorgement remedy based on an unjust enrichment theory makes much more sense than the remedy Johnson & Johnson, supported by the status quo law, is asking the Court to provide.

Prosecutors Still On Crack in Florida

Prosecutors in Florida are still attempting to have a retrial of in the case of Mark O'Hara, where a man was convicted and sentenced to 25 years in prison for possessing prescription drugs for which he had a presecription. An appeallate court overturned the conviction finding the prosecution's legal theory absurd, ruling after the man had already spent two years in prison for the non-offense.

O'Hara spent two years of a 25-year sentence in prison after a jury found him guilty of trafficking in hydrocone. He was arrested by Tampa International Airport police in 2004 after they found the Vicodin and a small amount of marijuana in his illegally parked bread truck.

O'Hara didn't contest the marijuana charge, which netted 67 days in jail. However, he swore he had a prescription for the pills. A doctor and a pharmacist backed him up at trial. But jurors weren't told that it is legal to possess the drug with a prescription.

In July, the 2nd District Court of Appeal overturned O'Hara's conviction.


Sadly, while I'm not sure quite why this happens, an important minority of prosecutors seem highly succeptable to a tendency to press for convictions and maximum sentences beyond all standards of reasonableness and any legal authority to the contrary.

Most prosecutors have, at least, a mild case of this disease, but it is rarely as aggravated as this Florida case. On average, you are far more likely to get a break you aren't legally entitled to when facing criminal charges from a prosecutor than you are from a judge.

For example, in Colorado, only one of twenty-one district attorney's offices in the state routinely seek enhanced habitual criminal sentences in a large share of cases eligible for that kind of sentencing, and most of the time most district attorneys' offices offer reasonably lenient plea bargains in escape charges where the escape is a mere walkaway or AWOL case involving a halfway house or work release offender. Likewise, the vast majority of Colorado district attorneys seek the death penalty in only a small proportion of cases eligible for that punishment. But, those prosecutors don't make the headlines or fill appellate court dockets.

From here via How Appealing.

08 August 2007

The Waiting Place

Dr. Suess warned us about the waiting place.

You can get so confused
that you'll start in to race
down long wiggled roads at a break-necking pace
and grind on for miles across weirdish wild space,
headed, I fear, toward a most useless place.
The Waiting Place...

...for people just waiting.
Waiting for a train to go
or a bus to come, or a plane to go
or the mail to come, or the rain to go
or the phone to ring, or the snow to snow
or waiting around for a Yes or a No
or waiting for their hair to grow.
Everyone is just waiting.

Waiting for the fish to bite
or waiting for wind to fly a kite
or waiting around for Friday night
or waiting, perhaps, for their Uncle Jake
or a pot to boil, or a Better Break
or a sting of pearls, or a pair of pants
or a wig with curls, or Another Chance.
Everyone is just waiting.


Sad to say, but I'm there a bit today. Minor things really.

Waiting for an appellate ruling to be released tomorrow in one of my cases. When I have my reporter hat on, it is quite useful to know which appellate decisions will be released the next day. But, as an attorney with a client who will be impacted by the decision, the wait is far more difficult to endure.

Waiting to see which teachers my children will be assigned to for the coming year of school, and what school supplies they need to buy. School starts in a week and a half, and we still don't know (ah DPS)! Also, waiting to meet a new principal appointed after the hire made at the end of last year fell through in the summer, and new teachers at the school who could very well end up teaching my kids.

Waiting to decide what I want to do when I grow up. Funny, how you can establish a career, get married, have a couple of kids and a mortgage, and still wonder that, but while the answer gets somewhat narrower over time, there are always options.

Of course, I'm also somewhere among the people described in Bernstein's Mass:

Half the people are stoned
And the other half are waiting for the next election.
Half the people are drowned
And the other half are swimming in the wrong direction.


They call it glorious living!

Sentencing in Maine

This article, compares the sentencing laws of Maine to those of the federal system. Those familiar with the federal system can make a good guess about which will be deemed better.

Paying For Mistakes

A mentally retarded man, who is a U.S. citizen with a Latino name was arrested "on charges of trespassing and spraying graffiti at an airplane junkyard in Lancaster. In April, he was sentenced to 120 days in jail, but that was reduced to 40 days. On May 11, before his sentence was up, Guzman called his family from Tijuana and told them he had been deported."

The man "who cannot read or write, spent much of the 89 days in Baja, California, on foot, avoiding human contact, eating from garbage cans and bathing in rivers," when he was found by family members searching for him.

The official response was typical:

Sheriff's officials had turned Guzman over to federal immigration agents after he apparently indicated that he was born in Mexico. U.S. Immigration and Customs Enforcement officials denied at the time that anything improper was done, issuing a statement that said it deports individuals only "when all available credible evidence suggests the person is an alien. That process was followed here and ICE has no reason to believe that it improperly removed Pedro Guzman."

On Tuesday, an immigration official reiterated the agency's position.

"We're confident our standards and procedures were followed correctly," spokeswoman Lori Haley said.


So what? Suppose that everything that the government is saying is true. Should it matter? Clearly, in a civil rights action, which requires proof of intentional misconduct, it does. Indeed, it even matters in a common law negligence suit brought against jail operators under a waiver of sovereign immunity that applies to harms negligently caused to inmates, although even that decision would be a stretch.

But, maybe the law is an ass and should be changed. The approach, in particular, that comes to mind is that of the takings clause of the 5th Amendment. It provides that:

No persons shall . . . be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.


When the government takes your property, the 5th Amendment affords you a right to just compensation. It doesn't matter if the taking is intentional, reckless, negligent or blameless. If the government takes it for the public good, you are entitled to compensation.

Why shouldn't that approach be broader? Why shouldn't any citizen exiled from his country be entiteld to compensation? Why shouldn't someone who is arrested or searched in a good faith mistake be entitled to compensation? Why shouldn't someone who is wrongfully convicted be entitled to compensation?

Is any valid public purpose served by allowing the government to escape liability for harms imposed negligently or despite good intentions, that deprive them of liberty which they did nothing to forfeit? Isn't an incentive for government to prevent this kind of harms sensible? And, even if viewed as a form of social insurance, isn't insurance against randomly losing your liberty at the hands of government officials despite the fact that you did nothing to deserve it, just the kind of thing that is appropriate for a social insurance program?

Most of the time, the harm is likely to be far less. Most adult Americans who are wrongfully deported could go to an embassy, call a family member to fax over some proof of citizenship, and catch the next bus home with a temporary passport in a matter of days. In cases like that, compensation would be modest. But, in a case like this one, where the harm was greater, the compensation would also be greater.

Of course, the government would not be responsible under this theory if bandits rob you, and then dump you on the other side of the Rio Grande without identification. Aid to citizens in this case would have to come from the general goodwill to expatriots fund in the State Department --- the same approach used when the Marines evacuate Americans from some third world city where war errupts.

Rather than seeing this right as a drain on the public purse, a program like this ought to be seen as a warning system calling attention to policies that don't work, so that we can make the government better. The GAO ought to regularly review cases to determine what could prevent similar cases from recurring. No system is perfect. Mistakes will be made and people will be hurt in the process. It is too much to expect a government to never make mistakes that violate people's rights. But, it is not too much to expect the government to pay for the harm it causes when this happens.

Hat Tip to Luis at Square State.

Meto Denver Home Prices Down

The median price for a single-family home dipped 1.7 percent to $255,000 compared with last year, and the median price for a condo dropped 3 percent to $158,000 in July.


The Denver Post is relying in regular commentator Gary Bauer, who is a professional acquitance and pretty good guy.

While Denver real estate conditiosn don't meet bubble bursting standards, a decline is still bad news, especially in light on meaningful, if low grade inflation. In inflation adjusted terms, Denver house prices are down about 5-6%, in an investment where most owners outside real estate bubbles expect to break even with infliation, but not to make a big profit.

I take particular note of statistics that show building permits up in Denver, while down in other metropolitan countries.

07 August 2007

2402 Posts

This blog is 25 months and 5 days old. It has 2,402 posts.

I've been drifting into being more of a law blog lately (almost eclusively in most posting at Colorado Confidential), although I don't know if this will be a long term trend. I've also given military blogging a bit of a shot in the arm after an extended period of relative neglect, but I have let public health blogging slide a little.

I have no major software, platform, or blogging policy changes planned in the near future. There are a couple of behind the scenes blogs, but I'll deal with them. The blog roll probably needs some light weeding and additions of new talent. But, only incrementally. I'm not planning to go much more visual, as blog competitors like MySpace and Facebook. I'm also not willing to be much less eclectic than I've been in the past, or to take on a co-blogger.

I have several almost ready to post examinations of Colorado's criminal code offline, which I should probably polish and continue that series of posts.

I remain baffled by how highly some of my posts are Google ranked, often appearing at the top of seemingly routine searches. I have several dozen other blogs that link to me, some of which are academic, and frequently link to academic and government sources, which may provide credibility, and I have been around for longer than many blogs, especially spam full blogs. But, on many of these topics I still ask myself how I ended up being the second or third search result, instead of someone who makes a living being an expert in these fields.

Whatever the reason, I think those of you who have arrived here via search engines. Enjoy.

The Art of Technology Prediction

It is relatively easy to make some relatively straightforward predictions about particular technologies with considerable accuracy.

We can predict that next generation computers will have more powerful microprocessors and the future memory devices will store more with quick recall times. We can predict what is possible with unmanned aircraft in thie military. We can predict winners and losers in some plausible peak oil scenarios. We can predict with considerable detail the impact of melting icecaps that raise sea levels in various amounts -- something devastating to Miami, Florida, but not directly relevant at all in Denver, Colorado. We can predict likely new classes of drugs to treat particular classes of illnesses.

The really hard part, is predicting how unrelated developments influence the choices people make and the technology that they end up using in the bigger picture.

Predicting that digital cameras would improve was a no brainer. Predicting that digital cameras would squeeze film cameras out of the market to a great extent was far harder to predict. that kind of prediction requires a particular kind of consumer level analysis of all relevant choices along with solid estimates of what retail prices are possible for particular services.

Will next generation MP3 players kill compact disks? Quite possibly, but it is a much trickier analysis.

The possibility of digitizing books is long standing, but the niches where this has become common place, like academic journals and legal reference works, was far harder to prediction. And the Google led effort to put the full text of the vast majority of the public domain online has dramatically impacted the future of the online book industry.

It is one thing to point out advances in car technology. It is another to be accurate in predicting the big winners in different modes like rail, road, and air. This is particularly true because methods of transportation like airplanes are as much impacted in flight times, and hence trip value, by security and billing constraints as by technological limitations. Similarly, the winner in the race between diesel, ethanol, gasoline, hybrid-electric, fuel cell, natural gas, hydrogen, and other conceivable motor vehicle engine systems is economically crucial, but hard to pick a winner for. And, how do changes in urban planning figure into the mix? In two decades we will have a new model, but what it will start to look like is hard to tell, in part because technology, far more so than science, is path dependent. When more than one technology was possible at one point, the one chosen is often largely a historical artifact with few technological features that explain it, particularly when compatibility is an issue.

Against Arbitration

I frequently draft contracts for clients. I rarely recommend arbitration.

Pros and Cons

Arbitration is faster than going to court. Arbitration is not much cheaper (if at all) than going to court, although the spending is more compressed. On average, arbitration decisions themselves aren't meaningfully more or less accurate than having a case decided by a judge. But, unlike a court decision, an arbitration award generally isn't subject to appeal, so if the arbitrator gets it wrong, you have no recourse.

There are rare cases where an arbitration decision gets overturned by a court -- sometimes the decision itself doesn't provide an answer to the parties have because it isn't clearly drafted, sometimes it is possible to prove corruption on the part of the arbitrators, and sometimes the arbitrators are so grossly wrong that a court intervenes. (The rare linked case where a court intervened was one where a court first vacated an arbitration award for manifest disregard of employment law, and then ignored the court's order to consider the law on remand to the arbitrator).

Arbitration is generally not a good option when part of the relief a party needs is to direct a public official to take some prompt action (e.g. evict someone, enforce a non-competition agreement with injunctive relief, or impose a preliminary injunction against a governmental rule). It is also not a good option where important evidence is likely to be held by third parties who aren't party to the agreement.

If the stakes are high relative to your net worth, you don't want to have to risk the uncertainty that comes with arbitration, which is even greater than the uncertainty that comes with court resolutions where appeals and review of previous public proceedings can provide insight.

But, arbitration awards can be, and routinely are, affirmed by courts even when it is demonstrably clear that the arbitrators made clear mistakes of fact not supported by the evidence that they heard, or definitely get the law wrong. To be overturned by a court (as in the case linked above), they need to be told by a party what the correct law is, and still snub their nose at the law in a situation where the law is unambiguously clear (in the case above, no attorneys fees at all were awarded to an employee who was awarded substantial compensatory and punitive damages in an employment discrimination case as a result of the employer's proven age discrimination, until a federal court remanded the case for reconsideration).

When Arbitration Makes Sense

For arbitration to be desirable for a client, one of the following things must be true:

1. No individual matter arbitrated must be too important for the client to lose big because the arbitrator reaches the wrong result, and the client must have a large number of matters to arbitrate, OR

2. The client would be significantly harmed by allowing the public to view the process, OR

3. Swift resolution of claims has a value greater than an accurate resolution of claims, OR

4. The skill set or ideological disposition required for a just resolution is completely beyond the competence of judges and juries.

Most cases where arbitration makes sense fall into my first category above.

For any big business that handles lots of transactions with consumers, a substantial percentage of which produce disputes, arbitration is great. The stakes in any individual case are small, the cases are small enough for cases wrongly decided in a customer's favor to be balanced by cases wrongly decided in the company's favor, cases get off the balance sheet quickly, and class actions which can threaten a company's existence are largely prevented from arising. The risk of paying large court costs at the end of a process selected by one of the parties whom the arbitration arrangement has an institutional interest in keeping happy also discourage disgruntled consumers from complaining in the first place.

The laws of probability themselves favor plaintiffs in class actions based on weak cases (often weak because of a legal determination that a judge has to stretch to reach, rather than a factual determination), for example, cases with only a 20%-30% chance of success. On average, most of the plaintiffs will lose one by one, if cases are decided independently. But, they can have a real chance of all winning if they get lucky and a court (and single jury hearing the case) resolve the case in their favor, and this gives class action cases great settlement value, because many businesses could not survive losing a class action case.

Arbitration may be tolerable in these cases for consumers in small transactions too, as arbitration may be somewhat more friendly to pro se parties in small cases. But arbitration is a nightmare for employees or others in transactions which are a big deal for the small player, but no big deal for the big business. The asymetry in this class of cases is what makes arbitration controversial. Probably the most important cases of abuse in this class of casees involve arbitration agreements between securities firms and the employers and investors they do business with, where the track record of abuse is abysmal (not surprisingly, the arbitration award overturned in the above link involved this system).

Another manifestation of my first category involves resolving routine small disputes between repeat players who are "big boys" in a way the prevents all out war from breaking out. Labor arbitration happens because both unions and management see the resolution of individual employee disputes as expendible and small, relative to the need to continue dealing with each other. Similarly, arbitration is a good way to resolve disputes between Realtors over who is entitled to a commission (and how much) when both were involved in a transaction, or between multiple insurance companies over who has to cover a claim when the damages are clearly less than the coverage limits but who is on the risk is unclear. Arbitration is also often a good mechanism for resolving disputes between a general contractor and a subcontractor who frequently work together on construction jobs.

A good example of a case in the second category is a dispute between a patent lawyer and a client over fees. Preserving the confidentiality of the secret patent information and the litigation strategy involved may supercede other interests. Another example of a case in the second category is an arbitration agreement in place between units within a political party over financial disputes between subunits of the party; where the harm litigation could do to the common purpose of all party members outweighs other considerations.

An example of the third class of claims are disputes in sports matches (some of which are high stakes business propositions). Major League Baseball can't afford to let the "pine tar incident" go unresolved (and with it, for the outcome of the season's pennant race) to go unresolved, for the several years that a court process accompanied by appeals can take.

Examples of the fourth class of claims include situations like property disputes involving a gay couple in a region that is hostile to gays, disputes involving the right to hold clerical office, resolutions of disputes over technical scientific questions, and business disputes in countries with poorly developed legal systems in the third world.

Mediation Compared

In contrast, mediation, which simply requires the parties to discuss resolution of a case on a facilitated basis, is appropriate in almost every dispute, unless (1) it is too small a matter to be worth the extra effort to be worthwhile to hire both a third party mediator and a third party judge, (2) it requires too quick a resolution to allow for that delay (e.g. election cases), (3) the is no middle ground for compromise in the dispute, or (4) the parties lack the authority to resolve the matter by mutual agreement.

Courts require, or strongly encourage, mediation in most classes of civil cases and even some criminal matters, anyway.

Mediation's problem, shared with the court system generally, is that the party with the most staying power and best understanding of the likely resolution of the case on the merits is at an advantage. Mediation can legitimatize exploitation of a financially pressured or unrepresented party.