31 December 2008

3500 Posts

At the end of the fourth calendar year of this blog, I've made 3500 posts, squeezing in a few more than usual on this last day of the year in order to hit the magic number.

I'll be back next year to continue looking at science, technology, public policy, and our economy. The future looks anything but bright, but that doesn't mean that it won't be interesting.

Novelty Seeking Linked To Dopamine System

Earlier work has suggested that a propensity for risky behaviors, like driving fast cars, gambling and drinking, is influenced by dopamine, one of the brain’s chemical messengers. Now a team of researchers led by neuroscientist David Zald has confirmed in humans a link between “novelty-seeking personality traits” and dopamine receptors. The team’s results appear in the Dec. 31 Journal of Neuroscience.

“Risk seeking is a basic characteristic that varies widely among people,” says Zald, of Vanderbilt University in Nashville. . . .

Nerve cells excrete and detect dopamine to communicate with the rest of the brain. The chemical controls diverse brain functions — motor control, sleep and pleasure have all been linked to dopamine signaling. A nerve cell detects dopamine released from other nerve cells or from itself through proteins on the outside of the cell called dopamine receptors, which come in many varieties. . . .

To get a better idea about dopamine regulation in thrill-seeking humans, Zald’s team asked 34 healthy adult men and women a battery of questions to determine whether the people were prone to engage in risky behavior. Among other things, the subjects were asked whether they enjoy exploring new situations, make decisions rashly, buy expensive things and feel unconstrained by rules. The higher the score on the novelty-seeking scale, the greater the drive for novelty — which often leads to risky behavior.

Using PET, or positron emission tomography, to scan the volunteers’ brains, the researchers could track the location of an injected chemical that binds to two kinds of dopamine receptors, D2 and D3. The tracer signaled the presence of the dopamine receptors. Subjects who scored higher on the novelty-seeking scale had significantly fewer dopamine receptors in the ventral midbrain region. . . .

When some receptors bind dopamine, they prevent the cells they reside on from releasing more of the chemical in what’s called a negative feedback loop. Since risky people have fewer of these dopamine-dampening receptors, they have fewer checks on dopamine levels. “When stimulated, high novelty seekers release more dopamine, and get a greater reinforcement,” says Zald.

From Science News.

The study did not address why people have different dopamine responses, a classic nature v. nuture question. Heritability estimates based upon twin studies suggest that about 32% of the variation in the trait is attributable to genetic inheritance. See also, e.g., Feeling Good By C. Robert Cloninger at page 292, making it one of the more strongly inherited traits on a seven dimensional Temperament and Character Inventory (in the context of a discussion of epigenetics).

General background on the dopamine system's role in the brain can be found here.

Hovind Convictions Affirmed

Yesterday, the U.S. Court of Appeals for the 11th Circuit affirmed the tax crime convictions of Kent Hovind and his wife Jo Hovind. They are prominent evangelical Christian Creationists.

On the convictions which were affirmed "The district court entered a final order of forfeiture against Jo and sentenced her to one year and one day of imprisonment. The court sentenced Kent to 120 months of imprisonment and to supervised release of 3 years, and ordered Kent to pay restitution of $604,874.87." The forfeiture order substituted $430,400 of property not ordinarily subject to fofeiture, for property that had been fraudulently transferred by the Hovinds and removed from the jurisdiction of the Court.

While the U.S. Supreme Court could entertain an appeal from the ruling, this is highly unlikely.

War, Guns and Butter in 2009

The Iraq War is finally winding down. A new status of forces treaty with the Iraqi government takes effect tomorrow. Security contractors (a.k.a. mercenaries) will be more tightly regulated, U.S. troops will be subject to the Iraqi criminal justice system for certain off duty misconduct, Iraqi's are supposed to call the shots in joint operations, and by July, U.S. troops are supposed to cease operating in Iraqi cities. An ultimate withdrawal deadline has also been set.

President-Elect Obama campaigned on winding down and ending the Iraq War, and it looks as if it may go out with a whimper, winding down in 2009, and ending in 2010, in time for all but a bare bones force to be out of Iraq by the time voters head to the polls at the next election. Almost all of our allies in the Iraq War have already withdrawn or are well on their way to doing so.

The civilian government in Iraq is weak. Provincial elections are scheduled, but are still months away. The prospect of strong regional governments emerging is still a distinct constitutional possibility. Refugees aren't headed home. The Iraqi military, police forces and government officials still all lean heavily on the U.S. military. The fighting has died down compared to earlier periods in the conflict, but there are still regular brutally violent attacks by insurgents, and there are still major unresolved political puzzles like the government of Kirkut.

After a period of high tension, Iran is drifting away from the spotlight as a nuclear threat and alleged mastermind of insurgents who act as their proxies in Iraq. Iran has even joined the U.S., the U.K., China, and just about every other navy under the sun in joining an ad hoc coalition of naval forces fighting pirates based in Somolia, which remains lawless, despite Ethiopian military efforts to impose some kind of law and order on the warlord ruled failed state.

Afghanistan, meanwhile seems to be heating up. After hitting a low point, Taliban insurgents there seem to be gaining strength. Recent strikes have hit government offices in the capital of Kabul. As many as 20,000-30,000 of the soldiers leaving Iraq may head to Afghanistan to roughly double the scope of U.S. involvement there. The U.S. involvement in the Afgan War is just entering its seventh year, making it one of the longest foreign wars in U.S. history. President-Elect Obama pledged in his campaign to devote more attention to this war.

The good news is that the war in Afghanistan has not caused the entire middle class to flee the country. The bad news is that this is because they all left two or three decades ago and have never come back. Afghanistan has been one of the world's leading sources of refugees for most of my life. Decades of war have left an entire generation uneducated in anything but war making. The leading export crop remains the poppy; Afghanistan dominates the world heroin supply, and the theocratic insurgents appear to be fine with sharing power with narcotics entrapeneurs.

Rather than primarily consisting of urban patrols, air strikes and artillery fire, as well as convoy ambushes seem to characterize the Afghanistan campaign militarily. Like Vietnam and Iraq, this war has been since very early on in the U.S. involvement, a counterinsurgency. The civilian government, made up of a coalition of warlords who were united in providing the last whisp of resistance to Taliban rule before the U.S. intervened in the civil war for control of the country, was initally stronger than the virtually built from scratch regime in Iraq. As a result, the U.S. military presence in the country has been smaller, and U.S. casualties have been lower.

Of course, the main reason the U.S. got involved in the conflict in Afghanistan in the first place had almost nothing to do with the dispute over whether the Taliban or some other coalition should serve as the legitimate government of Iraq. While the international consensus was that the Taliban (who have their roots in Saudi Arabian Islamists) maintained one of the most oppressive regimes in the world, the U.S. intervened because the 9-11 terrorists were based there. Now, those terrorists have largely relocated to parts of Pakistan only loosely controlled by the central government.

Pakistan lacks the means, and perhaps also the will, to close in on and eliminate these terrorist groups themselves, but unlike Afghanistan and Iraq, they have a large enough military complete with nuclear weapons, to prevent the U.S. from simply forcing regime change or acting unilaterally. Meanwhile, groups based in Pakistan and believed to have links to covert operations by the Pakistani government, have launched the Thanksgiving terrorist attacks on Mumbai, India, and have kept a war in Kashmir, and ongoing campaigns of terrorism in India, going for decades.

Beyond the thicket of all of these conflicts, and related ones in which the U.S. military is more tangentially involved, like the Israeli-Palestinian conflict, the Kurdish insurgency in Turkey, and the Ethiopian involvement in Somolia, there are also at least three other major potential military threats out there.

One is the resurgence of the Russian military, currently copying techniques previously put in the history books by the Americans, by sending its navy on a world tour, involving itself in military conflicts near its borders, and espousing increasingly bellicose rhetoric.

Another is the growing importance of the Chinese military, which provides a conservative and nationalist counterpoint to the long term trend towards economic development and an quasi-capitalist economic regime there. It remains to be seen whether China will evolve into an ally before the next major Chinese military operation begins, or will become an adversary.

Finally, there is imploding North Korea, which is the most heavily militarized society on Earth, has rudimentary nuclear weapons and medium range missiles, has a leadership vacuum in the face of a seriously ill leader, and appears to be rushing headlong into another silent tragedy of mass starvation. China sees North Korea as an area of its influence, but is also frequently ill treated by North Korea itself.

It is in the face of this world situation that the Obama administration will have to make decisions on the guns v. butter military funding and procurement decisions of the Department of Defense. While Obama will be retaining the current Secretary of Defense for a while longer, his administration clearly has some ideas for changes in priorities.

The U.S. military will be fighting counterinsurgencies for the forseeable future, and has only developed those capabilities on an ad hoc and emergency basis, so it seems likely that one development will be to make a more focused effort to develop military capabilities appropriate to those conflicts. This means fewer military systems aimed at high tech adversaries with major military equipment, and more focus on contending with light irregulars and upon learning how to win hearts and minds in the general population.

So long as North Korea, China and Pakistan have nuclear weapons, and countries like Iran seem interested in some day having them, it seems likely that some sort of missile defense system aimed at stopping small numbers of missiles from emerging nuclear states will continue to be developed, although not all parts of this multi-service hydra seem likely to survive. The Navy's program has been the most successful in producing results, so it seems most likely to survive.

Our military response to China and Russia are immensely important from a defense budget perspective, but are also sufficiently in flux diplomatically, that it is hard to know how best to respond. These two countries drive the force structure of the Air Force and Navy, as well as important parts of the U.S. Army, because they are the most militarily powerful potential adversaries of the United States. But, U.S. efforts to date seem more focused on containment than upon attacking them. If relations with these countries can be calmed, there is room for major defense budget cuts that our national budget would find very helpful. But, if these nations grow more bellicose, we could be starting a new Cold War.

Shout Out To Abbedi

Frater Steve's who blogs at Abbedi, is an aspiring writer who moved to Denver in early November and is now looking to find work and start fresh. He chronicles his saga on his blog, and alas, making a go of it from scratch is not the easiest thing to manage in Denver these days.

Welcome to the Colorado blogsophere.

Stakes Raised In Angie Zapata Murder Case

Prosecutors have added a habitual offender count to the charges brought in the Angie Zapata murder case. A judge ruled that the case should proceed to trial at a September 18 arraignment. A jury trial is set to begin April 14, 2009.

The habitual offender count implies that prosecutors believe that the Defendant has been "three times previously convicted" of felonies, "upon charges separately brought and tried, and arising out of separate and distinct criminal episodes." See Section 18-1.3-801, Colorado Revised Statutes. Felony drug offenses that would be misdemeanors under current Colorado law are excluded. This is known in criminal justice circles as the "bitch."

The case has attracted national attention because Angie Zapata, age 18, was a transgender women, born male but living as a female, an identity she had held since age twelve. The defendant's discovery of her transgender status, following a consentual sexual encounter, is alleged to be the main reason for the murder.


The habitual offender count has the effect of lengthening any sentence imposed four fold. If the conviction is for murder (including heat of passion murder) the sentence would be life in prison with a possibility of parole after forty years.

Given the Defendant's age, 32, there is little difference between a forty years to life sentence as a habitual offender for heat of passion murder, and a life without parole sentence as a result of a first degree murder conviction (presumably for felony murder because he allegedly stole Zapata's car immediately after killing Zapata).

Given the fact that the defendant has reputedly confessed to, at least, heat of passion murder, was taped making incriminating statements in a telephone call to his girlfriend from jail, and that he is linked by some physical evidence through possession of the victim's car to the crime, it will be very difficult, absent any successful claim of an improperly obtained confession or improperly gathered evidence, for him to escape conviction and a life sentence.

The habitual offender count also means that even if he is convicted only of a lesser charge, such as felony car theft or felony identity theft, he could easily spend more than a decade in prison.

The charge also makes almost any plea deal that drops the habitual offender count and the first degree murder count, or drops the murder counts entirely even without dropping the habitual offender count, more attractive than going to trial.

California Compared

While Colorado's habitual offender statutes are stiff, they are modest compared to those of California, where the California three strikes and your out law produced one of the few cases where a non-capital sentence has been held to violate the 8th Amendment protection against cruel and unusual punishments under the constitution.

In the California case, a sex offender's conviction for failing to complete a change of address form within five days of his birthday (he was acquitted of a parallel failure to register within a year of a change of address, and the evidence at trial revealed that parole officers actually did know where he lived even though he didn't register formally), drew a 28 years to life sentence. The plea bargain he has been offered was two years in prison, a fact notable for the indication it gives of how serious prosecutors felt the case was to them.

A comparable conviction in Colorado probably wouldn't have been eligible for habitual offender status at all (he had three prior convictions, at least one of which was more than ten years old), and would have produced a nine year sentence, rather than a life term, if the convictions had been recent enough.

Other cases involving California's three strikes and you're out statute have sent individuals to prison for life for what amount to shoplifting charges.

Other Colorado Habitual Offender Provisions

In addition to Colorado's four fold habitual offender sentence awarded to those with three prior felonies who commit another felony, Colorado has at least three other habitual felony offender provisions.

One imposes a 40 years to life sentence for someone with two prior convictions for Class 1 (first degree murder or first degree kidnapping), Class 2 (e.g. ordinary murder or drug kingpin drug dealing) or Class 3 felonies that are crimes of violence (like heat of passion murder or a serious aggravated assault), who are again convicted of such serious crimes.

Another imposes a three fold sentence one an offender with two prior convictions of felonies punishable by three or more years in prison, within the past ten years.

A third imposes a double sentence for an offender convicted of aggravated burglary with a prior aggravated burglary conviction within the past ten years.

Footnote On Timing

The speed with which very serious criminal cases like this one progress is notable. The murder took place on July 15, 2008, and was discovered two days later. Thirteen days after the murder was discovered, there was an arrest. Pre-trial dismissal for lack of evidence was ruled out less than two months after the discovery of the body. Yesterday's added count comes five months after the arrest. It is likely that a trial will be commence, or that a plea bargain will be struck, within nine months of the murder. A sentencing hearing could be completed within a year of the murder.

Under Prepared College Students

Many college students need to take remedial courses at the high school level before they are ready for college level work.

One-third of Colorado high school graduates need remedial classes when they start college every year. . . . This year, about 30 percent of the state's high school graduates who attended college had to take at least one remedial class in reading, writing or math. Among first-time students at community colleges, that number is almost 60 percent.

Students say the classes are onerous. They're not particularly interesting, they don't count toward a degree and they cost roughly $250 per class. . . .

At Denver's Abraham Lincoln High School, 43 percent of graduates needed at least one remedial math or reading class in 2006. This year, that number jumped to 78 percent. At Aurora Central High School, 57 percent of graduates needed remediation in 2006. That number increased to 71 percent in 2008. . . .

School districts think that a diploma should mean students can pass entry-level math and reading in college. Colleges think middle and high school teachers should know how to prepare students for tougher course work.

Making Distinctions

Some students are farther behind than others.

Math is the most common area where remediation is needed, and for a plurality of students needing remedial work, this means taking the equivalent of a single trig or pre-calculus class because they only mastered two years of algebra and a year of geometry in high school.

Most students who need only a little remedial math, who have solid literacy skills, usually go on to major in an area where advance math is not required, like the humanities or elementary or middle school education or special ed, take the mininmum number of math and science courses in college at the most basic level that will satisfy the curricular requirements ("rocks for jocks" captures the concept, if not the specific courses actually taken), and go on with their lives.

Indeed, a stronger focus on academics for these marginal students, who need only a course or two of remedial work in mathematics, probably could greatly reduce the remediation rate for college bound students, and increase college graduation rates as well.

More troubling are college bound students who need remedial reading or writing classes, or more basic math instruction (the equivalents of high school geometry and algebra one, or more basic math classes, for example). If a student is missing some specific mathematics background, the solution is to take a class and success or failure in overcoming that gap is easy to evalute with a paper and pencil test.

But, deficits in general literacy or basic numeracy are typically much less straight forward to remedy. If you are eighteen or nineteen years old and can't read at a college level, an English class or two is unlikely to remedy that problem for someone whose native language is English. Further, while a single math class may be enough to bring an otherwise college ready student to a state where that student is clearly as prepared as anyone else, even if reading and writing remediation gets a student over some arbitrary requirement, it is likely to just barely do so.

Also, we know that academically unprepared students are at a high risk of swiftly dropping out of college, even if they can complete remedial classes. While this doesn't mean that improving literacy and basic numeracy isn't workwhile for those students, it does make remediation for the purpose of preparing these students for college a questionable goal.

If English is your native language, and you had a typically American upbringing complete with twelve years of public or Catholic school attendance, and you can't handle basic math, or have sufficient literacy to function in college, jobs that require a four year college education or a rigorous two year program (like an associates degree in nursing) are probably not a good idea for you in any case. You should not be a teacher, or doctor, or registered nurse, or lawyer, or stock broker. You should not run for President or U.S. Senator. Pre-college preparation may make sense if you need it to get a two year degree in a not terribly rigorous program so you can have a credential for a career where the focus in not on math or literacy. But, otherwise, you should be focusing on whatever literacy or life skills are the greatest barrier for you in life, not on going to college.

A Systemic Issue

The numbers are not surprising. They are an inevitable consequence of a system where marginally compliant participation is enough to graduate from high school at age eighteen, and a significant proportion of the higher education system admits all high school graduates and GED completers on an open admissions or very nearly open admissions basis.

American public high schools are currently designed so that anyone who is moderately compliant and isn't seriously developmentally disabled can graduate with their peers. We have been moving in this direction, more or less steadily, since the late 1940s and early 1950s. As a result of this underlying American approach to K-12 education, the U.S. has among the highest high school graduation rates in the world, but in exchange, has a large swath of students who are completing a very non-rigorous academic program.

Almost every other country in the world has more rigorous standards for earning a high school diploma, that are more on a par with what is necessary to do college level academic work. Essentially, no one who wouldn't be well prepared to, and likely to, at least complete a two year college degree in the U.S., graduates from high school in the vast majority of the countries in the world.

As a result, these countries have lower graduation rates. They offer better career prospects for high school graduates with no further education, since a high school diploma meaningfully sorts by ability). They attach a less severe stigma to dropping out of high school, since far more of their high school dropouts are capable of functioning in society generally, and in a workplace in particular, as compliant, reasonable individuals.

An American high school diploma, in contrast, guarantees an ability to function in some sort of work setting and as a particpating member of society, but doesn't guarantee that the graduate has any skill other than basic newpaper reading level literacy, and rudimentary arithematic skills.

More people fail to graduate from high school because they skip class, don't turn in work, are a disciplinary problem, or get pregnant, than fail because they simply aren't smart enough to barely complete the minimum number of high school classes required to graduate at the lowest level of rigor available. Indeed, otherwise compliant children who are not smart enough to complete high school level work frequently do graduate by completed an individualized education plan. The K-12 education system places a greater premium on socialization than it does on academic achievement.

On the other hand, high school dropouts tend to be non-compliant, in part, because academics don't come easily to them. Most were performing far below grade level and doing less than satisfactory work in class five or ten years, before dropping out. If you are bad at school but sweet, you graduate. If you have serious trouble in school, and are a troublemaker, you don't.

American higher education, in contrast, has generally required that its graduates be able to function in terms of literacy and numeracy, in a mangerial or professional or technical or higher level administrative or sales position. The requirements for a four year degree are typically set at levels that no one with below average academic ability can meet.

Social promotion is the norm, rather than the exception, for students in the K-12 system who are performing below grade level academically. It is quite rare for a child in the K-12 system to be held back a year, and even more rare for a child in the K-12 system to be held back more than one year; but it is also rare for a student to be moved ahead a year, and is very rare for a stduent to be moved ahead more than a year.

In contrast, colleges and universities routinely fail students who fail to perform, particularly in math, the sciences and foreign languages. Flunk rates of 50% or more in first semester college calculus, physics, chemistry and first year foreign language classes are not unusual at colleges and universities that aren't highly selective. The humanities and social sciences, and pre-professional teaching and business classes are less likely to flunk students, but are far more likely to dish out poor grades to students who don't perform satisfactorily.

By the time college and university students in four year undergraduate programs have completed their sophmore year, a large percentage of the entering class, and the lion's share of students who will drop out, have been culled from the program. Associates degree programs that require math or science have typically culled academically unprepared students by the end of the first year.

It is easier to earn a college degree despite fairly weak academic ability now than it was fifty years ago, as the percentage of students attending colleges and universities has ballooned, but colleges and universities still maintain some meaningful academic standards.

While not every person academically capable of graduating from college does graduate, and while financial need is an important factor preventing many academically capable people from graduating, the notion that every child can graduate from high school ready for college, and in turn earn a college degree is a pipe dream. It is impossible without dramatically easing the academic requirements for earning a college degree.

A large percentage of people, probably well over a majority, of people who do not earn college degrees in our current system are incapable of doing so without extraordinary support from a team of tutors in every subject in addition to their actual professors, and a full time personal life coach to manage them.

Right now, about 60% of high school graduates attend some college and about half of them earn college degrees. To make every high school graduate ready for college, even with diligent efforts and reforms, we would have to deny high school diplomas to 10-20% of people who are now college bound high school graduates, and a much larger percentage of the roughly 40% of high school graduates who never even attend a college. Realistically, high school graduation rates would have to be cut by at least 30-40% to limit high school diplomas to students who are actually ready for college, even if we intensified efforts to better prepare students on the margins.

This isn't a product of bad K-12 teaching. A large percentage of people are simply incapable of reaching a college level of academic readiness without vastly greater resources (by which I mean several times as many educators per student and changed curricular methods) devoted to them, and those students would be less successful in higher education than existing college students, even then.

The unequivocal evidence from vast amounts of educational testing is that students who are performing at a low academic level at the third and fourth and fifth grades, face overwhelming odds against ever catching up without interventions not found even in schools that are safely in the top quarter or fifth the scale by every measure of teaching input quality, overall academic success and instructional progress. It may not be impossible to achieve this goal, but it is practically impossible within anything even vaguely resembling our current system.

The evidence also overwhelmingly suggests that the disparities in academic performance seen by the late elementary years have only the most modest connections to disparities in what happens within elementary schools themselves. Students are not one or two grade levels behind in third grade because their kindergarten, first and second grade teachers were awful.

Realistic Options

I don't favor converting to a Japanese/European high school model where far more people don't earn diplomas. In the American federal system, this would stigmatize and disadvantage students who now earn diplomas and don't go to college, to an unjustifiable extent. The states that innovated first, would hurt their own students the most in a national labor market where a failure to receive a high school diploma has dire economic conseqeuences.

But, it wouldn't hurt to have an "extra" certification or commendation for students who are truly ready for college, that could be part of a high school diploma or independent. It might also make sense to make that "college ready" credential something that one could earn in local community colleges, which are better designed to deal with these students, than either high schools and four year colleges and universities, neither of which is well adapted to non-traditional students.

Finally, college admissions offices and financial aid offices should make a distinction between truly college ready students, who ought to be able to gain admission somewhere in the public higher education system and who should receive adequate financial aid based if needed, and high school graduates who are not "college ready" who should not be admitted, funded, and essentially encouraged to fail as a way of financing more academically able students.

Instead, students who are high school graduates who are not college ready should be encouraged and funded to participate in either college ready certifiction programs, or career and life oriented continuing education and certification programs, set up as another wing of the community college system with programs that are useful requiring less sustained study and less academic ability than ordinary community college programs. Indeed, some associate degree and certificate programs that don't require high levels of literacy or high level mathematics should be reassigned to this division -- expanding opportunities for high school graduates, while helping to restore the rigor associated with the remaining two year programs.

29 December 2008

TSA Stupid As Usual

Gunpowder, no problem; bamboo flutes, a serious threat.

Few Cops Shot and Killed In 2008

In 2008 "fewer officers were killed by gunfire (41) than in any year since 1956. That compares to 68 firearms-related deaths in 2007." In 1956 "there were 35" while there was a "peak of 156 officers killed by gunfire in 1973."

There are, of course, far more law enforcement officers in the United States now than there were in 1956, so per 100,000 law enforcement officers, this year's gunfire death rate for law enforcement officers is even more exceptional. The years 1953-1955 were all higher in raw numbers of law enforcement deaths from gunfire than 2008 as well. There are currently roughly 700,000 law enforcement officers in the United States (extrapolating to include non-reporting jurisdictions). In 1956, the number was closer to 273,000 police at the state and local level, in addition to some federal law enforcement officers.

So far, 140 law enforcement officers have died in the course of duty in 2008, compared to 181 in 2007. Per 100,000 law enforcement officers, this is near a record low as well.

Traffic accidents are now the leading cause of on the job death for law enforcement officers, for the 11th year running.

Fairly low homicide rates, improved medical care, and increased use of bullet proof vests, and safer police cars have probably all contributed to the low levels of officer deaths in 2008.

The data are from the National Law Enforcement Officers Memorial Fund and another group, Concerns of Police Survivors.

28 December 2008

Black Women Getting Short, Fat, & Earlier Puberty

Progress sometimes takes a two steps forward, one step back trajectory.

The average height of a black woman born in the 1980s is just under 5 feet 4 inches; her mother, born in the 1960s, is more than half an inch taller. Even her grandmother, born in the 1940s, is a bit taller. The average white woman born in the 1980s is about half an inch taller than her mother. . . . You have to go back to the antebellum South to find a similar shrinkage. The generation of white men born in the 1840s who experienced the ravages of the Civil War lost nearly an inch to their Northern counterparts. . . . the average height of adult Americans born from 1975 to 1986 has edged up again—with the exception of black women, whose height is moving in the opposite direction. . . .

Also baffling . . . is the disparity between black men and black women, "since they are subject to the same pre-birth conditions" and then grow up in the same environment.

"The only reasonable explanation we can come up with is diet and the obesity epidemic among [middle- and low-income] black women," said Komlos.

Over the last three decades, the prevalence of obesity among white Americans has tripled, while among blacks it has increased fivefold. . . . Almost 80 percent of black females are overweight or obese, compared with 62 percent of the total female population, according to the CDC. . . . Twenty-one percent of black females ages 2 to 19 are overweight or obese, compared with 12 percent of white girls.

Another oddity . . . is that black children, both male and female, grow faster and taller than their white counterparts in early childhood, but whites catch up and pass them during the teen years.

Pediatric growth experts offer one possible explanation. High caloric intake from an unhealthy diet fuels an early growth spurt among black children, plus it speeds the onset of puberty, especially for black girls, who now begin menstruating 8 1/2 months ahead of white girls. This early onset of puberty reduces the duration of the critical pre-adolescent growth spurt, resulting in a lower adult height.

25 December 2008

Park Hill Kudos

Park Hill has been honored as one of the ten best neighborhoods in the nation.

The linked story only alludes to the fact, but Park Hill is notable as one of the few middle class, mixed race, old neighborhoods between Chicago and Los Angeles.

Meanwhile, in Las Vegas, in connection with an upgrade of I-15, the city has permanently closed F Street, a major arterial linking one of the city's few predominantly black neighborhoods (on the west side) to downtown and to government buildings, by walling it off. This has prompted outrage as an effort to further isolate and segregate the city.

22 December 2008

Independence Institute Wishes You Were Dead.

Mike Krause, writing only half toungue in cheek in an opinion column in the Denver Daily News today on behalf of the libertarian Independence Institute, moans and whines about how horrible and oppressive it is that Amendment 35 (which raised tobacco taxes to pay for anti-smoking efforts and children's health care) has reduced smoking in Colorado by twenty percent. He says this while accepting that "Cigarette smoking accounts for roughly one-fifth of Colorado deaths each year."

Basically, he wishes that thousands of Colorado smokers were dead, as they would be without Amendment 35 (and the equally important, but uncredited, indoor smoking ban we have in the state).

His argument is from a public finance perspective. He reasons that less smoking means fewer tobacco taxes to pay for children's health, and smokers who quit live longer implying larger lifetime health care costs. Needless to say, his argument is neither rigorous nor convincing. For example, in addition to the inherent benefits of having healthier people who live longer, healthier people who live longer also pay more taxes, and leave behind fewer people who depending upon them for support.

Krause's column is a typical example of the cold hearted, morally adrift attitude that gives libertarians generally a bad name, and that confines the Independence Institute to the realm of crackpots, as opposed to serious participants in the public policy discussion. If he's serious, he's sloppy and wrong headed, and if he's joking, he's violated the first rule of humor at the expense of others -- it's only funny if nobody gets seriously hurt in the process.

The facts he cites are interesting, however. Effective P.R. really does work, something that sponsors of Amendment 35, Denver Water (which recently congratulated its customers on their low water consumption in the record hot 2008 summer despite minimal coersion), and Japanese government officials (who use P.R. heavily in lieu of regulation) understand, but academically trained law and economics types, who too easily assume that people are rational actors operating with near perfect information, do not.

21 December 2008

Is Nottingham Giving Up?

Former Chief U.S. District Judge Edward W. Nottingham Jr. did not file a response to misconduct allegations that could put his law license in jeopardy.

Sean Harrington, a legal blogger who runs the website knowyourcourts.com, filed a misconduct complaint about the former judge with the Colorado Attorney Regulation Counsel and with the 10th Circuit Court of Appeals.

From here.

(Harrington's website is more of a resource for activists interested in reforming courts and addressing alleged judicial and legal profession impropriety, than it is a traditional law blog, but Harrington is a regular commentor on pertinent issues at this blog and has worked hard to have a documentary and factual basis for offering Internet commentary on those issues.)

Judge Nottingham resigned from the 10th Circuit, rendering that matter moot. But, not responding to an inquiry from the Colorado Attorney Regulation Counsel is normally the sort of thing done only by lawyers who have abandoned their practices entirely. Failure to respond to a complaint itself can be considered as serious a matter as any underlying offense by the Regulation Counsel.

The far more typical response would be a letter vigorously disputing the claims made, or a defense at the very least directed towards mitigating any penalty supported by a raft of character witnesses. Often, this produces a very mild ultimate sentence such as a public reprimand, while sanctions in a case where an attorney fails to respond are often far more serious. This is particularly true in a case like his where the public allegations made against him, while embarassing, aren't terribly serious and there are no allegations that his professional output was impacted.

Nottingham would certainly have the financial means to hire a competent attorney to defend him (something he appears to have done already), the intelligence to assist in his defense effectively, and no shortage of people who would be eager to testify as character witnesses on his behalf. Nottingham is also has enough working age years ahead of him to make his law license quite economically valuable. Many medium and large sized Colorado law firms with leap at an opportunity to hire him.

Nottingham's reputation for strict attention to detail during his judicial career, and the fact that he is currently represented by counsel (according to the newspaper report) also makes it seem unlikely that he could have accidentally failed to respond in a timely manner if he was not truly depondent at his meteoric fall from high judicial office. One can imagine that a response might be considered futile if a 5th Amendment claim were contemplated or there was an informal agreement of prosecutors not to press charges if a law license was quietly surrendered, but those possibilities don't seem likely. One would normally, at least, make some response, even if it was to formally decide not to contest the charges or to request a delay in the handling of the matter, in that situation.

It is, of course, possible that the story is inaccurate in stating that there was no response, or that no response is due yet. Time will tell how this case resolves itself.

Dishonest Abusive Denver Cop Prosecuted

Det. Michael Cordova, a Denver police officer who was caught beating up a bicyclist on videotape and then lied about having done so in court is being prosecuted by Denver's District Attorney.

Charges initially brought against the man beaten were withdrawn, and Cordova is now being prosecuted for assault. Perjury charges have not been brought. It isn't yet clear what discipline Cordova will face from Denver's police department.

19 December 2008

Nature and Context

The notion that you earn and determine how your life turns out, is taking hits on both the nature side and the nurture side.

Appreciating the Power of Nurture

On the nature side, genetic and psychological research into individual traits like IQ and psychopathy how powerful impact on people's lives.

Research is more and more conclusively establishing that some people are smarter, and hence more likely to be successful in our society, from very early in life -- if not genetically, or during pregnancy, at least, early childhood. Research I saw in the last month indicated that even the factor associated with "general intelligence" may be under inclusive. Men with higher IQs also have sperm that are more fit according to criteria decided before the link was studied, and it may be the case that some of what is called IQ is an even more unfair general "fitness" factor. Recent research has also shown that the hereditary component of IQ actually increases as people age, rather than decreasing as a result of people's life experiences and other environmental factors.

The recurring theme of measure after measure of educational achievement is that a large number of factors that should be important to educational outcomes, like teacher training, per student education spending, and other school operations inputs, are dwarfed in importance by the socio-economic backgrounds, IQs, school attendance, and the length of time a child stays in the same school. Only the very worst and the very best schools and teachers tend to do much to push children far off the educational achievement course they are predisposed to follow.

Likewise, it is increasing clear that some people, at a very early age show the lack of conscience and empathy that strongly predisposes them to psychopathic criminal conduct later in life. These traits also start to manifest in early childhood. Moreover, a handful of other tendencies with strong hereditary influences, like untreated mental illness, predisposition to addictive behavior, impulsivity, and lack of anger control play a strong role in the criminal histories of many inmates without a lifelong history of psychopathic behavior.

Even the researchers that most heavily emphasize the power impact of genetics on how people become, however, acknowledge that even genetically identical people, like twins, can turn out very differently in important ways.

Appreciating The Importance Context

Outside the realm of genetics, however, there is also a growing body of research that indicates the importance of context in how people act.

Psychologist Philip Zimbardo (and along with Stanley Milgram, who died twenty-four years ago tomorrow), have made names for themselves establishing how powerfully social context could coax ordinary people to do evil things, a concept sometimes called the "banality of evil," and its flip side, the "banality of heroism," that suggests that many heroic acts are the product of ordinary people placed in unusual extraordinary situations. Many people who recognize a situation that urgently requires action and see no one other themselves in a position to act, will sacrifice themselves or put themselves at risk for the greater good. Few people (themselves, in part, determined by the social circumstances) resist following orders issued by someone who appears to be in a position of authority, until resistance to that authority is established.

Context reinforces and supplements the impact of personal charactistics in one's propensity to crime crimes. Most people who commit economic crimes, like larceny and drug dealing, do so to a great extent because they are poor and lack another livelihood. Domestic violence rates have been linked to economic stress. A great deal of serious crime is a product of illegal activity by gang members and other organized crime participants, whose involvement is often closely related to the neighborhood where they grew up or went to school, a phenomena sometimes known as sociopathy.

Malcom Gladwell, in his book Outliers has likewise made the case that being in the right place at the right time with the right social connections and upbringing, is critical to extraordinary success. Of course, certain abilities and certain kinds of hard work are necessary to achieve greatness in particular areas. Short guys who don't practice don't become professional basketball players. But, neither great ability nor hard work are sufficient, and one doesn't have to be the best to achieve the greatest amount of success.

Some of the context that is important, at least, makes sense in a logical way, even if it is unfair. For example, the social capital inherent in being born rich helps on succeed. But, some of the important context is far less logically obvious. For example, according to Gladwell "hugely disproportionate number of professional hockey and soccer players are born in January, February and March."

Similarly, most new industries and institutions have "founder effects" that give an edge to those who are the first to implement a new idea or take a leadership role in a new agency. My father-in-law's radiology practice thrived, in part, because it was one of the first to make new technologies available in greater Buffalo. My father's career in academic environmental science was not unrelated to the fact that he was present and part of the movement on the first Earth Day, when the field of environmental science hadn't yet come into being. Much of the institutional culture of the Central Intelligence Agency arises from the decision to recruit many of its first agents from Ivy League colleges. Much of the institutional culture of the Federal Bureau of Investigations flows from the decision to recruit many of its first agents from the ranks of lawyers and accountants.

One of the most interesting studies in the sociology of complex organizations and academic business management compared two factories built in different countries from precisely the same blueprints to produce precisely the same product. Despite the identical physical circumstances of the workers at each, the way that the two factories operated was profoundly different, as a result of the different social contexts of the two plants.

One of the smarter things the Denver Public Schools have done was to completely shut down Manual High School before reopening it, initially with just a single class of freshmen, and a new freshman class added each year as the existing students advanced, to give the school's failed institutional culture a cold restart from scratch.

What's Left?

Neither the proponents of heredity, nor the advocates of the importance of context say that either factor is destiny. In Stanley Milgram's famous experiment, a few people did resist authority. In fascist Japan, there was a civil servant who defied orders from his superior issuing immigration papers to two thousand Jews. Not everyone presented with an opportunity to be a hero take it. There are plenty of brilliant people who do not achieve comparable socio-economic success. There are people who manage to upset the apple cart in old institutions to give them revived institutional cultures. People pre-disposed to be fat can lose weight.

The decisions you make in your life do matter. But, the legal ideal of equality of opportunity turns out to be the exception, rather than the rule in real life. The choices that life gives you an opportunity to make are not the same for everyone, and how you react to the opportunities that do present themselves to you are heavily influenced by the way that you were born.

Personal responsibility makes fine rhetoric and assuming that people have complete freedom to make choices may be the practical thing to do in many situations. But, claims that someone is successful as a result of extraordinary virtue, or in trouble as a result of willful bad decision making should be taken with a grain of salt.

Colorado Budget Busted

The Legislative Counsel of Colorado's General Assembly says that state revenues will be $604 million short of those budgeted. The Governor's office had earlier predicted a mere $77 million shortfall.

Either way, deep cuts are in store for state spending in 2009. Unlike many states, TABOR and related Colorado Constitutional provisions make it almost impossible for the state legislature to increase taxes in any way in short term, so the pain will have to come almost entirely from spending cuts and user's fees. Colorado also has very limited powers to incur debt to pay for current expenses and has no meaningful rainy day fund.

Previous budget battles in recessionary times have shown that much of the state budget is largely untouchable, either because it is outside the state general fund, or because it has protections as a result of the state constitution, federal grant provisions, or the simple impractibility of, for example, prematurely releasing prisoners serving long prison sentences in numbers large enough to make a short term budget dent. Other budget line items, such as those in the Department of Regulatory Agencies or Department of Revenue, either are too small to make a difference or pay for themselves in fines and other revenue generation.

Higher education is the most vulnerable state budget item. General fund transportation expenditures are also very vulnerable.

18 December 2008

Pearson v Chung Decision Affirmed On Appeal

The ruling on all claims against administrative law judge Roy Pearson in his $54 million plus lawsuit against the Chungs, who are dry cleaners, on appeal from a Superior Court trial in the District of Columbia, has been affirmed. The only further appeal would be discretionary review by the U.S. Supreme Court, which is exceedingly unlikely.

RTD Connects To Park Meadows

Yesterday, long after the rest of the T-Rex project was completed, the bridge from the Park Meadows Mall (near the Denver Tech Center) to the RTD light rail stop at that location opened. Prior to this point, one had to take a pedestrian bridge over the light rail line to a commuter parking lot, and then take a shuttle bus from the commuter lot, under I-25, to the mall.

RTD jurisdictional issues and disputes with prior and current owners of the mall, who don't want their parking lots to be used by commuters, held up the project. When I lived in Buffalo, New York, a similar dispute, mostly based on concens that lower income people would come to a mall if it were transit accessable, lead to the death of a young woman who took a short cut to avoid being late to her job there.

While this is a long overdue and welcome development, it has probably happened too late, coming a week before Christmas, to have much impact on this year's peak shopping season.

At Least He's Not Your Boyfriend

Beware a boyfriend who sends you a 1099 for the $10,500 of "services" you provided him, which you thought were gifts. The IRS isn't very impressed by this behavior either.

17 December 2008

Hotmail Face Lift Hideous

The latest face lift and format change of the free e-mail service Hotmail, apparently now rebranded as "Qwest Mail" is really hideous. The user interface is far more clunky and there doesn't appear to be any way to revert it to its previously functional and simple self. No communication I've received about the transition, which suddenly appeared, points out any convincing reason that the change is good.

I suppose that free loaders can't be choosers, but I still am not convinced that deliberately taking a decent product and making it an inferior product ever makes good business sense, despite the fact that companies like Microsoft have set a precedent for this practice. This certainly creates negative goodwill for telecommunications company Qwest.

More informative ranting on the evils of Microsoft and on the evils of this particular numskulled transition in particular can be found here.

Customer feedback at a Microsoft blog where the change was announced is furious! (As noted by PC World magazine and other industry publications, which also noted Microsoft's typical unsympathetic and defiant response. Another example of the negative feedback can be found here. My dear wife's account was forced through the transition before mine, so I've been hearing about the horrible quality of the new version for weeks now.)

Shane O'Neill sums up the situation when he writes:

Microsoft has Vista-esque user dissatisfaction on its hands with the new Windows Live Hotmail. . . . why did it come to this? With the Windows Live Hotmail redesign, did Microsoft bring an unprepared upgrade to the public too soon, as it has been accused of doing with Windows Vista?

A comment at another magazine/blog was rather more livid:

Mike Sh**witz is the Devil! Only a spawn of Satan would stick a pitchfork on million of formerly loyal MS fans.

In typical quality control free, inflict beta test versions on the masses Microsoft tradition, the first two weeks of the new version produced "several thousand comments," "several bugs," and "five updates to the code."

The principal people whose names are attached to and are taking responsiblity for this dreadful fubar are "Ellie Powers, program manager, Windows Live Hotmail" (aka Ellie Powers-Boyle), who apparently took the post as of December 3, 2008 (she is a 26 year old M.I.T. grad who has been a developer on the e-mail side since August 2004 with the company), and "Mike Schackwitz, Lead program manager, Windows Live Hotmail." It isn't entirely clear if this is a change personnel in the same post, or whether they are different members of the same team at Microsoft. We can hope that Schackwitz (photo here) was fired for incompetence, but I suspect that isn't likely.

A May 2007 story at CNET News provides some backstory and explains that Microsoft already tried to make the transition it is making now and abandoned it the first time because so many users hated it, despite the fact that the development team was horribly demoralized by this turn of events. Apparently, the dike was only briefly plugged, however. The new public face of hotmail appears to be one of those previously demoralized developers. According to her in a July 2007 interview, she described the project as "having a brief to "rip everything out and start from scratch"," and went on to explain that most people actually liked the new version (contrary to all the real world feedback that I have seen).

Financial Crisis Record Setting

Housing Starts: "[B]uilders broke ground on the fewest new homes in at least 50 years[.]"

Architecture billings: "[T]he Architecture Billings Index (ABI) posting its lowest level since the survey began in 1995 for the second month in a row."

Builder confidence: "[T]he builder confidence index from the National Association of Home Builders (NAHB). . . was at 9, tying the record low set in November." The index goes back to at least 1985 when it was at 50 on a scale of 0 to 100.

Homeowner's equity as a percentage of home value is the lowest it has been since 1952, and is probably an all time low (as this percentage has fallen steadily for decades and mortgages were harder to get before tax subsidies, the GI Bill, Fannie Mae and Freddie Mac make mortgages more available in the post-World War II era). The average homeowner owns 44.7% of their home, but "approximately 31% of households do not have a mortgage. So the 50+ million households with mortgages have far less equity than 44.7%."

The Prime Rate: "[M]ost banks cut the rate they charge their best customers, known as the prime rate, to 3.25 percent from 4 percent. The last time it was that low was in 1955, according to data from the Federal Reserve Bank of St. Louis."

The Federal Funds rate: "[T]he Federal Reserve cut interest rates to their lowest level on record."

Thirty year Treasuries: "The yield on the 30-year Treasury bond plunged to as low as 2.72 percent on Tuesday, it's lowest level in the 31 years since regular auctions of the securities started in 1977."

Consumer price index: We are experiencing significant deflation not seen since the Great Depression. "On Tuesday, the Labor Department reported that consumer prices last month dropped by 1.7 percent, the largest amount in 61 years of records, due to huge declines in food and energy prices." ; "The cost of living dropped 1.7 percent between October and November, the most since records began in 1947, a Labor Department report showed in Washington Tuesday. Excluding food and energy, so-called core prices were unchanged from a month earlier."

Unemployment claims: "Initial weekly unemployment claims last week were the highest since late 1982."

While not reported as a record, the news on Alt-A mortgage defaults (intermediate between subprime and prime credit mortgages) is very bad according to Fitch ratings:

The rating agency said it now expects average cumulative losses on 2005, 2006 and 2007 vintage Alt-A transactions to hit 2.72, 6.78 and 9.58 percent, respectively, up dramatically from expectations at the agency earlier this year.

Fitch cited a “rapid increase in 60+ day delinquencies experienced over the past six months,” despite servicers’ collective efforts to hold off on actual foreclosure sales — likely implying that a halt to foreclosures is having little effect in resolving borrower delinquencies. Between May and October 2008, Fitch said that 60+ day delinquencies for the 2007 vintage increased from 8.80 percent to 14.65 percent; 2006 and 2005 vintages also experienced steep increases rising from 10.30 percent to 14.24 percent and 6.57 percent to 8.79 percent, respectively.

Oil prices have fallen to four year low of about $45 a barrel.

Of course, the auto industry bailout I reported earlier noting claims that it was a done deal, failed in the U.S. Senate. General Motors has retained bankruptcy counsel.

Comment Spam

The number of spam comments on this blog has been increasing lately. It isn't out of control, so I am not instituting any additional security measures at this time. But, the number of spam comments has gone from one every few weeks to nearly one every day. There may be more in older posts, but I'm not ambitious enough to look at the moment.

16 December 2008

Federal Interest Rates Fall

In the wake of the action of the Federal Reserve today, the Prime Rate has fallen to 3.25% The Fed Funds Target Rate is now a Target Range of 0% to .25%, down from 1.00% prior to the action.

This largely exhausts the ability of the Fed to boost the economy by lowering interest rates. The most recent precedent for such action was that of the Japanese Central Bank during a prolonged recession there. The Japanese equivalent of the federal funds rate was kept at zero percent for a prolonged period.

"Twilight" Sequel Movie

I am a big fan of the "Twilight" saga by Stephenie Meyer, a series of books about vampires, werewolves and true love, the first of which was recently made into a movie. I read all of them over about two weeks, and also saw the movie, and I am well on my well to reading them twice. The saga deserves its own post at some point.

The movie "Twilight" was not horribly done. The casting of the principal characters, with the exception of our heroine's father Charlie, was on the whole very well done, although some of the minor characters were ill cast, the school set could have been better, the special effects were merely medium budget, and the over correction of the plot in the action direction slightly overdid it.

Still, I love the series enough, and the first movie was good enough, that I consider it to be good news that the second book in the series, "New Moon" is going to be made into a movie which will open November 20, 2009. "New Moon," plotted with vague reference to Romeo and Juliet, is particularly notable for having a portrayal of the catastrophic emotional impact of a true love lost that rivals that of any in modern English or American literature, since Romeo and Juliet.

The bad news is that Summit Entertainment, which is producing the film, says "New Moon" will be directed by Chris Weitz of "The Golden Compass." Weitz's involvement with "The Golden Compass" was torrid, and most of the movie that is laudable (it has a delightful and visually lush steam punk world where it plays out), was done during the tenure of an interim director of the film. Ultimately, "The Golden Compass" was a seriously fumbled adaptation of a critically acclaimed book (yes, I've read all of that series as well). So, needless to say, I am more than a little concerned that Weitz is not up to the job.

Unlike "The Golden Compass" or many other vampire/werewolf flicks, "New Moon" is primarily an introspective, emotional tale in a more or less contemporary setting. The particular elements of writing trade that Meyer uses to get her intense story across, moreover, can not be translated in anything approaching a direct way. To tell the same story, it must be told with very different means on film. The story also has action sequences, melodramatic moments and supernatural elements, but they are trimmings, not the core of the story. Moreover, in the narrative, the supernatural elements have a strong allegorical and sympolic character.

It is possible to do this film. But, I'd be far more encouraged if it was directed by someone with a background writing compelling, more conventional romatic dramas, instead of someone whose background is in putting on a lush science fiction alternative world. Portraying someone's inner life takes real directorial talent, and is a usually underdeveloped aptitude of someone coming primarily from the world of melodrama.

Then again, giving Weitz's track record, the film may end up being completed by someone else anyway.

A Denver Bat Mitzvah

The daughter of a good friend of the family had her bat mitzvah at Temple Micah (a Reform synagogue in Park Hill in Denver that shares of building with a United Church of Christ Church) this past weekend. I'd attended bar mitzvah's for a couple of friends when I was growing up, in Oxford, Ohio, but it has been a long time. It was a refreshing change from the Christian wedding, funeral and Christmas services I've attended in the last decade or so.

The young woman being honored has received as her Torah portion the story from Genesis of Jacob wrestling with God, and a parallel passage from Hosiah. While the passage she canted and analyzed could easily have begun later, she started with an inconvenient passage -- as Jacob, who has prospered in the wake of cheating his brother Eassu took his two wives, two handmaids and eleven children over the river to safety to escape his fate. The man who would become Israel was a polygamist whose first biblical headline was a swindle.

But, none of those presiding did rushed for easy answers. Our honored young woman disclaimed her own interpretations as contingent, and responded more fully to her passage and to her day in an ambivalent, angstful, but hopeful prose poem well suited to the fact that she is a teenage girl with an emphasis on creative writing at the Denver School for the Arts.

The Rabbi too did not rush headlong to insist that anyone find certainty. Instead, he offered great praises that our bat mitzvah candidate has spent several years struggling, doubting, not certain that she wanted to embrace the Temple Micah community, or even God. The story of Jacob was personal, a portion for someone herself wrestling with God. The Rabbi presented her personal story not as one of the triumph of right over wrong, not as redemption from a fallen state, but as a model for the community, a model of the thoughtful Jew in a cloudy, complex world.

Obviously, I don't speak Hebrew, so I struck to the translations in the prayer book for understanding. But, the service itself wasn't all that different from participating in a Catholic mass in Latin, except that the Jews have more rhythm and a better sense of humor. A Jewish service sharing the Torah is more familiar to me, having grown up as a liturgical Christian, than the unstructured romp of Evangelical Christian prayer services.

The truly ancient resonance of the order of service, thousands of years old, was a funny juxtaposition against the banal and modern invocation that proceeds all group gatherings these days -- please silence your cell phones. It also shed light for me on the Jewish religious resonances that evolved within the Christian church to the resurrection story and communion. Returning from the dead has a symbolic Talmudic sense of a welcome to those whom you have not seen for a long time or lost touch with until being reunited. The sharing of Challah bread and wine with the Sabbath has an element not of sacrifice shared, but of the joyous plenty of being able to observe the Sabbath as a day of rest defiantly shared, notwithstanding the possibility that an outsider might see bleak austerity instead.

It isn't all easy for an outsider to understand. As a person for whom books are the tool of my trade, mundane objects often received immaculated on a computer screen without even the benefit of paper pages or a binding, the powerful symbolic, community bind and sacred role attached to the physical Torah scroll is puzzling. I can observe that role, and I can intellectually make sense of it, but empathetically sharing the emotion is too challenging for me to manage.

Perhaps the power of that communal symbol answer another subtle mood, inescapable in the prayers, the way the word "community" was uttered, and a host of inarticulates thoughts expressed subverbally. Perhaps it is an answer to a community forever haunted by its tragic past, and not entirely confident that the last tragedies could not recur. A few days before the bat maritzah, I read one of the last follow up stories on the aftermath of the terrorist attacks in Mumbai. A nanny was taking a child orphaned when the parents were killed by terrorists attacking a Jewish community center in the city to Israel.

The gathering was not gloomy. It was joyous, thoughtful and forward looking. But, some of that joy was defiant. Cynical satiric wit is not a lost art at Temple Micah. We are finding joy among ourselves despite all the shit that world has and will throw at us. We are the ancient salt of the Earth, we will survive and we will prosper with joy. Nobody said those words, but that is I sense that I absorbed.

Arctic Nights

The temperature outside for the past couple of nights has been in the vicinity of -19 degrees Fahrenheit. The sidewalks are a mix of ice, bits of snow and sidewalk salt. The temperates in your house, thermostat kept low to ward off through the roof natural gas bills in a tight economy, isn't really that much colder than any other night. But, when it is really cold outside, the cold seems to penetrate more deeply.

The end of the year whirl of a rush of end of year legal work, trips and parties to prepare for, purchases to make, and end of school term tests and projects to complete keep the brisk forced march of December hustling along.

This year, the shopping is muted. Every day brings new word that the economy is slipping further. Two of the big three automobile companies and one of our daily newspapers have announced their imminent collapses. The name I wrote on my credit card bill yesterday was that of a bank that hasn't existed for months; the billing department will catch up sooner or later. The Fed will probably reduce its main interest rate from 1.0% to 0.5% or 0.25% today, driving the prime rate to 3.25% to 3.5%.

The appointment announcements trickling out of the Obama administration provide hope. Not audacious hope yet, but the quiet, tentative hope still afraid to speak its name for fear of being crushed with disappointment. As in many Decembers past, I am counting days, not to December 25, or to its Orthodox counterpart January 6, but to January 20, the day the nightmare ends. Well, I'm sure that the nightmare will not vanish in a flash. Our problems are deep, intractable and not easily banished. But, if the nightmare does not end, at least we will begin walking again in the right direction, towards change, towards hope, towards the possibility of a nation not wholly in decline and corrupt decay.

The change seems as distant as the prospect of spring blossoms now. But, until then, we will endure.

15 December 2008

Happy Election Day!

Today, December 15, 2008, is the day that the United States conducts its Presidential election.

Members of the electoral college, who were selected by voters on November 4, 2008, cast their votes in each of the nation's state capital today (with paper ballots counted by hand).

The Rocky Mountain News reports on an immaterial hitch in that process today in Colorado.

Elector Margaret Atencio could not make it in because of the weather, so state officials must go through the process of electing someone to replace her.

From a practical perspective, today is notable for several reasons:

1. Today's vote renders further state level challenges to the Presidential election untimely; and

2. If the President-Elect or Vice President-Elect chosen by voters were incapacitated or died prior to today, the electoral college could have filled the vacancy today; and

3. Today's eliminates the slight possibility that an elector might be unfaithful to his or her pledge to vote for the candidate selected in the general election by ordinary voters.

There is an elector or two who devitates from their pledge every election or two, but this has never been outcome determinative. In some states, an unfaithful vote is a crime, but to my knowledge, no one has ever been punished for a violation of the duty to vote as pledged. In practice, loyalty to a candidate is a foremost consideration in determining who will be honored with the privilege of serving as an elector, so the degree to which the obligation is binding is rarely material.

The results of the votes in each of the state capitals today will be transmitted to Congress with the result officially announced on January 20, 2009. The new Congress itself is installed earlier in January.

12 December 2008

A Case For A Commutation?

A Colorado Court of Appeals case decided yesterday where the guilty criminal defendant was herself a victim seems a case in which it is appropriate for Governor Ritter to consider granting not a pardon, for a jury has defensibly found beyond a reasonable doubt that a crime was committed, but a commutation, because the sentence is grossly disproportionate to the gravity of the crime under the mitigating circumstances involved.

The opinion begins by summing up the case.

Defendant, Karen S. Rodriguez, appeals the judgments of conviction entered on jury verdicts finding her guilty, under a complicity theory, of numerous counts of attempted and completed aggravated incest, sexual assault on a child, and sexual assault on a child by one in a position of trust. We affirm.

Defendant’s husband physically, emotionally, and sexually abused defendant, their youngest daughter, M.R., and defendant’s son from a prior relationship, M.H. The husband abused the son over a ten- to twelve-year period and abused the daughter throughout the year before his arrest.

Defendant facilitated the husband’s offenses by bringing the children to him to be sexually abused. At trial, she asserted that she acted under duress as a result of the husband’s extreme emotional, physical, and sexual abuse perpetrated against her. The prosecution’s theory was that, although defendant had herself been severely abused by her husband, the abuse had not been severe enough that she could not have protected the children from her husband.

The jury found defendant guilty of the twenty-four counts charged against her. After merging several of those convictions, the trial court sentenced defendant to an aggregate term of 118 years to life imprisonment.

Certainly, one can imagine a case where a wife is a co-conspirator with her husband in a better of sexual abuse of their children. The jury ruled beyond a reasonable doubt that Karen S. Rodriguez crossed that line. One can disagree with the ruling on the legal issues she raised on appeal, most notably a claim that evidence of husband's similar pattern of abuse of his ex-wife and children in a prior marriage was improperly excluded and would have corroborated the testimony in her own defense.

Ignore all that for a moment. All those are the typical day to day issues found in a great many criminal appeals.

What really strikes me is the sentence. A sentence of 118 years to life imprisonment, which amounts to a sentence of life in prison without parole, which is the same sentence that applies to aggravated murderers, seems grossly excessive in light of Rodriguez's culpability in this case.

While one can say that it is a crime to fail to do enough to protect your children, and to weakly give into to a husband's perversions, even when you are yourself abused, this is an understandable weakness. Rodriguez is not the primarily culpable person in this case. There is no indication that she would be a threat to the general public or her family, once freed from her abusive relationship. She was a secondary actor in this admittedly grievous event. More than anything else, she is herself a victim here. She has already served a sentence of twelve years or more of hell in her marriage, which was probably worse than anything should will experience in prison, and that deserves consideration that the sentencing court did not consider.

The message a sentence like this sends to women is Rodriguez's position who want to escape their private hell is keep the secret for your criminal husband, or your life is over. The message this sends to the public is that victims who are morally weak are just as culpable as intentional cop killers.

Rodriquez is not the serial predator that stiff penalties for sex offenders were aimed at putting behind bars forever. The husband in this case deserves a de facto life without parole sentence. His wife does not.

Wouldn't a five year sentence or so be enough to tell that community that her behavior was unacceptable and must be punished seriously because it allowed her children to suffer so deeply? Do we really mean to send the message that a woman like Rodriguez is not just someone who committed a serious crime, but unredeemable?

Part of the problem is that the legislature has done a poor job of tailoring sentences to offense severity when a prosecutor brings a large number of counts of related crimes. Part of the problem is that there is apparently no room for mercy that considers her status as a victim as well as an offender, even though one is very often both in these kinds of cases.

In an ideal world, prosecutors and judges would exercise their discretion to avoid this kind of outcome. But, prosecutors all too often mindlessly push for a maximum punishment rather than exercising good judgment, and judges all too often find it easier to follow the guidelines for a typical case, rather than recognizing that cases like this deserve a special downward deviation (and often judges have no discretion at all).

A Governor's commutation and pardon power is designed as one safety valve to prevent excesses like the one in this case from getting out of control. Sometimes, A+B+C doesn't give a result that makes sense in our legal system. A little mercy and sense of proportionality in cases like this one would show fairness, yet still do justice. A little mercy could prevent the State of Colorado from wasting an imperfect but not unredeemable woman's life and prevent its taxpayers from spending money on prisons that doesn't need to be spent.

When one wonders why our corrections budget is spiraling out of control, one has to keep in mind cases like this one, where immense waste arises from less than thoughtful and merciful sentencing of crimes that are bad, but not nearly so culpable as the sentences suggest.

11 December 2008

Senators I.D. American War Criminals

A unanimous report of twenty-five U.S. Senators on the Armed Services Committee (including twelve Republicans) has identified the key responsible parties in the Bush Administration's torture policy. While the report doesn't expressly conclude that they called for torture and were war criminals in those words, that is the clear implication of the short, factually clear, name naming report.

The clear evidence is that these policies don't further intelligence gathering, even in the cases extreme methods are theoretically reserved for us in. Worse yet, one U.S. interrogator has estimated that as many as half of all U.S. casualties in Iraq were motivated by a desire to obtain retribution for this U.S. conduct.

Colorado's Maiden Name Flub And More

As one of the few men who changed their names when he married (in New York State, where I got married, it could be done effortlessly in a variety of ways, by husbands or wives or both, on the marriage licenses itself), name change regulation always interests me.

[I have what is sometimes known as a double barrelled name, something we chose basically for feminist reasons, although there were practical considerations as well. Double barrelled names are something required by law in Spain, generally done without hyphens in Iberia and Latin America, and generally done with hyphens where it is done elsewhere (although not consistency). Double barrelled names have considerable salience, apart from odd birds like myself, because confusion over them is an important cause of election irregularities in places like Denver when election officials don't understand them, and they are in common use. We also considered, but ultimately did not decide to adopt, a blended surname or entirely new surname.]

Colorado's Ill Conceived Regulation Of Middle Names

The Colorado Department of Revenue, which regulates driver's licenses and state IDs recently tried to bar the common practice of taking a maiden name as a middle name following a marriage.

Public outcry has forced the State of Colorado to throw out a new rule it enacted just weeks ago to thwart identity theft.

The rule prevented newlyweds from turning their maiden names into middle names.

But because of a crush of complaints, the Governor's Office intervened and asked the Colorado Department of Revenue to adopt an emergency rule undoing the new rule. It will take effect on Monday. . . .

Mark Couch, spokesman for the Dept. of Revenue . . . says the state initially changed the rule to protect people from identity theft. "Felons who get out of prison will try to change their name to hide their bad past," he says.

That risk is still there. But the inconvenience was apparently greater. . . . The Department of Revenue will soon make the emergency rule permanent.

Before this emergency action, people could change their names but they had to go through the court process to get it done. The DMV will now make people who want to change their middle name attest that they're not doing it to evade the law. Those who get caught lying will have their licenses revoked.

Via Denver's local Fox News affiliate. Hat Tip to Think Outside The Cage.

The Denver Post also covered the story (earlier coverage here):

Following numerous complaints stemming from a new rule on newlywed name changes, the Division of Motor Vehicles has decided to give women more choices when picking their married monikers.

In mid-November, a new set of DMV directives barred women from taking their maiden names as their middle names on their driver's license unless they obtained a court order.

Less than a month later, the division is striking that rule, effective Dec. 15. . . .

The rule stemmed from laws meant to protect the public from identity theft.

It prevented women from changing their middle names after marriage. They could either hyphenate their last names or use both their maiden and new last names without a hyphen.

The emergency rule overturning the provision will eventually be made permanent, Couch said.

Women expressed outrage when, even after settling with the Social Security Administration, they had to accept driver's licenses under names they did not want.

The agency's attitude expressed in a Denver Post interview remains questionable, however, "Folks felt it wasn't fair," Couch said. "We are addressing that concern and making sure folks are sticking within a certain reasonable parameter when changing their names after marriage."

Since when is it the business of the DMV was decide what kind of name change after marriage is reasonable?

The offending rule is found in the Colorado Code of Regulations at 1 CCR 204-13 Part 2.3.5, and relies on Colorado Revised Statutes § 42-2-107(2) and § 42-2-302(2), C.R.S., for authority. But, neither statute actually purports to limit the means by which someone may change their name in Colorado. They simply require that your state ID or driver's license have your name on it. The proposed replacement rule is still contrary to Colorado law and will be subject to a December 30, 2008 hearing.

The Colorado Department of Revenue ruling about when a middle name can be changed by a married person is even more outrageous because, under the relevant Colorado law, any adult, even a felon, can change their name at common law simply by beginning to use a new one, without the benefit of a legal name change proceeding, and middle names have a dubious legal status in any case.

Indeed, the Colorado Supreme Court invalidated a similar Department of Revenue regulation in 1956, where the Department of Revenue had refused to issue a motor vehicle title using the first initial and full middle name of a person who was customarily known by his first initial and full middle name. Belvins v. J. Nelson Truitt, 134 Colo. 88, 299 P.2d 1100 (1956).

At common law as interpreted by Colorado's courts, your legal name is what you are called and answer to in day to day life. It your birth certificate says Krushchevia but you have always gone by Kitty, Kitty is one of your legal names in Colorado.

Furthermore, there are also many court cases in Colorado that hold that for some purposes, your middle name doesn't even count as part of your legal name. For example, a minor discrepancy in a middle name is not enough to defeat an extradition request. Beverly v. Davis, 648 P.2d 621 (Colo. 1982). The general rule in Colorado is that "the law recognizes but one Christian name, and does not regard a middle name or initial as essential in designating a person; and, as an abstract proposition this is true, as indicated in the decisions from . . . Doane v. Glenn, 1 Colo. 495, 502, and Webster v. Heginbotham, 23 Colo. App. 229, 238, 129 P. 569." Gibson v. Foster, 24 Colo. App. 434, 135 P.121 (1913) (holding that an exception to the general rule applies in a quiet title action where jurisdiction over a purported owner is obtained by publication and ignoring the middle name would lead to ambiguity over who is intended as a defendant).

Proof of an improper intent in connection with a name change can be used to prevent relief in a court action to change one's name, brought under Sections 13-15-101 and 13-15-102 of the Colorado Revised Statutes, which is one statutorily provided means of securing a name change, but a court action is not the exclusive means by which your name can be changed in Colorado. See In re Nguyen, 684 P.2d 258 (Colo. App. 1983); In re Knight, 36 Colo. App. 187, 537 P.2d 1085 (1975). Amendments to the statute made since those cases were decided do not unequivocally overrule them. The statute states that "Every person desiring to change his or her name may present a petition to that effect, verified by affidavit, to the district or county court in the county of the petitioner's residence[.]"

Name changes, by the way, are not the only area where Colorado law recognizes extra-governmental changes in personal status.

Colorado recognizes both common law marriage (i.e. a marriage entered into without a marriage license), and the concept of putative marriage (where a party to an invalid marriage is allowed to receive the legal benefits of a marriage believed in good faith to be valid, see Section 14-2-111, Colorado Revised Statutes), although common law marriages between minors are not recognized. Section 14-2-109.5, Colorado Revised Statutes. Further, while only certain public, religious and tribal officials are allowed to solemnize marriages, a marriage pursuant to a marriage license may also be solemnized "by the parties to the marriage" themselves (see Section 14-2-109, Colorado Revised Statutes).

The Larger Common Law Tradition Of Decentralized Deference To Reality

Indeed, Colorado's acceptance of common law name changes is a nature counterpart to Colorado's acceptance of common law marriage, which frequently is accompanied by a common law name change.

Unlike some states, Colorado also lacks any comprehensive statutory court process for emancipating minors under the age of nineteen. The law in Colorado is basically that a minor is emancipated (for non-marital purposes) if a minor, in fact, is living independently and is not supported by a parent or guardian. This is adjudicated, as a factual matter, as just one element of the evidence in a case where emancipation of a minor is relevant, rather than made as a global determination of a child's status.

Colorado's characteristically and traditional American approach to personal status fits the overall American legal scheme. No one national system comprehensively coordinates the information in a birth certificate, citizenship information, voter registration, marriage information, a death certificate, divorce decrees, change of name rulings for an individual in a single place. In contrast, in a typical civil law country, like France, all records regarding a person's personal status are maintained in the office with jurisdiction over the place of their birth. So, for example, a copy of your marriage license or divorce decree would be sent to the clerk in charge of vital statistics records in the locality where you were born.

American law also takes a similar attitude towards real estate records. While most countries (including most of England and Australia) operates under a system of title registration, where parcels of real estate are assigned certificates which operate much like a car title, largely eliminating the need for title insurance, American real estate records, with some minor exceptions, operate on a more ad hoc basis. You can record essentially any document related in some way (not always obvious) to a parcel of real estate's title with a clerk and recorder, typically at a county level, without pre-verification of facts that, for example, the seller actually owns the real estate in a deed. Land owners prove ownership by showing a "chain of title" going back a certain number of years, aided by the principal of adverse possession that vests legal ownership in anyone who has acted like an owner of the property for a sufficiently long period of time.

Even if your "chain of title" can't be traced back to an original owner, it suffices to establish a current owners title to the property if it goes back far enough (Colorado's eighteen year time period is typical).

The World Experience

Greater administrative cohesiveness of civil law countries made it possible for many civil law countries also have government regulations prohibiting parents from assigning certain names to their children, something almost entirely left to parental discretion in the United States. Some permit parents to choose only from an approved list designed to preserve a national cultural identity, while others simply retain the discretion to reject names deemed outrageous. Tradition and statute have regulated surnames even further, with Sweden, for example, large switching from a system of patronymic names (e.g. Johnson for the son of John) to a system of inherited surnames (the son of Jack Johnson might be Mark Johnson rather than Mark Jackson) in the 19th century.

According to Wikipedia, the practice of using fixed family names was adopted in the following years in the following countries: Netherlands (1811), Japan (1870s), Thailand (1920), and Turkey (1934).

In Britain, hereditary surnames were adopted in the 13th and 14th centuries, initially by the aristocracy but eventually by everyone. By 1400, most English and Scottish people had acquired surnames, but many Scottish and Welsh people did not adopt surnames until the 17th century, or even later. Henry VIII (1509 - 1547) ordered that marital births be recorded under the surname of the father. . . .In England and cultures derived from there (therefore, not in France, for example), there has long been the patriarchal tradition for a woman to change her surname upon marriage from her birth name to her husband's last name. From the first known US instance of a woman keeping her birth name, Lucy Stone in 1855, there has been a general increase in the rate of women keeping their original name. This has gone through periods of flux, however, and the 1990s saw a decline in the percentage of name retention among women. As of 2004, roughly 90% of American women automatically assumed their husband's surname upon getting married. Even in families where the wife has kept her birth name, parents often choose to give their children their father's family name. In English-speaking countries, married women are traditionally known as Mrs [Husband's full name].

For my druthers, and admittedly, I am American so I'm biased, I like the common law American approach, even though it can be a bureaucratic mess at times in the modern era, because it empowers individuals, even in the absence of formal state authority, and because of its curative effect of validating de facto situations, rather than trying to construct a legal reality deeply separated from the every day reality