Robert Keith Ray has been sentenced to death by an Arapahoe County jury. He joins Sir Mario Owen, is co-conspirator in a witness killing, and Chucky Cheese multiple murderer Nathan Dunlap on Colorado's death row.
Dunlap is nearing the end of the appeals process after more than a decade of appeals. Owen's case is on direct appeal to the Colorado Supreme Court. Ray had already been sentenced to a de facto life in prison without parole sentence in connection with other convictions, and a direct appeal of his convictions and sentence to the Colorado Supreme Court is almost certain. (Edward Montour, Jr., a death penalty volunteer who killed a prison guard, had his death sentence vacated by the Colorado Supreme Court on procedural grounds and now faces resentencing.)
Background on this case and other people on or recently on Colorado's death row can be found here.
08 June 2009
Predictable Tragedies (Again)
In nearly every serious regional airline accident during the past 10 years, at least one of the pilots had failed tests of his or her skills multiple times, according to an analysis of federal accident records.
In eight of the nine accidents during that time, which killed 137 people, pilots had a history of failing two or more "check rides," tests by federal or airline inspectors of pilots' ability to fly and respond to emergencies. In the lone case in which pilots didn't have multiple failures since becoming licensed, the co-pilot was fired after the non-fatal crash for falsifying his job application.
Pilots on major airlines and large cargo haulers had failed the tests more than once in only one of the 10 serious accidents in this country over the past 10 years, according to a USA TODAY review of National Transportation Safety Board (NTSB) accident reports.
At a time when fatal aviation accidents have become increasingly rare, regional carriers have had four since 2004, compared with one by a major airline. Regional airlines fly roughly half of all airline flights, carrying about 20% of passengers. . . . Three of the accidents in which pilots had repeatedly failed tests involved a single airline conglomerate, Pinnacle Airlines.
From here.
We don't know precisely how many commercial pilots who have multiple check test failures have managed to keep jobs as commercial pilots from the story. There are about 115,000 people licensed to fly commercial airplanes, about 69,000 pilots and co-pilots employed at airlines that offer scheduled service, and about 8,300 commercial airplanes in service. Simply failing once is not uncommon. Failing many times in a few years is uncommon. Five accidents of any kind for commercial pilots in the time period involved is also incredibly safe (even considering the multiple fatalities that occur in many serious accidents), compared to either general aviation flying or driving a car.
Richard Strock was arrested for drunken driving 18 times before he killed anyone.
In his 19th case, his 63-year-old ex-wife was thrown into the windshield and died. . . .
A Denver Post examination of 195 vehicular homicide-DUI cases since 2005 found that at least 30 percent of the defendants had other drunken-driving cases. Twenty-two drivers had multiple DUI arrests before they killed people.
Three picked up new drunken-driving charges after killing people while under the influence. One was arrested for driving drunk the day after he ran a red light and killed a woman. . . .
The Post analysis of Colorado vehicular homicide-DUI cases also found that:
• Like Strock, many defendants had ignored orders to stop driving. Nearly 40 percent had been arrested for driving with suspended or revoked licenses. Forty-four were driving illegally when they were charged with vehicular homicide. One had been arrested seven times for driving with a suspended license.
• Fifteen percent of the defendants were too young to buy alcohol legally. Three were 16 years old, six were 17, five were 18.
• More than half of those charged with homicide while driving drunk were sentenced to four years or less in prison. . . .
Unlike most states, Colorado has no felony law for the third, fourth or 10th drunken-driving offense. A habitual traffic offender who drives drunk with a revoked license can face up to 18 months in prison on a low-level felony charge.
And there are 53,201 people who have three or more drunken-driving offenses in Colorado, according to Division of Motor Vehicle records provided to The Post. Fifty-one have 10 or more drunken-driving cases in Colorado. . . .In the vehicular homicide-DUI cases The Post examined, Strock was among the 59 drivers who had at least one prior drunken-driving arrest. He had 18, and others had as many as seven.
From here.
The situation in Colorado is very similar to the situation in Ohio summed up in a 2006 report in the Columbus Dispatch:
Ohio toughened its law against repeat drunken drivers two years ago, yet more than 35,000 of them still sit behind the wheel. Columbus prosecutors sometimes lie to the state about motorists who refuse to take Breathalyzer tests, resulting in shorter license suspensions....
In Ohio, 40 percent of traffic fatalities are alcohol-related, and drunken driving is the top killer of people ages 6 to 33, according to Mothers Against Drunk Driving.... Yet, only a trickle of new felony charges for repeat offenders have been filed since Ohio strengthened the DUI law in 2004....
Ohio has 35,825 motorists with four or more drunken-driving convictions, according to the state Bureau of Motor Vehicles. However, only 52 people have been indicted for felony drunken driving in Franklin County the past two years, according to Common Pleas Court records. The State Highway Patrol, which cites 25,000 drunken drivers a year, has filed only 359 felony DUI charges statewide since the law took effect.
The commercial pilot and drunk driver situations are in some ways totally different. But, both represent situations in which a known risk factor known to the government is associated strongly with tragic "accidents" but the response taken to the risk is insufficient to prevent the accidents from happening.
The single greatest advance that improved data analysis technology and modern social scientific and statistical analysis provide us from a policy perspective is the ability to empirically identify predictable tragedies and to use this data to better prevent those tragedies from happening in the first place.
This still doesn't make drawing the line easy. While the risk of someone with repeat DUI convictions causing a vehicular homicide death is much higher than it is for members of the general public, it is still less than 0.1%. There is a roughly 99.9% chance that someone with multiple DUIs won't kill someone while driving.
The number of people with three DUIs or more on the record is also roughly two and half times the total number of people in prison in the state. Simply locking people away for long prison terms for repeat DUI offenses would be crushingly expensive. But, a large percentage of people convicted of DUI drive despite having suspended or revoked driver's licenses, so in many cases simply revoking a license isn't enough to protect the public. The offense to take more seriously may be driving with a suspended license, or with a DUI suspended license, rather than DUI per se.
Similarly, lots of pilots have failed checkride tests, many more than once, and the vast majority still manage to avoid accidents. Revoking a commercial pilot's license means taking away not just someone's job, but someone's career. And pilots appear to agree that soome FAA examiners impose tougher standards in checkride tests than others.
The regulatory decision making process isn't easy. Excessively tough regulation of a risk factor that rarely actually produces harm imposes a great deal of hardship while producing only modest improvements. But, ignoring risk factors that are highly statistically significant, even if their impact is fairly weak, causes predictable tragedies. One has to find a response to risk factors that effectively reduces the public's risk while at the same time not doing more harm to those impacted than necessary.
I floated one trial balloon at the Sentencing Law and Policy blog as something other than license suspension, prison or expensive vehicle interlocks that can be circumvented by using someone else's car (typos in original corrected):
There are about 23,000 in state prison in Colorado for all offenses combined. Putting everyone in the state in prison for a long term would be cost prohibitive. Imprisoning everyone with multiple DUIs for a year would cost more than $1 billion, and wouldn't necessarily prevent all that much recidivism. It might even increase recidivism by reducing the stability of these people's lives leading to devil may care attitudes and a return to alcohol problems. Colorado prisons are not known for their quality substance abuse program successes.
Merely suspending or revoking licenses wasn't sufficient, however. More than 40% of vehicular homicide drivers with prior DUIs had revoked licenses. Technological restraints on cars only work if someone drive's their own vehicle, and so also might not work.
Colorado does have felony punishments for people who have multiple DUIs and drive with suspended or revoked licenses, although it is the lowest grade felony offense, and those do appear to be the people who pose the highest risk. But, again it is hard to tell how much that would cost and whether it would work.
It might be both more effective and less expensive to require repeat DUI offenders who drive with a suspended or revoked license to have their hands tattooed in a way that indicates that they aren't allowed to be served or sold alcohol, or to drive a car, ever (at their expense), and then to have them report to a probation officer once of month to confirm that it has not been removed. Such a tattoo might also be a legal authorization similar to being on probation or parole for an immediate breathalyzer test without consent at the scene of any traffic stop even if no DUI offense was suspected, and would also provide probable cause for an immediate driving with a revoked license arrest, even if the person was using an alias or fake ID.
A prominent facial tattoo might follow for those who drink and drive again after receiving a hand tattoo, something that would warn anyone allowing the individual to use their car or have a drink, no matter how careless the person negligently entrusting the person with a car or alcoholic drink was, and something that would probably prompt 911 calls from passing drivers.
Tattoos would be a permanent serious sanction. But, this would be far less severe than historical corporal punishments like chopping off the hands of thieves or many lashings or castration, but might have more preventative effect than even moderately long prison sentences. It probably wouldn't be quite a much of a bar to gainful employment or lifetime income as some kind of a felony record or a period of imprisonment in state prison. It would also be theoretically reversible with laser tattoo removal surgery in a case of a miscarriage of justice in the criminal justice process.
While it would be a shaming punishment as well, it would be a rather restrained one at a first tattoo offense level. By avoiding places where alcohol is served and keeping your hands in your pockets or in gloves, someone with a hand tattoo could avoid casual detection. The social shame risks involved also might have more impact on typical DUI offenders than the possibility of some time in prison, particularly for those who have already served brief jail terms and aren't quite as scared by the concept of incarceration, per se.
I'm not really sure how I feel about tattoos as punishment, or for that matter, castration as a punishment for certain offenses. I have a gut reaction that leaves me prone not to trust that approach. Tattoos have been taboo in criminal justice circles since the Nazis used them. But, the current criminal justice system focused on either often ineffectual probation sentences or expensive and still often ineffectual prison sentences for non-violent offenders produces incredible human waste. It is also not clear to me that the psychological impacts of several years spent in prison are any less permanent than a tattoo. It is clear that we need to look outside the box for intermediate alternatives that effectively prevent future offenses and punish at a much lower cost to the public, to the offender, and to dependent upon the offender. For a middle class repeat DUI offender, with a steady job, who drove with a suspended license, a hand tattoo probably looks better than three years in prison despite the fact that it is permanent, and might prevent a repeat offense better too, serving the public in the process.
Judicial Ideology on the U.S. Supreme Court
An empirical ranking of the ideology of U.S. Supreme Court justices since 1937 on a liberal-conservative scale (Martin-Quinn scores) can be found here. Negative rankings are liberal, positive rankings are conservative. An idealized moderate would be ranked zero. In the 2007 term the U.S. Supreme Court justices ranked as follows (first year of service rankings in parenthesis):
Stevens: -1.99 (0.03)
Breyer: -1.63 (-0.51)
Ginsberg: -1.51 (-0.33)
Souter: -1.48 (0.97)
Kennedy: 0.14 (1.15)
Alito: 1.38 (1.4)
Roberts: 1.44 (1.48)
Scalia: 2.71 (1.43)
Thomas: 4.83 (2.73)
Most Justices in recent memory have grown more liberal during their term of service on the court. Justice Rehnquist started at 3.98 and ended at 1.5, for example. O'Connor started at 1.5 and ended at -0.04. Blackmun started at 1.9 and ended at -1.86. Powell started at 1.52 and ended at 0.76. Marshall started at -0.96 and ended at -4.31.
Even Scalia who reached peak conservativism in 2000 at 3.47 has declined every year since then to his current 2.71. Justice Thomas, meanwhile, has just grown more and more conservative during his tenure.
The median justice has been a moderate conservative (i.e. greater than 0 but less than 1.04) in every post-World War II year except from 1962-1968 where the median justice was a moderate liberal (i.e. less than zero but more than -0.85). The median justice when Roe v. Wade was decided (Byron White in 1972) was, ironically, more conservative than the median justice in any other year from 1937-2007.
Stevens: -1.99 (0.03)
Breyer: -1.63 (-0.51)
Ginsberg: -1.51 (-0.33)
Souter: -1.48 (0.97)
Kennedy: 0.14 (1.15)
Alito: 1.38 (1.4)
Roberts: 1.44 (1.48)
Scalia: 2.71 (1.43)
Thomas: 4.83 (2.73)
Most Justices in recent memory have grown more liberal during their term of service on the court. Justice Rehnquist started at 3.98 and ended at 1.5, for example. O'Connor started at 1.5 and ended at -0.04. Blackmun started at 1.9 and ended at -1.86. Powell started at 1.52 and ended at 0.76. Marshall started at -0.96 and ended at -4.31.
Even Scalia who reached peak conservativism in 2000 at 3.47 has declined every year since then to his current 2.71. Justice Thomas, meanwhile, has just grown more and more conservative during his tenure.
The median justice has been a moderate conservative (i.e. greater than 0 but less than 1.04) in every post-World War II year except from 1962-1968 where the median justice was a moderate liberal (i.e. less than zero but more than -0.85). The median justice when Roe v. Wade was decided (Byron White in 1972) was, ironically, more conservative than the median justice in any other year from 1937-2007.
Kenney Group Sock Puppets Balboni For Ritter?
A public relations firm that led Governor Bill Ritter's failed severance tax campaign and is led by his campaign manager, David Kenney, has apparently launched a sock puppet campaign directed at pseudonymous blog author "Steve Balboni" at his blog Steve Powered Opinions (it looks more like "astroturfing" to me and didn't get very far).
David Kenney is widely believed to be one of the members of Bill Ritter's inner circle who is leading Ritter into political misstep after political misstep. Ritter's chief of staff is another. (Time has yet to tell whether Ritter's appointment to replace U.S. Senator Ken Salazar of U.S. Senator Bennett, a newcomer to elected office who was on nobody's list of likely senatorial appointees, was a fumble or political genius.)
Meanwhile despite multiple anti-union Ritter vetoes that one presumes were meant to win sympathy from the big businesses who care about union-management issues, an apparently grass roots anti-Ritter sign campaign in the Republican heartland of the state seemingly aimed at Ritter's tax stances is afoot. So, it isn't clear that Ritter's efforts to triangulate have led to any inroads with conservatives. While Kenney chalks the latest sign campaign to a Republican plot led by the state party, it seems more plausible to me that grass roots folks from both the left and the right are expressing their discontent, albeit for different reasons.
Fortunately for Ritter, his two identified GOP opponents for 2010, State Senate Minority leader Josh Penry, a young rising star, and Scott McInnis, a former Republican member of Congress from Colorado who quit for no very good reason opening the door for Democrat John Salazar to take the CO-3 seat from his party, are fumbling around with neither establishing himself as the dominant candidate in the race for the GOP nomination. Dan Maes is apparently also running for the nomination but not gaining traction.
David Kenney is widely believed to be one of the members of Bill Ritter's inner circle who is leading Ritter into political misstep after political misstep. Ritter's chief of staff is another. (Time has yet to tell whether Ritter's appointment to replace U.S. Senator Ken Salazar of U.S. Senator Bennett, a newcomer to elected office who was on nobody's list of likely senatorial appointees, was a fumble or political genius.)
Meanwhile despite multiple anti-union Ritter vetoes that one presumes were meant to win sympathy from the big businesses who care about union-management issues, an apparently grass roots anti-Ritter sign campaign in the Republican heartland of the state seemingly aimed at Ritter's tax stances is afoot. So, it isn't clear that Ritter's efforts to triangulate have led to any inroads with conservatives. While Kenney chalks the latest sign campaign to a Republican plot led by the state party, it seems more plausible to me that grass roots folks from both the left and the right are expressing their discontent, albeit for different reasons.
Fortunately for Ritter, his two identified GOP opponents for 2010, State Senate Minority leader Josh Penry, a young rising star, and Scott McInnis, a former Republican member of Congress from Colorado who quit for no very good reason opening the door for Democrat John Salazar to take the CO-3 seat from his party, are fumbling around with neither establishing himself as the dominant candidate in the race for the GOP nomination. Dan Maes is apparently also running for the nomination but not gaining traction.
The Auto Industry Breakup
The weekend brought news that Saturn, rather than being shut down, will be spun off from GM to Penske, who is currently the distributor for the Smart Car, runs a rental truck business and has a high profile car racing team. Initially, the cars will be manufactured on a contract basis with existing designs from GM, but eventually, the plan is to outsource Saturn vehicle construction from somebody in the international automobile manufacturing industry. The two dealership networks and brands seem like good compliments for other in terms of potential buyers.
A deal to sell the Hummer brand to a Chinese cement truck manufacturing company is in the works (and honestly, Hummer is a very small line, producing a little more than 70,000 vehicles in for the commercial market in its peak year, just four models, not all of which are in production so far as I can tell, and far fewer vehicles, 27,485 in 2008, since fuel economy and thrift have returned to the market as consumer values). GM would do contract manufacturing for the first few couple years, after which the buyer would have to set up its own manufacturing process.
A deal to sell GM's Opel division to a consortium led by a Canadian auto parts company and a Russian bank, with German government support, appears to be well under way. This involves a unit that produces about 2 million vehicles a year.
The GM Pontiac brand remains slated for decommissioning.
Jaguar and Land Rover were sold by Ford to Tata Motors of India in May, 2008.
Saab (owned by GM which sold about 21,000 vehicles in North America in 2008) and Volvo (acquired by Ford on February 4, 1999 for $6,45 billion and had the fastest falling sales of any brand sold in the U.S. in February) are both being pitched to potential buyers. The Dodge Viper model within Chrysler (which produces under 2000 vehicles a year) was also purportedly the subject of a sale to a third party buyer other than Fiat.
Chrysler, less its financing arm, is on the verge of being sold to a consortium led by Italian automaker Fiat, with Justice Ginsberg of the U.S. Supreme Court ruling on an emergency motion to challenge the deal today after all lower federal courts had signed off on the deal by Friday.
GMAC and Chrysler's financing company appear to have been spun off from their respective automobile manufacturing groups and also appear to be slated to be merged into each other.
When the dust settles Chrysler will have three brands (Dodge, Chrysler and Jeep), and perhaps a fourth (Fiat), while Ford will have three once it can rid itself of Volvo (Ford, Mercury, Lincoln), and GM will have four (Chevrolet, Cadillac, GMC and Buick), with the GMC-Buick dealership channel consolidated into a single channel. Hummer, Viper, Saab, Volvo, Opel and Saturn may all end up as free standing car companies for now. Jaguar and Land Rover are part of Tata Motors. And, the remainder of the foreign car companies look likkely to survive. One or two small electric car producing companies (like Tesla) are also emerging into the market.
The flood of smaller newly independent or niche car companies is remarkable. It is hard to believe that they will avoid acquisition or survive on their own, but perhaps the economies of scale in the automobile market are not as great as they were in the past.
For the time being, the conglomerate business model appears to be dead in the automobile industry. Is it only a matter of time before brands like Jeep, GMC and Cadillac, which have vehicle models fairly distinct from the other brands in their companies, go out on their own? Has the problem been that the big automobile manufacturers have simply grown too ungainly to manage?
If the industry remains deconsolidated, the result could also cure the "too big to fail" issue that spurred bailouts in the first place. One little automobile manufacturer in trouble among a dozen is a far less attractive government bailout candidate than two of the three companies that make up the entire domestic industry. Smaller companies would also be under greater pressure to respond more quickly to consumer demand shocks impacting their part of the industry.
The line between foreign and domestic also continues to be confusing in the automobile industry. Many foreign companies have some North American factories: Toyota and Subaru (7 + 2 joint venutres), Honda (3), Nissan (4), BMW (2), Hyundai (1 + 3 design facilities), Mitsubishi (1), Suzuki (1 joint venture with GM). Chrysler has spent much of of recent history owned by Daimler Chrysler, a German automaking venture, and after a brief period of ownership by a Canadian hedge fund, will now be under Italian automakingg venture Fiat, despite having few non-North American activities. General Motors will have stepped by from the international market, but still have substantial foreign operations. As the Big Three decline in scale, the North American production of some of the foreign companies is starting to rival that of the domestics, and spin offs will also immediately impact the market share of the Big Three, although sometimes not dramatically.
(Some of the older developments are recapped here.)
A deal to sell the Hummer brand to a Chinese cement truck manufacturing company is in the works (and honestly, Hummer is a very small line, producing a little more than 70,000 vehicles in for the commercial market in its peak year, just four models, not all of which are in production so far as I can tell, and far fewer vehicles, 27,485 in 2008, since fuel economy and thrift have returned to the market as consumer values). GM would do contract manufacturing for the first few couple years, after which the buyer would have to set up its own manufacturing process.
A deal to sell GM's Opel division to a consortium led by a Canadian auto parts company and a Russian bank, with German government support, appears to be well under way. This involves a unit that produces about 2 million vehicles a year.
The GM Pontiac brand remains slated for decommissioning.
Jaguar and Land Rover were sold by Ford to Tata Motors of India in May, 2008.
Saab (owned by GM which sold about 21,000 vehicles in North America in 2008) and Volvo (acquired by Ford on February 4, 1999 for $6,45 billion and had the fastest falling sales of any brand sold in the U.S. in February) are both being pitched to potential buyers. The Dodge Viper model within Chrysler (which produces under 2000 vehicles a year) was also purportedly the subject of a sale to a third party buyer other than Fiat.
Chrysler, less its financing arm, is on the verge of being sold to a consortium led by Italian automaker Fiat, with Justice Ginsberg of the U.S. Supreme Court ruling on an emergency motion to challenge the deal today after all lower federal courts had signed off on the deal by Friday.
GMAC and Chrysler's financing company appear to have been spun off from their respective automobile manufacturing groups and also appear to be slated to be merged into each other.
When the dust settles Chrysler will have three brands (Dodge, Chrysler and Jeep), and perhaps a fourth (Fiat), while Ford will have three once it can rid itself of Volvo (Ford, Mercury, Lincoln), and GM will have four (Chevrolet, Cadillac, GMC and Buick), with the GMC-Buick dealership channel consolidated into a single channel. Hummer, Viper, Saab, Volvo, Opel and Saturn may all end up as free standing car companies for now. Jaguar and Land Rover are part of Tata Motors. And, the remainder of the foreign car companies look likkely to survive. One or two small electric car producing companies (like Tesla) are also emerging into the market.
The flood of smaller newly independent or niche car companies is remarkable. It is hard to believe that they will avoid acquisition or survive on their own, but perhaps the economies of scale in the automobile market are not as great as they were in the past.
For the time being, the conglomerate business model appears to be dead in the automobile industry. Is it only a matter of time before brands like Jeep, GMC and Cadillac, which have vehicle models fairly distinct from the other brands in their companies, go out on their own? Has the problem been that the big automobile manufacturers have simply grown too ungainly to manage?
If the industry remains deconsolidated, the result could also cure the "too big to fail" issue that spurred bailouts in the first place. One little automobile manufacturer in trouble among a dozen is a far less attractive government bailout candidate than two of the three companies that make up the entire domestic industry. Smaller companies would also be under greater pressure to respond more quickly to consumer demand shocks impacting their part of the industry.
The line between foreign and domestic also continues to be confusing in the automobile industry. Many foreign companies have some North American factories: Toyota and Subaru (7 + 2 joint venutres), Honda (3), Nissan (4), BMW (2), Hyundai (1 + 3 design facilities), Mitsubishi (1), Suzuki (1 joint venture with GM). Chrysler has spent much of of recent history owned by Daimler Chrysler, a German automaking venture, and after a brief period of ownership by a Canadian hedge fund, will now be under Italian automakingg venture Fiat, despite having few non-North American activities. General Motors will have stepped by from the international market, but still have substantial foreign operations. As the Big Three decline in scale, the North American production of some of the foreign companies is starting to rival that of the domestics, and spin offs will also immediately impact the market share of the Big Three, although sometimes not dramatically.
(Some of the older developments are recapped here.)
Exec Compensation Review For Bailed Out Companies
The Obama administration plans to require banks and corporations that have received two rounds of federal bailouts to submit any major executive pay changes for approval by a new federal official who will monitor compensation, according to two government officials.
The proposal is part of a broad set of regulations on executive compensation expected to be announced by the administration as early as this week. Some of the rules are required by legislation enacted in the wake of the worst financial crisis since the Great Depression, and they would apply only to companies that received taxpayer money.
Others, which are being described as broad principles, would set standards that the government would like the entire financial industry to observe as banks and other companies compensate their highest-paid executives, though it is not clear how stringent regulators will make them.
Citigroup, Bank of America, the American International Group, General Motors and its finance arm, GMAC, which all received two taxpayer infusions, will face the strictest scrutiny. . . .
In the past, banks had free rein to determine the base salary and bonuses they awarded their employees. When the economy was riding high, bonuses for top Wall Street executives and traders soared to tens of millions of dollars. Critics say the bonuses often encouraged excessive risk-taking since star bankers could walk away with more money even if the bets they took failed to pay off. . . .
With the government handing out billions in bailouts, Congress passed legislation banning all companies that received support from the Troubled Asset Relief Program, or TARP, from paying their top 25 executives bonuses greater than a third of their salary, though they were not subject to specific salary cap.
The banking industry had been lobbying the Obama administration to exclude traders and other highflying salespeople from the top 25, fearing it would lose top talent to competitors not constrained by the rules of a taxpayer bailout. A number of bankers at Citigroup and Merrill Lynch have already fled to higher-paying jobs with rivals. But officials say that the guidelines will apply to the top 25 earners, including the traders.
From here.
Due Process Can Require Recusal of Judge
Normally, judges determine if they will recuse themselves from hearing a case by themselves, and the decision is effectively unappealable. But, the U.S. Supreme Court found today, in a 5-4 decision in the case of Caperton v. A.T. Massey Coal Co., that sometimes a decision must be reversed pursuant to the 14th Amendment due process clause if a judge fails to recuse himself when he should.
The case involved an elected West Virginia Supreme Court judge who was a deciding vote in favor of a coal company in a big dollar case where the judge took huge campaign contributions whilie the case was pending. The official syllabus states the facts as follows:
The West Virgina Supreme Court's decision was made by a 3-2 vote.
Justice Kennedy and the four liberals on the court reached their decision by rejecting an actual bias test and enunciating the following test (per the syllabus again, citations omitted).
Shorter version: When it looks like someone totally bought your vote in a particular case with campaign contributions, you must recuse, even if your vote wasn't actually bought.
Dissenters argue that this case opens up a huge can of worms that will be raised in a wide variety of cases and forces them to draw arbitrary lines. But, I suspecct that the actual impact of this decision on court cases may be modest. It applies only when the case in which (1) a recusal was sought, (2) the judge did not recuse, (3) the a case that was "pending or imminent" when campaign contributions were made, (4) a person with a personal stake in the case made the contribution, (5) the contributor wins in court, (5) the non-recusing judge was a swing vote in favor of the contributor, and (6) the contribution has a significant and disproportionate influence on the judge's electoral win of the judge (usually because the contributor was a leading contributor in the campaign and the race was a fairly close one).
In practice, a large percentage of judicial seats (including all such seats in Colorado) are appointed, are not even close when selected by election, are for long terms with the vast majority of cases that will be considered not pending or imminent when the election is being conducted, the vast majority of cases do not involve major judicial campaign contributors, and a majority of cases are not decided by a single vote in a state supreme court. Also notably, the outcome will almost never impact criminal cases, outside of a tiny handful of high profile white collar crime cases, as criminal defendants are rarely major campaign contributors to judges.
The remedy is also very modest -- remand of the case to the court that decided it, with the conflicted judge recused. The opinion does not require that the judge be removed from office or personally sanctioned.
While not addressed directly in the case, the reasoning also has the potential to more dramatically implicate one sided arbitration arrangements under the theory that "Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the other parties’ consent—a man chooses the judge in his own cause."
The case also reaffirms, in dicta, the prior line of cases concerning recusal when the judge has a personal financial interest in the case or a compensation incentive to vote in a particular way. This case went beyond those cases by looking at campaign contributions which give a judge a job but do not personally benefit a judge.
The case involved an elected West Virginia Supreme Court judge who was a deciding vote in favor of a coal company in a big dollar case where the judge took huge campaign contributions whilie the case was pending. The official syllabus states the facts as follows:
After a West Virginia jury found respondents, a coal company and its affiliates (hereinafter Massey), liable for fraudulent misrepresentation, concealment, and tortious interference with existing contractual relations and awarded petitioners (hereinafter Caperton) $50 million in damages, West Virginia held its 2004 judicial elections. Knowing the State Supreme Court of Appeals would consider the appeal, Don Blankenship, Massey’s chairman and principal officer, supported Brent Benjamin rather than the incumbent justice seeking reelection. His $ 3 million in contributions exceeded the total amount spent by all other Benjamin supporters and by Benjamin’s own committee. Benjamin won by fewer than 50,000 votes. Before Massey filed its appeal, Caperton moved to disqualify now-Justice Benjamin under the Due Process Clause and the State’s Code of Judicial Conduct, based on the conflict caused by Blankenship’s campaign involvement. Justice Benjamin denied the motion, indicating that he found nothing showing bias for or against any litigant. The court then reversed the $50 million verdict. During the rehearing process, Justice Benjamin refused twice more to recuse himself, and the court once again reversed the jury verdict. Four months later, Justice Benjamin filed a concurring opinion, defending the court’s opinion and his recusal decision.
The West Virgina Supreme Court's decision was made by a 3-2 vote.
Justice Kennedy and the four liberals on the court reached their decision by rejecting an actual bias test and enunciating the following test (per the syllabus again, citations omitted).
[T]he question is whether, “under a realistic appraisal of psychological tendencies and human weakness,” the interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.” There is a serious risk of actual bias when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The proper inquiry centers on the contribution’s relative size in comparison to the total amount contributed to the campaign, the total amount spent in the election, and the apparent effect of the contribution on the outcome. It is not whether the contributions were a necessary and sufficient cause of Benjamin’s victory. In an election decided by fewer than 50,000 votes, Blankenship’s campaign contributions—compared to the total amount contributed to the campaign, as well as the total amount spent in the election—had a significant and disproportionate influence on the outcome. And the risk that Blankenship’s influence engendered actual bias is sufficiently substantial that it “must be forbidden if the guarantee of due process is to be adequately implemented.” The temporal relationship between the campaign contributions, the justice’s election, and the pendency of the case is also critical, for it was reasonably foreseeable that the pending case would be before the newly elected justice. There is no allegation of a quid pro quo agreement, but the extraordinary contributions were made at a time when Blankenship had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the other parties’ consent—a man chooses the judge in his own cause. Applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin’s recusal.
Shorter version: When it looks like someone totally bought your vote in a particular case with campaign contributions, you must recuse, even if your vote wasn't actually bought.
Dissenters argue that this case opens up a huge can of worms that will be raised in a wide variety of cases and forces them to draw arbitrary lines. But, I suspecct that the actual impact of this decision on court cases may be modest. It applies only when the case in which (1) a recusal was sought, (2) the judge did not recuse, (3) the a case that was "pending or imminent" when campaign contributions were made, (4) a person with a personal stake in the case made the contribution, (5) the contributor wins in court, (5) the non-recusing judge was a swing vote in favor of the contributor, and (6) the contribution has a significant and disproportionate influence on the judge's electoral win of the judge (usually because the contributor was a leading contributor in the campaign and the race was a fairly close one).
In practice, a large percentage of judicial seats (including all such seats in Colorado) are appointed, are not even close when selected by election, are for long terms with the vast majority of cases that will be considered not pending or imminent when the election is being conducted, the vast majority of cases do not involve major judicial campaign contributors, and a majority of cases are not decided by a single vote in a state supreme court. Also notably, the outcome will almost never impact criminal cases, outside of a tiny handful of high profile white collar crime cases, as criminal defendants are rarely major campaign contributors to judges.
The remedy is also very modest -- remand of the case to the court that decided it, with the conflicted judge recused. The opinion does not require that the judge be removed from office or personally sanctioned.
While not addressed directly in the case, the reasoning also has the potential to more dramatically implicate one sided arbitration arrangements under the theory that "Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the other parties’ consent—a man chooses the judge in his own cause."
The case also reaffirms, in dicta, the prior line of cases concerning recusal when the judge has a personal financial interest in the case or a compensation incentive to vote in a particular way. This case went beyond those cases by looking at campaign contributions which give a judge a job but do not personally benefit a judge.
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