18 October 2019

What Are People Who Don't Vote Like?

The Pew Study of non-voter demographics is from 2010, but I suspect that not that much has changed on that score in the past decade.


None of this is terribly surprising. But, it does help quantify the electoral impact of low voter turnout in the United States.


Later in the report, it notes that non-voters are somewhat more liberal than voters which goes hand in hand with being less Republican than the general public.

Turnout will continue to be a pivotal issue in the 2020 election.

Religion, Race, Gender, Urbanization and Politics In the United States in 2019

Religion in America in 2019

Today, about two-thirds of American adults are Christian and a third are not Christian. 

About a quarter of American adults of "born again" or evangelical Christians, one fifth are Roman Catholic, about one in six are Christians who do not identify as "born again" or evangelical (roughly speaking, "mainline Christians") and 2% are Mormons, with a tiny percentage being Orthodox Christians or otherwise not classifiable into the categories above.

A little more than one in six American adults are not religious but do not identify as atheists or agnostics. A little less than one in six American adults are atheist, agnostic or adhere to a non-Christian religious faith - 9% of atheists or agnostics, 7% are religious non-Christians (about 2% are Jews, 1% Muslim, 1% Buddhist, 1% Hindu, and 3% "other").

A little more than half of Americans are mainline Christian or not Christian, and a little less than half are "born again" or evangelical Christian, Roman Catholic, or Mormon.

The Intersection of Race, Religion and Politics

In terms of ideology, politics and culture, the picture is a bit more complicated. 

Black Christians who identify as "born again" or as evangelical Christians tend to be politically liberal and to have very different ideas about how a good Christian should live than white Christians who identify the same way. Hispanics who identify as "born again" or as evangelical Christians tend to have political views more similar to white mainline Christians than to white "born again" or evangelical Christians.

White mainline Christians tend to be part of denominations that adhere to relatively liberal views on social issues but to be fairly conservative anyway, while nonwhite mainline Christians tend to be much more liberal personally. White Roman Catholics are culturally and politically very similar to white mainline Christians, while Hispanic Roman Catholics tend to be more politically liberal, and also tend to look different from white Roman Catholics culturally, demographically and socio-economically.

Also, at least among white Christians, those who attend church more often often tend to be more conservative, and those who attend church less often tend to be more liberal.

Trends





From the Pew Research Center, "In U.S., Decline of Christianity Continues At Rapid Pace" (October 17, 2019).

The percentage of adults in the United States who identify as Christian has been declining for my entire life. When I was born,  in 1970, about 90% of American adults identified as Christians. As of 2019, that percentage has dropped to about 65%. The percentage of American adults who identify as Christian has declined at a rate of about one percentage point a year since 2007, and more than half a percentage point a year for the entire time period since the early 1970s.

Most of that decline has been among Protestants who now identify as having no religion. Their percentage of the U.S. adult population has dropped by a quarter in that time.

The decline in the percentage of American adults who identify as Roman Catholic has declined at only about half the rate of Protestants. But, this is almost entirely a function of Hispanic Catholic immigration. In the Northeast U.S., where this hasn't been all that much Hispanic Catholic immigration, the percentage of adults who are Catholic has dropped by the same 25% that is seen for Protestants nationally.  In the South and West, where many Catholics are Hispanics with recent immigrant roots, the decline in the percentage of the population that is Catholic has been much more modest.

And, even among adult Hispanics in the U.S., less than half now identify as Catholic. The percentage of Hispanics who are Protestant, Mormon, or Orthodox Christian has basically held steady over the last decade (there was a statistically insignificant increase in the percentage identifying as Protestant from 23% to 24%). But, the percentage who identify as Catholic has fallen from 57% to 47%, while the percentage who identify as non-religious has surged from 15% to 23%, and the percentage who adhere to a non-Christian religion has surged from 1% to 3%. Over time, Hispanics are becoming more similar culturally, religiously and socioeconomically to whites as the process of immigrant assimilation continues relentlessly.

Since 2007, the decline in the percentage of Protestants who identify as "born again" or evangelical, and the decline in mainline Protestants, has taken place at the same rate. And, church attendance among people who identify as Christian has been basically unchanged in that time period.

This shift in religious identity has been demographically broad based and is not driven just by one subgroup (other than younger people). It is a shift that crosses the bounds of race, gender, education and geographic region, and has impacted both Republicans and Democrats although the shift has been bigger for Democrats than for Republicans.


The Generation Gap

This reflects a generational shift. The younger you are in the U.S. today is, the less like you are to be religious, and other studies show that Generation Z (my children's generation) is similar in ideology to the Millennials before them, and maybe a bit more so.

Older generations excepted young people who weren't religious to return to active Christian practice when they got older, but that didn't happen.


Every death in the United States, on average, makes the adult population of the United States less Christian (this population is about 80% Christian). Every child who turns eighteen, on average, makes the adult population of the United States less Christian (this age group is slightly less than 50% Christian).

The parents of older children who are closer to turning eighteen (who are slightly less than 50% Christian) tend to be members of Generation X (who are 67% Christian), like myself. Parents of younger children tend to be Millennials who are slightly less than 50% Christian, and if the persistent trend lines of the last 40 years continue to hold, their children will be Christian in lower percentages than their parents. When they become adults, it wouldn't be unreasonable to estimate that about 35% of them will be Christians.

Younger voters, for reasons very much related to their differing religious preferences are also more likely to vote for Democrats as the results below from the 2018 midterm elections demonstrate (in that election, "Nationally, voters favored Democratic candidates for Congress over Republican candidates by a margin of about 7 percentage points, according to a preliminary estimate by The New York Times.").


Race And Ethnicity In The United States In 2019

The non-Hispanic white population in the United States from 1910 to 1940 was in the range of 88.1% to 88.5% and this percentage has declined every decade since then. 

In 1970 when the overall non-Hispanic white population was 83.5%. The percentage of the population that is non-Hispanic white has decreased in every single U.S. state since 1970. 

In 1990, about 75.6% of the U.S. population was non-Hispanic white and Hawaii was the only U.S. state that was not majority non-Hispanic white. As of 2016, every U.S. state except Hawaii, California, New Mexico, Texas and Nevada was still majority non-Hispanic white, although by 2020, Maryland will also probably no longer be majority non-Hispanic white. (Puerto Rico and the District of Columbia are also not majority non-Hispanic white). 

As of July 2016, the United States was about 61.3% non-Hispanic white, 17.8% Hispanic, and 12.4% non-Hispanic African American, with non-Hispanic people who identify as Asian-American (about 4.8%), mixed race (about 2.2%) Native American or Alaska Native (about 0.9%), Pacific Islander (0.2%) and other (about 0.4%) making up most of the remaining population of the United States. The non-Hispanic white percentage of the U.S. population continues to fall steadily.

The declining percentage of the U.S. population that is non-Hispanic white is due mostly to relative numbers of births and deaths in each category racial and ethnic category, an increasing number of children who are of mixed race, and immigration:
In 2009, approximately 90% of all immigrants came from non-European countries. The U.S. does receive a small number of non-Hispanic white immigrants, mainly from countries such as Brazil, Canada, Poland, Russia, and the UK, as well as Egypt and Iran.

Urbanization

The percentage of Americans who live in urbanized areas has increased every decade from 1790, which it was 5.1%, to 2010, when it was 80.7% (except for a slight increase in the rural population percentage from 1810 to 1820 when the U.S. acquired a great deal of frontier land), and for every decade in each of the four main subregions of the U.S. (Northeast, South, Midwest and West). A majority of the population of every U.S. state today lives in urbanized areas except in Maine, Vermont, West Virginia and Mississippi. Rural areas contain only 19.3% of the population of the United States but cover about 97% of its land area.

The increase in urbanization was 2.7 percentage points from 2000 to 2010, 1.0 percentage points from 1990 to 2000, 4.3 percentage points from 1980 to 1990, and 1.1 percentage points from 1970 to 1980. Over that forty years period, the increase in urbanization was 9.1 percentage points. So, urbanization is a slow, but extremely steady trend, and the urban percentage of the U.S. population will no doubt be higher in 2020 than it was in 2010. Rural populations are older than the U.S. average and have fewer births and more deaths per capita.

Maine is something of an outlier in this regard. It was 51.7% urban in 1950 and has become more rural in every decade since then to 38.7% today (the lowest percentage in the United States).

The Racial, Gender And Religious Political Divide

Republican voters are disproportionately non-Hispanic white and male. For example, in the 2018 midterm elections:



In the 2018 midterm elections, 37% of voters identified as Democrats (and voted 95% for Democrats), 33% identified as Republicans (and vote 94% for Republicans), and 30% identified as unaffiliated (and voted 54% for Democrats). Democratic men made up 14% of voters, Democratic women made up 23% of voters, Republican man made up 17% of voters, Republican women made up 16% of voters, unaffiliated men made up 16% of voters and unaffiliated women made up 13% of voters. Non-Hispanic whites made up 72% voters, 11% of voters were black, 11% of voters were Latino, and 6% of voters were "other" (mostly Asian). The gender divide between the political parties is also apparent in this data.

Based upon the same exit poll data, voters who voted for Republican candidates in 2018 were 85.9% white, 2.3% black, 7.3% Latino, and 4.5% other (mostly Asian), while voters who voted for Democratic candidates in 2018 were 62.3% white, 19.4% black, 14.6% Latino, and 3.8% "other" (mostly Asian). 

People who voted for Republicans were 54% men and 46% women, while people who voted for Democrats were 58% women and 42% men (the number do not total to 100% because some people would not answer or voted for a third-party candidate).

Voters who identify religiously as Christian, and especially white voters who identify as "born again" or evangelical Christian, are particularly likely to support Republicans at the ballot box. Of the 26% of voters in 2018 who identified as white "born again" or evangelical Christian, 75% voted for Republicans, while 66% of those who did not voted for Democrats.

Most Democrats who are white, mixed race, or Asian-American, are not Christians. But, more than 80% of white Republicans are Christian.

Religious “nones” now make up fully one-third of Democrats. And about six-in-ten people who identify with or lean toward the Democratic Party say they attend religious services no more than a few times a year.




The Bleak Demographic Future Of The Republican Party

The Republican Party has increasingly tried to identify itself as a (non-Hispanic) white Christian party more oriented towards small towns and rural areas than urban centers. But, all of the demographics that are at the core of the Republican Party's identity are in decline. 

As explained above, the share of the nation's population that is Christian is steadily falling; the share of the nation's population that is non-Hispanic white is steadily falling; and, the percentage of the nation's population that is rural continues to fall.

The Democratic Party, meanwhile, has become mostly a big tent coalition of non-Christians, and predominantly Christian non-whites (including Hispanics), with an urban orientation. Population density in your neighborhood is one of the better predictors of political affiliation. 

The end analysis is tricky. In the United States, national political power isn't simply a product of how many votes are cast for each party. Electoral votes and U.S. Senate seats must be won state by state and Congressional seats must be won district by district, and those factors due to historical decisions about state boundaries and gerrymandering, mean that it takes almost 57% of the popular vote for Democrats to win the Presidency, the Senate or the House, although the barrier is highest for the Senate, lowest for the House, and in between with respect to the Presidency. Some of this built in systemic advantage is pretty much permanent.

Voter turnout is also tricky. Democratic demographics are less reliable in their voter turnout, on average, than Republican ones, particularly younger voters. And, Republicans in state legislatures and election administration posts have worked hard to maximize that the turnout discrepancy between likely Republican voters and likely Democratic voters. 

But, ultimately, if a political party's base of supporters shrinks year after year, it has to expand its coalition or lose elections. And changing religious identities and the changing racial makeup of the nation, nudged by a slowly increasingly urbanized population, could tip the balance in large key states like Texas and Florida that could tip the balance eventually. Since religious identity is the fastest shifting of these factors, it is potentially the most threatening to the GOP.

This is the political calculus that has made Trump's anti-immigrant and white Christian nationalist rhetoric so popular with Republicans. Non-whites and non-Christians may not be a threat to our nation, but they are definitely a clear and present danger to the future of the Republican party.

Sooner or later, however, fighting against the coming of the night will prove futile, and the Republican party will face inexorable pressure to try to take some constituency from the Democratic Party's coalition into its own. It has lots of plausible choices from which to pick, but needs to decide which changes in its platform and image that could lure in a new constituency is least likely to alienate its existing base.

Also, there are really two tents that need to be considered. The analysis above has focused on rank and file voters and those among them who care enough to become party volunteers. But, each party also needs to mobilize money for its cause, which may come from other quarters. And, a successful party needs both an adequate rank and file constituency to command a majority in national elections, and an adequate coalition of donors to fund those election campaigns, to win. Changes to gain rank and file members and to gain donors must be managed in a way so that the gains on both fronts more than outweighs the losses from existing members of the coalition who prefer the status quo to the proposed changes that would bring in new supporters.

It isn't obvious how such a deal could be brokered, which is why the Republicans are so heavily rallying around Trump and why they are willing to resort to violent rhetoric, violence itself, "cheating" with respect to laws and political norms, and more in order to stay in power without having to deal with the inevitable reality that some day they will need to reform themselves to widen their base of both rank and file voters, among whom they have lost an entire generation, and donors, whom Trump is increasingly alienating.

I wouldn't be surprised if this Gordian knot is eventually broken by some successor political party to the Republican party in the American political landscape replacing it and securing a significant number of defectors from Republican party who are at peace with the necessary changes (and some Democratic defectors who aren't really at home in its currently coalition), perhaps "moderates" to the extent that either major political party still has any, to provide a base with which newly recruited elected officials and party officers can be added.

While most talk about the need for new political parties in the U.S. comes from the political left, it is actually the political right that most direly needs to be having this conversation.

15 October 2019

Too Many Federal Judges Are Former Prosecutors

Sitting federal judges are disproportionately former trial attorneys for a governmental entity. CATO thinks that it a bad thing as it explains in the linked essay. So do I.

Focusing just on former prosecutors versus former criminal defense attorneys (including but not limited to public defenders), the ratio on the federal bench is 4 to 1. Expanding the scope to include all former courtroom advocates for the government (but not other kinds of government lawyers, such as agency heads and general counsels), and comparing that to former public defenders, private criminal defense attorneys, and public interest lawyers, the ratio jumps to an astonishing 7 to 1. President Donald Trump’s judicial nominees, many of whom are committed originalists and supporters of constitutionally limited government, reflect these same ratios. 
What this means is that if you enter the federal legal system as an adversary of the government—including as a criminal defendant or a civil-rights plaintiff—the likelihood that the judge in your case will have previously served as an advocate for government is approximately 50-50. Meanwhile, the odds of drawing a judge who worked as a criminal defense attorney or public interest lawyer against the government (and never as a government advocate) are about 1 in 16. From the standpoint of someone whose liberty—or even life—hangs in the balance, those are suspicious and troubling odds.
From here based upon this CATO Study.

12 October 2019

My Geographic Identity

Even a predominantly geographic personal identification is not a singular thing. It has many levels of resolution. And, this list does not even consider that people have associations with places that they work, places where they work out, places that they used to live, and places that they feel connected to because they have family and friends there.

* My side of the bed (perhaps sixteen square feet).



* My room in my house (a couple hundred square feet or so). Some art in my room (my photographs):







* My home (about 1/15th of an acre a.k.a. 2,887 square feet), also my subdivision lots.



* The area where my "immediate neighbors" live (about 5 acres), also my subdivision shown below via the City and County of Denver.



* My neighborhood (about 2000 acres a.k.a. about a one mile radius from my home a.k.a. about 3 square miles) defined as the area within easy walking distance of my home. Also overlapping areas from smaller to larger in area including my precinct, my census tract, the officially defined West Washington Park neighborhood (further divided into Byers and West Washington Park proper), the greater combined Washington Park and West Washington Park neighborhood, my zip code (3.5 square miles), my "home school attendance zones" within the school district for elementary school, middle school and high school respectively, my state house district, and my city council district.



A church in my neighborhood (my photo):




A bar near my neighborhood (my photo):



* My larger region within or near the city that I live in (about 30-50 square miles), either central Denver or Southeast Denver depending upon how you divide up the city, also my recycling pickup zone, my Denver School Board district, my state senate district, my RTD i.e. regional transportation district director district, the portion of the city that was formerly the city of South Denver, the portion of the city that was formerly in Arapahoe County, and the survey Township and Range in which I live (about 36 square miles).



* The City and County proper of Denver where I live (155 square miles), which is contiguous with the school district and state judicial district in which I live. Also, my Congressional District which is almost, but not perfectly contiguous with the City and County of Denver, which is also a district for the election of state school board and CU Regent candidates (189.62 square miles).




* The Denver metropolitan area where I live, i.e. Denver, Adams, Arapahoe, Broomfield, Jefferson, Boulder and Douglas counties (4,482 square miles). Also regional governmental areas (DRCOG i.e. the Denver regional council of governments, RTD i.e. the Regional Transportation District (2,342 square miles), SCFD i.e. the Scientific and Cultural Facilities District, and the Mile High stadium district), my allegiances to various professional sports franchises that represent the Denver area, such as the Broncos, Avalanche, Nuggets, Rockies, Rapids and Outlaws, and the telephone area codes associated with my metropolitan area (303) and (720).



The larger regions of the state where I live (perhaps 18,000-45,000 square miles), i.e. the Front Range and the I-25 corridor. Also, the South Platte River basin (24,300 square miles which is located in parts of three States: Colorado (79 percent of the basin), Nebraska (15 percent of the basin), and Wyoming (6 percent of the basin)). The South Platte River basin is shown below via the U.S. Geological Survey:




* The State of Colorado where I live (104,185 square miles).



The Mountain West states consisting of eight states (855,767 square miles). Also, the Mountain Time Zone.



* The Western United States (1,751,206 square miles).




* The United States of America (3.797 million square miles).




* North America  (9.54 million square miles).




* The Americas (16.43 million square miles).



* The Earth (196.9 million square miles of surface area). Photo taken by Apollo 17:



* The Solar System (roughly a 175 billion mile diameter disk a.k.a. about 11 light hours, with about 600-800 million square miles of solid surface area). The solar system, as far out as Neptune, to scale:



The surface area map below is from xkcd via a Creative Commons license.



Fun facts: Former planet Pluto has a similar amount of surface area to the continent of Australia. Africa has a similar amount of land area to the Moon. The surface of Venus bears the closest resemblance to Christian descriptions of hell.

* The Local Interstellar Cloud, a.k.a. Local Fluff, is the interstellar cloud roughly 30 light-years across through which the Solar System is moving (image below via Wikipedia).









* The Local Bubble (a.k.a. Local Cavity), which is a relative cavity in the interstellar medium of the Orion Arm in the Milky Way galaxy. It contains the Local Interstellar Cloud, which contains the Solar System. It is at least 300 light years across (shown below via Wikipedia, the dot in the middle with text attached to it is our sun).


* The Orion Arm (a.k.a. the Orion-Cygnus Arm) of the galaxy where the solar system is located, about half-way between the center of the Milky Way galaxy and the furtherest extent of this arm within it. It is about 3,500 light years wide and about 10,000 light years long.


* The Milky Way galaxy (roughly a 105,700 light years in diameter disk with about 100 billion stars and a supermassive black hole at the center) (an edge on view of the Milky Way from Earth and Earth orbit compiled from multiple images via Wikipedia is below).


* Our "local group" of galaxies (roughly 10 million light years in diameter including about 30-50 galaxies) (via Wikipedia with the Milky Way depicted as the center):


* The Universe (roughly a 28 billion light years in diameter sphere at the moment). The image below is approximately linear in years (except for the first few moments which are smaller than they appear) and has roughly logarithmic dimensions in two dimensional diameter representing the three dimensions of space which are roughly symmetric. The scientific consensus regarding this image starts to break down in the area all of the way at the beginning labeled "inflation" (which cosmologists who support some version of the inflation hypothesis say lasted for less than a second), but everything beyond the first hour or so after the Big Bang (depicted as a flash of light) does have solid, consensus support except that there is some dispute regarding the true exact cause of what is labeled as "dark energy accelerated expansion."



N.B. We have no real idea "where" within the universe we are located spatially relative to any helpful big picture landmarks. The observable universe is basically homogeneous subject to a very, very subtle large scale cellular filamentary structure that extends as far as we can see in distance which is also back in time, in every direction. 

It doesn't even really make sense to talk about a "center" of the universe because observable space itself has expanded from a space definitely smaller than the solar system and quite plausibly smaller than a basketball at the beginning of the Big Bang to what exists today. All space in existence today maps back in time to this tiny immediate Big Bang vicinity area that set the initial conditions for everything. Thus, not only has the stardust that makes up our planet moved around within space; the space itself within which that movement took place has been massively stretched out.

Space-time itself is also bent by gravity. Topologically, at the largest observable scale space-time in the present day is almost, but not quite perfectly, topologically flat. It has an overall slight curvature in four dimensions that is analogous to the curvature of the surface of a three dimensional sphere that is called de Sitter space. This is unfortunate, because we have all sorts of wonderful mathematics to describe anti-de Sitter space which is analogous to the curvature of a hyperbolic plane in three dimensions, but the math needed to describe a universe like our own is much harder than less beautiful. 

Truly topologically flat space-time that observes special relativity (i.e. with no bending of space-time caused by gravity) is called Minkowski space. It turns out that the large scale curvature of the Universe is so slight, and the curvature induced by the gravity of large objects is also modest away from black holes, neutron stars and other very massive and very dense objects (i.e. away from strong gravitational fields), that the far more mathematically easy to deal with Minkowski space is used as a working approximation of the topology of space-time for even extremely high precision physics applications at short distance scales like quantum physics, and for the estimating for practical purposes effects of gravity at the fringes of galaxies, galactic clusters, or small systems of nearby galaxies, which in general relativity is only slightly different from Newtonian gravity (except that gravity bends light as well as influencing the trajectories of matter in space).

10 October 2019

A Threat To Sue For An Actual Personal Injury Is Not Extortion In Colorado

I see this issue come up from time to time, so it is worthwhile to note a published decision of the Colorado Court Of Appeals on point: People v. Knox, 2019 COA 152, ¶¶ 2-4 and 48-51. The ruling says in the pertinent parts (emphasis added) that:
¶ 2 On November 26, 2014, Amber Diedrichs-Giffin was turning left in her car when she heard a “bang” as Knox forcefully placed her hands on the hood of the car. When Diedrichs-Giffin asked if Knox was okay, Knox responded that her “leg kind of hurts.” . . . Diedrichs-Giffin provided her insurance and contact information; however, Knox declined to contact law enforcement officials and asked for “weed” or money, stating, “We could settle this now.” Knox walked away — seemingly uninjured — after Diedrichs-Giffin directed Knox to contact Diedrichs-Giffin’s insurance company.  
¶ 3 Shortly afterward, Diedrichs-Giffin called 911 to report the accident, expressing her uncertainty about who was at fault. The dispatcher told her that, without an injury, she did not need to file a report; but if Knox contacted law enforcement officials later, they could refer to the recording of Diedrichs-Giffin’s call.  
¶ 4 Later the same day, Knox sent Diedrichs-Giffin a series of text messages asking to settle matters outside of court. The particular text message underlying the eventual criminal extortion charge and conviction stated:  
"Hey amber, this is Ashley the young lady, u hit..i have a little amount of time if i want to pursue, court action…im already on pain management and am going through hard times like everyone..im sure..id rather u help me out we agree to a one time feesable amount. We can even sign something if u want..to keep out of a long court proceeding going back to court over several months, insurance goin up, and my medical bills, since im in and out of hospital already[.] Let me know, if that works for you, or u would rather draw it out in court. Thanks[.]" 
Diedrichs-Giffin did not respond to the message and testified that she perceived it as an attempt to “make a one-time deal with me so that way we didn’t have to pursue it in court.” 
. . . 
¶ 48 Knox contends, the People concede, and we agree that Knox’s threats of litigation to cause “economic hardship” were insufficient to prove her guilty of criminal extortion.  
¶ 49 As pertinent here, a person commits criminal extortion if  
"(a) The person, without legal authority and with the intent to induce another person against that other person’s will to perform an act or to refrain from performing a lawful act, makes a substantial threat to . . . cause economic hardship . . . to . . . the threatened person or another person; and  
(b) The person threatens to cause the results described in paragraph (a) of this subsection (1) by:  
(I) Performing or causing an unlawful act to be performed . . . ." 
[Colorado Revised Statutes] § 18-3-207.  
Thus, as a Colorado federal district court decision explained, proof of extortion requires the prosecution to prove 
"(i) a person, lacking legal authority to do so, ma[de] a threat to . . . cause economic . . . harm to the victim, with the intent of coercing the victim to perform an act or refrain from performing an act, and  
(ii) the person propose[d] to do so by resorting to an unlawful act or by threatening to invoke action by a third party, such as law enforcement." 
Witt v. Snider, Civ. A. No. 16-cv-01303-MSK-CBS, 2017 WL 2215252, at *5 (D. Colo. May 19, 2017).  
However, making a threat to do something while lacking express legal authority is not tantamount to committing an unlawful act. See Whimbush v. People, 869 P.2d 1245, 1249 (Colo. 1994). The defendant must have made a threat to commit an unlawful act. Id.  
¶ 50 Because no Colorado court has addressed this issue, we look to the decisions of other jurisdictions that reached this conclusion. As both parties mention, the overwhelming majority of jurisdictions addressing the unlawful act requirement in the federal analogue conclude that “[a] threat to litigate, by itself, is not necessarily ‘wrongful’ within [this context]. After all, under our system, parties are encouraged to resort to courts for the redress of wrongs and the enforcement of rights.” United States v. Pendergraft, 297 F.3d 1198, 1206 (11th Cir. 2002); see Deck v. Engineered Laminates, 349 F.3d 1253, 1257–58 (10th Cir. 2003); Rendelman v. State, 927 A.2d 468, 481 (Md. Ct. Spec. App. 2007), aff’d, 947 A.2d 546 (Md. 2008); see also Zueger v. Goss, 2014 COA 61, ¶ 42, 343 P.3d 1028, 1038 (Colo. App. 2014) (“Settlement implies a compromise; it does not establish conduct against one’s will.”).  
¶ 51 Accordingly, Knox’s threat to sue Diedrichs-Giffin did not suggest that she intended to act unlawfully; instead, she gave Diedrichs-Giffin the option to settle her alleged claim to avoid litigation. We join other jurisdictions in concluding that the threat of litigation does not constitute criminal extortion. Accordingly, we vacate Knox’s conviction for criminal extortion.
Footnote Regarding The Other Charges And What This Means To The Actual Defendant


Criminal extortion, of which Knox was acquitted on appeal, is a class four felony. Criminal extortion is an offense that is sometimes subject to enhanced sentences related to crimes of violence, but only if the defendant "(A) Used, or possessed and threatened the use of, a deadly weapon; or (B) Caused serious bodily injury or death to any other person except another participant," which are factors that weren't present in this offense, so it was only an ordinary non-violent class 4 felony.

Knox was still found guilty of two counts of false reporting to authorities (which were not appealed), which are class 3 misdemeanors defined at Colorado Revised Statutes § 18-8-111 under the facts in question, and three counts of attempting to influence of public official, which are class 4 felonies defined at Colorado Revised Statutes § 18-8-306, which were appealed but upheld on appeal.

This was based upon the fact that six days after the accident she called 911 and said that she had been hit by the other person's car in an accident that had just happened, and then told two separate police officers at two separate times the same thing, in an effort to get the police to charge the driver with a hit and run offense.

But she confessed that she had lied after being confronted with the email that was the basis of the criminal extortion claim from six days earlier, and the timed transcript of the 911 call of the driver six days earlier, who had called 911 after Knox left to determine if the accident had to be reported to the police to guard against being charged with a hit and run offense.

Knox's attorneys had argued on appeal that police officers didn't count as public officials within the meaning of that particular statute (a not completely implausible argument in the context of how that word was used in deferent parts of criminal code that was nonetheless ultimately rejected by the Court of Appeals), that the false reporting charge and the attempting to influence charge were duplicative offenses involving the same conduct (the Court of Appeals held that they were not duplicative because they involved different kinds of intended outcomes), and that there should be one offense for the entire continuous period of her cover up rather than one for each separate incident of lying to different person, one after the other. These contentions were rejected.


Thus, because of the Court of Appeals ruling affirming that each of these five convictions are separate crimes for which she may be convicted separately, Knox will have not one felony conviction, but three felony convictions (in either case in addition to two misdemeanor convictions which were not appealed), on her criminal record as a result of this extended episode of conduct arising from the same prosecution and incident. 


In Colorado, three felony convictions arising from the same trial, and the same episode of criminal conduct, still only counts as one "strike" for habitual offender statutes as currently written, but this wouldn't necessarily be true in the face of a prosecution for a federal crime, or a prosecution for a crime in another state, or under a Colorado habitual offender statute enacted at some time in the future, where she might face some form of recidivist sentencing enhancement as a three strikes felon.

In Colorado, a class 3 misdemeanor, the least serious misdemeanor classification, is ordinarily punishable by up to six months in jail and/or a $50 fine, plus court costs and restitution, if any. This can be reduced by 50% for good behavior. A class 3 misdemeanor does not carry many collateral consequences related to that conviction, and alternative sentences, such as probation, are quite common for class 3 misdemeanors.

In Colorado, a non-violent, non-sex offense, non-drug class 4 felony is generally punishable by a definite term of imprisonment of two to six years (which may be reduced by up to 50% for good behavior while incarcerated), followed by three years of parole, and/or a fine of $2,000 to $500,000, plus court costs and restitution, if any. A class 4 felony conviction has many collateral consequences in terms of matters such as eligibility for gun ownership, eligibility to enter many licensed occupations (even as a notary public) or the military, makes a non-citizen (even one on a documented visa in good standing) deportable, is ineligible to be punished by a fine without imprisonment for a felony, can give rise to habitual offender sentencing for later convictions, etc. 

Thus, with three felony convictions, she could face $6,000 to $1,500,000 in fines (if the judge chooses to impose them), plus court costs and restitution, if any, or the court could chose to impose no fine and only court costs and restitution, if any.

If she were sentenced to serve the sentences concurrently, she would face two to six years in prison, which could be reduced to one to three years in prison with good behavior, followed by three years of parole. 

But, if she were sentenced to serve the sentences consecutively, she would face six to eighteen years in prison, which could be reduced to three to nine years in prison with good behavior, followed by three years of parole. 

The sentence can't be more severe, however, following the appeal, than it was in the original sentencing hearing following the convictions.

When convictions are based on the same act or series of act arising from the same criminal episode, the sentences imposed must run concurrently, unless there are multiple victims involved, in which case consecutive sentences may be imposed in the discretion of the court, pursuant to Colorado Revised Statutes § 18-1-408(2)-(3). So, the two incidents in which a misdemeanor false reporting and felony four obstruction of justice convictions were obtained for the same statements, must each have concurrent sentences, and all five offenses of conviction must be served concurrently, unless the judge finds that the 911 dispatcher, and the two respective police officers were multiple victims of these crimes and exercised his or her discretion in the original sentencing hearing to impose consecutive sentences. The fact that this wasn't raised as an issue on appeal suggests that this probably didn't happen. The case for there being multiple victims would have been much stronger if the criminal extortion conviction had been upheld, and we don't know if that sentence was to be served consecutively or concurrently.

Thus, the three felony convictions v. one felony conviction part of the appellate decision was really only pertinent to the collateral consequences of the conviction, to any collateral attack on the convictions (since she would have to invalidate all three convictions to reduce her sentence if irregularities were ever alleged with respect to any of them), and to the fine that could be imposed (if a fine was imposed at all in the first place).

So, instead of serving up to three months in jail (if she has good behavior while incarcerated) and possibly up to $100 of fines, in addition to court costs and restitution, if any, Ms. Knox will have to serve one to three years in prison (if she has good behavior while incarcerated), followed by three years of parole, and possibly up to $6,000 to $1,500,000 of fines, plus court costs and restitution, if any, and significant collateral consequences of the conviction. She would probably also be eligible in either case for a probation sentence, in lieu of incarceration or parole, or for a fine, in lieu of incarceration and parole, if the judge deemed fit.

The only issue remaining in the case that would be worthy of considering for a further appeal to the Colorado Supreme Court would be the ruling that the count of attempting to influence a public official was allowed in these circumstances (the decision on whether false reporting and attempting to influence a public official were duplicative couldn't escape all three felony counts because she was convicted of only two false reporting counts, arising from separate incidents, but was convicted of attempting to influence a public official in one count arising from an incident in addition to the two false reporting counts. But, the fact that two separate panels of the Colorado Court of Appeals reached the same conclusion on this issue, albeit with somewhat different reasoning, doesn't make it an attractive issue for the Colorado Supreme Court to consider.

Even If You Prevail In Litigation It Is Sometimes Slow And Expensive

The Decision

A published opinion of the Colorado Court of Appeals was released today in a lawsuit that I have been part of the team litigating actively for eight and a half years (I didn't participate in the briefing of this particular appeal, and I wasn't involved in the earliest parts of the litigation.) 

The main holding of the decision pertains to what documents must be attached to an application for attorneys' fees in a case whether a statutory fee shifting provision favors your client, which will be an important precedent on a nuts and bolts issue faced by lawyers in thousands of cases a year in Colorado. 

Litigation Can Be Slow and Expensive

But, the matter of more general interest to the public is that it provides an illustration of how long it can take to get justice in the civil court system and what it costs just one side in that dispute to do so. The Court of Appeals summarized the situation at the outset:
This case arose out of a property dispute between petitioner, Rita A. Nesbitt, trustee of the Rita A. Nesbitt Trust (Nesbitt), and respondents, Kathryn Y. Scott, Rodney A. Scott, and Vicki K. Scott (collectively the Scotts). The dispute led to protracted litigation, including an action in trespass and private condemnation proceedings, that lasted nearly a decade and involved two reversals by divisions of this court. Ultimately, the trial court awarded the Scotts $400,431.85 in attorney fees and $35,066.25 in costs. Nesbitt mounts two challenges to this award of attorney fees and costs. 
The term "costs" in this context means filing fees, service of process fees, fees to have transcripts made of depositions and hearings, charges for copying, printing and mailing documents (honestly, there isn't much mailing these days although postage used to be a pretty significant item in many cases), mediator charges, and much more than everything else combined, fees paid to expert witnesses such as, in a property dispute/easement/access dispute, surveyors, real estate appraisers, and road construction cost experts. 

The other side incurred costs that may or may not have been recoverable if they had prevailed, for flying the judge and representatives for both parties in a helicopter over the mostly roadless land in Pueblo County that was the subject matter of the dispute to aid the judge in independently and personally evaluating against the filter of dueling experts testifying for each party, whether it was practicable for the land owner that sought access to do so over an alternative access route that was preferred legally.

The Court of Appeals went on to affirm the award of fees to our client in this case (the award does not include fees and costs incurred by the respective parties in the prior trespass litigation) in the amount noted. The judgment in favor of our clients (following a third appeal that affirmed the trial court's final ruling) had come earlier. (There was also a fourth appeal earlier on in the case regarding attorneys' fees that was mutually dismissed as moot along the way when a decision on the merits in favor of our clients was reversed.) The other side also incurred fees of the same order of magnitude, although, of course, not an identical amount.

So, in the end, it took a decade and many hundreds of thousands of dollars spent by the parties, in addition to a much more modest but not entirely insignificant investment of public resources (certainly well in excess of the filing fees paid) by the court system, and some time and inconvenience for third-party witnesses in the case, to get it resolved once and for all. Litigation to collect the fee award is ongoing, and it isn't impossible that the opposing party could try to appeal this favorable Colorado Court of Appeals decision on the fee award to the Colorado Supreme Court. If you consider both side's litigation costs in this case and also in the previous case that led up to it, and also the public sector and third-party witness costs at some reasonable valuation and assign some modest dollar amount per hour to the time that the parties on both sides devoted to managing this litigation, the total societal cost of resolving this property dispute was roughly one million dollars, and that costs continues to accrue.

One of the reasons that civil procedure and litigation process reforms are so attractive from a policy perspective is that solutions don't have to be that wonderful to be a significant improvement. If a proposed reform could have caused this case to be resolved the same way with five years of litigation instead of almost ten, with a combined societal cost of $500,000, instead of something on their order of twice that much, and also had similar benefits in the significant minority of long, expensive civil disputes like it, to be consistently resolved more quickly at less expense, this would be a huge policy win that doesn't seem like it should be outside the realm of possibility.

It is also worth understanding that the fee award in this case was quite moderate compared to what some large law firms in Colorado charge their client. There are firms in Denver that have charged more than this amount to their client for prevailing on a single motion to dismiss in the trial court with no evidentiary hearings, followed by an appeal to the Colorado Court of Appeals, and then another appeal from that decision in the Colorado Supreme Court.

Better funding of the court system, especially at the appellate court level, could make the process move much more quickly and could have trimmed many years off the length of this litigation, but would have only moderately reduced the cost of this litigation.

Were Either Side's Lawyers Stupid?

This also raises another issue for lawyers generally, and it isn't a simple issue of either side's lawyers being stupid or incompetent. The litigation decisions each side had to make at some key junctures of the case were not easy ones with clear answers.

The other side lost their case every early on in the trial court, in 2012, when neither side had incurred even a tiny fraction of the attorneys' fees and costs ultimately incurred. They appealed the decision, and I would be the first to agree that they had every right to do so, and in the short run, they were right, they won on that appeal. 

But, as a result, their client spent seven more years in litigation only to produce exactly the same outcome on the merits, but with a far larger attorneys' fee obligation for their client. If the money had not been spent on litigation, it could have been used to secure non-legal solutions to their underlying problem which was getting access to a parcel of land that they owned. In 20/20 hindsight, the opposing party would have been much better off giving up their legal fight at that point and accepting the trial court's initial ruling against them.

It isn't uncommon that continuing to fight in litigation after an initial setback is ultimately a bad decision, especially when you win on "technical" grounds that don't really go to the merits of your claim. But, it is very easy for even good lawyers and well intentioned clients acting in good faith to underestimate the possibility that a short term win will backfire. 

Moreover, in cases like this one, with a fee shifting statute that applies to the case, the decision making process in evaluating the possibility that a short term win will end up being more costly in the long term tends to get worse rather than better, because each side has a stronger incentive to win on the merits without regard to what is actually at stake on the merits, and this clouds their judgment and makes the right choice harder to determine.

Conversely, sometimes you get get a quick win on the merits for your client that increases the risk that a decision will be overturned by a higher court relative to a slower win (indeed, this is true of almost all quick wins in litigation that don't involve a settlement). If the quick win is later overturned by a higher court, this is usually less desirable for your client in the long run. But, it is very hard to pass up an opportunity for a quick win, because saving time (that has great value apart from the litigation cost related aspect of this) is valuable and this usually reduces litigation cost and expense. Also, appellate outcomes are hard to predict in practice, and most trial court wins are not overturned on appeal, either because they are not appealed or because they are affirmed on appeal.

Finding a way to reform civil procedure and substantive private law to discourage this kind of decision making is a non-obvious matter, which is an important reason that this system is still around after literally hundreds of years of experience with the same basic grounds rules, and many decades of experience with the most pertinent of the very specific civil procedure rules in question.

It would be possible to significantly reduce the time and expense related to collateral fee award disputes, but that is a subject for another day.