Against Freedom of Contract

American law affords people great freedom to determine the nature of their legal liabilities to each other by entering into contracts.  Indeed, it very nearly approaches an ideal that is not just libertarian, but anarchist, despite the fact that neither of these political ideologies had wide political support in the general public.

Contracts can alter the extent to which liability is imposed as a consequence of negligent acts that caused injuries and can change the measure of damages that will be imposed upon them in the event of a breach of a legal duty or modify statutes of limitations to enforce rights.  They can determine whether or not a party will be entitled to attorneys' fees in the event of a dispute that is litigated.  They can eliminate a right to punitive damages, despite the fact that such damages can only be imposed in cases of the kind of misconduct for which liability itself cannot be waived as a matter of public policy.  Promissory notes routinely impose higher interest rates for the time value of money when the notes are in default than when they are not, and very little law limits the size of the penalty rate imposed after a default.  The parties to a contract can also agree to a great variety of matters concerning the manner in which disputes between the parties will be resolved - waiving a right to a civil jury trial, waiving access to the federal courts, waive a right to pursue a claim as part of a class in a class action, authorizing someone not involved in the underlying transaction to bring suit based upon it, or even waiving access to the court system entirely in lieu of only minimally regulated arbitration systems.

General Mills would like to impose an arbitration agreement on anyone who likes their Facebook page in the event of a lawsuit arising from a purchase of Cheerios or Chex.  Home inspectors routinely try to insist that a lawsuit against them for any harm suffered by their failure to do their job properly is limited to a refund of their fee and that even that remedy can be secured only in arbitration.

Freedom of contract is not absolute.  Statutes and public policy considerations impose certain limitations.  They generally prohibit waivers of liability for intentional misconduct, willful and wanton misconduct and gross negligence.  They prohibit liquidated damages clauses in circumstances when actual damages are easily determined or when the penalty is grossly disproportionate to a difficult to quantify harm.  They must afford some means of resort to a third party for dispute resolution or contract enforcement that meets certain minimum standards.  Interest rates cannot exceed rates defined as constituting usury.  Consumer defendants cannot be bound to respond to debt collection lawsuits in geographically distant venues.  Outside highly regulated sports and medical contexts, one cannot consent to not sue someone for intentionally causing you physical harm, for example, in the context of a duel.  Contractual limits on the grounds upon which a married couple may obtain a divorce are generally void, as are agreements in advance concerning post-separation or post-divorce parental responsibilities or child support payments, although there are only modest limitations on contractual agreements regarding property division and maintenance upon a divorce.

Closely akin to the issue of freedom of contract is the impact of disclosure on legal liability.  Products liability law is unduly focused on failure to warn, rather than on the merits of whether a product is dangerous or defective.  Medical malpractice litigation tends to focus on whether a patient was told that something really bad could happen even in the absence of negligence, rather than on whether the physician took appropriate steps to reduce the likelihood that those bad outcomes would actually occur. Securities fraud law permits firms to avoid liability by formally warning investors of risks that all of the other conduct of the sellers pushes buyers to ignore.

As an attorney, it is my stock in trade to draft contracts that do all of these things, and to litigate in light of these terms when they exist.

But, I am deeply skeptical of the proposition that freedom of contract with regard to the nature and extent of tort liability, or with regard to dispute resolution details and terms, does not do more harm than good.

The firms that are sophisticated enough to systemically enter into contracts that minimize their legal liability are often the very same firms that would be in the best position to take the necessary care to prevent negligent harms from occurring in the first place and to refrain from taking actions that would breach their contracts.

Provisions that inflate remedies for contractual defaults, like late fees and high default interest rates, usually have the practical effect of unfairly preferring those contractual debts vis-a-vis third parties who did not agree to that contract who have debts for the same principle and non-default interest amount in bankruptcy, rather than influencing how much is paid by the defaulting party to the contract who often can't pay the principal amount of the debt and non-default interest, let alone the late fees and default interest amounts that are owed.

The overwhelming majority of cases in which there is an arbitration clause is one in which the clause was included to discourage the non-drafting party from asserting that party's substantive rights in the event of a breach of contract or tort, or to otherwise provide an inferior forum to that party to obtain a fair remedy for wrongdoing by the drafting party, rather than out of any legitimate concerns regarding privacy, litigation costs, delay or a potentially unfair public court forum.

It is not at all obvious to me that our economy would be less healthy, or less efficient, if all contractual agreements provisions regarding tort liability, damages in the event of breach of contract or tort, or dispute resolution process were per se void as a matter of public policy.

An immense amount of dead weight loss transaction costs in our economy is devoted to paying people like me to game the system, that would be better spent on funding insurance purchases and reserves for contract liabilities when torts and breaches of contract inevitably happen.  The notion that securing express consent to contractual terms via shrink wrap agreements, liability waivers, terms of service, and the other pervasive contracts of adhesion that fill our lives is dubious at best and often outright absurd.

For example, even if it makes sense to hold swimming instructors liable only for willful and wanton misconduct, gross negligence or intentional conduct, rather than for mere negligence, there is no reason at all to believe that doing so on a transaction by transaction basis with non-negotiable liability waiver contracts signed by parents on behalf of their children is a more efficient way to address this issue than it is to address it with a generally applicable statute concerning swimming instructor liability or common law rule applicable to that situation.  Hundreds of thousands of dollars of liability for a personal injury sustained by a child learning to swim in connection with that student's instruction, should not primarily depend upon whether or not the administrative employee in the front office remembered to have that student's parent sign a form or not.  The amount of legal and administrative expense that goes into the process of preparing, executing, and maintaining records of those waivers of liability for negligence is not insubstantial and is wildly inefficient.

Of course, these terms are also found in vigorously negotiated, individualized contracts involving sophisticated commercial firms that are bargaining at arms length.  There is often no question in those cases that there has been the kind of meaningful and knowing consent to these terms that the legal theory of contract law contemplates when it justifies its freedom of contract principles.  But, even in these circumstances, the desirability of this freedom is questionable.

The transaction costs involved in this part of the negotiations relative to the stakes involved in the transaction are often much higher than the transaction costs involved in consumer contracts of adhesion.  The negotiation process over these terms inevitably prevents a not insignificant percentage of large scale economically valuable deals that would otherwise have been entered into from being concluded.  The way that issues addressed by these provisions are resolved when contracts contain provisions that differ greatly from the default rules of law are present are often unfair and create systemic incentives for misconduct by the party whom the negotiated contracts tend to favor (the notion that parties to a contract are economic equals is almost never true).  And, there is virtually no meaningful empirical evidence to show that business would not be capable of proceeding efficiently and productively in the absence of a decent set of universally applicable default rules.

Of course, to the extent that we have bad default rules of law, an inability of private parties to negotiate around them encourages legislators to fix the problems, which benefits not just those who would otherwise have put the changed new rules that apply in absence of an agreement into their contracts, but only benefits those who weren't savvy enough to draft contracts with better rules regarding how disputes regarding breaches of contact are resolved both in terms of process and substance.

Of course, given the race to the bottom federalism considerations involved, implementing such policies would require federal law intervention under the commerce clause power and/or bankruptcy power of Congress to be viable to implement without creating intense choice of law problems.

What would the rules look like?

* The prevailing party in disputes involving express contracts would have a right to recover their attorneys' fees and costs (something that is already a default rule as a matter of law in the case of leases in Colorado).

* Default interest rates in excess of the non-default rate would either be prohibited as a penalty against public policy.  An intermediate position would be to subordinate those debts in bankruptcy to all other debts, but that would still disadvantage third party creditors to the extent of pre-petition payments of default interest that reduce the size of the pie.  Another intermediate position would be to impose a certain interest rate in addition to the contract rate, for example, four percentage points per annum or the prime rate, in addition to the contract rate in the event a default.  Thus, the default interest rate on a contract with no stated interest rate would be 4%, while the default interest rate on a contract with a 5% stated interest rate would have a default interests rate of 9%.  If all creditors got the same default interest rate relative to the non-default status quo, in and out of bankruptcy, the prejudice to third party creditors would be eliminated.

* Late fees might be capped at a one time fee of 5% of the payment then due and would not apply to accelerated balances until their non-default due date.

* A variety of boilerplate terms might be implied as a matter of law into certain kinds of written agreements unless otherwise provided, e.g. regarding contract interpretation, definitions, etc.  Colorado does this already, for example, in the case of powers of attorney and other grants of fiduciary powers.

* The right to a civil jury might be eliminated in most breach of contract claims based upon written contracts that do not involve allegations of fraud.  (There is already rarely a right to a trial by jury for fact and credibility intensive rescission claims.) Common law already makes contract interpretation a matter of law in most cases, and breach is generally well defined in such cases, so the main shift would be in giving judges the more authority to determine contract damages.  Contract claims already make up only about 25% of civil jury trials despite the fact that the number of written contract claims litigated vastly outnumbers the number of personal injury tort claims litigated on court dockets.

* Statutory law would draw clearer lines regarding the measure of damages in a variety of particular industry contexts such as defective software, inaccurate home inspections, etc.

* The circumstances under which arbitration clauses would be permitted would be greatly narrowed, the conduct that could submit someone to an arbitration agreement would be greatly formalized along the lines of recent uniform legislation on marital agreements, and the occupational activity of arbitrating disputes would be much more heavily regulated to insure neutrality and fairness in the process.

* Waivers of liability for negligence would be void as against public policy, but a set of statutes would outline circumstances where there would not be liability for negligence (e.g. volunteer emergency assistance and inherently dangerous activities).

* Punitive damages waivers would be prohibited.  But, punitive damages and statutory damages ought to be subordinate to all other claims in a bankruptcy, or in the event of a dispute between judgment creditors over the same income or assets in bankruptcy.

* In some cases, like medical malpractice, a negligence based tort process could be replaced by a no fault regime of strict liability for bad outcomes with strictly compensatory damages and mandatory insurance to cover that liability, rather than a fault based regime that covers non-economic damages, with exceptions of willful and wanton or reckless or intentional misconduct, and with automatic referrals for disciplinary action on a license in cases of gross negligence.

* Contractual terms giving rise to a default in the absence of a breach of the substantive obligations of the parties to perform the contract ought to be disfavored.

* Failure to warn liability ought to be reformed, both to make unreasonable or unlikely to be read warnings ineffective particularly if rebutted by other communications or advertising, and to make warnings of obvious dangers unnecessary.

* Some minimum substantive securities regulation standards ought to be imposed, so that certain kinds of offerings are prohibited even if investors are warned about the risks in question.  Alternatively, a doctrine that subordinates formal written disclosures to other communications with investors might apply.

* In part to discourage venue shopping and in part out of the federalism notion of subsidiarity, I would favor the elimination of federal court jurisdiction in all ordinary diversity cases involving U.S. citizens (for diversity of citizenship jurisdiction purposes) (currently allowed when the amount in controversy exceeds $75,000 and the parties are diverse in state citizenship) and in all federal question cases involving private parties who are U.S. citizens (for diversity of citizenship jurisdiction purposes) (currently allowed in all cases with a federal question).  Thus, almost all employment litigation involving private parties (now federal question litigation), almost all contract disputes involving private parties, and almost all personal injury cases involving private parties would be limited to the state courts.  Cases with international diversity of citizenship (e.g. between a non-U.S. company and a U.S. company), special diversity of citizenship cases (e.g. multi-state class actions, and interstate interpleader cases), and special federal question cases that don't come under the general federal question statute (e.g. intellectual property and civil rights cases), as well as cases involve the U.S. government as a party, would remain in federal court.

Against Timid Politics

One of the defining aspects of President Obama's campaign in 2008 was how inspiring his speeches were.  The same could be said for many of our current incumbents in office.  As we head into the 2014 primary season, I don't feel that anymore, from anyone.

The fiery rhetoric seems reduced to weary croaks.  Everyone, the President, members of Congress, Senators, candidates and incumbents alike, just sound so tired.  They are tired of their own rhetoric.  They are tried of stalemate.  They have no new ideas.  And, timid politics only favor Republicans.  Democrats are the party of hope.  Republicans are the party that believes government can't do anything right.  The gird lock and gross irresponsibility of Republicans playing chicken with the national debt that they have created only serves to help them and hurt Democrats in the new elections.  People who think Congress is screwing up want to throw the bums out, even when many of those bums are crucial to setting things right.

Often alarming developments abroad, like the civil wars in Ukraine, the war crime filled civil war in Syria, and the kidnapping of hundreds of school girls by Boko Haram in Northern Nigeria would galvanize the country into action.  Instead, our leaders and leaders of developed countries in Europe and Asia, are confounded.  We want to avoid World War III, which an open conventional war involving both the United States and Russia could easily become.  On the other hand, we have let a country that we were treaty bound to protect the integrity and sovereignty of in Ukraine be dismembered with scarcely a peep, we have taken the mildest of possible responses to the use of chemical weapons and bombing of civilians with aircraft in Syria after taking a much more bold stances that led on Syrian rebels in Libya, and while we have a variety of low profile military and intelligence involvements across war torn parts of Africa we have kept them off of the media radar screen when we could have taken decisive action.

Ukraine and Syria may put the U.S. at risk of Wold War III, if we play our hand too strongly.  We also have to be careful of what we wish for.  While sovereignty is a fine principle in Ukraine, a rump Ukraine with Crimea and some Eastern Ukrainian territory would be a more politically stable regime that was more pro-Western in the long term.  While the Syrian regime is led by ruthless war criminals, a rebel victory might create a new Islamic fundamentalist state and led to mass ethnic cleansing and segregation like that seen in Iraq.

But, deployment of military force in aid of Northern Nigeria is another story, our military opponent would have no international patron with real military clout, and a victory there would clearly lead to an outcome that the U.S. would prefer.  Intervention in that conflict would show the minorities in the Democratic political base, that the U.S. gives a damn about people whose skin is not white.  Conservatives would be pleased to see the U.S. intervene to help Christians, and also moderate Muslims, who are being slaughtered and raped and kidnapped, resist fundamentalist Muslims who want to create new theocracies and provide a villain as good as any that central casting in Hollywood could provide.  Nigeria is one of the few sources of oil, natural gas, and uranium, all critical to our energy future, that is controlled by Western aligned democratically elected politicians and is the most populous country in sub-Saharan African.  It is in our interest both economically, and from the perspective our of national values to back them militarily.  And, after more than a dozen years fighting counterinsurgency actions in Iraq and Afghanistan, we have never been better positioned to fight another such action against less militarily capable forces in Northern Nigeria, and we have never had combat tried military leaders more able to distinguish between fundamentalist Muslim foes and moderate Muslim allies.  To the extent that Boko Haram can be linked to al-Qaeda, the intervention could even be justified as part of an ongoing "long war" on terrorism justified by the Authorization for Use of Military Force (AUMF), originally in Afghanistan.  Of course, such bold military action would also draw attention away from stale, political sideshows and bring attention front and center to the conflict which patriotic, pro-military, interventionist, religious and morally driven foreign policy thinkers in conservative political circles would be hard pressed to oppose very seriously.  A nation at war always strengthens an incumbent President's hand.  A focus on this conflict would also discourage American politicians from rising to the bait of sword rattling in Asia, something that can only end badly.

In part it is this failure to take bold action elsewhere, that has allowed Republicans to beat the dead horse of decisions made a level or two below the pay grades of the President and Secretary of State Hillary Clinton, as part of a military and diplomatic campaign in Libya that was a foreign policy success still echo through the media vacuum, together with another controversy over a low level decision about allegedly politically motivated audits of conservative non-profits that were mostly crossing the line of what the law permitted them to do.  The President and the Courts and Congress continue to wrangle over continuing efforts to stay the course of a handful of detainees in Guantanamo Bay, Cuba, many of whom are low level foot soldiers (if guilty at all of anything prior to their detentions), and a handful of military trials that have proved to be far from the decisive and swift tools for meting out justice to terrorists that their proponents claimed - despite the notion that military trials are a forum that ought to give the President more power, rather than less.

President Obama's unwillingness to seriously change course on misguided military, intelligence and anti-terrorism policies of George W. Bush that he campaigned against is puzzling.

The President has taken a very deliberate pace in addressing a sea change in public opinion towards the decriminalization of marijuana and the war on drugs, but with new changes in the sentencing guidelines, crack cocaine sentencing reforms, a set of new more lenient (although still muddled) policies for U.S. attorneys towards the drug war, and rumors of a major new batch of pardons for excessively sentenced drug offenders being considered, this may simply be a matter of political timing - saving a hot button issue for after the midterm elections at moments in the two year Congressional election cycle where there is the slightest political fallout.

Some of the dearth of political ideas is a product of political deadlock in Washington.  But, wouldn't a vibrant, common sense agenda that could advance if only the people denied Republicans their majority in the House of Representatives and increased the Democratic majority in the U.S. Senate by a few seats mobilize the public to vote on partisan lines to achieve that agenda, rather than based on dissatisfaction with the existing deadlock or based on personalities rather than parties?

Why can't Democrats, unified by President Obama, united around their version of a Contract with America and turn the 2014 elections into a national referendum?  Their policies are profoundly more in touch with the view of the public, as revealed in opinion polls, than those of the GOP.  Even if the push only leads to break even results or mitigates the usual setback of an incumbent in a midterm election, the effort would reveal how out of touch the Republican party is with the beliefs of ordinary Americans and win the political identity war with the demographics that a growing, while the elderly, white, Southerners who are at the core of the GOP are diluted.

Found Time

One of the realities of life in a law office is that your day rarely precedes as expected.

One day, your gear up for a project that you expect to take up half of your day; the next, the deal is busted or the case is settled.  Sometimes a client hits traffic on I-70 coming to Denver and has to reschedule for the following day.  A deposition is cancelled because a witness is sick.  A court date is continued late in the afternoon before the hearing that was to take up the following day.

Typically, at any given time, two-thirds to three-quarters of the items on my "to do" list have a caveat, because the ball in that matter is in someone else's court and we can't act until we receive more information or action.  Maybe the next action item for us is a reply brief and the response brief hasn't yet been filed.  Maybe, the next step is to establish a business entity, but we are waiting for a client to decide on its name, or the ownership percentages.  A plan to establish an independent distributorship morphs into drafting an executive compensation agreement for a manager of a branch office and we must wait while the deal is renegotiated.

The bottom line is that several times a day, an e-mail or call (often it used to be a fax, but nobody uses faxes anymore), will interrupt the plan for the day and send us scampering off in a new direction, or with a big hole in our schedule.  Even more often there are moments of found time.  It is five o'clock and you have a meeting at five thirty, but no item on the "to do" list requires a block of time less than one hour if you want to be efficient about it.

So, you pause, gossip. grab a snack, blog, or whatever until it is showtime again.

Quote of the Day

"There is a traffic jam of thoughts going on in her head, but I'm not in the car with her."

- Andrea Cremer, "Invisibility" (2013).

Connect For Health Colorado Finally Delivers (Sort Of)

To recap the saga:

In late October of 2013, my wife set up an account at Connect For Health Colorado including a lengthy and intrusive application for Medicaid, even though we knew that we didn't qualify for it.  Sometime after Thanksgiving, after many catastrophic system failures at Connect For Health, we finally get our Medicaid application rejection and are allowed to access the part of the website that allows you to compare and contrast health insurance plans.

There are lots of plans and lots of details involved, but eventually, we pick a no deductible "gold plan" with CIGNA that will be hundreds of dollars cheaper than the health insurance that I have from Anthem (Blue Cross-Blue Shield) through the Colorado Bar Association (after Obamacare subsidies) has a $5,000 deductible for in network services, per person, and will no longer be available starting May 1, 2014 since it doesn't comply with Obamacare requirements.  We submit our plan on the December 23, 2013 deadline to choose plans effective January 1, 2014.

A day or two before January 29, 2014, we finally get an invoice from CIGNA for the health insurance we were unable to utilize from January 1, 2014 through January 31, 2014, because we had no health insurance cards and no one at CIGNA could confirm that we had health insurance from them.  Some of the delay was due to Connect for Health not being able to get our information to CIGNA in a timely fashion, and some of the delay was due to CIGNA's failure to process the information in a timely fashion once it was received from Connect for Health.

In order to try to avoid this kind of overlap of coverage, on January 29, 2014, we make a simple request that is supposed to take two weeks to fulfill.  We change our start date from January 1, 2014 to March 1, 2014, allowing an ample thirty days for the change to be processed, so that we can pay our premium and have health insurance cards in hand when our new CIGNA coverage begins.  Silly us.

Earlier this week (i.e. April 23), about twelve weeks after our requested change in start date and four months after we chose our health insurance plan, we finally are given the opportunity to pay our March premium for CIGNA and get into their system, and have been promised that we will received temporary health insurance cards tomorrow.

In the intervening twelve weeks, we had dozens of phone conversations with almost as many Connect For Health and CIGNA representatives (several times on conference calls involving representatives of both), about half of them managers and devoted probably thirty hours to the problem - hold times of half an hour to an hour were common.  Sometimes they would talk to me about the health insurance application submitted by my wife for our family without question, other times, they refused to talk to me citing confidentiality requirements.  We were told that there are hundreds of similarly situated people in the Connect For Health system and that there is no process for escalation of problem cases like ours to higher levels.  Connect For Health representatives swore that they'd sent information to CIGNA that was actually never sent several times.  We were promised calls back from Connect For Health representatives about ten or twelve times, and only received return calls two or three times.  One of the two times we were given a direct line for a particular person, Connect for Health refused to connect us to that person when we called back.  Threats of lawsuits and legislative intervention were to no avail.  I was promised a response from someone outside the call center, but got no response, although I did get a name and address.

Connect for Health mostly refuses to do business by mail, by e-mail, or in person, despite being supposedly a Colorado specific operation and their call centers are all across the United States.

Eventually, my wife's dire and disgruntled posts all over the Connect for Health website got us a call from someone in the Connect for Health organization with a direct line, e-mail and apparently, the ability to finally get the job done in just a few days.

One can get health insurance directly from a health insurance company, but doing so means that you forfeit the Obamacare premium subsidy, which Connect for Health has a monopoly upon.  But, in the end, we will have ended up paying for my old health insurance from January through April, coming within a week of having no health insurance at all, and also paying for the new health insurance for March and April despite the fact that we won't have any opportunity to use until the last week of April.

We were given an opportunity to move back the start date to May, and just like the first time we did it, we were told that it would just take two weeks.  But, that would leave us uninsured for the first week of May and the last time we were told it would just take two weeks it actually took twelve, so we declined that opportunity.

Connect for Health tells you that you can take a screen shot of your Connect for Health application and get health care from medical providers, but this is just a plain and simple lie, and one that health insurers are ill advised to participate in because, a screen shot is too early in the process to guarantee that a health insurance policy will actually be generated.  A process that routinely encourages people to pay for health insurance that they didn't receive is fundamentally fraudulent.

Connect for Health's insanely incompetent bumbling has cost my family about $2,500-$3,000 that we wouldn't have paid if they'd been doing their job, which eats up almost all of the economic benefits we would have received from Obamacare in the first year.  All told, the process has taken about 70 hours of our time, more than half of which was due to various screw ups by Connect for Health, and I fully anticipate that we will have about 15 hours or more dealing with the health care billing screwups caused by having two health insurance policies in place for the same time for March and April.

Assuming that our experience is typical of the hundreds of majorly screwed up cases in the system, Connect for Health has caused several hundreds of thousands of dollars to a million dollars of direct economic harm to people trying to sign up for health insurance, and thousands of hours of time for people trying to deal with their screw ups.  Worse still, some of those people were probably denied necessary health care as a result of their bumbling and suffered much more serious harm as a result.

I am currently exploring filing a class action lawsuit against Connect for Health seeking money damages for the class of people harmed by their failure to live up to their promises upon which people have relied and their contacts with health insurers and governments, as well as seeking injunctive relief to address the problems causing the damages.

The irony of it is that I am a big supporter of Obamacare as public policy.  Expanded Medicaid coverage, subsidized mandatory individual coverage for the more affluent uninsured in a well regulated market, and a largely unchanged situation for Medicare and group health care, may be an ugly kludge, but it dramatically reduces the ranks of the uninsured, substantively hurts almost no one, and meaningfully dents health care costs for those who pay most dearly for it under the old system, like self-employed people.  But, the implementation of health insurance exchanges like Connect for Health has been so abysmally incompetent, that this little detail has tarnished the entire program.  It is a problem that can and should be fixed.  Nothing that Connect for Health is charged with doing is very difficult.  But, because they have utterly fucked up this task, the promise of Obamacare has not been fully realized yet and immense problems have been created.

How many attorneys are there in Colorado?

As of December 31, 2013, there were 25,496 active attorneys in Colorado and 12,196 inactive attorneys in the state.  I always knew that there were a significant number of inactive attorneys' in the state, but had never imagined that it was 32.4% of the total (almost a third).

Over the course of the year, the state added 1,877 new attorneys and lost 983 attorneys (mostly to death).  Of the new attorneys', however, 560 were admitted on a limited basis for a single client only, as pro hac vice attorneys in a single case, or in one case, as a temporary law processor for the duration of his or her tenure.

After removing those attorneys from the rolls, the number of new attorneys net of lost attorneys was only 334, an increase of 1.3% which is slightly less than the 1.5% growth in population that Colorado experienced in that year.

Larimer County Judge Is Suspended, Publicly Censured And Resigns

Larimer County, Colorado Judge Robert A. Rand was suspended on July 3, 2013 and then accepted a resolution of his case in which he received a public censure (in case 13SA172) from the Colorado Supreme Court, and resigned on February 10, 2014.  Somehow, I managed to miss the news when it happened.

The censure identifies seven instances when he made inappropriate joking comments about people who encountered in the court, six of which were sexist.  It identifies two instances of inappropriate ex parte communications, one as a result of technological ignorance about how to do a conference call and a more serious case where he talked to a former paralegal related to a married couple coming before him as criminal defendants and failed to recuse himself.  It also identifies numerous inappropriate, off the record discussions with criminal defendants after proceedings ended.

The disciplinary counsel has identified problems created by the excessive confidentiality requirements involved in the formal judicial disciplinary process that is rarely invoked.

On the whole, it is reassuring that Colorado's judicial disciplinary process manage to bring about the resignation of a judge who engaged in repeated, albeit minor, judicial ethics violations, without the intense political tussle of a legislative impeachment proceeding or cumbersome and not always well informed process of a retention election.

Pot Liberalization Not Linked To More Crime

[A] new report contends that fourteen years later, even after Colorado legalized the sale of small amounts of marijuana for recreational use on Jan. 1 of this year, violent and property crime rates in the city are actually falling.

According to data from the Denver Police Department, violent crime (including homicide, sexual assault, robbery, and aggravated assault) fell by 6.9% in the first quarter of 2014, compared with the same period in 2013. Property crime (including burglary, larceny, auto theft, theft from motor vehicle and arson) dropped by 11.1%.

A study looking at the legalization of medical marijuana nationwide, published late last month in the journal PLOS ONE, found that the trend holds: Not only does medical marijuana legalization not correlate with an uptick in crime, researchers from the University of Texas at Dallas argue it may actually reduce it. Using statistics from the FBI’s Uniform Crime Report and controlling for variables like the unemployment and poverty rates; per capita income; age of residents; proportion of residents with college degree; number of police officers and prisoners; and even beer consumption, researchers analyzed data from all 50 states between 1990 and 2006....

“The central finding gleaned from the present study was that MML (medical marijuana legalization) is not predictive of higher crime rates and may be related to reductions in rates of homicide and assault. Interestingly, robbery and burglary rates were unaffected by medicinal marijuana legislation, which runs counter to the claim that dispensaries and grow houses lead to an increase in victimization due to the opportunity structures linked to the amount of drugs and cash that are present.”

From here.

420

* Yesterday was the 100th anniversary of the Ludlow Massacre in Colorado in which:

[A] gunfight broke out between members of the Colorado National Guard and striking coal miners employed by the Colorado Fuel and Iron Company near Trinidad, Colorado. During the fighting in and around a tent encampment of striking miners, eleven children and two women were killed when the tent above a pit they were taking shelter from the fighting in was set on fire. This event became known as the Ludlow Massacre, and shocked the nation into a greater awareness of the poor working conditions and exploitative "company town" economic predation faced by coal miners.

Today, all mine workers in the U.S. have a right to unionize and a very large percentage do (unlike the bulk of the private sector work force in which unionization is at pre-labor law lows), and safety standards in mining are much higher, mostly as a result of the Mine Safety and Health Administration which rivals the National Transportation Safety Board which regulated air and rail traffic safety, for its effectiveness (in stark contrast to the largely ineffectual (outside of manufacturing) Occupational Health and Safety Administration, OSHA, which has never had sufficient funding relative to its regulatory jurisdiction to make much of a difference).

The creation of a "company union" in the wake of the Ludlow massacre by Rockefeller's Colorado Fuel and Iron Company to prevent a real union with a more aggressive stance from filling the vacuum is one of the reasons that current U.S. law prohibits such unions which are common in places like Japan.

But, coal mining remains a very dangerous profession relative to most other professions even today. There are far more coal mining and transportation and power plant deaths than there are deaths from nuclear power to workers and non-workers alike, for example. In recent years, many of the reduced deaths are due to automation rather than improved safety standards. Abroad, for example in China, safety standards for miners are much lower and there are many deaths.

Worker's compensation, another aftermath of that era has been a mixed blessing, making some compensation for injured or killed workers almost automatic, but providing stingy amounts of compensation that are overrun with red tape.

I can't recall the last time that the National Guard was called upon in any state to put down union activity, and the Kent State shooting of war protesters in Ohio, on May 4, 1970, before I was born, is one of the last notable times the National Guard killed U.S. civilians, although the National Guard was called upon to provide civil security in the wake 9-11 at airports and has been called upon to deal with civil unrest now and then on many occasions, generally under the direction of state governors rather than when called up to federal duty when the Posse Comitatus Act (arguably one of the most important parts of the "unwritten constitution" in the United States) applies.

* It was also the day critical in the marijuana subculture, that evolved from a group of kids who smoked pot in California after school at that time in 1971, after which the number began to be associated with marijuana generally, and then morphed into a month and day instead of an hour and minute. One of the biggest events honoring this date in the Denver area was the Cannabis Cup at the Denver Merchandise Mart organized by High Times magazine, which had thousands of visitors paying $40 or so a head to get into to see the vendors and events. It was the 40th time the event was held and the first in a state with legalized recreational marijuana. The crowd was well behaved and there were few incidents of note.

* It was also Hitler's birthday,

* And, this year, it was Easter.  Incidentally, one of the main historical investments of the Roman Catholic Church in astronomy (which continues to this day) originally involved the effort to correctly determine the date of Easter. The Vatican observatory is one of the reasons that this Christian denomination embraces the Big Bang and an allegorical, rather than literal, reading of the creation story in the Bible.

Break In Blogging

I will be consumed with a trial in a civil case where I represent a party as an attorney that is being held in Pueblo, Colorado for the next week or so.  Therefore, blog posting will be light or non-existent.

Impulsivity And Procrastination Are Aspects Of The Same Thing

Twin studies show that inherited component of impulsivity and procrastination arise from a single genotype.  In other words, they are both manifestations of the same underlying trait:

181 identical-twin pairs and 166 fraternal-twin pairs complete several surveys intended to probe their tendencies toward impulsivity and procrastination, as well as their ability to set and maintain goals. They found that procrastination is indeed heritable, just like impulsivity. Not only that, there seems to be a complete genetic overlap between procrastination and impulsivity -- that is, there are no genetic influences that are unique to either trait alone.

The investigators at the University of Colorado at Boulder, "Gustavson and colleagues are now investigating how procrastination and impulsivity are related to higher-level cognitive abilities, such as executive functions, and whether these same genetic influences are related to other aspects of self-regulation in our day-to-day lives."

 The strong emerging inference is that at least some aspects or subtypes of ADHD, impulsivity, procrastination, grit and "W" (the key work ethic factor in academic and economic success that is orthogonal to IQ) may all be fundamentally part of the same dimensional personality trait.

The underlying journal article is: D. E. Gustavson, A. Miyake, J. K. Hewitt, N. P. Friedman. "Genetic Relations Among Procrastination, Impulsivity, and Goal-Management Ability: Implications for the Evolutionary Origin of Procrastination." Psychological Science (2014); DOI: 10.1177/0956797614526260

Reflections On Syria

The apparent good guys don't always win in geopolitics.

The dictatorial regime in Syria controlled by a minority Alawite ethnicity minority in that state, appears to have used a variety of tactics widely to be considered war crimes, such as the use of chemical weapons, the use of its Air Force to bomb its own people, shutting off rebels from humanitarian aid, and more, to defeat an armed Arab Spring uprising of its people against decades of dictatorial, one party regime rule there.  

There are pockets of dissent, but the Western powers that have the ability to intervene in favor of the rebels (or at least did at decisive moments that have since passed), were unwilling to commit to doing so in the way that they had in Libya just months before the Syrian uprising was in full swing, even after obtaining clear evidence that the regime used chemical weapons against its own citizens, and even has the death toll has approached or exceeded 100,000 in a country with a population smaller than California.  The West has supplied arms in a manner that is barely covert, but did not create a no fly zone that could have interrupted Syrian air strikes against its own people, has not instituted a naval blockade, and has not deployed troops or carried out strikes on regime targets with cruise missiles or smart bombs as it did, for example, at the turning point of the Afghan civil war.

In many ways the Alawites, were well suited to be successors to the French colonial rulers of the region.  Their worldview was more tolerant and more comfortable with the notion of a secular, multi-ethnic state than the urban majority of more conventional Sunni Muslims, yet as self-described Muslims in a state where the vast majority of the people were Muslims of some description, they were more tolerable rulers than Orthodox or Maronite Christians, and were not committed to isolation from the large world in the way that the Druze minority.  Their tribal and clan organization and solidification of a tight ethnic minority community gave them the organizational capability and levels of interpersonal trust needed to seize and hold onto power. 

Their mystical and syncretistic brand of Islam, following impulses within the faith not unlike those of Alevis in Turkey (many of whom are also Kurdish), and the Sufi mystical movement within Islam that has thrived in Pakistan, is hardly the secular, Enlightenment outlook that fueled the French Revolution.  But, it is also a movement within Islam that provides relief from the intensely patriarchy, harsh and violent discipline, and emotionally restrained Islam of the Wahabbi Sunni Islam promoted by Saudi Arabia. 

The Ba'athist party in Syria, like the one in Iraq, allowed a multi-ethnic state with a meaningful and thriving commercial middle class developed a power base separate from the nation's oil wealth that endured for decades, but only at the cost of denying the public genuine democratic elections, political liberties, and freedom of authoritarian abuses of individuals (particular political dissenters).

When the U.S. led invasion of Iraq (based to a great extent on an absurd claimed relationship between Iraq and the 9-11 terrorist) removed Saddam Hussein in Iraq, many Ba'athist went into exile in Syria whose sister Ba'athist regime had not yet fallen.  Iraq's long bloody counterinsurgency against Western occupiers and parallel ethnic civil war (that is still far from over and produces major military engagements and terrorist incidents years after the U.S. withdrawal) has turned a multi-ethnic nation with a substantial commercial middle class into a set of ethnically segregated microstates sharing a single stream of oil revenues dispersed by a deadlocked parliamentary system that requires ethnic consensus for many actions.  Many influential Ba'athists in Iraq have been disposessed of their wealth and political power.  Ba'athist Alawites in Syria and their allies of once influential Iraqis in exile understandably had an intense personal stake in not seeing that scenario repeat itself in Syria.

The U.S. and its Western allies have been reluctant to fully commit to support insurgents, because while they are Arab Spring revolutionaries who are victims of war crimes and want democratic reforms that a socialist dictatorship has denied them for decades, they are also mostly Sunni Muslims looking for an Islamist state who have welcomed assistance of Al-Qaeda and other organizations the U.S. saw as their terrorist opponents in Iraq (a nation which has a Shi'ite majority and many dissenting ethnic minority Kurds, but had a minority Sunni Arab dominated leadership under the Ba'athist regime).  The French, who as a former colonial power there would have been a natural to lead a European intervention, instead decided that their intervention against Islamic insurgents in Mali was all of the colonial might that they could manage to exert in the world at that historical moment.

Meanwhile, Russia chose to use its Security Council seat, resurgent naval power, and diplomatic resources to back the old Syrian regime against the Islamist Arab Spring insurgents who seem very similar to the Islamist insurgents in Chechnya that the Russian regime has devoted so many resources to putting down in the interest of showing political control over its territory even if the locals don't want them there.  Also, as much as anything, Russia was loathe, as it has long been since the Soviet era, to thwart international efforts to impose global standard in the conduct of sovereign nation's internal affairs, so its natural instinct was to block foreign intervention in Syria as well.  Their support for the Syrian regime effectively extended the Russian sphere of influence that had collapsed briefly with the fall of the Soviet Union, without committing much in the way of blood or treasure.

Also, assuming that Syria's old regime does eventually manage to consolidate power, it will have no choice but seek Russian support in international political and economic affairs.  Syria has no other patrons.  Even the Arab states have turned their backs on the Syrians (since the Sunni insurgents in Syria have more ethnically and religiously in common with them).  Russia's small favor will be an expensive one for Syria to repay, perhaps, for example, in favorable oil and gas deals, trade preferences, military procurement decisions, and international support for its controversial actions like its annexation of Crimea.  So long as Syria has oil, it can repay those debts, even if its once cosmopolitan, commercial middle class economy apart from its oil wealth collapses for decades as a result of its civil war.

Why I Practice Law

Obviously, I practice law because it is the easiest way for someone with a law degree to make a living.  But, sometimes I doubt whether I should really be in this business.

At heart, I am really more of a professor who practices law because he must (and I was even a full time professor of estate planning in a master's degree program for a while, until the for profit university I worked for laid of teaching staff since profit targets had not been met for our unit, and I was a professional journalist for a while at another point in time in a temporary position).  While I do a very competent job of it with pain, sweat and tears, it doesn't always come naturally to me.

There are people who don't dislike nearly as much as I do painstakingly keeping records of how they use every tenth of an hour of every day and accounting for every photocopy and postage expense, keeping their offices and case files in tidy good order, finding contact information of people they need to call, trying to get emotionally unsettled clients to focus on the tasks at hand, having nine little details that must all be attended to in one day in addition to one or two major projects, having a backlog of voice mails to return, and in general, being a super-bureaucrat who is superbly organized and perfectly prepared for every phone call and hearing according to a well honed system.

Lots of the time, to be perfectly frank, practicing law is boring, tedious, exhausting, and scatter brained.  And, honestly, the vast majority of lawyers have much more boring practices than I do.  There are people who do nothing all day but simple divorces, or real estate closings, or federal corporate tax law, or drafting wills, with no variety whatsoever, for years on end.  In contrast, I have done almost every aspect of law that my license authorizes me to practice, except criminal work. If I didn't have one of the most diverse practices in Denver, I would be bored to death.

Even then, I work about three-quarters time, rather than full time, so that I can leave time for blogging and pursuit of my other academic hobbies and side projects (like "the book"), to keep myself from turning into a law zombie.  There are absolutely lawyers who love their jobs more, and who are more naturally suited to their jobs, than I am.

But, every time I get down in the dumps over not being a real "natural" to the practice of law, I encounter a grossly incompetent fellow lawyer in my practice.  Perhaps, a divorce lawyer with thirty years experience who doesn't know how to properly introduce an exhibit in a permanent orders hearing, a civil litigation lawyer who doesn't understand how to amend a pleading, an opposing counsel who files a motion or brings a lawsuit with no hope of being granted or prevailing because the lawyer has no clue that it has no real probability of success, a lawyer who writes motion that don't contain any citations to controlling law or to any backup to the facts asserted, a lawyer who responds to discovery requests that contain false answers that he and his client are sure to be caught red handed manufacturing, and so on.

After seeing how many lawyers who have been practicing law for many years and made a living at it are so profoundly incompetent, I remind myself, that even though I don't always enjoy the work that is left for lawyers to do, or feel like I have to struggle to get it done, or realize after the fact that I have missed tricks in a case that the top 0.1% of lawyers would have utilized, that the quality of the work that I do is profoundly more competent than the quality of work I see from some of my peers in the bar every day.  So, yes, I realize, I do belong here practicing law, at least until something more entertaining that pays well comes along.

Lilith and Vampires, Who Knew?

One rather imaginative theory claims that vampires originated from two verses in the book of Genesis:

The legend of Lilith derives from a theory that Genesis has two creation accounts (Genesis 1:27 and 2:7, 20–22). The two stories allow for two different women. Lilith does not appear in the Bible (apart from a debatable reference comparing her to a screech owl in the Hebrew text of Isaiah 34:14). Some rabbinic commentators, however, refer to Lilith as the first created woman, who refused to submit to Adam and fled from the garden. Eve was then created to be Adam's helper. After their expulsion from the garden, Adam reunited for a time with Lilith before finally returning to Eve. Lilith bore Adam a number of children, who became the demons of the Bible. According to kabbalistic legend, after Adam's reconciliation with Eve, Lilith took the title Queen of the Demons and became a murderer of infants and young boys, whom she turned into vampires.

Cabal, T., Brand, C. O., Clendenen, E. R., Copan, P., Moreland, J., & Powell, D. (2007). The Apologetics Study Bible: Real Questions, Straight Answers, Stronger Faith (5). Nashville, TN: Holman Bible Publishers.

From here.

Legalizing sex, drugs, cash and car sales

There are a variety of activities that are illegal in Colorado (and sometimes in the U.S.), but shouldn't be.  In many cases, these activities are legal in other U.S. states, are legal in other Westernized developed countries, or were legal in the past, without incident.  This post looks at examples involving commercial activity on Sunday, alcohol, marijuana, sex, and cash.

Blue Laws

* Legalize Sunday car sales

Alcohol

* Legalize the sale of beer other than 3.2 beer, wine and liquor at stores that can sell 3.2 beer
* Lower the drinking age to eighteen.
* Authorize local governments to permit bars to serve alcohol after 2 a.m.

Marijuana

* Create an exception to federal controlled substance laws for conduct that is legal under state law.
* End federal prohibitions on banks doing business with marijuana businesses.
* Repeal Section 280E (denial of deductions for sales of controlled substances).

Sex

* Authorize local governments to legalize, regulate and tax prostitution.
* Exclude non-commercial depictions of lawful sexual activity (e.g. home made videotapes of seventeen years olds have sex with their boyfriends) from child pornography laws.
* Decriminalize bigamy based on the cohabitation of a married person in the absence of a purported legal marriage.

Cash Transactions

* Decriminalize smurfing (i.e. structuring cash transactions so that they fall below the $10,000 cash transaction limit).
* Remove forfeiture authority based solely on failure to disclose cash transactions or failure to declare cash to customs officials.

Incarceration British Style

Thirty years in prison is currently the most severe punishment available in the UK legal system.

From The Telegraph.

About 12% of state prisoners in the U.S. and about 3% of federal prisoners in the U.S. are serving life sentences. A significant additional percentage of state prisoners and about 10% of federal prisoners are serving terms of twenty years or more.

In Colorado, habitual offender sentences for most serious crimes, first degree murder, first degree kidnapping, child abuse or neglect causing death, and most serious sex offenses carry sentences of 30 years or more, and with consecutive sentences, terms of thirty years or more for other serious crimes aren't too unusual. Many drug offenders and child pornography offenders likewise are sentenced to more than thirty years in prison.

Of course, the U.K. has a much lower murder rate than the U.S. despite this fact, although crime rates for many other crimes in the U.K. are comparable to those in parts of the U.S.

Most Federal Drug Sentences Will Be Probably Shorter As Of November 1, 2014

The Obama Administration supports a modest, across the board reduction in drug trafficking sentences for offenses not subject to mandatory minimum sentences, relative to current sentencing guidelines.  The changes will officially take effect November 1, 2014, unless Congress acts to countermand the U.S. Sentencing Commission (which is unlikely), but federal prosecutors have been directly to start implementing the changes immediately.

Attorney General Eric Holder testified today at a hearing of the U.S. Sentencing Commission on proposed amendments to the sentencing guidelines, one of which is to lower drug sentencing guidelines by two levels. He supports the change. Once approved by the Commission, unless Congress rejects the proposed amendments, it will go into effect Nov. 1. 

In a press release today, DOJ says:

Until then, the Justice Department will direct prosecutors not to object if defendants in court seek to have the newly proposed guidelines applied to them during sentencing.

. . . 

The problem is, of course, the reduction would not affect mandatory minimum sentences. The only way out from a mandatory 5, 10 or 20 year sentence remains limited to those who either cooperate with the government or are eligible for the Safety Valve. 

In order to qualify for the safety valve, a defendant cannot have more than one criminal history point. A DUI, for example, is one point. If the person violates his probation, or is charged with the drug offense while on probation for a DUI, he or she will have more than one point and be ineligible. 

Since mandatory minimums trump the guidelines, the change won't affect those charged with a mandatory minimum whose guidelines are now less than 60, 120 or 240 months, unless they either cooperate or have no more than one criminal history point and meet the other conditions. 

A bill is pending in Congress (S. 1410) that would amend the Safety Valve, to make more defendants eligible for it. It has already been weakened, and would only apply to some of those with up to two criminal points. It passed the Senate Judiciary Committee in January, 2014, but has yet to be voted on by the full Senate. DOJ has supported expanding the safety valve.

Via Talk Left.

What Does A Two Offense Level Reduction Mean?

Translating the proposed two offense level reduction into actual prison sentences requires resort to a chart that sets guideline ranges based on offense level and criminal history.

For a given starting guideline sentence range under the old sentencing guidelines, a two offense level adjustment results in roughly the same amount of sentencing reduction, regardless of criminal history.

Thus, an offender facing a 51-63 month drug offense sentence before the change (about 5 years) (regardless of the combination of offense level and criminal history necessary to produce this guideline sentence under the old guidelines), would be reduced to about 41-51 months (about 4 years) after the guideline change.

In another example, someone who would have faced a 18-24 month presumptive sentence under the old guidelines would face a 12-18 month presumptive sentence under the new guidelines. This would be equivalent under Colorado's state law criminal sentencing system to downgrading a felony from a Class 5 to a Class 6 felony (the lowest grade of felony under Colorado law).

Impact

Drug offenders make up 50.1% of the prisoners incarcerated with the Federal Bureau of Prisons (about 98,554 prisoners, as of January 25, 2014), so an across the board downward tweak in the presumptive prison sentences for drug offenses has the potential to materially reduce federal incarceration.

About 30% of drug offenders serving prison sentences (as opposed to jail sentences of generally less than one year) are in federal prison (which tends to have longer sentences for comparable drug offenses), while about 70% of drug offenders servicing prison sentences are in state prisons.  In contrast, in 1980, about 20% of drug offenders serving prison sentences were in federal prison, and 80% were in state prison.  The federal "market share" of drug offense incarceration has increased by about 50%.

The effect, the Justice Department says, would be to reduce by 11 months the average sentence of a drug dealer and would trim the federal prison population by roughly 6,550 inmates at the end of five years. The proposal would affect about 70 percent of drug trafficking offenders.

From here.

The 30% of drug trafficking offenders who are subject to mandatory minimum sentences and don't qualify for the "safety valve" would not be affected.

The percentage reduction in federally incarcerated drug offenders as a result of the change, after five years, would be about 6.6%.

 This change is relative to an already substantial reducing in sentences for comparable drug possession quantities for crack cocaine that has already been made law (although crack cocaine offenses continue to be punished significantly more severely than comparable powder cocaine offenses).

But, while the sentencing guideline change is big enough to be notable relative to the status quo, this is still only an incremental baby step.

Even with a two offense level reduction, the number of federal prisoners in prison for drug offenses in 2019 will still be more than 8.5% greater than in 2005, The U.S. population has grown by 6.2% from 2005 to 2012, and is projected to be about 10% greater than it was in 2005 by 2019. Thus, the impact of all current changes in federal drug crime offense sentencing (and the proposed sentencing guideline impacts) combined, will reducing the federal drug offense incarceration rate from 2005 to 2019 by only 1.5%.

In part, the very modest reduction in overall drug offense incarceration flows from the fact that lots of the growth comes from drug offenders serving very long, already imposed drug sentences leaving the federal prison system more slowly than new offenders serving moderately shorter new drug sentences enter the system.  If the percentage of prisoners serving old regime sentences that is released each year is small, and similar numbers of new prisoners are added to the system each year, reduced sentences for new prisoners has only a limited impact on total federal prison populations.  In the federal system, only about 28% of inmates at any given time are serving sentences of less than five years, and 3% are serving life sentences; the median inmate is currently serving a sentence of almost 9 years in prison.

This proposal does not even remotely return incarceration rates for drug offenses to those of 1980.

The U.S. population has grew by about 37% between 1980 and 2011, so we would expect the raw number of incarcerated drug offenders in 2011 to be about 26,000 in state prisons, 6,500 in federal prison, and 23,600 in jails, if the dramatic "drug war" increases in prison sentences and enforcement efforts between 1980 and 2011 had not taken place.  The actual number of state drug offense prisoners is about 9 times as great, the number of federal drug offense prisoners is about 14 times as great, and the number of jail inmates serving drug offense sentences is about 7 times as great, as they would be if the 1980 status quo had been maintained.

The population adjusted growth in drug offense incarceration since 1980 accounts for about 443,000 of the persons incarcerated in prisons and jails in 2011.  Increased incarceration for drug offenses accounts for about 29% of the growth in incarceration since 1980, and the growth in incarceration for drug offenses accounts (without regard to the 1980 baseline drug offense incarceration rates) accounts for about 20% of the total number of people incarcerated today.

The proportion of growth in total jail incarceration and growth in total prison incarceration, in each case, in excess of population growth, due to increased incarceration of drug offenders, is about the same for prisons and for jails.

"War on Drugs" or "War On Crime"

The "War on Drugs" was announced by the President of the United States in 1982, roughly coinciding with the surge in U.S. incarceration rates.

In all there 501,886 people in prisons and jails in 1980 (about 22,000 in federal prison, 298,000 in state prisons and 182,000 in jails), and there would have been 687,600 in 2011 had incarceration rates remained constant.  Instead, there were 2,228,400 people in prisons or jails in 2012, an increase of about 1,540,800 people incarcerated.  The overall U.S. incarceration rate per population has grown by 324% (i.e. has a bit more than tripled).

Parole is used modestly less frequently than it was in 1980.  In 1980, the number of people on parole from felony prison sentences was equal to 69% of the population serving such sentences; by 2012 that percentage had dropped to 57%.  If parole practices today were the same as there were in 1980, about 7% of inmates who are currently incarcerated (about 102,000) would be on parole instead.

The shift in the relative frequency of jail sentences and probation sentences has changed more modestly.  Both jail and probation are typically alternatives to each other in the case of misdemeanors and less serious felonies.  In 1980, 86% of the combined number of jail and probation sentences were to probation; in 2012, 84% of the combined number of jail and probation sentences were to probation.  If the proportions were the same in 2012 as they were in 1980, there would be about 93,000 fewer people in jails, i.e. the percentage increase in jail incarceration would have been 356% from 1980 to 2012 instead of 409%.

Overall, shifts away from probation and parole sentences account for about 13% of the increase in the incarceration rate.

Another factor in the increased incarceration rate is increased use of life imprisonment.  About 12% of state prison inmates (about one in eight) and 3% of federal prison inmates are serving life sentences and more than 30% of those life sentences are life in prison without parole sentences.  These figures, moreover, understate the reality, because significant numbers of prisoners are serving consecutive sentences for multiple offenses that combined exceed their reasonable life expectancy (as a prison inmate), and a significant subset of those prisoners have first dates when they are eligible for parole that also exceed their life expectancy (as a prison inmate) or arisen when they are very advanced in age.

Incarceration rates for women have grown 50% faster than for men since 1980, largely do to increased sentences and increased exercise of executive discretion to incarcerate people for offenses like drug offenses, illegally entering the country after being deported, and white collar crimes.

Thus, increased incarceration for drug offenses is an important factor, but only one of several important factors causing the United States to have the world's highest incarceration rate.

The U.S. has an incarceration rate 50% higher than third highest in the world Russia (#2 Rwanda has a slightly higher incarceration rate than Russia), and about five times as high as the nations like Spain that are on the high end of incarceration rates in Western Europe.  The U.S. incarcerates six times as many people per capita as Canada (the incarceration rate for whites in the U.S. is about 2.2 times that of the overall incarceration rate in Canada; the incarceration rate for black men in their 30s in the U.S. is about 10%).

In contrast, in 1980, the U.S. had an incarceration rate about 24% higher than Spain's today, and about 53% lower than Russia's current incarceration rate.

The total U.S. incarceration rate peaked in 2010 plus or minus a year and depending on how you count it, and has declined only modestly since then.

One way to think about the concept is that the average threshold of criminal deviance necessary to cause someone to be incarcerated has declined dramatically in the U.S. from 1980 to the present.

Of course, 71% of the growth in incarceration is due to increased numbers of people serving time for offenses other than drug offenses.  Much of what is described as a "war on drugs" is to a great extent simply a long term overall trend towards imposing long sentences for offenses.  While growth in drug offense incarceration has been more rapid than growth in non-drug offense related incarceration, there hasn't been a huge difference.

But, sentences for drug offenses have definitely grown more severe, particularly at the federal level.  According to a Sentencing Project report, linked above and cited throughout this post when other authority is not identified:

[I]n 1986, released drug offenders had  spent an average of 22 months in federal prison. By 2004, federal drug offenders were expected  to serve almost three times that length: 62 months in prison. . . . Most of these people are not high-level actors in the drug trade, and most have no prior criminal record for a violent offense.

The U.S. Sentencing Commission two offense level reduction proposal reduces the average drug offender's sentence by something less than 16% (i.e. 11/63+ months).

Now, just over 50% of federal prison inmates are drug offenders compared to 19% in 1980, while currently about 18% of state prison inmates are drug offenders, compared to about 6% in 1980, and about 22% of jail inmates are drug offenders, compared to about 9% in 1980.

Increased incarceration of drug offenders has had a far more dramatic impact on the character of federal prisons than state prisons, however.  In 1980, only about 8% of all people serving prison sentences were in federal prisons, while in 2012, about 14% of people serving prison sentences were in federal prisons, almost twice the "market share" in a shift driven mostly by increased incarceration for drug offenses, immigration offenses, and weapons offenses.

Overwhelmingly, the growth in the federal prison population is a policy choice that is not strongly driven by federalism concerns.  Roughly 75%-85% of federal prison inmates are incarcerated for offenses that would also be violations of state in almost every states and Indian Reservation.

This includes most federal convictions for drug trafficking offenses (50% of federal prisoners), weapons and explosive and arson offenses (16%), sex offenses (6%), about half of federal extortion, fraud or bribery crimes (half of 5%), burglary, larceny and property offenses (4%), robbery (mostly bank robbery) (4%), homicide, assault and kidnapping (3%), and racketeering (0.2%).

Many of the plain vanilla sex offenses, burglaries, larcenies, homicides, assaults and kidnappings end up in federal prison because the federal system handles federal crimes committed on Indian Reservations and in federal territory that is not subject to state criminal justice jurisdiction (including lots of federal parks in the American West).  But, the federal prosecutions for drug trafficking, weapons and explosive and arson, child pornography, kidnapping, robbery and racketeering overwhelming are instances where the federal crime actively prosecutes criminal activity within state boundaries that also constitute federal crimes (although the federal criminal sentences for the same conduct are frequently much more severe).

The largest category of federal prisoners who couldn't be convicted of crimes under state laws are immigration offenders (11% of  federal prisoners).

Prospects for S. 1410 and for a Guideline Change Rollback

Support for S. 1410, discussed by Talk Left, which would expand the availability of the mandatory minimum sentence "safety valve" from the Department of Justice and the Democratic majority on the Senate Judiciary Committee is only a beginning point.

In addition to needing support from a bipartisan group of 60 Senators to clear the Senate, also needs support from a majority in the relevant subcommittees and committees in the House, a majority of the rank and file members of the U.S. House of Representatives, and support from the GOP leadership controlled rules committee in the House that controls which bills make it to floor votes and on what basis the measure and amendments to it can be debated.

 The House Rules Committee is a particularly daunting challenge, since it tends to refuse to bring up bills that lack majority GOP support, even if they are backed by Democrats and a minority of Republicans who together have a majority of rank and file members of Congress in the House.

Republicans have been much more receptive to sentencing reforms in the last few years than at any other time since the early 1980s, or so.  But, it isn't at all obvious that reducing mandatory minimum drug offenses sentences will play well with the GOP base in a mid-term election year as we move into primary season. So, S. 1410 is still far from being a sure thing, or even from being more likely than not to pass, and it may be diluted further if it does pass.

 On the other hand, there is no indication that there is support in Congress sufficiently strong to roll back the proposed sentencing guideline changes for drug offenses.

Has it been worth it?

Crime rates that peaked in the mid-1990s have recently reached record lows.  Criminologists have made a wide variety of efforts to explain this phenomena, but there is very little doubt that some significant portion of that drop is due to incarceration of convicted criminals who would have committed more crimes had they not been in prison.

The low end estimates of this effect tend to be on the order of one-seventh of the total reduction in crime rate, while the high end estimates attribute the lion's share of the reduction to this effect.  I suspect that the truth is in the middle.

Conservative leaning criminologists and economists comparing crime rates and incarceration rates make the case that empirically, at the forest level of analysis, there is not good evidence to suggest that who you incarcerate matters nearly as much as how many socially deviant people you incarcerate.  For example, their models looking at links between U.S. crime rates and institutionalized population sizes tend to show (counter-intuitively) that mental health institutionalization which involved a population with a large proportion of women and many mentally ill people who were not a threat to others, had a similar effect to increasing the number of institutionalized people in prisons for crimes by the same number of people per population.

Liberals looking at the issue on more of a case by case basis, are inclined to think that we could receive similar crime reduction benefits with a much more selective approach, by focusing on incarcerating people who are psychopaths or violent or extreme repeat offenders, while taking rehabilitative and community oriented corrections approaches towards non-violent economically motivated offenders whose economic circumstances drive their woes.

Some liberals argue that any incremental benefits from incarceration are offset by the harm that mass incarceration does to whole communities breaking down their social fabric in a way the dramatically worsens crime in those communities.  For example, a recent study noted that victims of domestic violence in mandatory arrest of perpetrator jurisdictions (particularly minority women) had lower life expectancies than those in jurisdictions that did not, possibly in part because of the harm that those arrests disrupt fragile households that are adding value for those victims in a permanent way.  Conservatives are more comfortable accepting a "born that way" explanation of racial and ethnic differences in crime rates, while liberals are much more strongly inclined to look to context and environmental factors such as "broken communities'  for explanations.

Liberals also note that in international comparisons, the link between the size of the institutionalized population and the crime rate is not nearly as strong as it sees in the U.S. time series statistics.

Conservatives would attribute many of these international differences to ethnic culture as revealed by proxies like race, Hispanic origins, religious affiliation, and social class.  For example, racial and ethnic mix, and urban neighborhood character, are much more powerful predictors of homicide rates in geographic subdivisions prepared using regression models than economic indicators such as poverty rates, unemployment rates, and education, which can confound race and ethnicity variables.

Poor whites, poor Asians (e.g. Southeast Asian refugees) in communities with high rates of unemployment and low levels of education commit and are victims of far fewer homicides than poor blacks in communities that produce comparable economic statistics.  Communities of rural Yankee whites have less crime than economically comparable communities of rural Southern whites.  Central cities have much higher serious violent crime rates than economically comparable suburbs and rural areas.  Men without at least some college with a mental health problem and/or substance abuse problem are at very high risk of committing felonies that lead to prison sentences.  Women and men who have at least some college who are employed are more than an order of magnitude less likely to commit felonies that lead to prison sentences, even when they have mental health and/or substance abuse problems.

Raw incarceration and crime rates for Hispanic men are an intermediate case between black men and white men.  But, models looking at incarceration and crime rates for Hispanic men after controlling for education, unemployment, income and age explain a large percentage of the discrepancy between Hispanic men and white men in likelihood of committing felonies leading to prison sentences, for example, by doing so.  In contrast, controlling for these same factors cannot by itself explain the discrepancies between black men and white men in these statistical measures of crime involvement.  It could be that racism in the criminal justice process is dramatically influencing the outcomes of that process (although this is less plausible, or at least less directly a factor, in the case of metrics like homicide rates).  But, a race blind analysis does not explain the data.

Equally important, liberals tend to weigh the harm caused by property crimes and vice that does not involve violence less seriously than conservatives.  On the other hand, liberals sometimes underestimating the problems associated with having a class of people, who can give rise to organize crime organizations, who are powerfully driven to reoffend because their ordinary means of support involves illegal economic conduct and property crimes.  Impulsive murders are much less likely to reoffend after a modest prison sentence than professional drug dealers or people convicted of trafficking in stolen goods.

Conservatives and liberals alike, however, are increasingly recognizing that a criminal justice system that incarcerates and places people under correctional supervision at such unprecedentedly high rates is very expensive for taxpayers, and has other serious economic costs in the private sector as people waste away in idleness and become unemployable even if they were employable before they went to prison.

Grand Juries Explained

Rather than tread over the ground well-described by my colleagues in the criminal defense bar, today I'd like to describe something else for you: what a federal grand jury proceeding looks like. From 1995 through 2000, I presented cases of varying complexity to federal grand juries as a federal prosecutor in Los Angeles. 

That experience did not inspire confidence in the process. Rather, it taught me that the adage that a grand jury will indict a ham sandwich is an understatement. A better description would be that the prosecution can show a grand jury a shit sandwich and they will indict it as ham without looking up from their newspapers. 

The notion that the Supreme Court relies upon — that the grand jury has a "historical role of protecting individuals from unjust persecution" — is not a polite fiction. A polite fiction would have some grounding in reality. It's an offensive fiction, an impudent fiction, a fiction that slaps you across the face and calls your mother a dirty bitch. . . . 

On grand jury duty it was routine for me to present a dozen accusatory cases in a morning to the panel. I'd read the proposed indictment to the grand jury (which another federal prosecutor has drafted), offer to read them the relevant statutes and the elements of the offenses, and call a federal agent to summarize the evidence by hearsay, which is permitted. I probably presented between 200 and 300 cases this way over the course of my career as a federal prosecutor.

Having presented the case — the longest part of which was generally reading the indictment — the agent and court reporter and I would step out of the grand jury room and let the heavy wooden door close. I quickly learned to take several steps away from the door; if you didn't step away, when the door flew open moments later it would startle you and you would look foolish. The court reporter and I would file back into the room to put on the record that the grand jury had returned a true bill. The wait was very rarely more than five minutes, it was usually less than two, and not infrequently measured in seconds. 

I only heard of one cases being declined by the accusatory grand jury in my years as a federal prosecutor: the case of a mother who let a dog out of its pen when INS agents arrived to arrest her son. The INS shot the dog dead and then sought her indictment for assault on a federal agent. The grand jury, to their credit, didn't buy it. During that five year period, my office probably secured around three or four thousand other indictments from accusatory grand juries. . . .

With very few exceptions — usually involving touchy cultural issues — the grand jury is a rubber-stamp. When it's accusatory it's a very minor speed bump, a speed bump like the one your neighbor's 17-year-old son races over in his truck at 2 in the morning.

From here.

Looking For Hell On Earth? Try Alabama.

The New York Times today has this notable and lengthy article about the criminal justice reform challenges facing Alabama headlined "Troubles at Women’s Prison Test Alabama." Here are excerpts:

For a female inmate, there are few places worse than the Julia Tutwiler Prison for Women. Corrections officers have raped, beaten and harassed women inside the aging prison here for at least 18 years, according to an unfolding Justice Department investigation. More than a third of the employees have had sex with prisoners, which is sometimes the only currency for basics like toilet paper and tampons.

From here.

High Speed Freight Rail?

The biggest factor in determining the economic viability of high speed passenger rail systems is the population density of the corridors that they serve.  The cost of building high speed rail over non-mountainous and non-swampy terrain per mile of tracks pretty much constant (adverse terrains are about 50% more expensive per mile of track).  The amount of expected trips on high speed passenger rail varies greatly between areas with relatively low population density and areas with relatively high population density, all other things being equal.

For high speed passenger rail systems to be viable, the infrastructure cost per trip over the useful life of the tracks has to be sufficiently low.  If you double the number of trips, you cut the infrastructure cost per trip in half.

Suppose that you take a high speed passenger rail car, leave its exterior dimensions and connections to the track essentially unchanged, gut the interior, use that car for cargo rather than to carry passengers, and move that cargo via high speed rail on the same basis as a passenger car would move.

Adding the freight traffic increases the amount of paid passenger trip equivalents in system revenue without changing the track infrastructure costs at all, to the extent that the freight charges are more than the variable operating costs associated with adding the extra car to the day's traffic and the infrastructure costs of the cargo car per freight trip over the useful life of the cargo car, and each freight trip's share of any infrastructure necessary to facilitate loading and unloading cargo as opposed to passengers.

Certainly, building new rail lines, which is necessary for high speed rail in most instances because turns must be softer, grades must be more flat, train gauges may be different, and electric supply systems for electrically powered high speed rail systems must be supplied.  But, it isn't at all clear that a mile of new high speed rail line is all that much more expensive than a new mile of interstate highway or a new mile of a low speed rail freight rail line.  The land acquisition and materials costs and construction effort aren't all that much different.

It also isn't at all obvious that the operating costs per ton-mile of freight moved using low speed rail is all that much cheaper than the operating costs per ton-mile of freight moved using high speed rail.  Indeed, there are economies of scale even in variable high speed rail operating costs.  A lot of the cost of operating a train comes from the salaries paid to the personnel the run it, and the fuel and maintenance costs aren't all that huge by comparison.  But, the personnel costs of running a high speed rail train with two cars and one with four or five or ten cars, is pretty much the same.

Suppose that it is possible to move freight via a high speed rail system at a cost only marginally more than moving freight via a low speed rail system, or for that matter at a cost comparable to (or even a bit less than) the much more expensive option (relative to low speed freight rail) of moving freight via a semi-tractor trailer on an interstate highway with speeds that a little bit higher that sending freight on a truck on an interstate highway.  If this is true, then high speed freight rail would have the potential to win over a very large market share of the intercity truck freight market, vastly increasing high speed rail traffic overall and vastly reducing the infrastructure cost of high speed rail relative to a passenger rail only model.

Let's be a bit more concrete.  Suppose that a truck on an interstate highway costs 37 cents per ton-mile (this source puts the figure closer to 17 cents per ton-mile for trucks, but confirms a 3 cent per ton-mile figure for low speed freight rail) and moves freight at about 55 mph on average from point to point including time spent stopped (with peak speeds of 75 mph on rural interstate highways).  Now, suppose that moving the same freight on high speed rail costs 33 cents per ton-mile (eleven times the cost of slow speed freight rail) and moves freight at about 80 mph on average from point to point including time spent stopped (with peak speeds of 160 mph), and time spent transferring the freight from rail to trucks for for first and last 15-20 miles of the trip.  Why wouldn't high speed freight rail capture almost all of the truck freight traffic on competing routes and vastly increase the volume of high speed rail traffic per mile of high speed rail tracks.

I think that these speeds and prices are attainable with existing high speed rail technology as part of an overall mixed passenger-high speed freight system.

Now, to do this, one needs to be able to very quickly move a high speed rail system compatible shipping container from train tracks to a waiting truck for the freight to go the last few miles from the destination high speed rail station to its final destination up to about 15 to 20 miles away.  Otherwise, the delay in getting freight on and off the train will slow down the passenger service so much that the benefits of high speed rail will be lost.  But, working out a solution such as having a big crane that lifts cargo cars off the tracks and puts them on trucks in a method similar in principle to existing multi-modal shipping container systems is very viable technologically.

The prospect of shifting a huge share of all truck freight to rail at prices closer to truck freight prices than to current rail freight prices would improve the economics of high speed rail and would also dramatically reduce interstate highway road maintenance costs, traffic delays from serious freight truck accidents, and other harms from freight truck accidents.

This is not just an accounting gimmick.  Fundamentally, it should work for freight because the labor costs of having one driver per truck are much higher than the labor costs of adding a few freight cars to a passenger rail train, or of running a purely freight trip with perhaps a dozen freight cars, on rail tracks that aren't vastly more expensive to build and maintain per mile than the alternative of interstate highways.  Rail is also just inherently less prone to collisions or other accidents than freight trucks.  Fuel costs for rail per ton-mile are generally lower than for trucks, but even if they are slightly higher, the total operating costs for high speed rail per ton-mile should be lower.

High speed freight rail is essentially equivalent to having self-driving cars without the huge technology risk associated with that kind of technological leap.

A 50-50 revenue mix of high speed passenger traffic and high speed freight traffic would cut the population density necessary for high speed rail to be viable roughly in half.  This could very well be the difference between viability at all, and non-viability, of high speed rail in places like the I-25 corridor in Colorado.

It might very well be that it is just impossible to get the cost of high speed freight rail down to the 3 cents per ton mile of low speed freight rail.  But, I wouldn't be surprised at all if it proved to be economically viable to provide high speed freight rail services at costs that are closer to 3 cents a ton-mile than they are to 37 cents per ton-mile for trucking.  And, if it is, high speed freight rail might not only virtually wipe out trucking in reasonably dense traffic corridors, but also might pick up a lot of the higher value freight that is currently transported by low speed freight rail.  Also, the speed of high speed rail relative to air traffic for medium distant trips (where non-flying time cuts into the benefits of high flying speeds) might make it highly competitive with air cargo at 122 cents per ton-mile.

Mixed passenger-freight high speed rail is not unprecedented, but typically, for example, in France, has been used only for postal freight.  But, the possibility of much wider high speed freight traffic seems at first glance to be something that can be made economically viable with existing technology.