31 October 2022

AI Helps Noobs Most

Artificial intelligence is particularly effective at helping novices perform tasks at a level of skill closer to that of experts. This paper looks at taxi drivers but another area where this is the case involve computer assisted sniper rifle systems.
We examine the impact of Artificial Intelligence (AI) on productivity in the context of taxi drivers. The AI we study assists drivers with finding customers by suggesting routes along which the demand is predicted to be high. We find that AI improves drivers’ productivity by shortening the cruising time, and such gain is accrued only to low-skilled drivers, narrowing the productivity gap between high- and low-skilled drivers by 14%. The result indicates that AI's impact on human labor is more nuanced and complex than a job displacement story, which was the primary focus of existing studies.
Kyogo Kanazawa, Daiji Kawaguchi, Hitoshi Shigeoka & Yasutora Watanabe, "AI, Skill, and Productivity: The Case of Taxi Drivers" WORKING PAPER 30612 (October 2022) DOI 10.3386/w30612.

28 October 2022

People Have Gotten Smarter, Patterns Of Decline With Age Are Unchanged

The fact that cognitive fitness has improved over the span of multiple decades is impressive. The fact that the patterns of old age cognitive decline are unchanged is depressing.
History-graded increases in older adults’ levels of cognitive performance are well documented, but little is known about historical shifts in within-person change: cognitive decline and onset of decline. 
We combined harmonized perceptual-motor speed data from independent samples recruited in 1990 and 2010 to obtain 2,008 age-matched longitudinal observations (M = 78 years, 50% women) from 228 participants in the Berlin Aging Study (BASE) and 583 participants in the Berlin Aging Study II (BASE-II). We used nonlinear growth models that orthogonalized within- and between-person age effects and controlled for retest effects. At age 78, the later-born BASE-II cohort substantially outperformed the earlier-born BASE cohort (d = 1.20; 25 years of age difference). 
Age trajectories, however, were parallel, and there was no evidence of cohort differences in the amount or rate of decline and the onset of decline. Cognitive functioning has shifted to higher levels, but cognitive decline in old age appears to proceed similarly as it did two decades ago.

26 October 2022

The Aftermath Of Banning Non-Unanimous Jury Verdicts

The failure of the U.S. Supreme Court to make it landmark procedural ruling in Ramos v. Louisiana retroactive is so glaring that it is one of many rulings that undermines its legitimacy as an institution that vindicates justice. 

The U.S. Supreme Court declared split-jury verdicts unconstitutional in 2020, in a ruling known as Ramos v. Louisiana.

Oregon had been allowing split-jury verdicts since 1934, after a Jewish man accused of murder was convicted of a lesser charge because of a single juror holdout. Louisiana enshrined non-unanimous juries in its constitution in 1898, during a convention where the stated purpose was “to establish the supremacy of the white race in the state.”

The Supreme Court ruling left it up to Oregon and Louisiana to figure out what to do with the hundreds of people already in prison for such convictions. On Oct. 21, Louisiana’s Supreme Court ruled against vacating those convictions, leaving the door open for the state legislature to take action. Oregon’s Supreme Court is similarly poised to rule on the issue, in an appeal . . . that could impact an estimated 250 to 300 other inmates in the state.

From here

25 October 2022

A Good Candidate For SCOTUS Jurisdiction Stripping

Article III, Section 2, Clause 2 of the United States Constitution provides that:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The U.S. Supreme Court also has broad supervisory jurisdiction over the lower federal courts apart from its appellate jurisdiction and its jurisdiction to hear cases in its original jurisdiction under the All Writs Act, adopted by the first Congress in 1789 and currently codified at 28 U.S.C. § 1651 which states:

(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.

One of the things that the power to issue writs granted to the U.S. Supreme Court can be used for is to rule on interlocutory appeals (i.e. appeals of orders entered while a case is currently pending, rather than following its conclusion with a "final order") in extraordinary cases.

Justice Clarence Thomas recently did this to intervene in a grand jury investigation in a federal district court seeking testimony from a U.S. Senator in connection with alleged improprieties related to the 2020 Presidential election. 

Justice Thomas stayed an order for Lindsey Graham to testify before a Georgia grand jury investigating the 2020 election. The October 24, 2022 order of Justice Thomas acting as a duty judge for the relevant judicial circuit states (in full):

Supreme Court of the United States No. 22A337 




UPON CONSIDERATION of the application of counsel for the applicant, IT IS ORDERED that the August 15, 2022 order of the United States District Court for the Northern District of Georgia, case No. 1:22-CV-03027, as modified by the district court’s September 1, 2022 order, is hereby stayed pending further order of the undersigned or of the Court. 

Clarence Thomas 

Associate Justice of the Supreme Court of the United States

There is a very sensible argument that Congress should prevent this kind of intervention in trial court proceedings by removing the authority of the U.S. Supreme Court to issue writs in the nature of interlocutory appeals in U.S. District Courts. 

Congress could instead limit that authority to the U.S. Courts of Appeals, which are the intermediate courts of appeal in the U.S. Court system, at least in the first instance as opposed to in appeals from another court's order in such an appeal.

This is what happens the vast majority of the time anyway. Justice Thomas' decision to intervene in this matter is extraordinary, even if it isn't entirely unprecedented.

Prior to the creation of intermediate federal appellate courts in the 1890s, when the federal court system was vastly smaller than it is today, this kind of intervention was fairly common and necessary because there was no one else to supervise trial court proceedings in this way. But in a vastly larger country with a vastly larger federal court system, this kind of meddling in the day to day workings of the federal trial courts starts to tarnish the U.S. Supreme Court as a political tool, as opposed to a forum focused on consistently upholding federal law in lower courts.

The U.S. Supreme Court should not be the court of first resort in trial court evidentiary and discovery disputes.

Quote Of The Day

 I walked into the kitchen to get dinner, but all I found were ingredients.

- Diane Dunn (October 25, 2022).


24 October 2022

The U.K. Has Its First Non-White, And First Hindu P.M., The Youngest In 200 Years

The Conservative Party in the U.K. (a.k.a. the Tories) is putting in a place a Prime Minister very different from its previous two incumbents in that position at a time when their party is in an abject crisis and has lost a great deal of public support for corruption during Boris Johnson's term, and for its inept economic policies.

Former finance minister Rishi Sunak will be the United Kingdom’s next prime minister after seeing off his lone remaining rival in the fast-tracked race to become Conservative party leader on Monday. . . .
Sunak will become the first person of color and the first Hindu to lead the UK. At 42, he is also the youngest person to take the office in more than 200 years. . . .
Sunak is set to replace Liz Truss, who will become the shortest-serving prime minister in UK history. Sunak will become prime minister once he is officially appointed by King Charles III and will be the first prime minister appointed by the new King following the death of Queen Elizabeth II in September.

From CNN

Robert Jenkinson, 2nd Earl of Liverpool, who served as Prime Minister from 1812 to 1827 is reputed to have had a part Indian mother and to have been one-sixteenth Indian, however, and was the closest to a "person of color" serving as Prime Minister of the United Kingdom prior to Sunak.

Other Recent Notable Firsts For U.K. Prime Ministers

Liz Truss who served 44 days as Prime Minister in 2022 was the third woman to serve as Prime Minister of the United Kingdom. She was proceeded by Theresa May who served from 2016 to 2019, and Margaret Thatcher who served from 1979 to 1990.

Sunak was born in Great Britain like all of his predecessors, except two who were born in Dublin, Ireland when it was controlled by England in the 1700s, one who was born in Canada when it was a British colony (Bonar Law, who served from 1922 to 1923 and presided over the loss of the Irish Republic), and Boris Johnson, who was born in New York City and is the only Prime Minister to be born outside English/British territory.

Prior Non-Christian Prime Ministers Of The United Kingdom

Sunak is not the first non-Christian to be a prime minister of the U.K., however (even ignoring religious conversions after leaving office). 

Several prior Prime Ministers were non-religious and one may have been covertly Jewish even though officially he was an Anglican while serving as Prime Minister.

Boris Johnson, who was prime minister of the U.K. before Liz Truss from 2019 to 2022, has denied being a “serious, practicing Christian” although he identifies as one culturally and was raised Catholic. Boris Johnson was baptised as a Roman Catholic but became an Anglican while at school. On May 29, 2021, Boris Johnson married Carrie Symonds at Westminster Cathedral, a Roman Catholic Church, adding an additional Catholic sacrament. Boris Johnson's mother is the granddaughter of Elias Avery Lowe, who was a Russian Jewish immigrant to the US. He was the first person raised Catholic to serve as Prime Minister of the United Kingdom, even though he was nominally Anglican while he served as Prime Minister. No one has openly professed to be Catholic or an Orthodox Christian or a Muslim while serving as Prime Minister of the United Kingdom.

James Callaghan (Prime Minister 1976–1979) was raised as a Christian but became an atheist in the 1960s. James Callaghan's paternal grandmother, Elizabeth Bernstein, was Jewish.

Clement Attlee (Prime Minister 1945–1951), was an agnostic and stated that he believed in Christian morality but not it’s “mumbo jumbo”.

Neville Chamberlain (Prime Minister 1937-1940) was raised in a Unitarian family, but, apart from funerals, was not shown to have attended religious services during his adult life and showed no interest in organized religion.

David Lloyd George (Prime Minister 1916-1922) lost his faith as a youth, but retained an appreciation of good preaching and hymn-singing.

Benjamin Disraeli was born in London to Jewish parents, but in 1817 he was baptised Christian (aged 13), as his father thought 19th century social/professional advancement required this nominal conversion to Christianity. He served as Prime Minister from February 27, 1868 to December 1, 1868 and again from February 20, 1874 to April 21, 1880.

Other Young Prime Ministers In U.K. History

The most recent Prime Minister of the United Kingdom who was younger than Sunak when he took office was William Pitt the Younger, who was 24 years old when he was took the office in 1783 who served until 1806. 

The next most recent was Fredrick North, Lord North, who was 37 years old when he took office in 1770, who last served the U.K. in that role in 1782. 

The next most recent was Augustus FitzRoy, 3rd Duke of Grafton who was 33 when he took office in 1768 who served until 1770. 

Before him was Charles Watson-Wentworth, 2nd Marquess of Rockingham who was 35 when he took office in 1765 who last served in 1782 (there was some back and forth between the men). 

Finally, there was William Cavendish, 4th Duke of Devonshire who was 36 when he took office in 1756 who last served in 1757.

Robert Walpole who began his service in 1721 at the age of 44, is considered the first Prime Minister of the United Kingdom, and he served until 1742, although Benjamin Disraeli, was the first to use the title in an official act in 1878. 

Other Historical Observations

England and Scotland merged to form the Kingdom of Great Britain under a treaty that took effect in 1707 before the Kingdom had a prime minister responsible to parliament. Ireland was added and the term United Kingdom was adopted in 1801.

Strictly speaking, William Pitt the Younger was the first to preside over the United Kingdom of Great Britain and Ireland (subsequently named the United Kingdom of Great Britain and Northern Ireland when the United Kingdom recognized the Republic of Ireland's independence). 

In any case, the notion of someone chosen by the House of Commons actually serving as head of government, which is a concept that evolved and came into being during Walpole's service as prime minister, arose much more recently than a partially elected parliament's role as a check on the monarch's authority did in British history (apart from the eleven year long Commonwealth of England from 1649 to 1660, under Lord Protector Oliver Cromwell, and then under his son, Richard Cromwell who took office at age 36 in 1658 and served for a little under nine months into the following year; General John Lambert presided over the Commonwealth of England as it fell until the Stuart Restoration was accomplished in 1660). This happened in the U.K. only half a century or so before the United States and France became Republics.

Twenty-Five Hot Legal Issues

I am a lawyer who sees the issues presented by my clients and the issues I get inquiries about from potential clients. In that capacity I also read essentially all the new published decisions of the Colorado Supreme Court, the Colorado Court of Appeals and most of the new decisions of the U.S. Supreme Court, receive updates in some legal areas from regular services to which I subscribe, and read the Colorado Bar Association and Denver Bar Associations monthly publications on a regular basis.

I sometimes participate in providing answers at Law Stack Exchange and Politics Stack Exchange (where I am a moderator), regularly read How Appealing, the Volokh Conspiracy and at least three law professor's blog (in the sidebar), a blog about the legal profession (About the Law), a blog about legal issues with national security implications (Lawfare, in the sidebar), and economics and politics sites that routinely discuss legal issues. 

I also encounter emerging or increasingly relevant legal issues in the general mainstream media (e.g. CNN, the New York Times, the Washington Post, and the Denver Post), as people ask about or discuss issues on Facebook.  

As a result, I have some sense of what areas of law are emerging, more relevant than they have been previously, or are in a state of flux. 

This post identifies twenty-five of those legal areas (yes, what constitutes one or multiple legal issues is somewhat arbitrary, one could vary the number simply by being more of a lumper or more of a splitter):

1. Jurisdiction, choice of law, and tax issues pertaining to remote work both interstate and international.

2. Jurisdiction, choice of law, income tax, sales and VAT tax, copyright, patent, rights of publicity, defamation, intellectual property licensing, occupational and professional licensing, business licensing, European and California privacy law, terms of service contracts, online fraud remedies, harassment and cyberstalking, obscenity, human trafficking, and revenge porn considerations that apply to Internet commerce and activity.

3. Privacy laws, in general, including those related to health information, doxing, cancel culture tactics, educational information, and information about Internet activity.

4. Laws about the legality of audio and video recording of conversations and events.

5. Non-competition agreements and non-disclosure agreements. 

6. International sanctions laws, war crimes laws, anti-terrorism laws, and extraterritorial jurisdiction.

7. Cryptocurrency issues, especially with regard to income and estate taxation, duties to disclose assets, and money judgment enforcement.

8. Election law (especially election administration law), treason and sedition law, and governmental liability.

9. The propriety of national injunctions, especially in federal public law cases, and issues of forum shopping.

10. Separation of powers issues in the federal government.

11. Dormant commerce clause limitations on legislation.

12. Laws regulated to COVID and public health restrictions.

13. Issues related to abortion law in the U.S.

14. Issues related to gay rights.

15. Gun control.

16. Family law issues in non-traditional families (i.e. in families other than married couples who children, if any, are all traditionally conceived children of both spouses, and other than divorces of such couples), and in non-traditional reproduction means (like surrogacy and IVF).

17. Indian tribe related adoptions, international adoptions, open adoptions, stepparent adoptions, same sex couple adoptions, and means by which a father's parental rights can be terminated to facilitate an adoption.

18. Partition law, i.e. the law of disentangling co-owners of real property outside the context of a divorce.

19. Home owner's association related disputes.

20. Disputes between neighbors regarding property lines, trees, and noise remain surprising relevant and often, surprisingly complex. 

21. Issues related to owning real property abroad.

22. Legal issues related to partial marijuana decriminalization.

23. Laws related to black box AI and machine learning decision making, and AI autonomy.

24. Laws related to the civilian and military of drones (especially airborne drones).

25. The legal status of non-citizens in the U.S. both documented and undocumented, of areas outside U.S. states in U.S. jurisdiction, and of Indian country.

23 October 2022

Transgender Identity Is Stable

People who are transgender as children stay transgender as adults. Often this identity starts to manifest in preschool or kindergarten and it is usually resolutely stays that way. It isn't a passing fancy.

They almost never change their minds. But postponing gender affirming treatment until after puberty greatly reduces the quality of the physical transition because puberty hormones lead to irreversible changes in the body that these individuals very much do not want.

The quoted text is from a Facebook post of a friend who is a medical doctor sourced from the Lancet article whose abstract and citation are found below it:
Transgender teens aren't "confused," nor do they "change their mind" upon reaching adulthood. 
Nearly all individuals with gender dysphoria who initiated hormone treatment as adolescents continued that treatment into adulthood, according to this Dutch observational study.

Among 720 people who started puberty suppressing hormones prior to the age of 18, 704 (98%) continued to use gender-affirming hormones after turning 18. 
Out of the 16 individuals who stopped using prescription gender-affirming hormones by the end of the study at an average age of 19 to 20, nine were assigned male at birth (4% of 220) and seven were assigned female at birth (1% of 500). A total of 12 of these 16 individuals (75%) underwent gonadectomy during this follow-up period.
N.B. "Gonadectomy" is a generic term referring to the surgical removal of either the testes in males or the ovaries in females, which results in a loss of gonadal production of sex steroids. It is an alternative approach to gender-affirming hormone treatments. So, 99.4% of 720 subjects (all but 4 of them) continued to take active medical action consistent with a transgender identity after reaching adulthood.

The summary of the source article and its citation are below:



In the Netherlands, treatment with puberty suppression is available to transgender adolescents younger than age 18 years. When gender dysphoria persists testosterone or oestradiol can be added as gender-affirming hormones in young people who go on to transition. We investigated the proportion of people who continued gender-affirming hormone treatment at follow-up after having started puberty suppression and gender-affirming hormone treatment in adolescence.


In this cohort study, we used data from the Amsterdam Cohort of Gender dysphoria (ACOG), which included people who visited the gender identity clinic of the Amsterdam UMC, location Vrije Universiteit Medisch Centrum, Netherlands, for gender dysphoria. People with disorders of sex development were not included in the ACOG. We included people who started medical treatment in adolescence with a gonadotropin-releasing hormone agonist (GnRHa) to suppress puberty before the age of 18 years and used GnRHa for a minimum duration of 3 months before addition of gender-affirming hormones. We linked this data to a nationwide prescription registry supplied by Statistics Netherlands (Centraal Bureau voor de Statistiek) to check for a prescription for gender-affirming hormones at follow-up. The main outcome of this study was a prescription for gender-affirming hormones at the end of data collection (Dec 31, 2018). Data were analysed using Cox regression to identify possible determinants associated with a higher risk of stopping gender-affirming hormone treatment.


720 people were included, of whom 220 (31%) were assigned male at birth and 500 (69%) were assigned female at birth. At the start of GnRHa treatment, the median age was 14·1 (IQR 13·0–16·3) years for people assigned male at birth and 16·0 (14·1–16·9) years for people assigned female at birth. Median age at end of data collection was 20·2 (17·9–24·8) years for people assigned male at birth and 19·2 (17·8–22·0) years for those assigned female at birth. 704 (98%) people who had started gender-affirming medical treatment in adolescence continued to use gender-affirming hormones at follow-up. Age at first visit, year of first visit, age and puberty stage at start of GnRHa treatment, age at start of gender-affirming hormone treatment, year of start of gender-affirming hormone treatment, and gonadectomy were not associated with discontinuing gender-affirming hormones.


Most participants who started gender-affirming hormones in adolescence continued this treatment into adulthood. The continuation of treatment is reassuring considering the worries that people who started treatment in adolescence might discontinue gender-affirming treatment.
Maria Anna Theodora Catharina van der Loos, MD, Sabine Elisabeth Hannema, PhD, Daniel Tatting Klink, PhD, Prof Martin den Heijer, PhD, Chantal Maria Wiepjes, PhD, "Continuation of gender-affirming hormones in transgender people starting puberty suppression in adolescence: a cohort study in the Netherlands" The Lancet (October 20, 2022). DOI:https://doi.org/10.1016/S2352-4642(22)00254-1

A Generation From Now Lots Of The U.S. Will Get Very Hot

In thirty years, much of the U.S. will have peak summer heat as intense as the hottest places in Nevada and Arizona do now.

From here.

21 October 2022

Who Still Smokes In The U.S.?

Tobacco use is significantly more common among men, people in poverty, mentally ill people, people with less education, Native Americans, and people in the South and Appalachia. 

It is significantly lower among women, people not in poverty, people with more education, Hispanics and Asian-Americans, Mormons, people over age 65, and people from politically Democratic leaning states.

Smoking Rates Overall and For Men v. Women 

In November 2015, the Centers for Disease Control (CDC) and Prevention noted in their report, "The percentage of U.S. adults who smoke cigarettes declined from 20.9 percent in 2005 to 16.8 percent in 2014. Cigarette smoking was significantly lower in 2014 (16.8 percent) than in 2013 (17.8 percent)." The CDC concluded this from data obtained by a survey of Americans. 

For instance, current smoking was higher among men at 23.9% than women at 18.1%. This is consistent with other countries. 

In 2013, the national smoking average in the United States was 19.6% of the adult population.   

As of 2018, a total of 13.7% of U.S. adults (16.7% of men and 13.6% of women) smoke.

In 2005, prevalence of current cigar smoking was 2.2% and current smokeless tobacco use was 2.3%. Prevalence of cigar smoking and use of smokeless tobacco were higher among men (4.3% and 4.5%, respectively) than women (0.3% and 0.2%).  

Of U.S. smokers in 2005, 80.8% (or 36.5 million) smoked every day, and 19.2% (or 8.7 million) smoked some days.  

 Demographic Distinctions

The prevalence of current cigarette smoking also varied substantially across population groups. 
Among racial and ethnic groups, Native Americans and Alaska Natives had the highest prevalence at 32.0%, followed by non-Hispanic whites at 21.9%, and non-Hispanic blacks at 21.5%. Hispanics at 16.2%, and Asians at 13.3% had the lowest rates.

Smoking prevalence also based on education level, with the highest among adults who had earned a General Educational Development (GED) diploma at 43.2% and those with 9–11 years of education at 32.6%. Prevalence generally decreased with increasing education.

The prevalence of current smoking was higher among adults living below the poverty line at 29.9% than among those at or above the poverty line at 20.6%.

Persons with mental illness, making up about 20% of the population, consume about 33% of the tobacco used. Persons with serious mental illness die 25 years earlier than average, often from smoking related illnesses.

In 2005, the CDC set a 2010 target of 12% for current cigarette smoking prevalence. Certain populations had already surpassed these when it was set. This included Hispanic (11.1%) and Asian (6.1%) women, women with undergraduate (9.6%) or graduate (7.4%) degrees, men with undergraduate (11.9%) or graduate (6.9%) degrees[.]


Smoking percentages by group in the U.S. (2010)

Smoking Rates By Age 

Around 4,000 minors start smoking in the US every day.

Adults aged 18–24 years were at 24.4% and 25–44 years were at 24.1% had the highest prevalences. 
[In 2005, the smoking rate for] men aged over 65 years [was] (8.9%), and [for] women aged over 65 years [was] (8.3%). 

Adult tobacco use by age (2013-2014 survey).

High school student cigarette use (1991–2007). This 20% figure for 2007 is probably high because tobacco use generally has fallen a great deal since 2007.

Regional Variation 

The following have some of the lowest percentages of smokers with their states: 
Utah, 10.6%, lowest percentage of smokers. 
California, 11.7% 2nd lowest.
Hawaii, 14.6%, 3rd lowest. 
Connecticut, 16%, 4th lowest. 
Massachusetts, 16.4%, 7th lowest. 
Vermont, 16.5%, 9th lowest.  
There are large regional differences in smoking rates, with Kentucky, West Virginia, Oklahoma and Mississippi topping the list, and Idaho, California and Utah at significantly lower rates.

Smoking prevalence among U.S. adults by state (2010)


Among cigarette smokers in 2005, an estimated 42.5% had stopped smoking for at least 1 day during the preceding 12 months because they were trying to quit. Among the estimated 42.5% (or 91.8 million) of people who had smoked at least 100 cigarettes during their lifetimes (the question the CDC asked to measure if they were ever smokers or not), 50.8% (or 46.5 million) did not smoke currently. 
However, researchers said that they are not sure if products like e-cigarettes are in any way helpful to reduce smokers in the country.

From Wikipedia (order rearranged without notation and headings added editorially). 

Stray Observation:

One of the biggest divisions within "red state America" is between Mormons and non-Mormons. 

Mormons have much less alcohol and tobacco use, marry earlier, have more children, divorce less often, are more engaged with the world outside the United States, are more educated, are more inclined to support public spending on education, and are less rural than other Republican leaning demographics.

While Trump won Mormon strongholds like Utah and Idaho by safe margins, Mormons have been far more ambivalent about Trump than other Republican leaning demographics. In part this reflect their culture roots in New England. Certainly, Mormons and other American conservatives have other points of common ground like opposition to abortion and opposition to gay rights. But Mormons are a cohesive and distinct part of the Republican coalition.

20 October 2022

The Long Ballot

Every voter in the City and County of Denver will vote on 56 to 58 matters in the November 2022 election: 2 federal offices (U.S. Senate and U.S. House), 7-8 partisan state offices, 29 judicial retention elections, 11 state ballot measures, 7 Denver ballot measures, and in some cases one non-partisan RTD director office.

There will be 6 more non-partisan positions for each Denver voters to consider in this spring: the Mayor, the Clerk and Recorder, the City Auditor, two city council members at large, and a district level city council member.

Thankfully, voters are spared non-partisan local school board and RTD district elections in this election cycle.

This ignores runoff elections in the municipal elections and primary elections and caucuses in the partisan races for the midterm elections.

Expecting voters to consider 62-64 different decisions in a six month period is unreasonable and reduces the quality of democratic participation. This should be reformed.

Low Income Workers Are Finally Making Progress In The U.S.

This is the most promising economic news I've seen in a long time, although the causes that are driving it are unclear. It potentially also has broad political implications, potentially undermining the economic malaise among low income workers that has driven far-right tendencies in U.S. politics.
US earnings inequality has not increased in the last decade. This marks the first sustained reversal of rising earnings inequality since 1980. We document this shift across eight data sources using worker surveys, employer-reported data, and administrative data. The reversal is due to a shrinking gap between low-wage and median-wage workers. In contrast, the gap between top and median workers has persisted. 
Rising pay for low-wage workers is not mainly due to the changing composition of workers or jobs, minimum wage increases, or workplace-specific sources of inequality. Instead, it is due to broadly rising pay in low-wage occupations, which has particularly benefited workers in tightening labor markets. Rebounding post–Great Recession labor demand at the bottom offset enduring drivers of inequality.
From PNAS.

19 October 2022

Judicial Retention Elections In Colorado In 2022

Judicial retention elections apply to state court judges in Colorado and are up down, retain or do not retain elections with a majority need to remove a judge from office. If a judge is not retained, the vacancy is filled by a merit based system with the Governor having a say over which of the three finalists to appoint.

There are eight Colorado Court of Appeals judges facing judicial retention elections in 2022.

In Denver, there are twelve district court judges (the trial court of general jurisdiction) and nine county court judges (the trial court of limited jurisdiction) facing judicial retention elections in 2022.

If you must leave anything on your ballot blank, this is the place to limit the use of your voter research resources because the odds that all 29 judges on the Denver ballot will be retained is in the vicinity of 99.5% this year no matter what you make think about them personally.

I may or may not update this post to discuss the merits of retaining these judges.

The Colorado Gazette reports:
A total of 164 judges were eligible for retention in 2022, but only 140 received evaluations and 135 chose to remain on the ballot. Judges may opt to resign or retire prior to their retention for multiple reasons, including the expectation of a negative performance evaluation.

The system was adopted in a 1966 amendment to the Colorado State Constitution and remains a great improvement over the system in place before then. 

Colorado State Ballot Issues In 2022

Here are some recommendations on the eleven state ballot measures in Colorado. A separate post will address Denver's many ballot issues.

This year's ballot has more good proposals and fewer awful proposals proportionately than usual, and is part of Colorado's usual far too long ballot.

Quick Summary

Vote NO on Proposition 121 and Amendment E. The opposition to Proposition 121 is a strong no. The opposition to Amendment E is a weak no.

Vote YES on Propositions 122, 123, 124, 125, 126, FF and GG, and on Amendments D and F.


Prop 121 (lower state income tax rate): NO. 

This was proposed by a citizen's petition drive to amend a state statute related and requires majority support in the election to pass.

It would permanently lower Colorado's normal flat state income tax rate from 4.55% to 4.40%, although due to TABOR refunds the actual state income tax rate in 2022 to 2024 will be 4.50% due to high tax collections during an economic boom. But while the state income tax rate can automatically return to 4.55% to stabilize state revenues if there is a recession in the status quo, if this measure passes, raising state income tax rates to maintain the state's ability to fund itself in a recession would require another ballot initiative. 

This would reduce state revenues in the 2023-2024 fiscal year by an estimated $382.3 million dollars which is a 3.3% reduction in state income tax revenue. Colorado's state budget is already too tightly constrained to buy all the government services that the state needs (like education, higher education, Medicaid funding, and transportation). As a result Colorado has some of the least well paid teachers relative to cost of living of any state in the United States.

Income taxes are the best way to raise state revenue. It is administratively efficient since to rides on the coattails of the federal income tax system with which everyone in Colorado must already comply. It taxes with respect to ability to pay. It is more a stable revenue stream and less regressive than sales tax and does less to distort economic decision making than the state sales tax.

Colorado would be better off cutting sales tax and relying less heavily on property taxes to fund schools, and replacing that lost revenue with higher state income taxes that are more fair and impose less of a state level administrative burden.

For most Coloradans, the tax break is very modest, less than $63 a year for more than three-quarters of people in Colorado, but it is a break of an average of $6,647 a year for the less than 1% of people in Colorado with than $1,000,000 a year of income, and even more to large corporations (mostly publicly held big businesses) that do business in Colorado.

Prop 122 (psychedelics as medicine): YES. 

This was proposed by a citizen's petition drive to amend a state statute related and requires majority support in the election to pass.

Like Colorado's legalization of marijuana, it wouldn't change federal laws that make psychedelics illegal Schedule I controlled substances that can only be prescribed under extremely narrow FDA trial regulations, just like marijuana under federal law.

Prohibition doesn't work. Regulated access to drugs that have potential mental health benefits (in this case, particularly to treat major depression in a fast acting but long lasting way) does.

These drugs aren't a cause of major societal malaise and state level legalization would reduce the societal harm caused by their prohibition itself and weaken organized crime.

Prop 123 (fund affordable housing): YES. 

This was proposed by a citizen's petition drive to amend a state statute related and requires majority support in the election to pass.

The estimated $145 million a year (up to 0.1% of state taxable income at most) comes from TABOR refund excesses associated with existing state income tax revenues, and would be used for an affordable housing fund. 

The fund would make grants to non-profit land banks that buy property with an aim to make affordable housing available, funding for affordable rental properties that allow tenants to build some savings for a future down payment from their rent expense, favorable financing for affordable housing construction, down payment assistance to first time home buyers, rental assistance and rental vouchers and eviction defense for homeless people or people imminently at risk of becoming homeless, and grants to local land use agencies to facilitate their ability to be more affordable housing friendly.

Homelessness and lack of affordable housing is a huge problem in much of Colorado and this measure finds ways to spend money to throw the kitchen sink at leveraged ways to minimize the problem. The amount of money is modest compared to the scope of the overall problem which is certainly doesn't completely solve, but it would make a dent in the problem with "found money" that would otherwise go towards TABOR tax breaks or refunds of some kind.

Prop 124 (increase liquor license count per retailer): YES. 

This was proposed by a citizen's petition drive to amend a state statute related and requires majority support in the election to pass.

Propositions 124, 125 and 126 are about ceasing to use alcohol regulation laws to mandate economic regulation of business firm structures in ways unrelated to public health and safety (or enhancing public safety) without meaningfully changing the 2022 status quo of access to alcohol.

There is no virtue in limiting liquor stores to small family owned chains rather than medium sized chains. Internal alcohol industry firm economics should be left to the marketplace.

Currently liquor store owners can have 3 locations and liquor licensed drugstores (basically grocery stores with associated liquor stores and pharmacies like Target in Glendale) can have 8 locations. 

In the status quo, liquor stores can have 4 locations in 2027 and liquor licensed drug stores can have 13, and the measure would allow liquor stores to have 13 locations. 

In the status quo, liquor stores can have 4 locations in 2032 and liquor licensed drug stores can have 20, and the measure would allow liquor stores to have 20 locations. 

In the status quo, liquor stores can have 4 locations in 2037 and liquor licensed drug stores can have unlimited numbers of locations, and the measure would allow liquor stores to have unlimited numbers of locations. 

Prop 125 (allow grocery beer license holders to sell wine): YES. 

This was proposed by a citizen's petition drive to amend a state statute related and requires majority support in the election to pass.

Propositions 124, 125 and 126 are about ceasing to use alcohol regulation laws to mandate economic regulation of business firm structures in ways unrelated to public health and safety (or enhancing public safety) without meaningfully changing the 2022 status quo of access to alcohol.

This is already legal for full strength beer under 1,819 licenses statewide, and grocery stores with one of the 26 existing drug store licenses can sell wine at up to eight locations already (13 each in 2027, 20 each in 2032, and unlimited in 2037). Grocery stores that sell wine are not a menace to the public and are the norm in many other states and internationally. 

There is no rational reason to treat legal permission to sell wine differently than legal permission to sell beer.

There is no limit on the number of locations per firm that sells beer and there are 1,819 current beer sale licenses. There are currently 1,582 liquor store licenses in Colorado, each of which can have 3 locations (4 starting in 2027), which could be expanded is Prop 124 passes.

Prop 126 (allow 3rd party liquor delivery): YES. 

This was proposed by a citizen's petition drive to amend a state statute related and requires majority support in the election to pass.

Propositions 124, 125 and 126 are about ceasing to use alcohol regulation laws to mandate economic regulation of business firm structures in ways unrelated to public health and safety (or enhancing public safety) without meaningfully changing the 2022 status quo of access to alcohol.

Currently bars and restaurants can deliver alcohol with their own employees who are bar tender certified and subject to the same rules as bar tenders. This would allow third-party delivery firms with bar tender certified deliver people subject to the same regulations as bars to deliver alcohol in the same way. Also, alcohol delivery of this kind currently sunsets in July of 2025, while this would make it permanent.

This reduces unnecessary economic regulation of firm structure in connection with a popular service that already exists. It also would, by making this permanent, reducing drunk driving to get bar and restaurant style drinks and making bar and restaurant style drinks available to people who mobility limitations like home bound disabled people.

Prop FF (school lunches): YES. 

This was proposed by the state legislature to amend a state statute related to fiscal matters with bipartisan support and requires majority support in the election to pass. Legislature crafted measures are usually better crafted and are less likely to have serious drafting flaws that impair the quality of the measure than citizen initiatives drafted by a small group of sponsors working without public input into the drafting process.

This would fund free school breakfast and lunch for all public school students in Colorado. 

This is something that is currently available only to low income students (incomes of under $36,075 a year for a family of four that fills out lots of paperwork, with reduced price meals for families with incomes under $51,338 for a family of four that fills out lots of paperwork) and is predominantly funded with federal grants. 

Essentially, it converts a means tested welfare program (like TANF) that requires lots of paperwork from low income families and school administrators into a categorical benefit program (like Social Security or the educational part of public K-12 education) for far more students with far less paperwork that makes eating school meals simply part of the overall scope of what public schools do. 

This is something that schools in many countries and many U.S. private schools already do as a matter of course. It is also something that some schools with very high proportions of low income students already do on a pilot program basis.

It means that no child is denied meals because they can't pay for school breakfast or lunch. Many children in the current system don't get all the food that they should despite the free and reduced lunch program because their low income families who don't have their act together enough to fill out the necessary paperwork by the relevant deadlines and are really struggling for basic food needs for children. It reduces the sigma and family paperwork burden faced by students who are in the current means-tested school lunch program.

It would also create state grants for school lunch programs to buy Colorado sourced food and to train them about how to do this, and to pay low paid school lunch cooks and servers or volunteer school lunch cooks and servers stipends or increased wages. 

This change lowers the amount of state income tax deductions that can be claimed by taxpayers with more than $300,000 of annual income (roughly the top 5% of income earners in the state). 

For someone claiming only the standard deduction, this is a tax increase of about $450. But many people with this taxable income claim more state income tax deductions that would be limited resulting in an average tax increase of $813 for taxpayers with incomes of $300,000 to $499,999, of $823 for taxpayers with incomes of $500,000 to $999,999, and of $1,166 for taxpayers with incomes of $1,000,000 or more. So, the funding would make Colorado's income tax slightly progressive (and since many state tax deductions have a regressive distributional effect, it really just makes the state income tax closer to flat). This is estimated to raise $100.7 million of additional tax revenue in the 2023-2024 fiscal year. It would also increase the amount of federal school lunch funding that Colorado schools would be eligible for statewide.

Also, this measure is an expense cut, economically equivalent to a progressive tax cut, to families with children in public schools, many of whom are middle class even if they don't qualify for free or reduced lunch programs, who are a lower average income population than Colorado as a whole.

Prop GG (initiative financials): YES. 

This was proposed by the state legislature to amend a state statute related to fiscal matters with bipartisan support and requires majority support in the election to pass. Legislature crafted measures are usually better crafted and are less likely to have serious drafting flaws that impair the quality of the measure than citizen initiatives drafted by a small group of sponsors working without public input into the drafting process.

This proposition would require fiscal charts to accompany all initiatives that change state income tax rates. It would promote more informed voting on these measures. 

Many people don't understand how disproportionately income tax rate changes impact the rich relative to the general public, and this would make this information more widely known at the moment that it counts.

Amendment D (new judicial district judges): YES. 

This was proposed by the state legislature to amend the state constitution with bipartisan support and requires 55% support in the election to pass. Legislature crafted measures are usually better crafted and are less likely to have serious drafting flaws that impair the quality of the measure than citizen initiatives drafted by a small group of sponsors working without public input into the drafting process.

This is a one-off change to allow existing judges in the new 23rd judicial district to be assigned to either of the new districts rather than having all new 23rd judicial district judges have to reapply to the jobs  that they were doing pre-split from scratch. 

Essentially, this is a housekeeping measure that fixes clumsy wording as applied to a situation unforeseen by the people who wrote it. 

Ideally, the change wouldn't have been specific to the 23rd judicial district and apply to any future judicial district split, but since this issue comes up so infrequently, this minor flaw isn't a big deal and doesn't detract from the desirability of this change.

Amendment E (property tax homestead exemption): NO. 

This was proposed by the state legislature to amend the state constitution with bipartisan support and requires 55% support in the election to pass. Legislature crafted measures are usually better crafted and are less likely to have serious drafting flaws that impair the quality of the measure than citizen initiatives drafted by a small group of sponsors working without public input into the drafting process.

The tax break is a 50% reduction in the first $200,000 of actual value of the residence for property tax valuation purposes, so the full benefit which is worth an average of $630 per residence, is available to almost every homeowner who qualifies for the tax break. 

If this measure passes, it will be available to about 490 surviving spouses who live in their late spouse's home, of veterans who are killed in action, and of 100% disabled veterans who currently qualify for this property tax break who die of service related injuries. This tax break is currently available to 100% disabled veterans (about 8,900 households currently qualify on this basis) and to home owners age 65 and over who have owned their homes for at least ten years (about 250,000 households currently qualify on this basis). Current law provides $156.5 million of property tax breaks for people age 65 and over who have owned their homes for at least 10 years and $5.6 million of property tax breaks to 100% disabled veterans.

While I favor voting "no" on  this measure, it isn't a "strong no." The only redeeming virtue of this measure is that it only affects about 490 surviving spouses at a total annual cost of the measure statewide is about $288,000 a year in a state with more than 5 million people, an increase of about 0.2% in the total cost of the property tax homestead exemption program. 

In other word, it is a drop in the bucket fiscally, and honestly, not even that big of a break for the people who are entitled to it that would require a moderate amount of paperwork to claim. In most cases, the lifetime benefit to the recipient Gold Star widow/widower homeowners would be less than $6,000 each before they are entitled to the tax break in their own right.

But we don't need to clutter the state constitution with tiny bullet shot sized tax privileges to especially worthy people. 

It is the federal government's job to adequately support veterans and their widows and widowers, not local taxpayers. 

Also, on the merits, this group of 490 people does not direly need another government subsidy.

This population has a much higher net worth and a much lower poverty rate than the average person in Colorado. It benefits non-disabled people under age 65 who no longer have a disabled spouse, and people over age 65 who no longer have a disabled spouse who have owned a home for less than ten years (until they have owned it for ten years). All of them already have some significant veteran's widow's benefits in addition to their own earnings from employment, Social Security benefits, or retirement benefits.

The language of the measure is ambiguous on the question of whether a surviving spouse who remarries continues to qualify, and a surviving spouse who relocates to a different home definitely doesn't qualify so their freedom to decide where they live after their spouse dies is restricted.

If it isn't construed to apply to remarried surviving spouses of deceased veterans, it also creates a small economic disincentive for widows of disabled veteran's to remarry, as opposed to merely cohabiting with a new partner, which isn't particularly socially desirable. If it doesn't, then the beneficiaries include remarried widows and widowers who need a modest property tax break even less than those who do not have a new domestic partner.

Amendment F (charitable gaming): YES. 

This was proposed by the state legislature to amend the state constitution with bipartisan support and requires 55% support in the election to pass. Legislature crafted measures are usually better crafted and are less likely to have serious drafting flaws that impair the quality of the measure than citizen initiatives drafted by a small group of sponsors working without public input into the drafting process.

Historically tight legal limitations on gambling have rightfully been eroding for years, continuing the trend of regulation rather than prohibition of vice in Colorado. Charitable bingo and raffles co-exist with far more commercially run state lottery games, casino gambling in limited locations in the state, and sports betting that is even available from your phone. Against this background, slightly easing regulation of charitable bingo games and raffles doesn't meaningfully contribute to the influence of gambling in daily life in the state.

This would make it slightly easier to for charities to sponsor bingo games and raffles in the short run, and reduce state constitutional regulation of charitable bingo games and raffles in the medium to long term.

Charities would have to have been in existence for only three years rather than five years to qualify to sponsor these games for the first three years of the measure, and starting in 2025 this issue would be regulated by state statutes rathe than the state constitution.

Until July 1, 2024 (for the first two years of the measure), it would allow charitable bingo and raffle operations workers, who are now required to be volunteers, to be paid up to the minimum wage. Restrictions on what charitable bingo and raffle operations workers can be paid would be removed from the state constitution after that point.

Since regulation of charitable gaming is already in the state constitution, changes to these regulations need to be constitutional amendments too, but this reduces the amount of state constitutional regulation of charitable bingos and raffles in the long run.

18 October 2022

Criminal Justice System Flaws

No one reasonably acquainted with the facts would conclude that the criminal justice system produce perfect karmic justice, convicting and punishing everyone who commits a crime worth punishing, while wrongfully convicting no one, and violating no one's civil rights. Indeed, no humanly created criminal justice system ever will, and even if could, it would be far too costly a goal to justify the benefit of achieving it.

This doesn't mean that we shouldn't evaluate quantitatively, as best we can, the extent to which the status quo deviates from this ideal, subject, of course to uncertainties like any other scientific measurement. This post considers various metrics of the criminal justice system's flaws that can be considered that are better or less well documented from area to area. 

Generally, however, the criminal justice system is well examined academically compared to many other areas of the law, although there are definitely gaps out there too. This post is intended as an overview and reference point for where future inquiry might be necessary and a reminder of areas where what we already know may suggest reforms. It is also intended to help sort of the possible areas of reform with an eye towards assisting in prioritizing the different possible reform areas based upon the magnitude of the problems and the tools available to address them. 

Some are frequently voiced as concerns of conservatives (e.g. failure to hold blue collar criminals accountable), others are more frequently voiced as concerns of liberals (e.g. fair treatment of minorities in the criminal justice system and wrongful convictions). 

Others aren't on the political radar screen of either major political party even though they are systemic and important (e.g. remedies for people who are charged with crimes, incarcerated prior to trial, have their lives ruined and their fortunes spent on private criminal defense lawyers, and then are acquitted).

Wrongful Convictions

We can, for example, make reasonable estimates of the number of people who are wrongfully convicted. 

Wrongful Convictions At Trial

In the State of Colorado, for example, the number of people wrongfully convicted and currently incarcerated following trials and the appellate process is on the order of 200 (about 10% of felonies that go to trial), often facing exceptionally long sentences because these innocent defendants refused to plea bargain and face the long sentences attached even with a plea bargain to lesser charges for very serious offenses. 

Wrongful Guilty Pleas

Something on the order of another 200 people (about 1% of felonies resolved by guilty pleas) are wrongfully convicted and currently in prison, but usually facing more lenient than usual sentences for the crimes for which they were originally accused (because the weakness of the guilt-innocence case usually produces favorable plea bargains, and because wrongfully pleading guilty to a lesser charge is a more tolerable choice when the sentence isn't too severe). The percentage of innocent people who plead guilty is lower than the percentage of wrongful convictions at trial, however, because empirically, innocent people are far more likely to go to trial rather than plea guilty than innocent people. 

Of course, a large share of people who plead guilty to felonies 40%-60% (perhaps 8,000-12,000) are pleading guilty to significantly lesser charges than the most serious offenses that they actually committed in the criminal episode for which the were charged and are currently in prison, while a fairly modest minority, probably more than 1%, but less than 5% (200-1000 in Colorado) plead guilty to an offense more serious than the most appropriate charge for their conduct.

It is also possible with a bit of effort to identify cases where the risk of wrongful convictions at trial and plea bargains by innocent people are elevated and reduced.

Wrongful Convictions Of Lesser Charges

There are, of course, wrongful convictions at trial and wrongful plea bargains to misdemeanors and lesser charges, and the literature on the accuracy of the criminal justice system in this area is much less carefully studied. 

But, given that about half of people incarcerated at any given time are awaiting trial (mostly, but not exclusively, for felonies), that many lesser offenses are almost always sanctioned with fines and/or probation and/or community service, rather than jail time, that minor offenses have lower maximum sentences, and that most minor offenses punishable by incarceration result in post-conviction jail sentences far shorter than the maximum allowed by law, the number of people wrongfully convicted of sub-felony offenses and currently incarcerated for those charges post-conviction at any one time is much smaller. 

Also, the collateral consequences of a sub-felony charge apart from the sentence imposed in a particular case are typically far less severe than those in a felony case, so the harm from a wrongful conviction of a such a charge is usually far more modest. 

This is despite the fact that the number of sub-felony charges is vastly greater than the number of felony charges brought.

Wrongful Acquittals, Wrongful Pre-Trial Dismissals, And Known Dismissals Of Guilty Defendants

It is also possible to estimate with tolerable uncertainty the number of people who are charge with a crime of which they a guilty who are wrongfully acquitted at trial, which is about 5%-10% of the cases that go to trial each year.

There is far less of a literature on the risk factors that give rise to wrongful acquittals than those that are associated with wrongful convictions, although race and socio-economic status and an ability to afford private defense counsel are often suggested. Likewise, crimes involving strangers and rapes with known offenders who don't deny having had sex with the victim are probably fairly high on the list.

It is harder to estimate the number of cases where people are charged even though the charges are dismissed prior to trial, or arrested but not charged, not because the prosecutor or law enforcement or a victim believes the defendant is guilty but is showing mercy, but because the prosecutor or law enforcement can't comfortably be sure that the prosecutor will prove the case beyond a reasonable doubt at trial. The one exception to this is the subset of cases where a dismissal follows an unfavorable court ruling following a hearing to suppress key evidence that was unlawfully obtained, which involve a guilty person who is spared criminal punishment in the vast majority of such cases, a number that can be reasonably estimated with some precision.

Wrongful Pre-Trial Incarceration And Criminal Charge Defense Costs

One confounding factor, especially for sub-felony offenses and minor felonies, is that a significant share of people who are arrested are incarcerated for some or all of the time prior to their trial, and then either plead guilty to time served which an acquittal at trial can't remedy, or receive a sentence following a conviction which is mostly time served (sometimes following a trial and sometimes following a plea bargain).

People who have been detained prior to trial who plead guilty in exchange for a time served sentence, or a sentence mostly served prior to conviction, make up a particularly large share of wrongful guilty pleas. But, in fairness, even criminal defendants who ultimately plead guilty to lesser offenses and then are sentenced to time served or to only a short remaining sentence (surely at least 80%-90%) are still predominantly guilty as charged, although determining the exact percentage can be challenging.

For example, a great many individuals who are arrested, incarcerated prior to trial and then sentenced to time served or a short additional sentence, are caught red handed by police or on surveillance video while in the act of soliciting prostitution or soliciting a prostitute, selling a small amount of drugs, selling alcohol or tobacco to a minor, trespassing, shoplifting, engaging in porch piracy, committing an aggravated traffic offense, stealing a bicycle, joy riding a stolen vehicle, disturbing the peace, spray painting graffiti, or assaulting someone without a deadly weapon and without causing serious physical injury. The evidence of guilt is unmistakably clear in the lion's share of people arrested and incarcerated in the first place for such minor offenses.

Judges typically have particularly great discretion to impose much longer than typical sentences when sentencing a defendant for minor offenses, so pleading guilty in exchange for time served, cost costs, and often a fine, is often merciful for the offender, cheap for the criminal justice system, and just. 

Offenders who are guilty against whom minor charges are voluntarily dismissed by the prosecution without forcing the person arrested to plead guilty, often more affluent defendants with private criminal defense counsel and few or no prior criminal convictions, are similarly situated but even better off because they are spared a conviction on their permanent criminal record. This is particularly valuable for people with few or no prior adult criminal convictions, since an adult criminal record, especially if it is recent, still has some collateral consequences.

Still, people who are detained prior to trial who are acquitted at trial, or for whom the charges are ultimately dismissed prior to trial, in the federal system and all but a tiny number of U.S. states, receive no compensation for the time that they were incarcerated while presumed innocent except in a tiny percentage of cases where flagrant civil rights violations by law enforcement or while incarcerated are proved in a separate civil case. They also almost never receive compensation for the costs they incurred to hire private criminal defense counsel, if any, unless they are corporate executives charged with white collar crimes who are indemnified by their employers.

This is a serious injustice to criminal defendants who are detained for a long time prior to trial who are innocent, and either are acquitted at trial or ultimately have their charges dismissed. The right to a speedy trial mitigates the worst harms in these cases, but it is still incomplete. 

Even a week or a month of pre-trial incarceration is often enough to result in the loss of a job, loss of income resulting in evictions or harm to one's credit rating, impairment of an ability to get a new job, negative outcomes in child custody matters, intangible harm to the well-being of one's children, damaged family and romantic relationships, and harm to one's long term reputation from the arrest despite the absence of a conviction.

This burden is overwhelmingly concentrated on wrongfully arrested and charged innocent people who are too poor to post a cash bond to allow them to be released prior to trial. There is also very strong evidence that the lion's share of people incarcerated prior to trial for a failure to post a cash bond (perhaps 80%-90%) pose no serious risk to the public while not incarcerated and awaiting trial.

An upper bound on the number of people who experience wrongful pretrial incarceration, or who incur private criminal defense attorney expenses and are subsequently acquitted or have their charges dismissed is fairly easy to establish with considerable accuracy. One can reduce that figure by a factor of something between 80%-95% or so, to get a reasonable estimate of the number of people who are wrongfully punished based upon mere probable cause when they are actually innocent, prior to trial.

Wrongful Stops and Arrests

The law allows law enforcement to stop someone in a brief "Terry stop" based upon a mere reasonable suspicion that they are engaged in some improper conduct. The harm in any individual case from a wrongful stop of someone who is innocent of any wrongdoing is modest: a few minutes to perhaps ten minutes of time, a certain amount of emotional distress and fear, and perhaps showing up late for one's next appointment. There is no official record of these stops in most cases that don't result in a citation of some kind, so there are also rarely significant collateral consequences from them, although a suspicionless Terry stop can unfairly expose the person stopped to criminal justice consequences for offenses (often minor ones like marijuana possession or underaged drinking) that are usually overlooked. In the individual case, this exercise of discretion towards someone who is actually guilty of a minor offense isn't really unjust, but it is still something of a gray area harm because collectively and over time a pattern of discriminatory Terry stops influences how severely someone is punished relative to their absolute level of criminality compared to other similarly situated people who don't face discriminatory enforcement. 

The main harm associated with wrongful Terry stops in a karmic justice sense is that they are typically conducted in a discriminatory manner and efforts to estimate statistically the number of wrongful Terry stops (and wrongful arrests) on racial grounds can provide some quantification of the number of these lesser injustices.

Arrests of innocent people, either with or without probable cause, that don't give rise to pre-trial incarceration (either because the defendant posts bonds, or no charges are ultimately pressed) or to charges resulting in criminal convictions are studied mostly in the context of efforts to quantify racially and ethnically discriminatory law enforcement practices. An upper bound on wrongful arrests is easier to quantify because arrests are generally well documented and can be compared to charging information and conviction information. As noted above, probably 80%-95% of arrests are of people who are obviously guilty and caught red handed, whether there is a formal conviction or not, especially arrests resulting in formal criminal charges being lodged or pre-trial incarceration.

Arrests, because they are longer, may cause someone to have to incur the costs associated with posting bond (which are often 10% of the posted bond if one doesn't have sufficient cash on hand to post it all without a bail bondsman) and possibly private criminal defense costs, neither of which can be recouped in most cases, are more serious. Bail bond fees amount to an unappealable, law enforcement imposed fine on poor people. 

Also, the record of an arrest, even if no charges are brought, charges are dismissed, or the person arrested is acquitted at trial, can have significant collateral consequences for future employment, in any pursuit for which there are background checks, and in law enforcement and prosecution attitudes when future criminal charges are considered (even though judges and juries aren't supposed to consider them in trials or in probable cause hearings).

Arrests are very numerous and as with Terry stops, there is strong evidence that they are carried out in a racially and ethnically discriminatory manner, even adjusting for different per capita levels of crime commission that justifies arrests and Terry stops by age, gender, race, ethnicity, and geographic context.

A young black man in a ghetto who is dressed in an anti-authority manner who talks and behaves like a typical man in that demographic out late at night in that neighborhood, who may even have a minor juvenile or adult criminal record or to have received some non-legal system disciplinary punishments at school, is indeed much more likely to have committed a crime than an elderly white woman in an upper middle class suburb who talks and behaves like a typical woman in that demographic in that neighborhood. But his is also vastly more likely to be wrongfully stopped or arrested to a degree disproportionate to the elevated likelihood he has currently committed a crime.

Still, while it can be quantified wrongful stops and arrests because of the much lesser magnitude of the harm are not as much of a problem as their sheer frequency might suggest.

Uncleared Crimes 

There is also good data on the number of many kinds of crimes that are committed in which no suspect is ever identified and arrested, the so called "clearance rate".

For a few crimes, like mass shootings or mass stabbings, and rapes where there is DNA evidence, the clearance rate in the long run probably exceeds 90%.

For murders involving organized crime or gangs, the clearance rate tends to be somewhat under 50%.

For other violent crimes, felony property crimes, and more serious misdemeanors, clearance rates tend to be in the 5% to 40% range. The number of truly petty offenses that are never cleared is higher, because few resources are available to address them and many are never formally reported, although insurance claims, crime victimization surveys, and police reports can provide ballpark estimates that can be compared to conviction rates for the crimes in question. 

The number of traffic and parking offenses that never results in citations, and the number of safety and regulatory violations not giving rise to actual physical injuries or large scale economic harm to any one individual that are never cited, are basically uncountable. The average driver is technically guilty of speeding many times every day but is typically cited for this less than once a year, and commits scores of other traffic offenses each year but only receive citations for them a few times a lifetime.

Quantifying The Harm Associated With Crimes

The rates at which crimes are not cleared is not the end of the analysis, either. Not all crimes are created equal. 

The harm from economic crimes is proportionate to the economic harm done plus some sort of kicker for the preventative measures these crimes make necessary and the sense of victimization and loss of societal trust that they produce even if no physical harm is done. There are lots of good studies quantifying these harms in more and less comprehensive ways.

Traffic offenses in cases where accidents don't result, safety regulation violations, and vice offenses aren't intrinsically wrong (they are not malum per se and are instead malum prohibitum). The costs of non-enforcement of violations of these criminal offenses is a function of the extent to which non-enforcement leads to the harms that these prohibitions are designed to prevent like accidents, STDs, addiction, drug overdoses, other criminal conduct caused by substance abuse, damaged non-commercial romantic relationships, and the creation of a marketplace that encourages people to do degrade themselves.

Violent crimes and certain other non-economic crimes also vary in seriousness, in part, by type of injury and in part by the harm that they do to the social fabric and the economically and socially costly measures that are taken to prevent them. There have been good economic studies attempting to value this harm and they uniformly conform to the conventional wisdom that serious violent crimes are extremely costly in terms of their harm to society as a whole and victims of them in particular.

Serious Criminals Who Are Never Caught

A harder to estimate figure, although there is some literature to allow for crude estimates, is the number of people who commit felonies who are never charged with a crime by the number, type, and seriousness of the crimes.

A reasonable estimate for the number of serial killers and serial rapists (overlapping sets of people) who are never convicted of any serious crime, probably number in scores to low hundreds for the entire nation at any one time, based upon clearance rates in crimes where this is suspected of happening and the frequency with which someone is convicted of serial killings and/or serial rapes only after committing a great many such offenses.

There is fairly good data out there about the average number of burglaries and robberies committed that are not cleared, by any given burglar or robber who is convicted of burglary or robbery, which combined with clearance rates and with studies of the impact of recidivist sentencing for these offenses can be used to make some sort of reasonable estimate of how many serial burglars and robbers are never convicted of serious crimes, although with significant uncertainty.

It is also possible from evidence of convictions to conclude that the lifetime number of serious crimes that a person commits follows a power law whose parameters are possible to reasonably approximate. This data together were clearance rates and confidential survey data on previous uncharged offenses (and non-confidential information on people discovered to have committed many offense when they are first convicted of serious offense) for offenders with different numbers of convictions can be used to make reasonable estimates of the number of people who have never been convicted of a crime who have committed any given number of serious offenses. 

The hardest parameter to estimate because it has only weak support in the literature, is the bias which is almost certain to be present to some degree or another, that some criminals are more likely to be caught than others.

This parameter can't be too high for the subset of people who commit crimes who do it as a livelihood, since we can reasonably estimate the share of people who are gainfully employed full time or otherwise engaged in education, training, peaceful retirement, homemaking, and the like.

Quantifying The Effectiveness Of Crime Prevention Measures

One can quantify the effectiveness of various crime prevention measures although doing so is particularly challenging to do well and the approaches to doing so vary greatly.

This can include the effect of different approaches to incarceration and sentencing (including recidivist sentencing and overall incarceration rates), the effects of lead poisoning, abortion legalization, and education, the effects of security cameras and visible law enforcement patrols, the effects of DNA testing, the effects of religious practice and marriage,  the effects of youth programs and mental health programs, the effects of wars and weather, and more impacts on crime rates.

Jail and Prison and Parole And Probation Maladministration

One can quantify the extent to which jail and prison conditions, and treatment of people on parole and probation is improper or deficient in preventing harm.

One can look at overuse of solitary confinement which is increasingly well-quantified.

On one hand, one can look at estimates from discipline reports and survey data and prosecutions on crimes by inmates who are incarcerated directed at other inmates, guards, other staff, and visitors, with prison and jail riots at an extreme. 

This can also extend to allowing the early release of dangerous inmates who engaged in rampant unpunished misconduct and crimes while incarcerated on one hand, and failing to release model inmates who pose little or no threat to the public on the other when this is allowed.

One can likewise at crimes and misconduct committed by guards and staff against inmates, with indifference to health concerns (especially those related to substance abuse, pregnancy, and mental health issues), indifference to safety from inmate on inmate violence, tolerance for gang activity, sexual abuse of inmates by guards and staff, and other capricious or outrageous conduct. 

One can look at undue laxity towards parole and probation violations that can put the public at risk, and a general lack of supervision when needed by understaffed probation and parole departments. One can look for efforts to set ex-cons up for failure or success upon reentry to the general population upon release. And, one can look at abusive and extortionate conduct by parole and probation officers.

Some of this is well-quantified, much of it, especially in the areas of parole and probation supervision abuses and laxity is not.

Quantifying Civil Rights Violations

There are various efforts to quantify civil rights violations. There are estimates of wrongful convictions, wrongful arrests, wrongful stops, and discriminatory exercises of discretion in law enforcement, charging and sentencing and plea bargaining decisions. There is evidence of Brady violations (i.e. failures of prosecutors to disclose exculpatory evidence in a criminal cases). There are include criminal prosecutions, civil actions, settlements, and firings for wrongful law enforcement conduct. There are successful evidence suppression hearings and post-trial collateral attacks on criminal convictions. There is data on when police use deadly force and other kinds of force that can be parsed to identify questionable cases. There is discrimination in employment litigation in the criminal justice system. There are scandals that are reported on in the media demonstrating patterns of misconduct.

There are decent estimates of the percentages of law enforcement officers who have engaged in particular kinds of misconduct, and of law enforcement officers who are witnessed particular kinds of misconduct and failed to report it or take action to prevent it. It isn't perfect or complete, but it is clear that a large percentage of law enforcement officers (far more than a majority), at a minimum tolerate some kinds of legally actionable misconduct that they witness in their peers.