The New Iraqi Air Force

The new Iraqi Air Force is buying, sensibly, cheap new counterinsurgency (COIN) aircraft. One leading contender is a variant of the American made T-6 single engine trainer, similar to one used by the Greek Air Force. The requirements for the contract are shown here (omissions not indicated expressly):

The USAF plans to acquire a Commercial-Off-The Shelf (COTS) aircraft modified to perform COIN operations.

The COIN aircraft must be a lightly armored, 2-seat, turbo-prop aircraft capable of locating, tracking, identifying, and engaging a variety of targets with a suite of Electro-Optical/Infrared (EO/IR) sensors and laser-guided/unguided air-to-ground weapons/missiles. Further, it must be able to share data and imagery with other COIN aircraft and current IqAF Intelligence Surveillance and Reconnaissance (ISR) and Counter Terrorism (CT) aircraft. Finally, it must incorporate an IR threat detection and countermeasure system and be capable of performing a dual role as an advanced fixed-wing flight trainer aircraft.

Mission Concept: The COIN aircraft will provide the IqAF with a critical offensive and operational over watch capability in the COIN fight. It will also have a dual role as an intermediate/advanced single-engine fixed-wing trainer aircraft.

The COIN aircraft, capable of being manned by either a crew of one pilot, or a pilot and a sensor operator, will arrive in an area of interest with the ability to receive data and imagery from other IqAF surveillance, CT, and COIN platforms. Whether cued by an external sensor or its own sensor suite, the COIN aircraft will be able to find, fix, identify, track, target, and engage emerging and time-sensitive targets. It may have a variety of laser guided precision weapons and non-precision weapons at its disposal in order to create effects tailored specifically to the unique situations it will encounter in the COIN environment.

FWIW, the U.S. could use a few more planes in this class as well. The A-10 and the AC-130 are the closest matches in existence in the U.S. Air Force right now, and some attack helicopters and more traditional and expensive full fledged fighter craft (most notably the F-15, F-16, AV-8B, and in the future the F-35A and F-35B) fill these roles.

Does The Second Amendment Apply To The States?

Most gun control laws are enacted by state and local governments. Are those laws subject to the Second Amendment? Maybe not. Here is part of an interesting SCOTUS blog post on the subject, in light of today's denial of rehearing en banc in a case holding the D.C. gun law (where federalism issues don't apply) invalid under the Second Amendment:

[T]here is a definite conflict among the Circuit Courts on the meaning of the Second Amendment, and the Supreme Court has not ruled on the issue since a somewhat ambiguous decision in 1939 (U.S. v. Miller). . . .

While the Fifth Circuit Court has ruled in favor of an individual right theory, it did not use that theory to strike down any specific gun control law. By contrast, the D.C. Circuit ruling was the first to apply that theory directly in nullifying a gun law. Every other Circuit Court to rule on the issue has rejected the indiviual right theory, largely based upon the Supreme Court's Miller decision. There is also a 10 to 7 split among state appellate courts on the issue.

Moreover, there is also a direct conflict over the Second Amendment as it applies specifically to the D.C. gun law -- the city's highest local court, the District of Columbia Court of Appeals, has upheld the same law by embracing the collective right theory. It reiterated that position as recently as last week, in the case of Andrews v. United States (D.C. Court of Appeals docket 02-1043) -- a ruling that the city government had brought to the Circuit Court's attention last Friday, before rehearing was denied. . . .

Because the case of Parker v. District of Columbia deals only with the Second Amendment as a federal issue, it does not raise the question of whether the Second Amendment applies at all to state and local government. The Supreme Court last faced that issue in 1886 in Presser v. Illinois, finding that the Amendment only applied to the federal government. That would not be an issue in the Parker case in the Supreme Court, but a state or local case would be almost certain to arise to test it.

The position of the U.S. Supreme Court on this constitutional issue, like almost all others, boils down to what Justice Kennedy things about it. Justice Thomas is a clear vote to adopt an individual rights theory, something he suggessted the Court do in 1997. Justice Alito would likely agree. But, how Justice Kennedy would rule in this case is anybody's guess.

While I would prefer to see the U.S. Supreme Court take this case and find that the Second Amendment does not confer an individual right, as long as Presser v. Illinois remains good law (dicta to that effect in the instant case would be good enough), it doesn't really matter that much, it simply makes gun control a state issue. I certainly don't see any obvious reason that the current incorporation theory, which asks if the due process clause of the 14th Amendment requires that a provision of the Bill of Rights be applied to the states, should lead the high court to apply the Second Amendment to the states.

Indeed, originalists on the court, while they might favor an individual rights theory of the Second Amendment, might likewise, be particularly inclined to uphold Presser v. Illinois as it resolved the issue not long after the 14th Amendment was adopted, and hence is likely to reflect the original intent of the drafters of that Amendment to the U.S. Constitution. Many conservatives, indeed, bear hostility to the incorporation doctrine that applies the Bill of Rights to the states, in general.

If a loss in Parker v. District of Columbia in the U.S. Supreme Court with a dicta upholding Presser v. Illinois gave the movement either for statehood for the District of Columbia, or the annexation of all or most of the District of Columbia by Maryland, the push it needed to pass, would that be such a bad thing?

Another California Three Strikes Injustice

A federal appeals court upheld a mentally ill man's three-strikes sentence of 25 years to life Wednesday for shoplifting two bottles of liquor from a Southern California market, a sentence that a dissenting judge called "barbarous.''...

Joshua, diagnosed as a paranoid schizophrenic, had been convicted of robbery five times since 1974 and had been in and out of prisons and mental hospitals in the decades before his shoplifting conviction[.]

From here.

The only factor that provides even a glimmer of hope for attacking this sentence on federal constitutional grounds is that there is a history of mental illness involved. But, equally egregious cases under California's three strikes law involving non-mentally ill defendants have been upheld by the U.S. Supreme Court in the past.

Everyone knows that California's three strikes law is broken; but there are enough cowards in power in California, Arnold Schwarzenegger, among them, who has talked the talk but then thwarted a reform measure, that the problem hasn't been fixed yet.

Colorado Compared

While Colorado has its own habitual offender statute, a sentence like this one for this offense, would be impossible, regardless of the Defendant's criminal history.

A theft of two bottles of liquor with a combined value of $62, as was this case here, would be a class 3 misdemeanor in Colorado, punishable by up to six months incarceration at a local jail, and a hefty fine. This would be the likely punishment for the same offense that resulted in 25 years to life for Joshua.

Multiple thefts in a six months period can be aggregated, however.

Under changes to Colorado criminal law that will take effect this summer, the cutoff for felony theft will increase from $500 to $1000. There is no provision in Colorado for sentencing a habitual offender who commits misdemeanor theft as a felon.

Minor Felony Thefts In Colorado

Crossing the $500 pre-July 1, 2007/$1000 post-July 1, 2007 felony threshold if the total amount is under $15,000 ($20,000 as of this summer) is a non-violent class 4 felony in Colorado, normally punishable by two to six years in prison, plus three years mandatory parole, plus a hefty fine.

In Colorado, probation or reduction of a sentence below the ordinary minimum sentence isn't allowed if the offender had two prior felony theft from a store convictions in the last four years (a factor that wouldn't apply in Joshua's case).

The sentencing range for class 4 felony theft in Colorado if you are on parole at the time is 4-12 years. Where the amount stolen was small and there were mitigating factors, as it appears that there were in this case, a judge would be unlikely to impose the maximum sentence within that range.

The longest punishment for a felony theft, for which Joshua would be eligible if he committed felony theft, in Colorado, applies when one has four prior felonies. The habitual criminal sentence in that case for a class 4 felony theft would be 24 years in prison (one year less than the minimum sentence in California for petty shoplifting by an offender with at least two prior felonies). With two prior felonies the habitual criminal sentence for a class 4 felony theft would be 18 years.

While these sentences are harsh, they don't approach the severity of California. Felony theft never qualifies for Colorado's life imprisonment habitual offender statute, which covers only serious violent crimes or the very most serious (class 2) non-violent crimes.

It is also worth keeping in mind that there is probably only one judicial district in the state, the one presided over by Republican District Attorney Carol Chambers whose district includes Denver suburbs Arapahoe and Douglas counties, where a district attorney would typically exercise discretion to seek a habitual offender sentence in a marginal theft case involving a man with a long history of mental illness. Almost every other district attorney in the state would accept a plea to a less severe non-habitual offender sentence in such a case.

The dissent notes that in federal court, someone convicted of stealing a billion times as much as this fellow did, receives a shorter sentence.

Yoga IP

This Daily Kos diary on Yoga IP caught my eye. The text is better than it might appear at first glance. Most of the Yoga intellectual property is for trademarks, presumably for Yoga businesses, copyrights (presumably on particular wording in Yoga books, not the moves themselves), and Yoga accessories (seems excessive, but maybe there are some that aren't obvious -- also patents, since they are short lived, tend to be the least worrisome).

Still, some specific examples, shows the unnecessary ease with which trademarks can be obtained.

Punctuating Jesus.

NewMexiKen appropriately asks why there isn't a comma in "Jesus Christ", recapping a post from a couple of years ago, before I started reading his blog.

People With Issues On Capitol Hill

The May issue of Life on Capitol Hill, a neighborhood newspaper in Denver has several stories about how mental health and substance abuse issues play out in daily life here. (It has no website; an appalling short coming for a free neighorhood newspaper.)

* * * * *

In "Inmate suspected in Denton murder", by Rory Seeber (front page), it recaps the decision of the Denver Police Department to name John Lee Carson, 31, as a suspect in the 2005 murder of Brenda Denton, at the time of her death, a 38 year old criminal justice and psychology student at Metropolitan State College who lived in Denver's Capitol Hill neighborhood.

He is currently serving an eight-year sentence in the Buena Vista Correctional Facility for two unrelated 2005 assaults, which occured afte Denton's murder. . . . Accused murderer Caroson has been judged to be mentally ill and has spent varying amounts of time in psychiatric hospitals in the past decade. A drug-user said to be a former acquaintance of Denton's, he was on three years of supervised probation for stabbing a man when Denton was murdered.

If I've said it once, I've said it a hundred times -- preventable tragedies, which is what more and more of them become as we understand them better, are something that public policy can address. This is one of them.

* * * * *

In his "it's always Something" column, Don Becker describes (at page 37) an incident with his schitzophrenic neighbor and friend who started playing music "REALLY LOUD 24/7" when she stopped taking her meds. The incident, which resulted in observation in a locked mental ward after a police call five days after it started, is described lovingly and carefully through Becker's eyes. He notes that his neighbors "looked at me expectantly, as though it was tacitly assumed that I was the unofficial Mental Health Crisis Block Captain." He is in jest, of course, but the idea isn't a bad one, as is his skepticism of the current response which is "Sending a Denver police officer with a deadly weapon to haul Crystal off to the psych ward."

There were no tragedies in this case, but the pervasive undercurrent of the story is that this kind of thing is a challenge even to the healthy civil society of a neighborhood like his at 13th and Washington in 2007, a question that was punctuated by an unstated and unanswered question, "what would be better?" Maybe we need official or unofficial Mental Health Crisis Block Captains.

The other subtle point worth noting in the column is that for all of their alleged anonymity, dense urban neighborhoods have more community than they are given credit for having.

* * * * *

Finally, Vanessa Martin in a story entitled "Drug Court handles non-violent offenses" (front page), discusses the reopening a a revamped Drug court in Denver that handles 40%-60% of the 2,200 to 2,500 felony drug cases filed in Denver District Court each year. The program puts defendants in a diversion program within five days of their arrest allegedly freeing up to 130 jail beds a day "for more serious offenders."

The program puts offenders in treatment, does random drug testing, calls for community service, requires payment of fees and costs, and requires regular court appearances before magistrates (as well as a guilty plea). The program last 9 months for those who play ball, and at least two years for those who screw up (plus immediate sanctions). The program claims that 50%-65% of graduates get off drugs. It handles relatively minor possession cases only and the plea is accompanied by a deferred judgment allowing successful graduates to avoid a criminal record.

In short, at least something seems to be going right in Denver in taking a more sensible approach to drug problems.

Criminal Justice In Nicaragua

Via How Appealing, a case study of an American convicted of rape and murder in Nicargua in a system quite unlike our own.

Haunted Dreams

Every once and a while, maybe once every several years, you get one of those dreams that lingers with you long into the morning, long after the details are gone. This morning was one of those days. Sometime after falling back asleep at 3 a.m. after awakening for no particularly good reason in the middle of the night, and the mad rush of getting the kids to school by 8 a.m. that starts a little more than an hour earlier, came one of those dreams.

My wife noticed I was a bit out of sorts, not all that unusual for me as I am definitely not a morning person. I described it to her as being haunted by a dream in which I was up close to a pogrom in what seemed like contemporary small town America. I don't know if pogrom is really the right word -- I wasn't consciously aware of which group was being attacked or why precisely the attacks were being carried out. But, it was a mass extermination effort directed at a group of people by an angry semi-organized, but not government-directed mob. In the dream, I was neither oppressed nor oppressor, maybe a friend of a victim, I'm not sure. But, it was up close and personal. It was dark. Homes were burning. Worse things were implied or taken in by sound or smell, rather than sight. People were fleeing into trees or a swamp or both. It had started innocently enough, a gathering of friends reminiscing for an evening, and somehow, the horrors swirled into being happened upon somehow, maybe upon a return to a friend's home.

More than three hours later, I can still feel the echoing emotions, although almost all of the details have thankfully, faded away in the piercing daylight.

Where do these dreams come from? Why? Some interesting recent scientific studies have show that sleep helps people teases out distant, hidden relationships involving information they've recently encountered, without them even knowing that they've done so.

Dreams are fascinating and also, indeed perhaps because they are, obscure.

While I am a die-hard skeptic by and large, I've had a small number of deja vous experiences that have seemed at the time as if they were preceded by prescient dreams. But, they have never been consequential -- the longest episode what a high school economics lecture where I felt sure that I knew exactly what words the teacher was going to say, and just how he was going to say them, a little in advance, all though the lecture. Most have been brief and even less consequential.

I feel at the time as if I remember having dreamed the moments before, despite the fact that they often, maybe even usually, involve people that I didn't know at the time I think I dreamed them in unforeseeable circumstances -- prosaic interactions at a job I hadn't even applied for at the time, for example. Usually, the moments feel as if I dreamed them a few months to a few years prior.

If my perceptions were accurate, it are a fascinating proof of principal and of the nature of the universe, but practically they are completely useless. The vast majority of my dreams never manifest and almost all of them are swiftly forgotten. I have never acted on such a dream, never even had enough context to make any sense of one.

State House Adjourned.

It's over for another year.

Cities and The Planet

This opinion piece which argues we have too many cities and thus are harming the ecology of the planet is just plain wrong. People in cities have a much smaller footprint in terms of impact on the planet per capita, than those who are not in cities.

This isn't intuitively obvious. People in a big city do have a great ecological impact.

The article, for example, notes that the Sears Tower uses as much electricity as a medium sized city. But, the Sears Tower also probably has as much, if not more, office space than a medium sized city and it probably uses far less energy to heat those offices and probably uses less energy to get the people in those offices to and from home.

In fact, people in cities eat up less open space, use less energy and pollute less in the process of transporting themselves to places they need to go, use less energy to heat the spaces they occupy, use less water to maintain lawns, and in general, have less ecological impact per person. This is why New York City is at the bottom and not the top of per capita energy use.

This planet may have a maximum carrying capacity for people. But, population growth levels off or ends without strong government intervention as countries grow more prosperous in any case. Mexico, for example, has seen its per woman fertility go from 6-7 kids per woman per lifetime, to just over the replacement rate, in just about a generation.

We do have to reduce human impact on the planet. But, trying to prevent urbanization in fundamentally a counterproductive way to address that problem.

Scott Adams On Spinoza and Einstein

I just finished reading a (rather boring) historical romance, "The Witch of Cologne" by Tobsha Learner, that features Spinoza as a character, so I feel compelled to pass along the observations of Dilbert writer Scott Adams on the topic.

Hat Tip to NewMexiKen, who points out some delightful observations about Wikipedia to boot.

General Motors: Almost Non-Profit

General Motors made a $62 million profit in the first quarter of 2007. This may seem like nothing to sniff at, until you realize that they had to sell 2.26 million vehicles to produce this profit. That's right, shareholder pick up just $27.43 per vehicle that is sold by the biggest of the big three automakers.

As the link above explains, there is a lot that goes into the General Motors bottom line -- extraordinary transactions like a partial divestment of the GMAC financing business (hit hard by the subprime residential mortgage crash), the sale of its equity ownership of Suzuki Motors at a profit, and a restructuring of its European and Asian divisions, all skew the figures. But, even excluding "special items" the automaker still made only $94 million (i.e. $41.59 per vehicle).

General Motors is worse at home than abroad. GM's North American operations "still lost an adjusted $85 million on its core operations. A year ago, GM reported an adjusted loss of $251 million in North America." GM increased the per vehicle sales price by about $1,000 in North America, a move that was accompanied by a 192,000 vehicle drop in North American production. Less than half of GM's vehicle sales are in the North American market; while I don't have exact North American sales for the first quarter at hand, it looks like GM loses more than $85 per vehicle sold in North America. This isn't too surprising. MSRP has become a joke at GM dealerships, with even marquee "high profit" products like its redesigned pickup trucks "discounted $2,453 on average and are sitting on dealer lots 81 days."

General Motors is still selling cars and trucks at under cost. It loses money selling vehicles, and makes back the loss from its 49% stake in GMAC which, while losing money on its subprime mortgages, still rakes in considerable dough financing vehicles. This is a dubious business model.

This does beat the losses of many prior years. GM lost $2 billion in 2006 and $10 billion in 2005. But, an automotive manufacturer is supposed to have something more than 0.1% to 0.2% profit margin. They are not a non-profit venture.

Even excluding "special items," General Motors is returning just 17 cents a share this quarter (that would be 68 cents a share on an annualized basis) on shares whose price dropped to $30.69 each after the announcement. Earnings of just 2% of stock price aren't impressive. General Motors investors, collectively, would have been better off if the company had sold the assets for the price placed on the business by the stock market and invested the proceeds in Treasury bonds.

Simply put, until GM gets a handle on product quality and fuel efficiency, competitors like Toyota are going to keep eating it for breakfast. The real question is, which will happen first? The bankruptcy, or even discontinuation of operations, of one of the big three American automakers (Daimler Chrysler appears to be eyeing a divestment from Chrysler) or a turn around in product quality for all three American automakers.

It isn't obvious to me that it is easier to turn around any of the existing big three automakers, than it would be to simply start over from scratch with a new American automobile maker: one unburdened by legacy costs for laid off employees which results from declining market share, outdated and overcapacity manufacturing plants, and a stagnant corporate culture. The foreign competition beats the big three automakers even when the competition is also making its vehicles in the United States with American workers.

Footnote:

The assessment above has very real implications for America's most beleaguered city, Detroit. If my guess is right, the motor city is going to see things get worse before they get better. A further collapse in the American auto industry that seems written on the wall right now, may take two to five years to play out, and Detroit's health is probably a lagging indicator of the automobile industry's health. It is a reasonably safe bet that Detroit's population and fortunes more generally will decline from 2000 to 2010, and again from 2010 to 2020. Maybe, Detroit can finally hit bottom after many decades of painful contraction by the twenty-teens, but the future of Motown does not look bright at this juncture.

The Myth Of French Decline

In this French election season, many have argued that France is facing an economic decline or stagnation. This may be true for the very rich in France, compared to the very rich in the U.S. and U.K., but there is a cogent argument to be made that this is not true for the bottom 90% in France, whose lot has improved or stayed even with their peers across the channel and across the Atlantic.

Amidah

One of the recurring faults of religious scholars is a focus on scripture rather than the living faith that the religious practice. Perhaps that is why, despite having an intensive religious education, I'd never heard until today of the Amidah described by Wikipedia as " the central prayer of the Jewish liturgy."

It is a prayer that every student of Christianity, Islam and of the larger monotheistic religious tradition should know, and know well. It is something of a missing link in the evolution of Christian doctrine, for it comes from the "mishnaic period." What and when is this?

The Mishnah (Hebrew משנה, "repetition"), redacted circa 200 CE by Yehudah Ha-Nasi (יהודה הנשׂיא / "Judah the Prince"), is the first written recording of the oral law of the Jewish people, as championed by the Pharisees, and as debated between 70-200 CE by the group of rabbinic sages known as the Tannaim. It is considered the first work of Rabbinic Judaism and is a major source of Rabbinic Judaism's religious texts: Rabbinic commentaries on the Mishnah over the three centuries after its composition were then redacted as the Gemara (Aramaic: "Tradition"), and joined with the Mishnah to form the Talmud.

In other words, the Mishnah, which is the theological embodiment of the transformation of Judaism from the Temple based, sacrifice oriented religion of Jews in what Christians call the "Old Testament" was developed contemporaneously with the books of the Christian "New Testament", and like the "New Testament" had its roots in the Mediterranean Jewish community. Some have described the Amidah a prayer developed as a substitute for the sacrifices of Temple Judaism.

When was the New Testament written: "The original texts were written in Koine Greek by various authors after c. 45 AD and before c. 140 AD." Some scholars place the starting date for New Testament composition as late as 70 CE (a significant date as it marks the destruction of the Jewish temple in Jerusalem and the transformation of Judaism from the Temple period to the Rabbic period). Apocryphal New Testament works have been dated through 170 CE. The contents of the New Testament canon were just starting to solidify in the period from 140 CE to 180 CE, and were not definitively settled even as late as 300 CE.

In short, the Amidah would have been in the consciousness of almost every active member of the Jewish community from which the early Christian church was emerging at the time the New Testament was written. How could it not have influenced the religious writing of these authors?

So what is in the Amidah? According to Wikipedia:

The nineteen blessings are as follows:

1. Known as Avot ("Ancestors") this prayer offers praise of God as the God of the Biblical patriarchs, "God of Abraham, God of Isaac and God of Jacob."
2. Known as Gevurot ("powers"), this offers praise of God for His power and might. This prayer includes a mention of God's healing of the sick and resurrection of the dead. It is called also Tehiyyat ha-Metim = "the resurrection of the dead." . . .
3. Known as Kedushat ha-Shem ("the sanctification of the Name") this offers praise of God's holiness. . . .
4. Known as Binah ("understanding") this is a petition to God to grant wisdom and understanding.
5. Known as Teshuvah ("return", "repentance") this prayer asks God to help Jews to return to a life based on the Torah, and praises God as a God of repentance.
6. Known as Selichah, this asks for forgiveness for all sins, and praises God as being a God of forgiveness.
7. Known as Geulah ("redemption") this praises God as a rescuer of the people Israel.
8. Known as Refuah ("healing") this is a prayer to heal the sick.
9. Known as Birkat HaShanim ("blessing for years [of good]"), this prayer asks God to bless the produce of the earth.
10. Known as Galuyot ("diasporas"), this prayer asks God to allow the ingathering of the Jewish exiles back to the land of Israel.
11. Known as Birkat HaDin ("Justice") this asks God to restore righteous judges as in the days of old.
12. Known as Birkat HaMinim ("the sectarians, heretics") this asks God to destroy those in heretical sects who slander Jews, and who act as informers against Jews.
13. Known as Tzadikim ("righteous") this asks God to have mercy on all who trust in Him, and asks for support for the righteous.
14. Known as Bo'ne Yerushalayim ("Builder of Jerusalem") asks God to rebuild Jerusalem and to restore the Kingdom of David.
15. Known as Birkat David ("Blessing of David") Asks God to bring the descendant of King David, who will be the messiah.
16. Known as Tefillah ("prayer") this asks God to accept our prayers, to have mercy and be compassionate.
17. Known as Avodah ("service") this asks God to restore the Temple services and sacrificial services.
18. Known as Hoda'ah ("thanksgiving") this is a prayer of thanksgiving, thanking God for our lives, for our souls, and for God's miracles that are with us every day. The text can be found in the next section. . . .
19. Known as Shalom ("peace"); the last prayer is the one for peace, goodness, blessings, kindness and compassion. Ashkenazim generally say a shorter version of this blessing at Minchah and Maariv.

Final Benedictions
Prior to the final blessing for peace, the following is said:

We acknowledge to You, O Lord, that You are our God, as You were the God of our ancestors, forever and ever. Rock of our life, Shield of our help, You are immutable from age to age. We thank You and utter Your praise, for our lives that are delivered into Your hands, and for our souls that are entrusted to You; and for Your miracles that are with us every day and for your marvelously kind deeds that are of every time; evening and morning and noon-tide. Thou art good, for Thy mercies are endless: Thou art merciful, for Thy kindnesses never are complete: from everlasting we have hoped in You. And for all these things may Thy name be blessed and exalted always and forevermore. And all the living will give thanks unto Thee and praise Thy great name in truth, God, our salvation and help. Selah. Blessed be Thou, O Lord, Thy name is good, and to Thee it is meet to give thanks. . . .

Concluding Meditation
The custom has gradually developed of reciting, at the conclusion of the latter, the supplication with which Mar, the son of Rabina, used to conclude his prayer:

My God, keep my tongue and my lips from speaking deceit, and to them that curse me let my soul be silent, and like dust to all. Open my heart in Your Torah, and after [in] Thy commandments let me [my soul] pursue. As for those that think evil of [against] me speedily thwart their counsel and destroy their plots. Do [this] for Thy name's sake, do this for Thy right hand's sake, do this for the sake of Thy holiness, do this for the sake of Thy Torah. That Thy beloved ones may rejoice, let Thy right hand bring on help [salvation] and answer me... May the words of my mouth and the meditations of my heart be acceptable in Thy sight, O Eternal, my rock and my redeemer.

I won't belabor the point (or eat up any more of the morning) by exploring the links between the Amidah and the New Testament in detail. But, it isn't hard to see that many elements of the Amidah are found in the Christian New Testament, and in particular, are emphasized in portions of the Gospels found in later, but not earlier Gospels, like the reference to the House of David. Many references commonly notated in Christian scholarship as references to the Hebrew Bible are probably indirect and come to Christian scripture through the Amidah, rather than directly from their Biblical sources.

The tradition of praying the Amidah three times a day while facing Jerusalem is similarly probably behind the pillar of Islamic practice of praying five times daily towards Mecca. This prayer also probably closely linked to the Christian monastic schedule of daily prayers, and behind to similarly structured Catholic prayers like the Rosary.

As a concluding point, an acknowledgement of the historical religious importance of the Amidah to all three of the "People of the Book" faiths, also shines a spotlight on Ben Sira. This rather obscure extracannonical Jewish religious writer is not the direct author of the Amidah, but it strongly echos his earlier writings which were known at the time and are referrenced at points in the Talmud. Thus, Ben Sira's influence on the modern religious scene is much greater than had been previously understood.

Last Day.

Today is the last day of the legislative session in Colorado. Bills will be zipping past their third readings as fast as the titles can be read today. Then, it will be time to survey the wreckage and see what the process hath wraught, which actually will take a little longer as the Governor does the same thing.

Screen Death

My laptop's screen has been going into all sorts of weird color schemes in the past couple of days. Initially, I suspected that I had hit the wrong software setting. But, when slapping the screen from behind seems to resolve the problem and I can't find any settings that resolve it, I'm leaning towards a hardware problem.

Any computer experts out there have an opinion?

Global Executions 2006

From The Economist relying on Amnesty International data.

The United States is the only country which is neither Islamic, nor an avowedly Communist regime, which conducts a large number of executions. A few countries not in either category retain the death penalty and have used it in the past ten years, but none as often as the United States:

Amnesty lists 68 countries which retain the death penalty for ordinary crime, which I have categorized below:

Predominantly Islamic or Islamic Controlled Goverment

AFGHANISTAN, BAHRAIN, BANGLADESH, EGYPT, INDONESIA, IRAN, IRAQ, JORDAN, KUWAIT, LEBANON, LIBYA, MALAYSIA, OMAN, PAKISTAN, PALESTINIAN AUTHORITY, QATAR, SAUDI ARABIA, SOMALIA, SUDAN, SYRIA, UNITED ARAB EMIRATES, YEMEN

Communist or Recently Former Communist

BELARUS, CHINA, CUBA, KAZAKSTAN, KOREA (North), LAOS, MONGOLIA, TAJIKISTAN, UZBEKISTAN, VIET NAM

Other Asia

INDIA, JAPAN, KOREA (South), SINGAPORE, TAIWAN, THAILAND

Other Africa

BOTSWANA, BURUNDI, CAMEROON, CHAD, COMOROS, CONGO (Democratic Republic), EQUATORIAL GUINEA, ERITREA, ETHIOPIA, GUINEA, LESOTHO, NIGERIA, RWANDA, SIERRA LEONE, TANZANIA, UGANDA, ZIMBABWE

Greater Caribbean Basin

ANTIGUA AND BARBUDA, BAHAMAS, BARBADOS, BELIZE, DOMINICA, GUATEMALA, GUYANA, JAMAICA, SAINT CHRISTOPHER & NEVIS, SAINT LUCIA, SAINT VINCENT & GRENADINES, TRINIDAD AND TOBAGO, UNITED STATES OF AMERICA

The New Monarchists

Dick Cheney is on the record arguing that the Presidency of the United States should have monarchial powers. He isn't alone in the neo-conservative right in believing this, and a post at Daily Kos looks at a major academic support of this reactionary theory of American government.

The Monarchists are on the march again in America. Will it take another American revolution to displace them?

The Meaning Of The Rat and the Honeybee

One of the most important philosophical issues in environmental policy can be summed up in a small furry package called a Laotian rock rat (Laonastes aenigmamus), common name in Laos, Kha-nyou.

The Laotian rock rat, like a lot of notable endangered species, is a relict. It is the sole surviving species of a family of rodents that otherwise went extinct 11 million years ago, called Diatomyidae, it has an isolated geographic range, and it has only modest ecological importance.

If Colony Collapse Disorder wipes out the common honeybee, or the banana goes extinct (see Snopes for caveats), you and I will feel that ecological impact dramatically, it will interrupt the human food chain. In contrast, if the Laotian rock rat were to go extinct (who knows if it is endangered itself, it was rediscovered by Western scientists in 1996), it will slightly narrow the range of traditional delicacies available in Laotian street markets and few others will notice. International trade which provides new sources of food for Laotians is probably squeezing these markets economically in any case.

Mammals are one nineteen or so classes of animals in the phylum cordata which includes all vertebrates. Cordata is one of about 37 phyla of animals. The most abundant order of mammals is that of the rodents, which make up about 40% of all known mammal species, it is one of about nineteen orders of mammals.

So, our Laotian rock rat resurrects a new family within this Order. Previous analysis had given it a different place within the same suborder. In the mammal biology world, this is still a big thing. The last time before this that someone discovered a new family of mammals was when the bumblebee bat family was discovered in 1974. When a new or relict family of mammals gets discovered a couple of times every thirty years, we can pretty pretty comfortable that the gross outline of this part of the animal taxonomy is pretty close to accurate.

The Laotian rock rat is a tangible connection to a whole branch of evolutionary history. We can now make definitive statements about the DNA of the Diatomyidae family where previously we had only guesses based upon the closest living surviving relative, the African grundie, another kind of rodent. It can help us field test things like the pace at which evolution unfolds, information that could help corroborate other evolutionary issues like the link between the dinosaurs and the birds, a long hypothesized connection cemented when we learned that the closest living relative of T-Rex today is the chicken.

But, how do we weigh the importance of the rock rat and the honeybee? The rock rat is a sole species left of an entire family of animals. The honeybee, in contrast, is one species of a great many in its family. But, the rock rat is quite unimportant to other the larger web of life, while the honeybee is a lynch pin of the ecosystem.

Also, if we value relicts, should we value higher order relicts, like the tuatara, which are the sole representatives of a higher order of classification in the taxonomy more than we do lower order relicts, like the rock rat.

Most of the time, we don't have to weigh apples and oranges like rats and bees and bananas, but when legislators and the environmental protection agency set priorities in he midst of a massive, human caused extinction, which they have limited resources to address, it does matter.

Denver Neighborhoods Ranked By Property Values

Neighborhood

Property Value Rank (2007) -- total price, not per square foot

1. Bow Mar $649,411
2. Washington Park $533,559
3. Cherry Creek $486,792
4. Congress Park
5. Union Station
6. Washington Park West
7. Cory-Merrill
8. Platt Park
9. City Park
10. Montclaire
11. North Park Hill $294,427
12. Alamo Placita
13. West Highland
14. University
15. Goldsmith
16. Sloan's Lake
17. Speer
18. City Park West
19. Cheeseman Park
20. Hampden
21. Berkely
22. Virginia Village $242,735
23. LoDo
24. North Capitol Hill
25. Harvey Park South
26. Uptown
27. Regis
28. Civic Center
29. Central Business District
30. West Colfax
31. Washington Virginia Vale
32. Harvey Park $175,923
33. Capitol Hill
34. Overland
34. College Valley
35. College View
36. East Colfax
37. South Federal
38. Mar Lee
39. Ruby Hill
40. Indian Creek
41. Montbello $145,846
42. Athmar Park $144,928
43. Hampden South $96,579

Source: Zillow.com via the Denver Post.

Which States Have Civil Unions?

Oregon joins California, Connecticut, Massachusetts, New Hampshire, New Jersey, and Vermont in extending all of the benefits and responsibilities of marriage to same-sex couples. Hawaii, Maine, Washington state, and D.C, grant legal recognition and some of the rights of marriage to same-sex couples.

From here.

In the 2006 general election in Colorado, a domestic partnerships proposal (Referendum I) won 47.65% of the vote, which obviously wasn't enough to pass, but was also a big step forward from previous popular votes on gay rights issues in the state. A narrow marriage is between a man and a woman proposal (Amendment 43), that did not ban domestic partnerships, passed with 55.02% of the vote in the same election.

County by county results on Referendum I show that it had overwhelming support in Boulder, Denver and most resort dominated counties. But, most of rural Colorado and Colorado Springs overwhelmingly opposed the measure. Opinion was quite evenly divided in suburban Denver metropolitian area counties.

The political upshot of this outcome is that Democrats have taken some basic steps in 2007 to protect gay rights (like employment discrimination protection and second parent adoption), but have not pushed for full domestic partnership rights, as Colorado voters have expressed their will on that issue for now.

Richard Florida argues in his book on the "Creative Class" that being gay friendly is strongly linked to local economic prosperity. Recent news from Colorado seems to support that view. Gay unfriendly rural Colorado (particularly places within anti-gay Congresswoman Marilyn Musgrave's 4th Congressional District) are seeing real estate values collapse by 8% this year, while the Denver metropolitan area has seen only a 1.9% drop, with gay friendly Boulder actually posting a slight increase in real estate values.

Always The Optimist

Melissa Summers at Strollerderby on my recent Soccer Dad post:

The guy reminds me of my optimistic husband who could find the bright side of Darfur.

Stroller Derby is a pretty neat site, by the way.

Justice Sleeps

There is an academic study on sleeping judges. Bottom line: The media is not nice to judges who fall asleep during court proceedings. Who knew?

Deepwater; Big Trouble

Deepwater is the five year old program to replace almost all of the ships in the Coast Guard with new an improved models over 20 years for $24 billion. It is in big trouble, something I've been aware of for a few months but not found time to post about. The link in this post to Defense Tech has a nice summary of the problems.

Integrated Coast Guard Systems -- a partnership between electronics maker Lockheed Martin and shipbuilder Northrop Grumman -- the “lead systems integrator” for the program, meaning the firms, rather than the Coast Guard, would be responsible for selecting subcontractors to handle the aircraft, electronics and shipbuilding work. . . . [T]he service has terminated the lead-systems-integrator relationship, citing shoddy work on a $100-million effort to stretch and modernize eight 110-foot patrol boats -- the first major shipbuilding portion of Deepwater. Those boats are being decommissioned due to hull buckling, leaving the Coast Guard with a 15-percent gap in its patrol boat force, Commandant Thad Allen said while announcing the decommissioning and the Deepwater changes on April 17. Earlier, Allen had cancelled the so-called Fast Response Cutter being designed from scratch by Integrated Coast Guard Systems to eventually fill that gap, instead expressing his intention to seek off-the-shelf boat designs. [There were also electronics and software problems.]. . .

According to Allen, all aspects of Deepwater that are already far advanced -- including work on patrol planes, helicopters, short-range boats and several large cutters -- will remain intact. But overall management of the program will pass from industry to the Coast Guard.

I personally think that we need, as a nation, to shift resources from the Navy, which provides relatively modest benefit to national defense for the money we spend on it, to the Coast Guard, which provides a high return for the money we spend on it, particularly on the counterterrorism front.

Indeed, given my druthers, the National Guard, Coast Guard and Civil Air Patrol would be a unified force in charge of its own procurement and coordinated domestic security and crisis response duties, rather than the current approach, which treats the National Guard as a poor cousin of the Army.

C.J. Roberts Cements Goverment Gitmo Win

Chief Justice Roberts of the United States Supreme Court appears to agree with the government that the Military Commissions Act of 2006 absolutely forbids any judicial branch intervention in the government's treatment of detainees at Guantanamo Bay. This is contrary to signals that have been sent by associate justices Stevens and Kennedy in cases where they have denied certiorari, but held open the possibility of court review in some cases.

Most recently the Chief Justice refused to consider a detainee's plea that upon release from Guantanamo Bay, he was being transferred to a country, Libya, where he claims "he faces a grave risk of arbitrary detention, torture, persecution and extrajudicial assassination at the hands of the dictatorship of Colonel Muammar Al-Qadhafi." The Executive branch argued that it should be trusted with resolving this issue, despite the fact that in all other contexts, Executive branch asylum decisions are subject to judicial review, ultimately, by the judicial branch.

On Voting Systems

It is worth noting that Denver's voting system, which is nearly identical to that of France, Louisiana and San Francisco, requires a majority vote in the first round for the leading candidate to avoid a runoff, and places the top two candidates in a runoff otherwise.

This isn't the only set of voting rules out there. In the political caucus system, all candidates with at least 30% support make it onto the primary ballot and balloting is held until at least someone gets 30%. If Denver used that rule for candidates trying to make it inot a runoff election, there would be no runoff election this year, because every race had someone who got at least 30% of the vote, and each race had only one candidate winning 30% of the vote.

Similarly, if ordinary general election voting rules were used, and the first round was a partisan political primary, a number of races, like the 8th Council District race, would be decided by now, because all the candidates were Democrats and the candidate with the most votes in the primary goes onto the next round.

But, if the city council races were partisan general election style races with primaries, the 7th Congressional District would have had a next round not between Nevitt and Watters, the two candidates with the most votes in this round, but between Nevitt and Smith, the Democrat and the Republican, respectively, even though Smith came in 4th place in terms of votes received in the first round. Of course, if there were partisan races for city council in Denver, Councilwoman Jeanne Faatz from District 2, would probably not be in office, as she is a Republican with a real shot in a nonpartisan race who would likely be defeated in a party line vote in a partisan race (most of Councilwoman Faatz's district in in Representative Labuda's state house district which Democrat Labuda easily won against her Republican opponent in a targetted race in 2006).

I like Denver's current election rules and don't think that they should be changed. But, this election is a fine example of how election results are not merely the voice of the People speaking, they are instead, a product of the rules that government them.

Denver Municipal Election Results (Updated)

So, the election is over (except for runoffs) and its time for popcorn.

According to the Election Commission's first round of results (with 30.0% turnout -- basically all pre-Tuesday voting):

AUDITOR
Votes/Total Votes % Votes
- Bill Wells 12190/ 56,879 21.43%
- Dennis J. Gallagher 44689/ 56,879 78.57%

CLERK AND RECORDER
Votes/Total Votes % Votes
- Jacob Werther 11403/ 51,612 22.09%
- Stephanie Y. O'Malley 40209/ 51,612 77.91%

COUNCILMEMBER AT LARGE
Votes/Total Votes % Votes
- Carol Boigon 25001/ 80,117 31.21%
- Doug Linkhart 32961/ 80,117 41.14%
- Carol E. Campbell 22155/ 80,117 27.65%

COUNCILMEMBER DIST DISTRICT 1
Votes/Total Votes % Votes
- Rick Garcia 3975/ 3,975 100.00%

COUNCILMEMBER DIST DISTRICT 10
Votes/Total Votes % Votes
- Jeanne Robb 5443/ 5,443 100.00%

COUNCILMEMBER DIST DISTRICT 11
Votes/Total Votes % Votes
- Michael Hancock 3396/ 3,396 100.00%

COUNCILMEMBER DIST DISTRICT 2
Votes/Total Votes % Votes
- Jeanne Faatz 5587/ 5,587 100.00%

COUNCILMEMBER DIST DISTRICT 3
Votes/Total Votes % Votes
- Antoinette Alire 54/ 2,668 2.02%
- Paul D. L�pez 1187/ 2,668 44.49%
- Niccolo Casewit 123/ 2,668 4.61%
- JoAnn Phillips 428/ 2,668 16.04%
- Kathy Sandoval 325/ 2,668 12.18%
- Mark Roggeman 302/ 2,668 11.32%
- Ben Romero 249/ 2,668 9.33%

COUNCILMEMBER DIST DISTRICT 4
Votes/Total Votes % Votes
- Peggy A. Lehmann 5231/ 8,107 64.52%
- Ike Kelley 1687/ 8,107 20.81%
- Bill Rutherford 1189/ 8,107 14.67%

COUNCILMEMBER DIST DISTRICT 5
Votes/Total Votes % Votes
- R.J. Ours 636/ 7,530 8.45%
- Marcia Johnson 5788/ 7,530 76.87%
- Mitchell Poindexter 1106/ 7,530 14.69%

COUNCILMEMBER DIST DISTRICT 6
Votes/Total Votes % Votes
- Charlie Brown 6107/ 6,107 100.00%

COUNCILMEMBER DIST DISTRICT 7
Votes/Total Votes % Votes
- Shelly Watters 1365/ 4,800 28.44%
- Dennis Smith 328/ 4,800 6.83%
- Chris Nevitt 2211/ 4,800 46.06%
- Julie Connor 896/ 4,800 18.67%

COUNCILMEMBER DIST DISTRICT 8
Votes/Total Votes % Votes
- Darrell B. Watson 1216/ 4,546 26.75%
- Carla Madison 1255/ 4,546 27.61%
- Sharon Bailey 1697/ 4,546 37.33%
- Greg Rasheed 378/ 4,546 8.32%

COUNCILMEMBER DIST DISTRICT 9
Votes/Total Votes % Votes
- Judy H. Montero 2103/ 2,877 73.10%
- Waldo Benavidez 774/ 2,877 26.90%

MAYOR
Votes/Total Votes % Votes
- Danny F. Lopez 7641/ 62,339 12.26%
- John Hickenlooper 54698/ 62,339 87.74%

REFERRED QUESTION 1A
DA Term Limits 0/420 0.00%
Votes/Total Votes % Votes
YES 44567/ 58,274 76.48%
NO 13707/ 58,274 23.52%

Most of my predictions were right, but a couple were a little off.

I predicted a Council District 8 runoff between Watson and Madison. But, at this hour, it looks like Bailey and Madison, with Watson 0.86% (39 votes) behind second place Madison. This race could still swing based on ballots cast today that haven't yet been counted. Madison's Denver Post endorsement probably helped her edge out Watson.

In a Bailey v. Madison race, I think Bailey probably has an edge with Watson and Rasheed supporters over Madison, whose appeal is greater in the central business district area. Madison, of course, needs to win a supermajority of Watson and Rasheed supporters to win, in any case.

If the tide turns based upon today's voting and it becomes a Bailey v. Watson race, it is harder to tell how the race will come out, but I'm inclined to think that Madison supporters would disproportionately favor Bailey, if for no reason other than that the competition between Madison and Watson in the first round was very hot, while almost nobody campaigned against Bailey.

I predicted a Council District 3 runoff between Lopez and Romero. In fact, the runoff will be between Lopez and Phillips. The Lopez v. Phillips runoff is big enough that it is unlikely to be upset by today's returns. Kathy Sandoval, next in the vote count, is 103 votes behind Phillips (almost 4 percentage points). Assuming that Lopez holds onto voters who voted for him in the first round, he needs only about one in seven of voters who didn't vote for Phillips or himself to win. Phillips was endorsed by the Denver Post after my last set of predictions and this clearly gave her campaign a boost.

The third runoff, which I did predict will be between Nevitt and Watters. This result won't be changed by today's voting. Watters leads third place Connor by almost ten percentage points. Nevitt needs about one in six of the votes for Conner and Smith to win. He is unlikely to get many Smith votes (Smith was the only registered Republican in that non-partisan race, while Nevitt is a strongly labor union backed candidate), but he has a good shot at getting at least a quarter of Connor's votes. Watters Denver Post endorsement did little to upset the status quo in that race.

The Rocky Mountain News endorsements, while printed less often than those of the Denver Post, better match the results. The Rocky endorsed Lopez in District 3, Nevitt in District 7 and split its endorsement between Bailey and Madison in District 8.

UPDATE: 40 minutes later, the close races are even less close.

There are on the order of 3,000 votes to be counted citywide, at most, and far less than that in District 8 where it is most likely to matter, where the are probably something on the order of 400 more votes to be counted, split among four candidates. In the third council distict there are probably only 300 more votes to be counted and they are going to be split seven ways.

Madison and Watson supporters may want to hang on for late breaking results, but everyone else can call it a night and return to popcorn and after campaign beer.

Antoinette Alire's mere 60 vote showing in the 3rd Council District is notable, not only because it is the smallest number of votes cast for a non-write in candidate (the 3rd district has the lowest voter turnout and the largest number of candidates so someone in that race was bound to have that distinction) but also because, if I recall correctly, you need 100 signatures to get on the ballot -- Alire lost at least 40 of the people who signed her petition on the way to the mailbox to mail ballots.

Trust the Denver Post to run with the most uninformative headline imaginable for anyone who has been paying any attention to prior coverage of this race: "Hickenlooper Re-elected." When did they come up with that one? Last month? The mediocre Denver Post coverage of city issues continues. The Rocky in fairness, does little better, proclaiming "Hick Wins Second Term", although it does have subheadlines about other races that are mildly more informative.

FINAL UPDATE: At 8:18 p.m. the next round of results has come in, and with 68,960 votes counted, better than 36% turnout, which should be nearly all of them (and all but about 100 votes or so, if that, in the critical 8th Council District race) there is still a 75 vote lead for Madison over Watson. Today's races are over. Everybody can go drinking now.

The In Forma Pauperis SCOTUS Lottery

The filing fee in the United States Supreme Court is $300, and the binding and printing costs imposed by the Court cost a few thousand more dollars. Then, having an attorney draft the paperwork costs tens of thousands of dollars more. But, the impact of making a paid petition on the likelihood of review by the U.S. Supreme Court is considerable. Still, some petitioners take the cheap route, and some succeed.

From October, when the court's new term began, to March 1, the Supreme Court received 4,759 "in forma pauperis" petitions. That was 6 percent more than the court's previous term. Of this term, only 10 were granted review.

By contrast, the court received 1,186 standard petitions and granted review to 45. . . .

Passed in 1996, the Prison Litigation Reform Act imposed new hurdles, including a limit on an inmate's "in forma pauperis" petitions if judges rule that the filings are frivolous or malicious. In certain cases, indigent prisoners must also pay filing fees on an installment plan.

From here.

The article goes on to note that some important cases like Brendlin (involving the 4th Amendment rights of passengers in stopped cars) in the current term, and Gideon (the right to counsel), in a past one, have made important law.

Even among in forma pauperis cases, those, like Brendlin, where the petition is being written by an attorney, rather than the petitioner him or herself, are more likely to prevail, although in forma pauperis cases are still at a disadvantage.

Indeed, even bringing an in forma pauperis petition, knowing that your chances of failure in this time consuming enterprise are 99.7% requires an odd mix of insanity and hope. It isn't that the 96% certiorari failure rate for ordinary petitions is low either, but it can even be economically rational when the amount at stake for the client as a result of the precedent, even if not in the individual case at issue is a couple of million dollars or more, and there is an issue in the case with a real chance of securing review.

The IFP docket, as it is known, also is institutionally odd. Most petitions receive only cursory review by two law clerks (one for Stevens and one for the other Justices), who have a strong inclination to say no, and will be reviewing roughly 300 similar petitions. Capricious grants of goodwill by these demi-gods are necessary to even receive consideration. While many IFPs are frivilous, there is little doubt that meritorious cases are more likely to be overlooked on the IFP docket, than elsewhere. No clerk will ever be reprimanded for saying no to an IFP case. Indeed, usually, no one will ever no who made the de facto decision to deny a particular IFP review, until decades later.

The IFP docket does make up a non-trivial share of the total universe of cases heard on the merits by the Court, but just barely. IFPs without attorneys, furthermore, verge on making up a trival share of the whole.

Britain Imports Billionaires

The number of billionaires living in Britain has surged to 68, up from 54 last year. About a third are from overseas and only three of the wealthiest 10 billionaires were born here [Britain].

From here.

Does Locking Them Up Work?

Bernard Hardcourt provides some data (paper here) in support of a version of the conservative premise on crime control, plotting combined prison and mental health incarceration against homicide rates over time.

His bottom line:

Prison incarceration alone does not predict homicide, but when mental health institutionalization is combined with the prison rate to form an aggregate instituaionlization measure, that measure is significantly and robustly related to homcide rates over a 68 year period across the fifty separate states, holding constant a number of leading control variables.

The match isn't really quite the match that it is as there is a lot of controlling for independent factors going on.

His main table holds "constant three leading structural covariates of homicide (youth demographics, unemployment, and poverty)."

In order to test the national-level findings, I collected state-level panel data and ran clustered regressions. The results were truly remarkable. Using state-level panel data spanning the entire period from 1934 to 2001, including all 50 states, and controlling for economic, demographic, and criminal justice variables, I again found a large, robust, and statistically significant relationship between aggregated institutionalization and homicide rates. The findings are not sensitive to weighting by population and hold under a number of permutations, including when I aggregate jail populations as well.

To help visualize the relationship, I plotted the predicted values of homicide in the final model (Model 6) against the aggregated institutionalization rate. These, then, are the predicted values of homicide from the model including all the independent variables (aggregated institutionalization, real per capita income, demographics, execution rate, proportion urban, proportion black, and state and year fixed effects).

An important observation of the study is that total mental health and prison institutionalization rates in the United States in the 1940s and 1950s were even higher than they are now.

The study also highlights the important role that deinstitutionalization of the seriously mentally ill has played in our country's social ills.

The question is, how do you square this with international comparisons? The strong corollations with race, high poverty levels and urban settings controlled out of this analysis, sweep the economic causes of crime under the rug. It also suggests a more probing look at institutionalized treatment of mental health in other nations touted for low incarceration rates. Is the main difference between the U.S. and Western Europe that the Europeans are more likely to provide inpatient mental health treatment, while the U.S. lets those same people rot in prison without treatment?

At any rate, it is a study worth a closer look.

May Day

Today is May Day, the adopted high holiday of the Communist world, adopted from Beltane, the Gaelic Pagan mid-spring holiday, and counterpart to Samhain aka Halloween. Today is often associated with fertility, a sensible thing for a holiday that falls squarely in prom season.

In tax land, we place greater emphasis on Beltane eve, when by secular fiat, small businesses across the land file their quarterly payroll tax returns. In the Colorado branch of the tax cult, we like to fire up for the midnight bonfires with the magic numbers 941 and 1094.

Today is also the last day to vote in Denver's city elections. Drop off your ballot downtown by 7 p.m. at the following places:

The Denver Election Commission located at 303 W. Colfax Ave. . . .
Athmar Recreation Center, 2680 W. Mexico Ave.
Barnum Recreation Center, 360 Hooker St.
District 3 Police Station, 1625 S. University Blvd.
Eisenhower Recreation Center, 4300 E. Dartmouth Ave.
Harvey Park Recreation Center, 2120 S. Tennyson St.
Montbello Recreation Center, 15555 E. 53rd Ave.
Montclair Recreation Center, 729 Ulster Way
New Hope Baptist Church, 3701 Colorado Boulevard *New*
Scheitler Recreation Center, 5031 W. 46th Ave.
Tattered Cover Bookstore, 1628 16th St.
Tattered Cover Bookstore, 2626 E. Colfax Ave.
Wellington Webb Municipal Office Building, 201 W. Colfax Ave.

On Election Day, May 1, all locations will receive ballots from 7:00 a.m. to 7:00 p.m., including Election Commission headquarters curbside drop-off on Court Place between Colfax Ave. and 14th St.

Please note: Ballots must be received by 7pm, May 1, 2007. Any ballots received after this date and time will not be counted regardless of postmark.

Vote well.

Jury Trials and Summary Judgment

I've noted many times at this site how rare jury trials are becoming in the United States. A New York Times piece today adds an important dimension to this by pointing out the role of motions for summary judgment in the change:

Federal courts conducted about 3,600 trials in civil cases last year, down from 5,800 in 1962. That is not an enormous drop — until you consider that the number of cases has quintupled in the meantime.

In percentage terms, only 1.3 percent of federal civil cases ended in trials last year, down from 11.5 percent in 1962.

The trends in criminal cases and in the state courts are broadly similar, though not always quite as striking. But it is beyond dispute that even as the number of lawyers has grown twice as fast as the population and even as the number of lawsuits has exploded, actual trials have become quite rare. . . .

“During the last years of the 20th century, summary judgment in the federal courts moved from a small fraction of dispositions by trial to a magnitude several times greater than the number of trials,” Marc Galanter, who teaches law at the University of Wisconsin and the London School of Economics and Political Science, wrote last year in The Journal of Dispute Resolution. . . . “Summary judgments are being asked for in about 17 percent of cases and granted in about 9 percent,” he said, citing recent data from the Federal Judicial Center. That is a big jump from 1960, when no more than 1.8 percent of federal civil cases ended in summary judgment, according to data from the administrative office of the federal courts analyzed in a 1961 law review article.

“We’ve moved in a way to a more European way of decision-making, by looking at the court file rather than through encounters with living witnesses whose testimony is tested by cross-examination,” Professor Galanter said.

In criminal cases, the vast majority of prosecutions end in plea bargains. In an article called “Vanishing Trials, Vanishing Juries, Vanishing Constitution” in the Suffolk University Law Review last year, a federal judge questioned the fairness of the choices confronting many criminal defendants.

Those who have the temerity to “request the jury trial guaranteed them under the U.S. Constitution,” wrote the judge, William G. Young of the Federal District Court in Boston, face “savage sentences” that can be five times as long as those meted out to defendants who plead guilty and cooperate with the government. . . .

Almost all civil jury trials in the world take place here, and 90 percent of the criminal ones.

While the article focuses on the impact at the federal level, there has been a similar change at the state level.

The summary judgment data also suggest that the trend towards settlement has been somewhat exaggerated.

In the early 1960s you have 12.1% of federal civil cases resolved by a judge on summary judgment or at trial. Now, you have 10.3% of cases resolved in that manner. Thus, cases are only slightly more likely to be resolved by settlement, but are a lot more likely to be resolved in motion practice.

Galanter's statement in the quote above about the declining role of cross-examination is also somewhat overstated.

What is happens in civil cases is that witnesses are deposed under oath in opposing lawyer's offices, the moral equivalent of cross-examination, rather than in front of a judge during trial. This testimony is then presented in a motion for summary judgment. Friendly witness testimony for a side seeking summary judgment is presented by affidavit, but the opposing party generally had an opportunity to depose that witness before the case went to summary judgment stage.

On the other hand, there is a lot to be said for the commentary in the article about judges encroaching on the right to trial by jury. A 10th Circuit affirmance today of a summary judgment grant in an employment discrimination case is a perfect example. Yes, the Plaintiff who was fired reversing bank charges was weak, but when every single bank branch prior to a recent reorganization was a woman (and one was an older woman) and afterwards, the Plaintiff was finally replaced, like all the others, by a young man, there is room to wonder if the severity of her dismissal was excessively harsh and really motivated by other factors. The fine lines of evidentiary sorting conducted by the 10th Circuit in that case is the stuff we'd normally leave to a jury to weigh.

In criminal cases, it isn't uncommon for the testimony of key witnesses to have been provided, instead, in a preliminary hearing.

Hamdan Denied

The last major detainee case pending before the U.S. Supreme Court was denied cert today, on the same 6-3 basis as the previous one. Liberal Justice Stevens voted not to grant cert, probably, again, because he didn't trust Justice Kennedy to vote the right way on the merits. I personally think that Justice Stevens made the wrong call both times at grave cost to the integrity of the Constitution.

Bottom line: The Military Commissions Act of 2006 has successfully shut down almost all legal avenues to challenge indefinite executive detention and mistreatment of those detainees, despite the fact that the 2-1 D.C. Circuit ruling upholding the law seemed to defy previous war on terror precedents of the U.S. Supreme Court.

Kangaroo court Combat Status Review hearings, and procedurally deficient Military Commissions for the 3% or so of detainees who may face war crime charges (under a statutorily greatly expanded definition of war crimes), are all that remain. The MCA provides for exceedingly limited review by the D.C. Circuit, whose past precedents seem to foreclose relief in any case.

The doors of the court house are definitively closed now. The international embarassment that is the Bush Administration enemy combatant policy is now a deep threat to the liberty of all of us, and the only way anything can be done about it is through Congressional action, something unlikely to prevail in the face of President Bush's power to veto legislation.

We have been deeply betrayed by Senator Ken Salazar, and Congressman John Salazar from Colorado whose critical swing votes helped make this possible. They gambled on the courts fixing the flaws they knew about in the MCA when they voted for it. But, the gamble was lost. Their votes to sold out our freedoms by voting for the MCA.

I hurts to know that even the Democrats in Congress from Colorado are torture enablers. When I worked hard campaigning for Ken Salazar in 2004, I'd had every reason to hope for a better performance.

SCOTUS Reins In Patent Law

The U.S. Supreme Court made two important rulings on patent law today.

In Microsoft Corp. v. AT&T (05-1056) it held 7-1 that U.S. patent law doesn't apply to software copied abroad and not repatriated.

Of broader importantance was the court's unanimous decision in KSR International v. Teleflex (04-1350), where it broadened the definition of "obviousness" for patent law purposes beyond the narrow test previously applied by the U.S. Court of Appeals for the Federal Circuit, which has exclusive jurisdiction over most patent law cases.

The SCOTUS analysis in KSR holds that patents must be reviewed to see if the proposed solution is obvious to solve any problem, not just the problem identified in the patent. It holds that "prior art" includes not just prior efforts at solving the problem identified in the patent, but also prior efforts to solve similar problems in other fields. And, finally, it ruled than when there are only so many ways to solve a problem which a skilled person in the field might have considered, that all of those possibilities are obvious, because that solution would have been "obvious to try" for a skilled person in the field, even though a skill person in the field would not have known just which solution would work best until a little experimentation was conducted.

It will be hard to tell precisely how this new standard for obviousness plays out in practice, but given that patent law is an area of law dominated by a small number of specialists who work together under the supervision, for the most part, of a single court and a single government agency, the effect could be swift and dramatic. We could see the number of patents denied on obviousness grounds surge -- greatly increasing the size of the public domain of ideas.

Of course, the news is not good for many participants in the system, so it may be met with resistance, something that drove the Federal Circuit to establish precedents narrower than the relevant U.S. Supreme Court precedents in the first place. For patent examiners, it means that while it is easier to dispose of a patent, that the relevant prior art which must be examined is much more expansive. For patent applicants (who represent the bulk of the people represented by members of the patent bar) it will mean more work on the part of their lawyers to establish in a much broader area of inquiry that there is no prior art which makes the invention obvious, and no lawyer for a patent applicant wants to have to tell a client that their invention is too obvious to be protected by a patent. For judges in patent cases, it means granting fewer motions for summary judgment, which means a larger trial docket.

But, continued efforts by lawyers for inventors fighting claims of patent infringement, a part of the patent world growing dramatically in clout in recent years, may have enough clout to really realize the implications of KSR. For them, this case is a huge litigation edge, and it flows from first principles that a man on the street should be able to understand. Why should a guy who comes up with an obvious idea (and more and more patents seem obvious these days, at least in hindsight), be able to prevent other people from using it?

SCOTUS Starts Podcasting

For the first time that I can remember, the United States Supreme Court, historically grossly averse to technologal change, has released a video clip along with its opinion in a case involving a high speed chase.

While a videoclip release of any kind is rare, and any kind of illustration in a civil rights case is rare, it actually isn't quite as ground breaking as it might seem. The video is of the chase being discussed, rather than of the court's action (even though the case also included an unusual orally announced dissent by Justice Stevens in the 8-1 decision). There is actually a long history of including illustrations in court opinions involving complex subjects (usually real estate or patent law cases).

MRAP Buy Bad?

Christian at Defense Tech questions the virtue of purchasing a lot of new mine resistant, ambush protected vehicles for the military. His basic argument is that the military should have held out for the next generation Humvee.

I'm not impressed. The basic problem with this approach is that the United States is fighting counterinsurgencies in Afghanistan and Iraq right now for which the current version of the Humvee doesn't cut it. While someday in the future there may be a better fix possible, the military needs to get with the program and find something that will deal with the immediate crisis. The MRAP, based on the Cougar vehicle initially designed for military bomb squads, is one of the better choices available right now. So, unlike Christian, I applaud the military for, under Congressional pressure, finally doing something right.

The Municipal Bond Exemption From Income Tax

Municipal bonds are exempt from the federal income tax, under Internal Revenue Code Section 103. It is the premier tax break available to high income taxpayers, although economists generally view this as to a great extent a subsidy for state and local government, rather than a subsidy for the rich. These bonds are purchased overwhelmingly by top marginal tax bracket taxpayers, and the interest rate paid reflects a discount from comparable corporate bonds that is close to the full value of the tax break received (the discount is more clear for short term bonds than for long term ones).

Never the less, there are problems with the way Section 103 subsidies state and local government. For example, structuring Section 103 as an exclusion from income, rather than as a deduction against income, warps the marginal tax rate structure of the income tax. It makes high income taxpayers with lots of municipal bonds look like lower income taxpayers without municipal bonds. It also isn't very discriminating in what it subsidizes. Stadiums used for the economic gain of privately owned sports teams get the much same benefit as bonds issues to build new schools or a water treatment plant.

Kevin Yamamoto has an interesting new paper at SSRN that explores the current economics of Section 103, reminds us that Section 103 in its current form is not constitutionally required (despite the fact that many people have this misapprehension because the matters was not fully settled law until 1988 when the U.S. Supreme Court resolved the issue in the case of South Carolina v. Baker), and suggests one possible reform. His reform proposal is nothing to write home about it, although it has some good features, but his criticisms of Section 103 as it exists today and his analysis of the state of the law and economics of the municipal bond exclusion from federal income tax is insightful.

Yamamoto is clearly a hardworking law prof on the make in the field, writing about a variety of interesting policy subjects.

Hat Tip: Tax Profs Blog.

Demographic Change and the CSAPs

Colorado's statewide proficiency tests, the CSAPs, may not do much to measure teaching quality, but they are a fine tuned measure of demographic change. The Denver Post makes that point clearly in a front page story today about the travails of the Aurora Public Schools (APS):

In 2006, Aurora didn't have a single traditional "excellent" school. In most grades tested, proficiency rates have sunk or remained flat in recent years in reading and math. The students scored 20 percentage points or more below the state average in almost all areas. . . .

[T]he district has undergone a demographic earthquake: The number of impoverished students has jumped by 35 percent in the past six years, and the percentage of English- language learners has more than doubled - from 16 percent to almost 40 percent - since 1999. . . .

Aurora attracted immigrants surging into the metro area in the late 1990s and early 2000s because single-family homes were relatively inexpensive.

"It was a seismic shift in the population, and it had a tremendous impact on the community," said Jeff Martinez, spokesman for the city of Aurora from 2001 until earlier this year.

Administrators say classes changed overnight. "Teachers didn't know what to do." . . .

"It was overwhelming. You got all these kids and you can't understand them because they all speak Spanish . . . There was no spunk; there was a sense of flatness."

Housing developers east of the E-470 tollway were even considering creating their own school district because they saw Aurora as noncooperative. . . .

Of about 2,000 teachers, only 150 are qualified to teach English-language acquisition. In Denver, more than 1,800 out of 4,250 teachers are qualified. . . .

English-language learners compose 80 percent of the school's population, and Spanish-speaking Fletcher [Elementary] mothers meet school and community leaders for coffee once a month.

Though Fletcher is implementing the district's new Mondo literacy program, only eight of 35 teachers are qualified to teach language learners.

Denver Compared

Notably, both the Rocky and Post noted this weekend that Denver is losing almost have of its emergency room capacity as Saint Antony's moves to the Federal Center, while Children's Hospital, University Hospital and the Veteran's Administration Hospital move to the Fitzsimmons Medical Campus (St. Luke's already consolidated with Presbyterian; Children's promises to retain an branch E.R. facility at St. Joseph's).

But, today's Post also highlights some of the booming high end development expected for the Denver in the city's land use agenda. The plan to remove the homeless from Civic Center park was among the eye catching pieces of that plan.

One suspects that Denver's own gains in the CSAPs lately have been as much a product of demographic change as changes in teaching quality as well. As the Post notes, the Denver Public Schools are much more varied than those in APS:

But even compared with Denver, which has some of the highest-performing schools in the state and some of the worst, Aurora is undistinguished.

Its highest-performing traditional school - Side Creek Elementary on the city's southeast side - has only 66 percent proficiency in third-grade reading.By comparison, one of Denver's highest-performing traditional schools, Bromwell Elementary, has a proficiency rate of 95 percent in third-grade reading. The state average is 70 percent.

Aurora is trying a wide variety of things to serve its students better under a new superintendent whose performance has received mixed reviews. Time will tell. The pace and nature of the transformation look vary similar to that experienced by Lincoln High School in Southwest Denver a decade earlier.

To a great extent, what is going on appears to be that Hispanic populations are replacing black populations in Old Town Aurora (and also Korean businesses which are migrating to South Havanna Street), not unlike what is going on in Five Points in Denver, a neighborhood on the Western side of historically black North Denver which abuts the West Denver neighborhoods that have been predominantly Hispanic for a much longer period of time.

Meanwhile, Aurora's bid to capture some of the more prosperous neighborhoods of unincorporated Arapahoe County was largely thwarted by the incorporation of the City of Centennial which came into being precisely to prevent Aurora from annexing these subdivisions.

The Nature of Social Change

As a teaching point, it is worth noting that what the Aurora Public Schools have seen in the past eight years is the norm, rather than the exception. Gradual neighborhood change is the exception; while long periods of stability, punctuated by brief periods of rapid change are the norm.

My parents vividly remembered attending lectures about this phenomena when my mom was attending graduate school at the University of Chicago four decades ago. Those observations remain valid today -- indeed, the same applies to a lot of forms of social change.

Any social science theory that has gradual change, rather than punctuated social upheaval, as a base assumption, deserves a skeptical appraisal. It isn't true of urban demographics. It isn't true of economic change in particular industries, it isn't true of technological change, and it isn't true of much of anything else unless you look at the pheneomena from such a high height that the law of averages mutes locally dramatic change.

Sarah For Council District 1

Soulful Sarah

While Rick Garcia remains the odds on favorite for City Council District 1, being an unopposed incumbent and all, thanks to Westword, the sentimental favorite is Soulful Sarah, i.e. George in Denver's beloved Alaskan Malamute, who is definitely the leading write-in candidate in the race. (I assume that since she is now a candidate for public office that displaying her picture falls under the category of fair use.)

We don't have a campaign platform yet, but I think it is a safe bet that Sarah is a strong backer of leash free dog parks, universal veterinary care, and domestic partnerships.

A Soccer Dad Saturday

Spring is here and soccer is in season. Saturday mornings start with the mad dash to find shin guards, long socks, jerseys, shoes, water bottles and snacks in time to make it to Sports Boulevard in Denver's Lowry neighborhood in time for the first of two daily games against other teams in the city's rec center league.

The parents of the three Washington Park Rec Center teams are, well, not quite a gung ho as those in some other neighborhoods in the city. We watch, we provide water and snacks, we even cheer, but we don't deliver legions of grandparents, aunts, uncles and cousins to every game, and our cries to go for the ball or shoot don't have quite the edge that parents on some teams do. Our gossip to game commentary ratio is about 50-50. The hottest political issue is whether the city will decide to remodel the local rec center or put together the economics to build a new indoor swimming pool.

Two dueling coffee shops operate just three traffic circles away, so if circumstances don't conspire to get us there at the very last moment, there is even an opportunity to start the day properly.

This doesn't take away from the sport. The kids get a tremendous workout. By the time they are switched out for breaks in the game, they have been worked hard. My daughter's team is 3-0 which balances my son's team, which is 0-3.

The kids are barely even keeping score anyway. Yes, our kids get utterly trounced by the West side teams who live, eat and breathe the game. But, when they ask in the car on the way home "who won?", you can be comfortable that they enjoyed themselves anyway. For the younger kids, mid-quarter, on-field hugs are all in day's play, the operative strategy is to mob around the ball, and consistently kicking the ball towards the right side's goals is enough to put a kid in the half decent player category.

The older kids do play legitimate soccer, with positions, a goalie, throw ins, passing, ball control and a bigger field; I have yet to see anyone dinged for failing to comply with the tricky off sides rule yet, however. But, they are playing in the moment, not focusing on the overall outcome or their statistics.

Throw in a birthday remembered at the last moment, and you start to recognize the link between "soccer dad" and driving. Drive to the store to buy a last minute gift and forgotten snacks, drive to the field, drive to get a coffee and back, drive kid to birthday party, drive other kid to get lunch, drive other kid to soccer game, drive to pick up first kid from birthday party, drive back to soccer game to pick up second kid, drive home, drive to drop mom off at gym, drive to grocery store, drive to pick up mom at gym, drive to drop off groceries, have dinner, drive mom to second grocery store, drive home to put sleepy kid to bed, drive back to grocery store to pick up mom and groceries, drive back home and put away groceries.

The plus of all of this driving is that you get out and about town a bit. Soccer fields across the city are full of people doing exactly what you are doing. Orthodox Jewish families are walking home from sabbath services in their hats and black outfits, pushing strollers. A Muslim woman in a full burka strolls the produce aisle at Wild Oats. A pair of Mormon missionaries lead a few kids heading out of the local LDS church on an early afternoon outing. Odd dog-man-skateboard combinations cruise to local parks. The Glendale cops work overtime to bring in their quota of traffic tickets at the end of the month. A guy who looks like he took a wrong turn at the 1970s walks past the neighborhood sex shop, obviously with other things on his mind. Two young women who also apparently got sucked through the 1977-2007 time discontinuity stroll down a bike path. Cherry Creek gushes at its high water mark emptying dams overfull from the latest round of spring showers, before they burst the reservoir. A Mexican ice vendor pushes his cart up a plywood ramp into the back of the family SUV after a good day of plying his wares to soccer dads and soccer moms; he'd make three times as much money selling expresso instead, however.

I'm a second generation soccer dad. I played soccer as a kid, but my parents rural communities didn't even have school or community teams, let alone a pro-soccer franchise with a stadium of its own. For them, football and baseball ruled. My exposure to playing either beyond gym class was a single season of T-ball and a season on a law firm softball team. I went to watch as many soccer games in high school as I did football games, and I've never seen a pro-football game in real life, while I've been to several pro-soccer games, although I've not yet made it to Dick's Field in Commerce City, which even has heating elements under the field to melt off spring snow and frost.

Soccer is a great sport. And, unlike ice hockey or football, it doesn't require so much gear that you need a pickup truck just to carry it. At this level, at least, it is still fun, as much a fine day in the park as a source of anxiety.

Charges Avoided, Law Still Wrong

I have said before, and continue to believe, that neo-natal death caused by the action or inaction of a mother in the throes of child birth should not constitute first degree murder. This charge is authorized by Section 18-3-102(1)(f) of the Colorado Revised Statutes, added by the legislature in 1995.

An eighteen year old Western State College woman had those charges against her dropped for lack of evidence today, because it could not be determined if certainty if a child was born alive, or was stillborn, leaving the woman facing only the first degree misdemeanor charge of concealing a death. But, these cases simply do not carry the same degree of culpability of other first degree murder offenses.

Neither the death penalty, nor life in prison without parole, the two permissible sentences in a first degree murder case, are appropriate for these mothers. In contrast, other offenses which qualify as first degree murder are: premeditated murder; murder as part of arson, robbery, burglary, kidnapping and aggravated rape; causing an execution through perjury; murder involved depraved indifference to human life; and deaths caused an overdose on illegal drugs sold to a minor.

Neo-natal homicide by a mother who has just been through child birth (almost always alone and outside a hospital) doesn't compare in culpability. Distressed isolated mothers are not in the same league as people who either set out with a plan to kill, or set out with a plan to engage in another course of action which is already a serious felony.

Manslaughter, a class 4 felony that applies to homicides caused recklessly, or criminally negligent homicide, a class 5 felony that applies to homicides caused with criminal negligence (usually considered a higher standard of negligence than that applied in civil cases), would be more appropriate, given the highly aggitated state that a woman is in at this point. This should also not be classified as a crime of violence, a classification ordinarily used for offenses that represent a great risk of violent harm to members of the general public.

The normal punishment for a class four felony that is not a crime of violence is two to six years in prison, with three years mandatory parole. The normal punishment for a class five felony that is not a crime of violence is one to three years in prison with two years of mandatory parole. Neither is a slap on the risk and each leaves the individual convicted with a felony conviction.

Anyone who has not just gone through child birth ought to face a homicide offense of second degree murder, manslaughter or criminally negligent homicide, that reflects their personal degree of culpability (knowing, reckless or negligent), but should also not face first degree murder charges, which should be reserves for hardened criminals and extremely culpable crimes, not for parents or guardians who lose control when dealing with their children or wards. Parents who go too far are not so unredeemably horrible that society needs them to never walk free again.

I am also not suggesting that infanticide should be legal. Indeed, I am suggesting that it be a serious homicide felony. But, I do not believe that a mother who has just been through child birth is capable of forming the degree of criminal intent that we normally ascribe to second degree murder defendants.