Quote of the Day

It is irrational that Mr. Angelos will be spending 30 years longer in prison for carrying a gun to several marijuana deals than will a defendant who murdered an elderly woman by hitting her over the head with a log.

- United States District Court Judge Paul G. Cassell (Utah), who sentenced both men on the same day (Angelos to 55 years, the murderer to 22 years).

Pearson v Chung

The Result

Roy Pearson, an administrative law judge in the District of Columbia, sued Soo Chung, a South Korean dry cleaner, for tens of millions of dollars, over a $10.50 pants alteration and a "satisfaction guaranteed" sign on their store.

He lost. Completely. It was a defense verdict from the judge and the dry cleaner's will get their costs. Pearson had even withdrawn his claim for the pants themselves, so he didn't even get the $1,500 for the pants that many observers thought that he might.

Attorneys' fees motions are pending; Pearson will clearly get no attorneys' fees, the dry clean has a decent shot at recovering his attorneys' fees for vexatious litigation and implied in prior court rulings and today's ruling. There were also implications that his claims lacked factual support and legal justification (i.e. that they were groundless and frivilous).

Almost everyone in the world who has heard about this case agrees that it is a sound ruling, although most incorrectly believed that there was a tiny claim for compensatory damages for that pants themselves present. May links above are to the Wall Street Journal which provided a full text ruling in the case on its website. Many people, are surprised that the case got to trial at all, however.

The Pre-Trial and Trial Proceedings

Like most famous tort reform cases, when all is said and done the result produced by the court system are not that extreme.

The clearly outrageous claimant who should have known better lost. An appeal wasn't necessary to get that result, although one suspects that Pearson will bring and lose an appeal in this case, as he has not shown a penchant for being a reasonable person. If Pearson ultimately ends up footing the dry cleaner's legal bills, as seems likely, this case may even turn out to be an economic wash in terms of direct costs for the dry cleaner.

The trial court was not particularly slow in handling the case. It was filed June 7, 2005, and arose out of an incident in May of 2005. It was resolved just over two years later. This is hardly fast, but with up to $67 milliion in dispute, haste wasn't in either party's interest.

Two key claims were knocked out prior to trial:

1. Common law fraud claims related to an "All Work Done on Premises" sign. These were dismised in a Motion for Summary Judgement on May 16, 2006, about eleven months after the case was filed.

2. A claim that Pearson represented persons other than himself as a private attorney general. This was ruled out by a court order on November 20, 2006.

The trial, of just two days (June 12-13), was not outragously long or involved by civil litigation standards. According to the ruling:

At trial, the plaintiff presented the tesitmony of nine witnesses [including himself] . . . The defendants presented three witnesses . . . The plaintiff offered more than 100 exhibits, of which 66 were admitted into evidence; the defendants offered four exhibits, all of which were admitted into evidence.

A number of claims were kicked out in pre-verdict proceedings:

1. Claims related to a "Same Day Service" sign. It was dismissed at close of Plaintiff's case for lack of proof.

2. Claims for conversion or negligence related to the pants. The Court found that Pearson dropped the claim on the eve of trial.

By the time that the defense presented its case at trial, all that was left were statutory consumer protection and common law fraud claims related to the posting of a "satisfaction guaranteed" sign, seeking statutory, compensatory and punitive damages and injunctive relief.

The Court found at trial that Pearson hadn't even met his burden of proof to show that he didn't get his pants back, let alone show any intentional fraud, and that even his own witnesses did not back his case. The Court also found that "nothing in the law" supports Pearson's position regarding what a "satisfaction guaranteed" sign means. Those findings of fact doom any effort Pearson may make to appeal this case on any ground.

Lessons Learned

This case is still a cause celebre for tort reformers, and rightly so.

First, it is worth noting that more witnesses, more exhibits and more briefing do not inherently make a case stronger.

The findings of fact also foreclose legal analysis of the most interesting legal question in this case. Suppose that the dry cleaner really had intentionally cheated Pearson. Would he really be entitled to $54 million or more? U.S. Supreme Court precedent suggests otherwise, but that precedent wasn't clear enough to constrain the risk faced by the defendants before they had to roll the dice and go to trial.

The biggest problem with this case is the lack of clarity in what constitutes a separate offense in a consumer protection act claim for statutory damages. If statutory damages were limited to one statutory amount per party in cases brought by an individual, this would have been a $3,000ish case. Statutory damages are designed to provide more than de minimus compensation for almost nominal claims, not to provide major compensation for nominal cases.

The problem comes up with frequency in other areas of law too. Some of the harshest criminal sentences concern cases where a number of incidents that are part of a common plan or scheme are treated as separate offenses and given consecutive sentences.

It is also hard to tell why the claims related to "same day service" and "satisfaction guaranteed" signs weren't thrown out at the Motion for Summary Judgment stage, a year earlier, although it is easy to see why the case went to trial once those claims were upheld at the Motion for Summary Judgment stage. A denial of a motion for summary judgment cannot be appealed. It turns out that there was no evidence to back a "same day service" sign claim, and that the "satisfaction guaranteed" sign meant something very different than what was alleged under the law. If those claims had been thrown out, this would have gone to trial as a $1,500 case, not a $54 million case, and it wouldn't have made headlines.

Delaying a ruling in favor of the dry cleaners on these claims by a year is what brought this case notoriety. So too, does the failure of the court (in part because there is no good procedural way to do it) to lay out the relevant law prior to trial on matters where there are disputed issues of fact. On claims not resolved by motions for summary judgment, parties generally aren't given definitive legal rulings until after all or most of the facts are in. This means parties preparing for trial have to be ready for anything and have a moving target to case in terms of what they must prove in any case that is remotely novel. An advanced ruling on what "satisfaction guaranteed" means would have significantly changed the climate of the trial and the sense that the Court wasn't being proactive enough in controlling the case.

Pre-trial motions in limine regarding admissiblity of evidence are routine, but pre-trial motions regarding legal standards to apply to a case are far more rare. They shouldn't be.

Hat Tip to How Appealing for the links.

Abortion in Practice

A recommended diary at Daily Kos explains what is involved in the medical procedure of obtaining a surgical abortion on the day it is obtained, from a lay person's perspective.

Annoying Things

Annoying things:

* Low flow toilets.
* Using phone cards from non-pay phones.
* Hearing advertisements prior to making phone card calls.
* Shampoos for men that smell like turpentine.
* The blogger autosave function.
* Parking meters that don't accept nickles and dimes.
* Advertisements before movies you paid to see.
* Political candidates without websites.
* Removable stereo controls.
* Books on CD with fifteen minute tracks.
* Voice mail.
* Multiple co-pays for a single doctor's office visit.
* Voice activated phone bank menus.
* Advertisements for car models that don't exist (Go Toyota did it for two days running).
* French cuffs.
* Robocalls.
* Flickering flourescent lights.
* Hand grenade car stickers.
* Hotmail's delete function (it shrinks the number of messages you can consider each time).
* Artificially low speed limits on arterial streets (especially Alameda Avenue from University to South Cherry Steet in Denver).
* Discontinuous streets that share the same name.
* Drive time radio talk between songs.
* Store discount cards.
* Department store credit cards.
* T-Mobile Hot Spot Wi-Fi.
* Sarbanes-Oxley motivated impossible to memorize password requirements.
* Privacy notices with no obvious customer choice options.
* "I am who I say I am" affidavits in real estate closings.
* Plate sharing charges at restaurants.
* Merchant imposed minimum credit card charge requirements.
* Denver's 20th Street post office's policy of not collecting mail from the mail boxes in front of the post office after 5 p.m. when the post office closes at 8 p.m.
* Pennies.
* Computer systems that don't accept hyphens in names.
* Computer systems that don't parse two letter surnames.
* Customer service workers who don't know what the word "hyphen" means.
* People who don't pronounce the "h" in words like "human" and "Harvard".
* Stores that issue coupons with expiration dates and requirements posted that aren't actually enforced.
* Pens that stop working when you can see they still have ink left.
* Camera phones.
* High calorie foods advertised at "fat free" or "carb free".
* Hillary Clinton's campaign theme song.
* The telephone excise tax refund form (never before has some much documentation been required for so small a refund).
* The 9/10th of a cent a gallon added to gas prices.
* Collectible coin advertisements.
* Door to door solicitations.
* Car alarms
* Laptops that go into sleep mode just before shutting down.
* Plastic packaging that can only be opened with scissors.
* DVDs that skip or freeze up.
* Error messages when the only apparent problem is that you have to click O.K. to make the error message go away.

Eric Goldman on Dumb Laws

Eric Goldman offers selected dumb laws at this blog:

* New Mexico's proposal to declare Pluto a planet when it "passes overhead through New Mexico's excellent night skies." This alone wouldn't make the list, but when combined with the simultaneous proposal to declare the bolo tie the official tie of New Mexico, I start thinking I should move to New Mexico because clearly they don't have any real problems to preoccupy legislators.

* New York's proposal to ban domain name sales to terrorists.

* Utah's clueless attempt to ban keyword advertising.

Given the amount of vitriol I've directed at the Utah law, you might think Utah has already sewn up the prize. But the year is still young, and legislators are still busy. Consider HR 2553, proposed by Rep. Watson (D-CA). The main operative provision of this law requires our foreign embassies and consulate offices to "schedule public showings of American films that showcase American culture, society, values, and history." According to the Hollywood Reporter, Rep. Watson thinks that "wider worldwide exposure to classic Hollywood fare will help convince people that the American way is not evil."

Despite the scorn it receives from Mr. Goldman, I actually think that Watson is on the right track, but doesn't go far enough.

Consider. There are many places in the world with regimes whose policies we really, really deeply disagree with, like Iran and China and Burma and Saudi Arabia, that don't protect free speech and freedom of the press. In these places are huge blackmarket industries in the business of distributing American ideas in the form of movies, music and books, to the general public, to the great consternation of the authoritarian governments in charge of those countries.

What do American dipolmats in those countries, like idiots, do? They reinforce these authoritarian regimes censorship policies by insisting that the regimes shut down the black market in bookleg copies of American media.

This may be in the interest of the American media industry, although honestly, I doubt that many of these places would purchase much of this media on the legitimate, royalty paying market, because the regimes there don't want people to have access to this media. China, for example, routinely censors news from such scandalous sources of Reuters.

But, this is a policy that is not in the American national security interest. The American national security interest is in getting people in oppressive regimes to think more like Americans and less like feudal serfs. The black market media industry in these countries does that in spades, with more street credibility than an official government propoganda effort by American diplomats ever could.

Hence, my proposed policy: Rather than trying to shut down bookleg media distribution to customers in oppressive regimes, we should establish a formal exception to American copyright laws for this media, and should encourage this kind of activity. For example, maybe we could pay the NSA to set up a free bootleg download service accessable from the internet in these countries, maybe the Navy could have submarines provide free Wi-Fi to areas under dictatorial regimes, and maybe the CIA could smuggle bootleg media into these countries. A generation from now, it would look like a very wise investment.

Law Enforcement Lies

Most people don't know this (I didn't until I took criminal procedure in law school). But, in a nutshell, under the law, police are allowed to lie to suspects when they are not in court, but are not supposed to lie in court. In contrast, district attorneys and public defenders and judges aren't supposed to lie at all, nor are they supposed to have staff lie on their behalf. The Legal Theory Blog today features an article that largely supports this status quo.

In other words, in interrogations, police are allowed to do things that would be felony perjury if done when the policeman is being interrogated in an internal affairs investigation, or is in court.

Personally, I'm not convinced that this status quo is a good thing. When the legal system tells police that they have a license to lie in pursuit of law and order some of the time, I believe that this has a corrosive effect on public trust in the police, and on police perception that they must tell the truth in court. It also reinforces the "blue wall of silence." Scandals in which police, for no personal gain of their own, have lied in court in an effort to convict people whom they believe are guilty are not uncommon, and I believe, are not unrelated to the fact that they are often permitted to lie for the same purpose prior to getting to court.

(I think a similar phenomena may be at work with physicians who widely believe that it is O.K. in some circumstances to lie to patients to protect their morale because of the belief that this is important to patient health.)

Reader Warning

Why?

This rating was determined based on the presence of the following words:

murder (30x) death (29x) drugs (8x) dead (4x) pain (3x) sex (2x) hell (1x)

Go figure.

Pan's Labyrinth and Mandrake

The movie Pan's Labyrinth, is the story of a girl living with a stepfather in the late days of the Spanish Civil War, who may be a lost princess of a pagan underworld. The girl sees all sorts of things that everyone else does not. One prominent way in which the "real world" and her fairy world in the movie interact is through the actions of a mandrake root. These roots have long magical associations as a result of their appearance.

But, I find it notable to discover that mandrake is also, in the proper dose and form a "deliriant" or true hallucinogen, so called "because they do cause hallucinations in the proper sense: a user may have conversations with people who aren't there, or become angry at a 'person' mimicking their actions, not realizing it is their own reflection in a mirror."

Mathematics As A Mature Discipline

I was a mathematics major in college, and something of a mathematics prodigy before then. I finished vector calculus, linear algebra, discrete mathematics and a year of college physics before I graduated from high school. Thus, to fill out my hours to complete my math major, I had to take more than the usual share of upper level courses. But, there is almost nothing I studied in college (with the exception of a couple credit hours on fractals and chaos) that wasn't settled knowledge in the field of mathematics by the time Leohhard Euler died in 1783. The truth of the matter is that we could have gotten a man to the moon almost entirely using pre-Euler mathematics.

Statistics is a somewhat younger field, but only a little. William Gosset at Guiness Brewery in Dublin invented to t-test in 1908.

Scholarly work in mathematics tends to produce the shortest papers of any field, and a good tenured professor will be lucky to publish a dozen papers in a lifetime. For example, one institution, notable only for being so explicit, requires one published article, and a second significant scholarly work possibly short of a published article to grant tenure. Unlike most scientific fields, the number of papers in the leading mathematics journal has plummeted since the 1970s to just 11 per year, although many new journals have been established in this field as in others. The average mathematics journal article, while longer than 6 page average of 1970, is still under 27 pages.

In law, in contrast, articles of about 50-70 pages are the norm, and typically, and a productive scholar is expected to have published several of them before securing tenure, and to published several dozen of them in a career.

He'll Probably Lose

The significance of this case can hardly be gainsaid. The Executive Branch argues, and the lower court held, that although Congress has not suspended the Great Writ of Habeas Corpus for U.S. citziens, the United States military may nonetheless detain an American citizen in an overseas American prison indefinitely, or dispatch him to his death at the hands of another sovereign, with no obligation to demonstrate the lawfulness of either his imprisonment or his threatened transfer.

From here.

Who is this guy and what precedent is he seeking to overturn?

The case involves Mohammad Munaf, a native of iraq who became a U.S. citizen in 2000. He is now being held in a U.S. military prison, Camp Cropper, near the airport in Baghdad, Iraq. The military maintains that he is being held, not by U.S. forces, as such, but rather by the international coalition of military forces operating in Iraq. It is that situation (along with Munaf's conviction in an Iraqi court, followed by a death sentence) that has led the U.S. government to insist that American courts have no authority to hear a challenge to Munaf's detention and his impending transfer to Iraqi officials to carry out the death sentence.

More here.

U.S. citizenship doesn't mean much when your dead. You can't even vote; unless you live in Cicero, Illinois. Maybe they'll bury him there. I'll bet he'd vote for the Democrats and be a reliable voice for organized labor. On the plus side, he got more due process than Jose Padilla, Ali Saleh Kahlah al-Marri, and Yaser Esam Hamdi.

A Bad Day At The Office

As the New York Sun (via How Appealing) explains:

A federal judge is fining two law firms for withholding information about an insurance policy that covered the World Trade Center at the time of the September 11, 2001, terrorist attacks.

The sanction, of $1.25 million, is against the firms Wiley Rein LLP and Coughlin Duffy LLP, as well as their client, the Zurich American Insurance Company. . . .

One sticking point during the litigation was the extent of coverage that the Port Authority of New York and New Jersey received under an insurance policy. . . .

During the high-stakes litigation, Zurich American and its attorneys initially kept hidden a copy of a 62-page policy that an employee at the company had printed out on the day of the attacks, Judge Hellerstein wrote in yesterday's decision. This hidden policy suggested that the insurer was responsible for coverage of both the Port Authority and another leaseholder, Westfield Corporation, Judge Hellerstein wrote.

Given the existence of this document, Judge Hellerstein wrote that Zurich's courtroom contentions about the insurance coverage it owed "were either dishonest, or objectively unreasonable, or the product of a failure to make reasonable inquiries."

The full opinion is here.

The award was about half of the attorneys fees the claimants attributed to the cover up of the documents, and the judge correctly noted that parsing out attorneys fees by sub-issue in a big case is extremely difficult to do practically. The judge tried to do rough justice.

Next question. Do the attorneys called about by the judge for hiding and destroying documents face attorney regulatory charges for their actions? The opinion certainly provides ample grounds for doing so, and indeed, may even collaterally estop the attorneys from challenging their wrongdoing in a regulatory context.

This case catches the attention of those of us who do civil litigation, because about 90% of any big civil litigation case is discovery practice, which is what the lawyers involved abused here. Moreover, the court found that even the pleadings submitted by one of the law firms, which are usually held to a low standard, were so wrong on the facts that sanctions were warranted. If the hidden document had been disclosed at the point in the litigation where it was supposed to have been disclosed, that part of the case would have been done in weeks, instead of five years later, avoiding large numbers of depositions and massive document discovery.

Anthony Sebok at Findlaw discusses at some length and with insight the downside of the current low standard, even when it isn't abused, in the context of two high profile cases, a suit by tort reformer Bork against the Yale Club asking for punitive damages where they clearly aren't warranted, and a suit by a District of Columbia administrative law judge asking for excessive punitive damages in connection with a dry cleaning mishap that allegedly left him without the suit pants he brought in for alterations.

Colorado Sentencing Reform: Kidnapping

Current Law: First degree kidnapping (CRS 18-3-301) can be either a class 1 felony, or a class 2 felony. Second degree kidnapping (CRS 18-3-302) can be either a class 2 felony, or a class 3 felony, or a class 4 felony.

I. Class 1 felony kidnapping requires an intent to force the victim or another to make a concession to secure a release, and a serious bodily injury or death to the victim, but there is no death penalty if the person is liberated alive prior to the conviction. It must be forcible, entice or persuades, or an imprisonment or forcible secreting. The punishment is life in prison without parole or death (except as noted).

II. One kind of Class 2 felony kidnapping requires a knowing seizure without consent or lawful justification if the person kidnapped is the victim of a sex offense or a robbery. The punishment is 16-48 years in prison plus 5 years of mandatory parole.

III. Another kind Class 2 felony kidnapping requires an intent to force the victim or another to make a concession to secure a release, and applies if the victim is liberated unharmed. The punishment is 16-48 years in prison plus 5 years of mandatory parole.

IV. Class 3 felony kidnapping requires an intent to sell, trade or barter the victim for consideration, either by knowingly seizing someone without their consent or lawful justification, or takes, entices or decoys a child not his own with an intent to keep a child from a parent or guardian. The punishment is 8-24 years in prison, plus five years mandatory parole.

V. Another kind of Class 3 felony kidnapping involves knowingly seizing someone without their consent or lawful justification with a deadly weapon or imitation deadly weapon or representation that the perpetrator is armed, but not in a robbery or rape. The punishment is 8-24 years in prison, plus five years mandatory parole.

VI. Knowingly seizing someone without consent or lawful justification not in the categories above is a class 4 felony. Thus, this is without weapons, rape, serious bodily injury, robbery, an intent to force a concession to secure a release, or an intent to sell, trade or barter the victim. The punishment is 4-12 years in prison plus 3 years mandatory parole.

There are about 348 people in prison in Colorado for kidnapping. Ten are serving life sentences (presumably for class 1 felony kidnapping). The average sentence of those in for class 2 felony kidnapping is 31.3 years.

Proposal: Kidnapping – Clarification and Revision of Offense Grading.

Repeal CRS 18-3-201 and 18-3-302 as enacted.

First Degree Kidnapping would be CRS 18-3-301 would provide in a single section for all forms of kidnapping other than felony 4 kidnapping in CRS 18-3-302.

Felony one status would apply in any case where the victim was killed, or has not been liberated alive at the time of the conviction.

Felony two status would apply in cases of rape or serious bodily injury or robbery (since serious bodily injury should be less serious than death or likely death, but more serious than cases where the victim is not harmed).

Felony three status would apply in cases of (1) an intent to force the victim or another to make a concession to secure a release, (2) an intent to sell, trade or barter the victim for consideration, (3) use of a deadly weapon or imitation deadly weapon or representation that the perpetrator is armed, (4) an intent to physically harm the victim that does not in fact produce serious bodily injury.

Second Degree Kidnapping would be CRS 18-3-302 and would simply say: “(1) Any person who knowingly seizes and carries any person from one place to another, without his consent and without lawful justification commits second degree kidnapping. (2) Second degree kidnapping is a class 4 felony.”

Why? The difficult part of the statute is distinguishing between Class III cases and class IV cases, which describe very similar offenses but have very different punishments and opts for the lesser punishment in these casees. Another problem is that if there is no intent to force a concession, but there is serious bodily injury (e.g. seizing someone to beat them up without weapons, without even telling anyone), the offense level is a mere class 4 felony. This clarifies which statute applies to which case and increases punishments for serious bodily injury cases.

Colorado Sentencing Reform: Homicide

In Colorado, there are types of homicide which can be a basis for criminal penalties. They are:

* Murder in the first degree, a class 1 felony punishable by life in prison without possibility of parole or death. CRS 18-3-102. First degree murder must be one of the following: (1) intentional and premeditated, (2) in connection with certain felonies, (3) an execution procured through perjury, (4) produced by extreme indifference to human life, (5) a child under age eighteen dies from using illegal drugs sold to the child on school grounds, or (6) a child under age twelve is knowingly killed a person in a position of trust.
* Murder in the second degree, a class 2 felony punishable by 16-48 years in prison plus 5 years of mandatory parole in the usual case, and a class 3 felony punishable by 8-24 years in prison plus 5 years of mandatory parole when committed in the heat of passion after provocation. CRS 18-3-103. A second degree murder must be committed knowingly.
* Manslaughter, a class 4 felony punishable by 2-6 years in prison and 3 years of mandatory parole, or 4-12 years in prison and 3 years of mandatory parole if the victim was pregnant and the defendant knew or should have known that fact. CRS 18-3-104. Manslaughter must either involve recklessly causing a death, or involving intentionally causing or aiding another person to commit suicide.
* Criminally negligent homicide, a class 5 felony punishable by 1-3 years in prison and two years mandatory parole. CRS 18-3-105. Criminal negligence homicide must involve criminal negligence.
* Vehicular homicide, a class 4 felony punishable by 2-6 years in prison and 3 years of mandatory parole, or 4-12 years in prison and 3 years of mandatory parole if the victim was pregnant and the defendant knew or should have known that fact, if caused by reckless driving (the same as manslaughter), and a class 3 felony punishable by 4-12 years in prison plus five yeas of mandatory parole, or punishable by 8-24 years in prison plus 5 years of mandatory parole if the victim was pregnant and the defendant knew or should have known that fact, if the driver was legally drunk or under the influence of drugs without regard to intent.

On the whole this is a reasonable fair way to grade homicides. But, the first degree murder statute is inappropriately harsh for several types of homicide that it covers, and is too lenient in one case. My suggestions are as follows:

1. First Degree Murder – Affirmative Defense To Felony Murder. CRS 18-3-102(2).

* Expand Affirmative Defense To Felony Murder in CRS 18-3-102(2).

Proposal:

Currently, everyone who participates in the crimes of arson, robbery, burglary, kidnapping, sexual assault, or escape, is guilty of first degree murder if a non-participant dies in the course of the crime or immediate flight therefrom, regardless of who causes the death. In short, it imposes vicarious death penalty liability on all participants in the crime regardless of their intent.

An affirmative defense is allowed if there were other participants in the crime, that person didn't commit or call for the homicide, the person was unarmed, the person had no reason to believe anyone else was armed, the person didn't intent to and didn't believe that anyone else was likely to do something resulting in death or serious bodily injury, and he tried to disengage when he learned that someone else had a deadly weapon or was likely to cause death or serious injury.

Shorter version: There is an affirmative defense if you had no reason to think anyone would get hurt and tried to get out of participating when you learned otherwise.

Keep: (a) not the only participant, (b) didn’t cause or solicit, request, cause or aid homicide, (c) not armed with a deadly weapon, and part of (e) stating "did not engage himself in or intend to engage in . . . conduct likely to result in death or serious bodily injury."

Remove: (d) No reasonable grounds to believe that any other participant was armed; part of (e) has no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious bodily injury; (f) disengaged about discovering others armed or intended to engage in.

Why? Minor, non-combatant players are bad, but not felony murder, irredeemably bad. Case in point: People v. Auman. Mere association with bad people does not make culpability rise that much, although it may justify sentencing at the high range of the underlying serious felony offense.

Conspiracy to murder (which would be a class 2 felony), is still available in appropriate cases. Conspiracy is established when ”with the intent to promote of facilitate its commission, he agrees . . . that they . . . will engage in conduct which constitutes a crime . . . or to aid the other person . . . in the planning or commission of a crime[.]” Conspiracy is an offense one level below the offense you conspired to commit.

2. First Degree Murder – Drug Deal Related Deaths. CRS 18-3-102(1)(e).

* Downgrade drug deal related deaths from sales to minors to manslaughter, and eliminate the requirement that drugs be sold at school.

Proposal:

Transfer CRS 18-3-102(1)(e) (deaths resulting from sale of drugs to minors on school grounds) from first degree murder statute to manslaughter statute as a new CRS 18-3-104(1)(c).

Also, remove the language of existing 18-3-102(1)(e) to limit the offense to situations when the drug transaction takes place “on school grounds as provided in section 18-18-407(2)”.

Why?

First part: Eliminating the requirement to prove intent by basically saying that any death in that situation is conclusively presumed reckless, which this would do, is reasonable. But, this situation isn’t as culpable as premeditated murder. The vast majority of the time, illegal sales of drugs to minors do not result in death, and to scapegoating someone who happens to be the one guy in a hundred whose young customer ends up dead from an overdose is as irredeemable as an assassin or serial killer or murder-rapist, is overkill.

Second part: Selling drugs to a minor is no less culpable if it is done in a public park or across the street from a school or a recreation center or a church or a movie theater, than it is when done on school grounds.

3. First Degree Murder – Children Killed By Persons In A Position Of Trust. CRS 18-3-102(1)(f).

* Downgrade knowing murders of children by persons in a position to trust to second degree murder.

Proposal:

Strike CRS 18-3-102(1)(f) which provides that first degree murder is committed if a person knowingly causes the death of a child who has not yet attained twelve years of age and the person committing the offense is one in a position of trust with respect to the victim.

This has the effect of making a crime under CRS 18-3-102(1)(f), instead a crime under CRS 18-3-103(1), which is second degree murder, without further statutory amendment. The maximum sentence for second degree murder is 48 years. The minimum sentence for second degree murder is 16 years. A defendant can get no more than a 25% sentence reduction for earned time when sentenced for second degree murder. Thus, the minimum sentence if there is good behavior in prison for a second degree murder convict ranges from 9 to 36 years, depending on the sentencing judge’s decision. A lower sentence can be imposed in cases involving th heat of passion after a highly provoking act.

Why? It is still possible to impose a very long sentence for second degree murder. But, significant mitigating considerations are present for many murders in category CRS 18-3-102(1)(f), and a sentencing judge should not be deprived of all opportunity to offer mercy (as is the case in a first degree murder case). Likewise, someone who commits a crime in CRS 18-3-102(1)(f) is rarely beyond all redemption, such as the public needs to be protected by life in prison without parole or a death sentence.

Your typical defendant under CRS 18-3-102(1)(f) will include inexperienced first time mothers who cause a neonatal death, a parent in an extremely stressful situation with many kids who snaps in the sudden heat of passion, and the like. While some defendants may deserve long sentences associated with typical second degree murders (the average sentence in Colorado for second degree murder is 33 years with possibility of parole after 75% of the sentence has been served if there has been good behavior in prison), a judge should have the flexibility to impose a sentence as low as the mandatory minimum for second degree murder which is 9 years when earned time is taken into account.

Nine years is still a very serious sentence in a case where there are so many mitigating factors that a judge imposes a minimum sentence. Similarly, when there are serious aggravating factors such that the judge feels inclined to impose a maximum sentence of 48 years, the fact that the defendant will return to society no sooner than 36 years later is enough to protect society.

4. First Degree Murder – By Lifers. CRS 18-3-102(1).

* Making knowing murders by lifers eligible for the death penalty.

Proposal:

Add a new paragraph to subsection (1) of first degree murder statute that applies “if a person in prison who is serving a sentence of life imprisonment, with or without possibility of parole, or any other sentence with a possibility of parole at a date after the date when that person would die if that that person lived a length of time equal to their life expectancy at the time the crime is committed, unless the act causing the death was performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the defendant sufficiently to excite an irresistible passion in a reasonable person, but, if between the provocation and the killing there is an interval sufficient for the voice of reason and humanity to be heard, the exception for a sudden heat of passion shall not apply.”

Why? The possibility of the death penalty is appropriate to serve a deterrent when no other punishment can serve as a meaningful deterrent.

5. Neonatal Murders.

* Mothers who have given birth in the last 36 hours should be conclusively presumed to have acted with an intent that is not more than reckless in homicide cases.

Proposal: This is a limited exemption from second degree murder liability for women who are technically knowing when they kill, but are in extreme circumstances in the throes of childbirth and should not be held to the same standard. Note that this does not change the criminal liability of a partner or other person present who did not experience the childbirth. It would be appropriately included in CRS 18-3-101 in the definition of "after deliveration" and "knowingly".

Why? Sentencing approaches in these cases vary dramatically, even when the facts are very similar, and the decision should be made by the legislature, not by individual prosecutors. Under current law, neo-natal homicides by mothers are routinely charged as first degree murder in some jurisdictions. But, this change still allows a charging decision, and a lesser included offense determination by a jury of reckless homicide, criminally negligent homicide or no criminal offense.

A woman who has just experienced child birth, quite likely in a neonatal homicide case, alone, is extremely exhausted, has experienced intense pain for prolonged period of time, is physically depleted, is experiencing unfamiliar and intense hormonal effects, and is, in short, not in her right mind. Culpability in these cases is lower than in cases where a child is abused and killed long after a child birth. Again, lesser culability does not mean no culpability in cases like these.

Colorado Sentencing Reform: Overview

Colorado's criminal laws are not perfect. The number of people in prison in the state has doubled in the past ten years.

Even more importantly, in my view, the state's criminal code fails to appropriately grade a number of offenses. Relative to the standard set by other offenses in the criminal code, some offenses are graded too seriously relative to the seriousness of the crime, while others are graded to leniently. In my view, too harsh punishments are more common, however.

In the series that follows, I'll review in detail those grading decisions in the state's substantive criminal code that are off and suggest alternatives in various categories.

None of the proposals are decriminalizations. All conduct that is a crime now, remains a crime. The only changes are adjustments in the punishments for the crime.

The prison population breaks down as follows in Colorado by offense:

Prison Population In Colorado By Type of Offense

Homicide 9.5%
Kidnapping 1.8%
Assault (including vehicular assault) 8.4%
Robbery 6.7%
Burglary 7.4%
Theft (including car theft) 9.9%
Trespassing/Vandalism 2.4%
Fraud and Forgery and Embezzlement 1.8%
Arson/Weapons/Explosives 0.7%
Menacing 3.2%
Sex Offenders 11.4%
Child Abuse 2.1%
Drugs 20.3%
Escape/Contraband 6.9%
Traffic 1.0%
Habitual Non-Violent Felon 3.1%
Miscellaneous Non-Violent Crimes 3.3%

Gift Tax Reform

Lots of scholarly articles analyse a problem well, but propose solutions that don't do a good job of addressing the problem. But, this recent article on gift tax reform (the poor, but resiliant cousin of the estate tax) is not one of them. It correctly identifies why the gift tax is important, what is wrong with it, and how the biggest problems in the gift tax system can be fixed.

Reducing Traffic Law Violations

Traffic violations can be dramatically reduced with simple innovations, like longer yellow lights, and reasonable speed limits. This would probably reduce accidents as well.

The Death of the $500 Bill Remembered

In 1969, the United States ceased printing currency in denominations larger than $100. Before then, there were $500, $1000, $5000 and $10000 bills in circulation. A few legacy bills are still out there. But, for the most part, they are collectors items and are removed from circulation when they make their way back to a bank. The combined value of the bills larger than $100 still in circulation is dwarfed by the value of bills of types that are still printed.

A dollar in 1969 was worth about five times as much as it is now. In 1969, a $100 bill was worth about five hundred 2007 dollars. Today's $100 bill is worth about what a $20 bill was in 1969. Today's $5 bill is worth about what a $1 bill was in 1969. And, today's quarter is worth about what a nickle was in 1969. We hope you haven't been keeping your life savings under the mattress, because its value is falling every year.

There is no indication that anyone plans to introduce large denomination currency to the United States in the near future. The government's desire to fight tax fraud, illegal immigration and money laundering outweighs the utility of large denomination currency for most policy makers. As it is, cash transactions of $10,000 or more (or smaller cash transactions "smurfed" into multiple smaller transactions an effort to avoid this rule) must be reported to federal authorities, even though they are legal.

There is also no strong push from business interests to introduce large denomination currency amounts. As it is, most $100 bills in U.S. currency are used abroad, often in the black market cash economy, or in countries with ill developed banking industries like Russia and Kosovo. And, the introduction of the widely accepted 100 euro and 500 euro notes has reduced the demand for United States $100 bills in the foreign black market cash economy. Many U.S. retail merchants do not accept bills larger than $20, and cash machines also almost never dispense either $50 bills or $100 bills. Credit cards are now used in most situations where $100 bills used to be common in the United States. Almost nobody buys a case of wine, or a set of new tires for their car in cash. A few people do buy a weeks worth of groceries or a tankful of gas in cash, but the numbers are falling. Cases of eccentric people paying their doctors and lawyers with cash have become the stuff of water cooler talk and urban legends.

If the $100 bill were discontinued today, few people would notice a change in their day to day lives, and pizza deliverers could all breathe a sigh of relief at not having to make immense amounts of change for customers.

Personally, my use of cash is pretty much limited to parking, bus fare, eating out, mocha, movies, convenience store purchases, and postage for a letter or two. It is no longer unusual for me to make a purchase of $3 to $5 with a credit card, and I try to do so when I can because it creates a better paper trail of my spending for budget purposes and counts towards a reward program on the card. In Cherry Creek you can even put $1 of parking on your credit card, which makes sense, as I rarely carry large quantities of change around with me.

The only time in my life I ever used a large quantity of $100 bills was to transfer funds from an old checking account to a new one when a moved once. I could have used a cashiers check, but I avoided a fee by using cash and it was a kick to have a few thousand dollars worth of hundred dollar bills in my hands for once in my life. Of course, if I had been unfortunate enough to be stopped by police at that moment, life could have gotten complicated very fast, and I almost certainly would have been presumed to be a drug dealer. Also, the cash very likely would have showed traces of cocaine or heroin on it from prior users, further implicating me in wrong doing.

The biggest casualty of inflation and the new currency regime in the United States has been not the big bills, but the smaller ones. A frail $1 bill is worn out in six months of circulation and has to be replaced, while coins last decades. But, Americans have gotten out of the habit of carrying sturdier, but heavier coins in their pockets. Given a choice between a variety of attractive $1 coins and the lighter weight $1 bill, Americans have overwhelmingly opted for paper. If we were starting from scratch today, the $1 bill almost certainly wouldn't have been introduced because it is so short lived, but going forward the inertia is significant.

So, today, I rememeber the demise of the $500 bill, but I don't mourn it.

Self Government

One of the most persistent assumptions of conventional wisdom in modern Western foreign policy, with the most catastrophic consequences, has been the assumption that parliamentary self-government will always work if put into place.

We know from experience that this is not true.

The success of parliamentary self-government has been underwhelming in Iraq, not just this time around, but also the last time that it was imposed.

Parliamentary self-government has not worked especially well in most post-colonial regimes where it was imposed. India has managed with heroic efforts, but only with lots of close calls, a national schism, and considerable pain as a result of government mismanagement. Turkey has managed, but only with not infrequent threats of military intervention.

Parliamentary self-government has failed from Russia, to Spain, to Africa (both North African nations like Algeria and Egypt, and Sub-Saharan nations like Liberia and Nigeria), to Latin America, to the Middle East, to Asia, to Oceania, parliamentary self-government has almost always devolved into military coups, dictatorship, one party rule, civil wars or a combination of these political arrangements.

East Timor, touted as the paradigm of an imposed parliamentary self-government solution, is managing only with a massive infusion of international aid and international peace keeper enforced law and order.

Thailand was able to escape a parliamentary government failure only with the intervention of a monarch, and even then has been a hit or miss proposition.

Russia, another nation new to parliamentary government, is widely observed in the world scene to be backsliding into its less democratic Soviet ways.

Even those countries well known for their formative efforts at democratic self-government have had their rough spots. Democracy failed the first time around in France, and we are now on the “Fifth Regime” there. The United States had to extra-constitutionally ditch its first constitution, the Articles of Confederation, and endure a bloody civil war. The United Kingdom had to see the Glorious Revolution triumph with the supremacy of Cromwell’s Republic, only to fail again and return to a constitutional monarchy. The good guys lost in the Spanish Civil War leading to a generation of autocratic rule. Germany and Italy both succumbed to fascism, before returning to their pre-World War II status as parliamentary governments, and Italy spend a couple of generations coming to terms with corruption and the mob before it got its act together again.

It isn’t that all first time parliamentary democracies fail. Japan’s dominant party system, and the legitimacy created by having a constitutional monarch, helped it make its post-World War II transition to parliamentary government relatively painlessly. But, that was hardly a foregone conclusion. Nearby South Korea’s path to parliamentary self-government was not nearly so smooth, nor was that of Taiwan, Indonesia or the Philippines. Hong Kong secured prosperity and a liberal society at the expense of any meaningful self-government at all. Singapore, likewise, has been no model of democratic self-government.

This is all, by no means a call to ignore the faults of the military junta, the dictatorship, the one party state, civil war or colonialism. But, we need to recognize that while a successful parliamentary democracy may be the best form of government known to man, that an unsuccessful parliamentary democracy is merely a stepping stone to tyranny.

A modern constitution and parliamentary elections may be a necessary condition to a modern working parliamentary democracy, but they are not a sufficient condition. Making self-government work takes political skill, public administrative acumen, legitimacy, and a variety of institutions of civil society to function passably.

While the “best” system may be a true pluralistic multiparty democracy, simply pulling off a dominant party system in which the underdog parties are not banned, an inclusive one party system, a weak constitutional monarchy, or a colonial regime may be desirable alternatives to a failed experiment in pure constitutional government. While both Iran and China are soundly criticized for their failure to live up to international democratic self-government norms, both have more genuine democratic self-government than countries we count as allies, like Egypt and Saudi Arabia, and both are moving generally in the right direction from their more turbulent national nightmares of the 1970s. Neither, for example, has fallen into the trap of North Korea, which has evolved into an insular monarchy without the dignity and sense of obligation to the nation that the title affords.

Our biggest failure in Iraq was invading at all. But, our next biggest failure was our naive assumption that a modern Western parliamentary democracy could be put in place to replace Saddam’s regime with a minimum of fuss. We are now in the awkward position of having ceded our own authority to govern Iraq, without having put in place a functional and legitimate local civilian replacement.

Republican insistence on staying the course is largely driven by the probably correct assumption that without a U.S. military presence, that the Iraqi civilian government will fall apart, probably sooner than later. It looks a lot like the South Vietnamese regime just before it fell. Democratic and popular urges to withdraw, likewise, are largely driven by the observation that the situation isn’t getting any better, so we may as well bite the bullet now rather than later and cut our losses. Are they right? I don’t know. But, I do know that unless Iraq is better prepared to run itself before we leave that it will fall apart. The successor regime will probably be worse that the one we removed.

Most Influential Liberal Solo Blog in Colorado

Why be #11 when you can change the category and be #1? Non-Prophet noted the latest Colorado blog ranking/RSS feed outfit, which calls Wash Park Prophet the #11 most influential political blog in Colorado. Cull the conservative blogs, cull the group blogs (although a couple have essentially one primary author) and voila, Wash Park Prophet is the #1 most influential solo liberal blog in Colorado. Hooah!

FWIW, I contribute diaries to at least three of the so called most influential liberal group blogs in Colorado as well.

No Right To Attorney In Collateral Review

The U.S. Supreme Court has declined a chance to review its holding that there is no right to an attorney for a collateral review of a conviction, even in a death penalty case. This means that despite the fact that there is a constitutional right to habeas corpus, the right is all but useless to the large number of prisoners who have no attorney, because elaborate procedural rules in habeas corpus are beyond the abilities of most prisoners (who are mostly ill educated). It also means the ineffective assistance of counsel in habeas corpus cases is not a constitutional violation.