Colorado General Assembly Adjourns Sine Die Today

CAVEAT: Trapped in a blog time warp - originally posted in May.

Today is the last day of the Colorado General Assembly's annual legislative session. As I write, two "must pass" items on the legislative agenda look unlikely to pass by the midnight deadline today: (1) the bill authorization the implementation of the year's executive branch regulations (a legislative check on executive branch power not present at the federal government level), called Senate Bill 78, which has reached a stand still as a result of a partisan dispute over payday lending charge limits adopted in the 2010 legislative session, and (2) approval of a Congressional redistricting map based on the 2010 Census for use in the 2012 election. Any bill not passed by the end of today dies.



For all of its technological marvels, the Colorado General Assembly's bill tracking system does not make it easy to do a simple search to see which bills remain in play, having been approved or defeated in the previous 119 days of the legislative session.



Governor Hickenlooper has the power to call a special legislative session limited to select issues to address these and/or other matters later this year (possibly after some of the details are hashed out in intersession committee meetings). There may be some authority (in at least some cases) to impose regulations on a temporary basis, however, and if there is no legislative resolution of the issue of Congressional redistricting, a court will have to draw Congressional district lines as it did the last time around, although it is not entirely clear when this issue becomes ripe for litigation.



The 2012 legislative session ends in May 2011, which in theory could put a Congressional district map in place in time for candidates to run August primaries and November general elections, but that still would leave the state without Congressional districts by the times that the current election law provides for candidates to declare their candidacies, and for partisan nominating caucuses in advance of the primary elections to be conducted. Normaly, the 2012 election season would start in earnest in Deccember 2011 or January 2012, although, of course, political scheming never really stops. No incumbent members of Congress from Colorado have expressed an intent not to run for re-election.



State legislative seats in Colorado's General Assembly are drawn by a blue ribbon commission that has a process pretty much guaranteed to produce a map, that does not require legislative approval. So, the deadlock on redistricting that Colorado is experiencing now is limited to races for members of the United States House of Representatives, and state offices, such as the University of Colorado Regents and Colorado Board of Education that are elected from districts that coincide with Congressional districts.



The deadlocks aren't terribly surprising, given that this is the first time in many years that different political parties have controlled the state house and state senate, particularly in the case of an inherently partisan issue like drawing Congressional districts. Republicans have a 33-32 majority in the Colorado House of Represenatives, while Democrats control the state senate.



Similarly, it is not surprising that this partisan divide has ended the tradition in place when Andrew Romanoff was Speaker of the Colorado House of Representatives to adjourn the legislature a day or two earlier than the constitutional limit of a 120 day regular legislative session.



There is still an outside chance that one or both of these must pass issues will be resolved in the last ten hours of the legislative session, but I for one will not be up late listening to podcasts from the state capitol expected to see this kind of break through. At this stage of the game, it is just short of procedurally impossible to get either bill passed without large bipartisan majorities willing to suspend the rules to do so.



Once the legislative session ends, the other main remaining item of legislative business are Governor Hickenlooper's decisions to sign or veto bills passed in the last ten days of the legislative session, which he must do by June 10, 2011. It is too late to veto any bills passed by the Colorado General Assembly this year in January, February, March or April. In theory, it is also possible for citizens to sign petition to put to a vote of the people any legislation passed during the leigslative session without a "safety clause" but that has never actually happened in practice, mostly because only the very least controversial and important bills are passed without a "safety clause."

READ MORE - Colorado General Assembly Adjourns Sine Die Today

Why didn't the predicted surge in teen crime happen?

Conservative criminologist John DiIulio called the fearsome horde "super-predators." He estimated that they'd number nearly 200,000 by now. Even unflappable Attorney General Janet Reno foresaw violent crime doubling among kids. . . . William Bennett, the former drug czar . . . wrote a 1996 book with DiIulio on the topic, titled "Body Count," which attributed the problem to moral decay. . . . It never happened. . . . Instead, Americans are experiencing the sharpest decline in teen crime in modern history. . . .

[Why?]

Probably more important than tighter school security . . . were these factors:

In the decade of economic expansion that ended in 2000, the number of older teens who were neither in school nor at full-time jobs dropped by nearly a third. . . . Prosperity . . . gave teens more and better options to crime. . . .

The Latino population in central cities swelled as teen crime declined. . . . Their influx . . . brought more intact families, stronger values, higher religious participation - and lower crime rates. At the same time, many of the black families they replaced moved to suburbs where poverty was less concentrated. "Kids once confined to the inner city started seeing lifestyles other than the street." . . .

Criminologists decided in the `90s to track what worked and what didn't in dealing with teen crime. Boot camps didn't work. . . . Nor did trying juveniles in adult courts. Big Brother and Big Sister mentoring worked. Foster care for delinquents worked better than lock-ups if foster parents were well trained and the goal was to return the delinquents to well-coached biological parents. Suspending delinquent kids from school or leaving them back didn't work. . . . They found that if one parent is strong and consistent, the second isn't missed when it comes to preventing delinquency.

The incarceration rate rose from 1 per 1,000 adults to 4 from the `80s to today, and it has many foes. But . . . jailing more adults sharply reduced the number of teens who commit crimes with adult accomplices.

Economist Levitt attributes teen crime's sharp drop to a reduction in unwanted children, which began with the Supreme Court's Roe v. Wade decision in 1973. Criminologist Zimring, among others, thinks it contributed but isn't as big a factor
as Levitt argues.

From here.

These gems come from a blog associated with The Atlantic magazine, linked to at Enik Rising.

It ties into a Denver Post rehash of a local think tank report on population growth in Denver neighborhoods that I saw today. Three of the top five: Green Valley Ranch, Stapleton, and Lowry, are unsurprising. They are neighborhoods that were previously uninhabited that have seen major residential development in recent years.

The other two, Five Points and Montbello, are cases that fit the dynamic described above in which neighborhoods that used to be predominantly black ghettos with dire poverty that have seen major influxes of Hispanics, as well as others, in a combination of ethnic shifts and gentrification as many black residents of these neighborhoods have moved to suburbs or to central city suburban style neighborhoods like multi-ethnic Green Valley Ranch.

Another place in the metro area that has seen a similar and rapid demographic shift is Old Town Aurora, once a center of blacks and lower income Korean immigrants, that is now increasingly Hispanic.

Perhaps not coincidentally, the Denver Post also announced the inauguration of a major overhaul of eleven Northeast Denver schools, a move that has been heralded as positive by some, while arousing extreme controversy, skepticism and complaints about insufficient community consultation from others. FWIW, I haven't followed the overhaul efforts closely and don't have a strong opinion on their merits as a result.

Aurora, also perhaps not coincidentally, has also recently announced a major urban effort directed at the area between Stapleton and Old Town Aurora, although it has been overshadowed by a bid by Aurora to develop a complex that would compete heavily with the convention center complex in downtown Denver.

Not to put to fine a point on it, but, in each case, major governmental initiatives to improve city services in metro Denver neighborhoods have coincided with declining African American populations in those neighborhoods.

Certainly, nothing as crude as Jim Crow racism as it work in Denver, that just elected a second African-American mayor despite having a fairly modest African-American population percentage for a major American central city (Hancock this time around, Webb the last time around), or in Colorado, which recently had an African-American state house speaker (Terrance Carroll). Nor does metro Denver as a whole want for predominantly Hispanic neighborhoods that have been sorely neglected in the government services department. The cause and effect relationships here are more subtle and are not simple examples of racial or ethnic favoritism.

Northeast Denver, for example, has changed due to efforts like the Ballpark Neighborhood gentrification, the transformation of "North Capital Hill" into "Uptown" and the impact of the Stapleton and Lowry developments which sent middle class traffic through these formerly low income predominantly black neighborhoods and called attention to their potential to provide short commutes to downtown.

The housing bubble opened up a lot of affordable, quality suburban homes to people from Denver including families in Northeast Denver that have not been tainted by generations of covert and overt racial discrimination in the housing market that reached a critical mass that became self-sustaining where it has established itself.

Rising real estate values in Denver from a bubble collapsed low point in 1983 until an earlier than the rest of the nation slump, particularly in central Denver, transferred considerable wealth to inner city home owners.

As post from The Atlantic article that led me to the teen crime story that I quoted observed, underclass predominantly black dysfunctional ghettos are nothing to be nostalgic for, even if one is firmly committed to improving the well being of the people who lived in those communities a few decades ago and their children. The transformation of these dysfunctional neighborhoods wasn't a punishment inflicted on its residents; it was a reflection of the fact that the people who lived there have mostly found better alternatives and moved on when barriers to their exit from those neighborhoods became less steep. The neighborhoods weren't bad because they were non-white, they were bad because they had high crime, high truancy, governmental underinvestment, high teen pregnancy, few viable businesses, and high unemployment that had deep and obvious causes in American history.

Improving neighborhood well being makes neighborhoods tolerable to people who have any choice at all about where they live and has led to rapid population growth in these neighborhoods. Creating demand for housing in these neighborhoods boosts property values and makes life more tolerable for those who continue to live there. Even renters who are forced to leave due to rising rents in these neighborhoods spur the construction of newer and better rental housing in the metro area that if often better than what they left behind. The line between someone who is a slum lord who has received a windfall from the changes in these neighborhoods and someone who is a civic minded booster of a neighborhood is often a thin one.

Capitalism may not always seek out hard case situations to invest in for the long run, but it doesn't follow that it profits from large scale systemic socio-economic misery either. It encourages profitable mutual growth, it just sometimes has a hard time getting the ball rolling because not enough people have enough vision to bring the needed investment and suspicion abounds because it is hard to tell who gains and loses from the changes in advance. But, when your current neighborhood is one of the least desirable in the metro area, as was the case for a significant share of Northeast Denver in the 1980s and into the 1990s, it is hard for change, either to the neighborhood or for those who end up leaving the neighborhood as a result, to be a terrible thing or a case of downward mobility.

READ MORE - Why didn't the predicted surge in teen crime happen?

A Silly Argument And A Smart One

Mark Thoma at The Fiscal Times argues that "balanced budget rules can cause rushed decisions if the statutory deadlines for achieving balance leave little time for careful deliberation" in the course of arguing that Congress is disfunctional. This is silly.

How many times in my lifetime have state or federal legislatures gotten fiscal matters done in advance in a carefully deliberated manner, rather than right at a deadline? I can't remember a year that Congress didn't have a continuing resolution or passed all of the dozen different appropriations bills separately before the deadline came and an omnibus bill had to be pushed through, even in years when we haven't had divided government.

Colorado's joint budget committee is better, but still highly deadline driven. And, one of the key's to Colorado's deadlines - a joint set of legislative rules made necessary by a short session, amateur legislature and strong legislative services division are almost impossibly to constitutionally impose on Congress.

But, Thoma also has a worthwhile point to make:

[A]nother explanation that is often put forth to explain the change in congressional behavior is that legislators today are less patriotic than they once were. That is, nation used to come before party, but those days are long gone.

But patriotism is not the problem. What has changed is that we have become, in many respects, two separate nations living within a common border. Patriotism is as strong as ever within each nation, but there is very little recognition that the needs of the other group are legitimate or have any standing at all in policy decisions.

Thus, we are no longer indivisible. Justice for my group rather than justice for all dominates the political landscape and pollutes the policy environment. Until that is fixed–if it can be fixed–no amount of rules, triggers, ticking bombs, or other devices will set it right again.

The two nations thing isn't entirely Mark Thoma's invented rhetoric. For example, Texas Governor Perry, who has campaigned for the GOP Presidential nomination in Colorado recently, has publicly said positive things about the possibility of Texas leaving the United States of American again. The partisan divide between U.S. regions is as strong as it has been in recent memory and social class divides are also more intense in the U.S. than they have been in a very long time.

It isn't just the politicans. I frequently finding myself asking what the heck Republicans are thinking, because when I ask myself what someone who hates American would do and then compare it to what they are trying to accomplish, it very frequently seems to be the same thing. My civility instincts tell me that this is a horribly bad attitude that I should try to fight, but it is what comes to the surface emotionally whenever their latest idea comes up. Whatever agenda they are advancing, it is so profoundly distant from my reality that it makes no sense at all to me, much of the time, or violates deeply held values about the political process and policy substance of what makes our country special and uniquely American. Sometimes I wonder if we wouldn't be better off if Governor Perry got his wish and rid us of the influence that he and his have on our politics.

Then again, Thoma makes one more argument that is neither here nor there. He says that the press doesn't do a good enough job of holding politicians accountable. There is merit to that. Politicans are held accountable for very little of their destructive bad behavior and mischief.

But, I'm not convinced that the press is the most guilty party. It is hard to educate the large share of the voting public that isn't interested in paying attention, and the fact that the nation feels that it can get away with indifference is mostly a testament to a fairly healthy political culture in the formative period of the average voter, rather than being a purely negative indicator. Many of us managed to earn the privilege of not paying much attention because politics has tended to be incrementalist for the last few decades in the United States. Only when elected leaders really screw up in a way that forces a radical change that is contrary to the agreed rules of the political game, as we saw this year in Wisconsin and Minnesota, does the sleeping giant that is the American public wake up and start paying attention. We can be outraged about the process because we have been taught to expect better.

If the U.S. had defaulted on its debt and there had been dire consequences, the American public probably would have woken up and been determined to do something about it in 2012. But, a deal to complex and arcane and unlikely to be adhered to in the long term to make it interesting to the general public was reached, constitutional crisis was avoided, and the public will return to its slumber for a while.

I don't like the way that we are making our sausage and would like to reform it. The Republican balanced budget amendment proposal is a DOA way of addressing the problem. But, there is room for process reform and better ways of holding politicians accountable as well.

READ MORE - A Silly Argument And A Smart One

Civil Unions In Rhode Island And The State Of Gay Marriage

Rhode Island's state legislature had passed a civil unions bill that its Governor is sure to sign.

Rhode Island joins four other states — Hawaii, Illinois, New Jersey and Delaware — that have legalized civil unions, according to the National Conference of State Legislatures. Several other states recognize domestic partnerships, while six have legalized same-sex marriage, as has the District of Columbia[.]

In terms of terminology, civil unions are marriage in all but name, and domestic partnerships are "marriage minus." But, it isn't clear yet whether all three will be the same in the eyes of the federal government, only marriage will count as marriage, or both marriage and civil unions will count as marriage in the eyes of the federal government. In theory, the federal government could even treat civil unions and/or domestic partnerships as marriages for some federal law purposes, but not others.

Still, we have reached a tipping point on gay rights in the United States.

The only other New England state without either gay marriage or civil unions is Maine (a year and a half ago Maine voters narrowly overturned the state's legislatively adopted marriage equality law, 53-47), but it apparently still has some form of domestic partnership law. New York, New Hampshire, Vermont, Massachusetts, Connecticut and District of Columbia have gay marriage. Pennsylvania and Maryland are the holdouts in the Northeast that currently lack gay marriage, civil unions or legally recognized domestic partnerships, and none of the states in the region that lack gay marriage or civil unions appears to have constitutional amendments prohibiting state legislatures from allowing gay marriage.

Rhode Island's move solidifies the Northeast block's stance that same sex couples have the same legal rights under state law as married couples, putting pressure on Maine, Pennsylvania, and Maryland, which have considered but not yet adopted such legislation (with the bills failing by narrow margins), to follow the examples set by their regional neighbors with whom they have strong ties and a history of interstate cooperation on other issues like automotive emissions and bottle recycling.

In the last tally that I saw, there were civil unions in Hawaii and domestic partnership legislation on the book in Washington State, Oregon, California and Nevada, forming a regional block of greater Pacific area states with gay friendly legislation.

California had had judicially established gay marriage until voters passed Proposition 8, but a trial court has ruled that Proposition 8 was unconstitutional, a challenge claiming that the trial court judge who ruled on the Proposition 8 case should have recused himself has been rebuffed, and the 9th Circuit Court of Appeals has essentially held that the only person who purported to appeal the trial court ruling lacked standing to appeal unless the California Supreme Court states in a legal question certified to it that the proponents of a ballot initiative always have standing to defendant constitutional challenges to that ballot initiative (which it seems unlikely to do when it rules on this issue which has been briefed and it is considering).

To make a long story short, it isn't at all beyond the realm of possibility that California will have true gay marriage (in addition to New York, which took this step earlier this year) by year end. Resisting a trend that already includes two of the nation's largest states and two whole regions of the country is not easy for its opponents, particularly without national government support with the Obama administration has denied them.

In the rest of the country, Illinois (which has civil unions) and Iowa (which has gay marriage) are an island of tolerance in an otherwise legally hostile sea, in the case of Iowa, as a result of a judicial decision that caused several Iowa Supreme Court judges who supported the ruling to lose retention elections.

The repeal date for the military's "Don't Ask, Don't Tell policy" a half-measure that kept a ban on gays in the military in force, is now set in stone by legislation.

Each legislative and court victory, shifts overall public opinion in favor of the change, because there is a natural tendency to accept the legal status quo as legitimate.

For activists in Rhode Island, winning "civil union" status rather than "marriage" status is more than a symbolic defeat, because the provision of the Defense of Marriage Act (DOMA) that pertains to federal law recognition of state law marriages is crumbling. Court rulings holding that this part of DOMA is unconstitutional are staking up; the administration has changed its litigation strategy from one of vigorous defense of the constitutionality of this part of DOMA to half-hearted enforcement of the law until there is an authoritative judicial decision to the contrary despite publicly expressed doubt concerning its constitutionality, and federal administrative reluctance to enforce penalties that deportation of a same sex spouse. There is a strong likelihood, although it is not completely certain, that the federal law part of DOMA will be judicially ruled to be void and no longer applied by the federal government before the 2012 election.

But, even if the federal part of DOMA is held unconstitutional, it isn't obvious that a couple with a civil union or state recognized domestic partnership would be entitled to the same treatment under federal law as a married couple.

Even assuming that the federal government part of DOMA meets its demise for want to support from the Obama Administration and as a result of judicial rulings to that effect, the provision of DOMA the provides that states need not give full faith and credit to a gay marriage in a sister state is not yet the subject of a serious legal challenge, and a great many states have no form of gay marriage, civil union, or domestic partnership of their own.

Interstate recognition of gay marriages, civil unions and domestic partnerships is ill defined at the moment, even among states that have them. Wyoming is a recent example of a state that does not have its own gay marriage law, but was willing to take jurisdiction over a divorce for a same sex couple married elsewhere. The court found that a ban on marrying same sex couples did not imply a ban on divorcing them.

Many constitutionally prohibit gay marriage, and almost all that don't do so in their constitutions, prohibit it by statute. But, state constitutions, unlike the federal constitution, tend to be quite easy to amend as public opinion shifts.

Isolated rulings, however, particularly in the adoption and child custody area in states like Florida, have held that discrimination against same sex couples even if they are not married, lacks a rational basis and is unconstitutional under the 14th Amendment equal protection clause.

Indeed, the law related to children, in general, and of parental rights and responsibilities of married couples vis-a-vis non-married couples has been so completely harmonized in the context of opposite sex unmarried couples, that paternal marriage status is almost irrelevant to these issues now even in states that have strongly resisted recognition of gay rights. There are some sometimes subtle differences involved in establishing paternity, but otherwise, the formal barriers to same sex couples in relation to children have been retreating for some time.

The U.S. Supreme Court's Lawrence case ended criminal prosecutions for consensual, non-commercial sexual relationship between adults in same sex couples, and this also probably provides a comparable privilege for sexual relationships of this type between all unmarried adults who are not in a position of trust with regard to each other or incestuous. Very few states continue to have civil or criminal sanctions for adultery. Meanwhile, martial exclusions for non-statutory rape have increasingly been stripped from the law books.

From a legal perspective, marriage no longer has almost any relevance to the legal regulation of parenting or sexual activity with which it was traditionally associated. At this point, legal marriage is almost exclusively an economic relationship pertinent to default private law rules concerning property, and personal care taking, mandatory private law rules concerning financial support, and is a device that helps to structure economic obligations for taxes and economic entitlements to government benefits.

For many purposes, private documents, such as domestic partnership agreements, inheritance and beneficiary designations in wills and other documents, medical decision making, and more, can establish arrangements between couples whose state law legal incidents are equivalent to those provided by marriage, and in states like Colorado that are at first glance hostile to gay marriage, these legal arrangements are increasingly easier to put in place and adopting non-discrimination laws that include sexual orientation. Many couples never put the full package in place, but many, although not all, of the practical state law legal disabilities associated with not being married can be overcome.

Colorado was just a couple of votes short of a civil unions bill in the 2011 legislative session, it has a U.S. Congressman and a number of prominent state legislators who are openly gay or lesbian, it has a U.S. Senator, Michael Bennet, who is co-sponsoring DOMA repeal, and its Governor is a supporter of gay rights who made a high profile appearance at this year's Denver Pridefest. Colorado's designated beneficiary act is just a notch short of a full domestic partnership law, Denver has a process by which couples can register as domestic partners, Colorado has included sexual orientation in almost all of its non-discrimination laws, and Colorado has made other same sex couple friendly adjustments to other aspects of its private law. If Democrats regain control of the state house in 2012, and possibly even if public opinion shifts even a small number of state legislative votes in the 2012 legislative session, Colorado will probably have civil unions by 2012 or 2013.

The solid regional blocks of legal recognition for same sex couples that are in place now and growing will make denial of full faith and credit look increasingly bigoted and will make this denial increasingly administratively cumbersome as a practical manner.

The Denver Post today cited statistics from the Census Bureau identifying more than 16,000 people who are gay or lesbian partners living together in 2010 up from a little more than 10,000 in 2000. About a quarter are in Denver, and thousands more are in the metropolitan area. It is increasingly easy for same sex couples to have a marriage or civil union somewhere, and to the extent that out of state couples are given the opportunity to marry in states that do permit same sex marriages, this will presumably provide full recognition at the federal level nationwide if the federal government portion of DOMA is held unconstitutional, even if the states where the couples reside do not themselves recognize their marriages as valid.

For example, suppose that the federal government portion of DOMA is invalidated and two men from Denver get married in New York City, and then return to Denver. They file their federal tax returns as a married couple filing jointly. Colorado law provides that state taxable income is a fixed percentage of federal taxable income. But, this state tax rule is hard to apply if Colorado does not permit couples that are treated as married filing jointly for federal tax purposes to be taxed with the same filing status at the state level.

DOMA does not appear to allow one state to invalidate an adoption of a child by a same sex couple granted in another state. Community property rights that were accrued by members of same sex couples in a state that gives their relationship formal legal status equivalent to marriage probably persist, even if the couples moves to other non-community property states, and give rise, at least, to a partition right, if not a right to a true divorce proceeding. The more that this issues become practical ones immersed in people's everyday lives, rather than exceptional issues of principle, the less controversial they will become.

READ MORE - Civil Unions In Rhode Island And The State Of Gay Marriage

Compromise Happened

Somehow, despite divided control of both the Colorado General Assembly and Congress, both Colorado and the Congress managed to approve budgets this month. This is what usually happens, even in times of divided government. It doesn't happen without fail. There have been a number of government shutdowns, although the longest one at the federal government level was twenty days, and most haven't been longer than a day or two.

The process does nothing to guarantee that a compromise is reached. No majority can single handedly impose its will. But, time and time again, deals are struck. Much of the time, government is not divided and the deals aren't so difficult to secure. But, even in the time periods when government is divided, there is usually a deal.

Most business deals work on the same basis as budget deals. Everything is decided on a quite short scale, or nothing is decided. Juries likewise resolve disagreements by consensus. Miraculously, when the choice is no deal, no budget, no verdict . . . most of the time deals are secured. There are frequently compromises, but deals are secured.

Courts determine the status quo in the absence of a deal. Most of the time, there is a sensible or at least workable alternative if a deal on legislation falls apart. If there is a deadlock in a redistricting matter, usually courts will intervene and draw a map themselves. But, this rarely happens with the budget. If no deal is reached, the money will not be spent. The budget is "must pass" legislation. Sometimes there are compromises for "essential services" if the rest of the government is shut down. But, those are usually handled outside the courts.

A functioning government that spends money on government services, when push comes to shove, is a better outcome than one that does not function.

Federalism lowers the stakes. One of the key benefits of federalism is that even in a system that sometimes produces government shutdowns from political impasses, the entire government isn't affected at once. Only a few states in any given year will reach an impass on their budgets, and they won't do so all at once. Local governments are not directly shut down by impasses at the state level. Federal government shutdowns still leave the state and local governments that employ the vast majority of government employees, any agencies whose appropriations bills managed to pass before there was an impass, and self-funding agencies like the postal service in business.

I'm a pessimist on this score. I worry about system failure. I worry about a prolonged failure to the political system to meet its basic responsibilities. We haven't had serious steps across that line in the United States. But, in other countries there have been long periods, many months or even years, of deadlock. The labor-management equivalent - a long strike or lockout due to failure to reach a deal - used to be much more common. Usually, those dire worst case scenarios don't happen. But, it takes more than Civics 101 and Constitutional law to explain what goes on when these miraculous agreements happen. A shallow analysis of the rules of our political system can't easily explain why negotiations break down so much less often than one might expect that they would, what is different about the times when they do break down, why the breakdowns are more or less intractable in different situations, and as a result, also can't explain how fundamentally stable our system of government that depends upon partisans who disagree compromisings in unspecified ways is within a coherent theoretical context. We have a good track record of compromise so far, but why?

READ MORE - Compromise Happened

Crisanta Duran Disappoints

A gutless, self-defeating and bitterly disappointing vote by Democratic State Representative Crisanta Duran, in the proud tradition of Colorado Governor Ritter's most self-defeating moments, permitted the weak legal arguments of Colorado's Republican Attorney General Suthers, that she as a lawyer should have known better than to take seriously, to derail justice for 48 juveniles serving life without possibility of parole sentences in Colorado (authorized by statute only from 1991 to 2006), once again. 

Duran's unwillingness to take responsibility for the consequences of her own actions and to claim that she "hasn't given up on" them is particularly disgusting.

Under HB1287, the juveniles convicted during that time would be eligible for parole after serving 40 calendar years.

The judiciary committee killed HB1287 on a 6-5 vote, despite its bipartisan sponsorship by two members of the committee, Reps. Claire Levy, D-Boulder, and B.J. Nikkel, R-Loveland.

The bill’s sponsorship all but guaranteed its passage out of the committee if the vote had broken down along party lines. But Rep. Crisanta Duran, D-Denver, voted with Republicans to spike it.

She cited questions about its constitutionality raised by the attorney general’s office.

“I’m not going to give up on those 48 offenders,” said Duran, a lawyer. “The reason why I voted against the bill is because I think there needs to be work done to reach out to all of the stakeholders and have a less divisive process.”

She also would like to see a ruling from the Supreme Court on whether the Legislature has the authority to change sentences retroactively, or whether that would represent overstepping the General Assembly’s authority and encroaching on the governor’s right to commute sentences.

From the Pueblo Chieftan, via Thinking Outside the Cage.

Updated on 4-6-2011 to correct the spelling of Duran's first name.

READ MORE - Crisanta Duran Disappoints

The Entrenched Politician-Voter Disconnect

It has been said that democracy is the worst form of government except all the others that have been tried.

- Sir Winston Churchill, British politician (1874 - 1965)

Churchill's wisdom has much to be said for it, except that it doesn't do much to tell us which kind of democracy is to be preferred to the alternatives.

An important flaw of the American system, and some similar systems, is that it deeply and fundamentally entrenches a process that naturally produces an unstable equilibrium that is at always odds with voter desires in one direction or the other, rather than a stable process that consistently produces elected representatives who seek to maximize the popularity of the decisions made by the government.



Enik Rising (Seth Masket's blog) reports research that he and Hans Noel have done with a clever experimental design that establishes empirically and rigorously the empirical wisdom that:

There are actually plenty of moderate Assembly districts in California; there are basically no moderate Assembly members. Virtually every Democrat in the Assembly is more liberal than her district; virtually every Republican member is more conservative than her district. . . .

We also find that members of the majority party tend to deviate further from their districts than members of the minority party do. Time out of office, we suggest, causes the minority party to try to moderate to win back the majority.

The study focused on California, but its conclusions almost surely hold for all but a couple of states in the United States (Nebraska and Louisiana may be exceptions).

Actual partisanship in legislative districts has a bell curve distribution. Elected legislators have a bimodal distribution, like a two humped camel. The political middle is systemically underpopulated by elected officials, despite the fact that the vast majority of voters are in the political middle between the typical elected Democrat and the typical elected Republican on the spectrum of ideology from the political left to the political right.

The study is focused, appropriately, on the facts, rather than the causes for those facts. But, political theory would suggest that this outcome is a very natural and direct consequence of our election laws and legislative process.

The Electoral Bias Against Moderation

Single member plurality district election system naturally gravitates towards having two dominant political parties in any one geographic area. In that system, adding a new credible candidate to the mix hurts that candidate's allies and helps that candidate's enemies. In order to mitigate mutually self-destructive behavior, we have entrenched, in the United States, a two party system in which the political left and the political right choose nominees in partisan primaries and then face off against each other.

The single member plurality district system doesn't necessarily have to create a two party system. It can support regional parties that have majority support in a particular area, like a Quebec Nationalist party or Irish Republican Party. It also doesn't require that the party of the right be the same everywhere, or that the party of the left be the same everywhere. Canadians have one party of the right to the West of Ontario, and another one, the Tory's to the East. One U.S. States have a Democrat-Farm-Labor Party rather than a Democratic party. The U.S. historically used to have, de facto, Dixiecrats in some parts of the country, and Democrats in other partys of the country, both against a common Republican party.

But, for distinct regional parties to emerge, something has to give that region a strong identity. The more homogeneous a region is politically, the less prone it is to develop a distinct political party.

A Majority Requirement As a Weak Fix

A weak solution to this problem is to use French style elections, which have been adopted in Louisiana, Denver and in a less pure form, in a handful of states, where the winner of the election needs to get a majority of the votes cast to win in the first round, with the top two vote getters facing off in a second round.

While this isn't immune to the pathology that similar candidates tend to undermine each other, it eliminates the requirement that a candidate wanting to make it into the second round must have a plurality coalition made up entirely of partisan voters on the right, or partisan voters on the left. A coalition of unaffiliated and bipartisan moderate voters can also secure a candidate a second round slot.

More generally, in its pure form, it is more more neutral towards the number of political parties competing in the district than a traditional two party system. Not surprisingly, Louisiana has historically been the source of moderate candidates in both the Democratic and Republican political parties.

Proportional Representation As A Strong Fix

A stronger solution to this problem would be a true proportional representation system that doesn't penalize two political parties for having similar views without not actually merging. In a system where each voter picks on political party and that party gets a number of seats proportional to the share of the vote received by that political party, the sensible thing for a voter to do is the pick the party most closely aligned with their views and a political party doesn't face a penalty for being small unless its market share approaches the treshold minimum percentage necessary to secure representation in the legislature (typically in the low single digit percentages). A proportional representation system also allows representation of parties that have a majority in no particular district.

This kind of true multi-party system, which naturally gravitated towards roughly four to eight major political parties, leads to unequal sized clusters of voters with much more homogeneous views.

The Legislative Bias Against Moderation

When Are Coalitions Made? How Stable Must They Be?

In an idealized two party system, coalitions need to be assembled before the election. In an idealized multi-party system, coalitions are made after the election.

In a parliamentary system, a governing coalition forming a legislative majority, need to hold together on all major issues for the political system to function. The legislative leader becomes the head of government (i.e. the Prime Minister) who runs government on a day to day basis. If the coalition that put the Prime Minister in place fails to secure majority support for any major proposal, the Prime Minister will typicall then lose a "no confidence" vote in short order, and new elections will typically be held.

Somewhat complicating the matter of coalition building is that American legislative coalitions don't need to be very stable across all or most issues. Since we have a strong President whose tenure doesn't hinge upon maintaining a legislative majority (indeed our current President doesn't have one), the executive branch can continue to function and carry out the business of government even when one coalition of legislators may prevail on one set on issues, and another coalition of legislators may prevail on a different set of issues.

Historically, for example, the U.S. had a de facto "two and a half" party system at the national Congressional level. One domestic economic issues Democrats generally united against Republicans. But, on matters of national defense and social issues like race, Southern Democrats often allied themselves with Republicans against Northern Democrats. The Democratic Presidential nomination race reflected the vacillation between these two factions.

This three party system allowed the party that was moderate on any issue where there was no consensus among the three parties to prevail, moderating the process as a whole to some extent.

Today, after a process called "realignment" that has largely run its course, this isn't the case any more. There are few notable blocks of "moderates" in either the Republican Party or the Democratic Party in Congress who deviate from their party in a systematic way on a particular way. The Blue Dog faction in the Democratic Party has withered, as has the faction of Northeastern social moderate Republicans. We have a relatively pure party of the political left and a relatively pure party of the political right, and they are quite evenly matched on the national political scene.

The Majoritarian Legislative Process Has A Hidden Bias Against Moderation

Of course, some of the partisanship we see at the legislative level is a product not just of a two party electoral system, but is inherent in the legislative process itself. Legislative decision making generally involved for or against voting on politically controversial issues. Partisans get the results most to their liking when they favor proposals the secure majorities, but only the narrowest majorities possible. It is natural, in this context, for legislators to informally rank themselves from the political left to the political right, and for proposals that require legislators to form an allegiance with one side or the other to be common.

Thus, even in multi-party proportional representation system, governing coalitions that are clearly right leaning, or clearly left leaning are the norm. Governing coalitions like the Penteparti system of Italy, in which five mainstream parties formed repeated unstable and short lived coalitions in the political center in a calculated effort to exclude old school communists on the left, and old school fascists on the right, ar the exception, except in times of national peril from an outside force like the unity governments of the United Kingdom during World War II.

Moderates are more favored in a place like the U.S. Senate, that is not strictly majoritarian, with most proposals from the left or the right requiring supermajority support, than in the U.S. House, where majority rule prevails.

In order to favor the kind of moderate policies that voters in the political center favor, you need not only an electoral system that doesn't naturally generate a bimodal distribution of legislators, but also a legislative process that has stronger incentives to find supermajority, rather than mere majority support for legislation.

Supermajority Requirements Come At The Risk of Deadlock

Favoring supermajorities, however, comes at a cost. Any requirement that there be more than majority support for a measure in a single legislative body with ultimate say over the matter creates a risk that the system will be overconstrained and fail to produce action in situations where there is no acceptable status quo.

In the United States, recess appointment power and a strong Presidency prevent the status quo of all important positions in the government going unfilled for lack of a resolution to deadlocks between a nominating executive and a ratifying Senate. But, at both the state and at the federal level, it remains possible for a lack of an ability to reach consensus in a deterministic way on a budget bill to produce a government shutdown, something that House Republicans on one side, and Senate Democrats and the President on the other, have been dancing with in the lame duck session of the 2010 Congress and the current Congress.

Probably the most notable recent example of an overconstrained set of legislative rules in recent memory is that of the Iraqi Constitution, which requires supermajority support to choose a President and Prime Minister, at a time when there is stark disagreement between well defined factions that individually lack that supermajority (whose moderate unanimity the constitution attempted to coax). The result has been many months of government deadlock due to a lack of the required consensus. Afghanistan's constitution, notably, in contrast, was carefully crafted to allow the President to impose a budget and appointees in the absence of constructive disagreement by a legislative majority on an alternative (despite the fact that Afghanistan has less well defined factions in any case).

Supermajority Processes In Practice

The best examples of supermajority incentives in the legislative process are probably the adminsitrative law notice and comment process, and the Quaker meeting process, each of which hinges on having a "honest third party" receive input and try to formulate from the input a maximally popular (in the case of administrative rule making) or maximal consensus (in the case of Quaker meeting decision making) stance, by taking into account the details of the concerns expressed.

Monarchs, because they are well positioned to be that honest third party, can, if they are not politically tone deaf, secure support in the fact of partisan elected bodies, precisely by favoring the middle against partisan majorities, and favoring solutions that would secure supermajority support over those that would secure mere majority support.

I think that the Founders probably hoped (largely in vain) for that kind of dynamic to play out in the American political system, something that failed largely because the Presidential election system got locked into the two party dichotomy. It isn't implausible to think that if the Presidential election process could be redesigned to decouple it from partisan politics and instead have this office elected in a way that favored moderates, that a similar dynamic could be established, even without reform at the legislative level, through the veto power.

Indeed, I think it is a fair hypothesis that Governor Ritter's experience with consensus oriented politics as the norm from his days as a special interest advocate for Colorado's District Attorneys' Association may help explain a great deal of his approach to dealing with the Colorado General Assembly, in which he frequently cited process rather than substance oriented objections to legislation in veto messages.

Good legislators in the existing legislative process frequently try to craft such agreements in "smoke filled room" negotiations involving interested parties with a goal of reaching "kumbaya" (i.e. a consensus of the interested parties to support a bill). But, this kind of deal making and mutal accomodation reaching is ill suited to the formal legislative process.

Consensus or supermajority oriented politics are actually much more common than most people would think, indeed, it is the norm. This is because partisan caucuses and special interest groups much each reach consensus or something close to it in order to move boldly on legislative proposals. They tend to stay silent and refrain from acting in the absence of consensus.

Conclusion

In the absence of divided government (something that both the U.S. Congress and Colorado General Assembly are experiencing right now), there is little incentive to stretch beyond a majority supported compromise.

So, in American politics, voters are left between insisting that government function with deals negotiated between the left and right in exchange for a risk a damaging deadlock, within divided government, and government by a right of center, or left of center consensus with little to encourage it to be inclusive.

READ MORE - The Entrenched Politician-Voter Disconnect

Health Insurers: Co-ops Too Awesome For Colorado

Usually, the argument for having the private for profit sector of the economy do something is that it lowers costs and is more efficient.

But, that isn't the argument that opponents of a plan to established a health care cooperative (i.e. a patient owned health insurance company) have made to Colorado's General Assembly in response to Senate Bill 168 which calls for establishing a commission to present the co-op proposal to voters in 2013.

According the today's Denver Daily News, "State Senator Shawn Mitchell, R-Broomfield, acknowledged that the plan itself does not create single-payer system in Colorado," but, he believes that it is likely that a co-op would expand and drive private carriers out of the market, becoming a single-payer or predominant payer in the state.

In other words, Mitchell believes that a co-op would provide a better deal to Colorado health care consumers that they would choose over the status quo of private health insurance companies.

Mark Reese, a spokesman for the Colorado Association of Health Plans, said as many of 20,000 people employed by the private health care insurance industry in Colorado would lose their jobs as a result of a universal cooperative.

Translation: Health insurance companies are so wildly inefficient that a health insurance cooperative could do the same job with 20,000 fewer people.

As Senator Mitchell notes, this would not be a single payer health care plan like they have in Canada:

Senate Bill 168 would create a board of health care and policy experts [funded with $1.2 million of private donations] to develop details for implementing a health care cooperative that would include all Coloradoans as members. . . .

Coloradoans would be allowed to kept their primary insurance provide and instead use the cooperative as a supplemental policy.

Coloradoans would also be allowed to choose medical provider that is not part of the system. In those cases, patients would be required to pay the gap between the cooperative's reimbursement and the provider's charges.

The status quo indicates that there is considerable truth to the argument of cooperative opponents that government can manage health insurance claims with fewer employees than health insurance companies do. The Medicaid program in Colorado, for example, processes all of its claims in the state for its 553,800 beneficiaries with fewer than 900 employees.

Co-operatives are alternatives to anti-trust regulation and government owned enterprises that rely on the say members have in how the co-operative is run to keep them working in the member's best interests.

If a health care co-operative will, as opponents claim, provide health care at a lower cost than health insurance companies do, by providing health care with 20,000 fewer health insurance company employees whose wasteful paperwork is driving up the cost of health care in Colorado, then I am all for it.

The last time I checked, the objective of Republicans and Democrats alike was to reduce health care costs and cut waste in the health insurance industry without making unnecessary cuts in the health care that was provided. Indeed, the Republican critics of health care reform in Congress specifically made a point of criticising health care reform's failure to include enough of a focus on cost savings.

One doesn't have to be a died in wool ideological supporter of co-operatives for co-operatives sake to say that co-operatives are a good option when consumers choose them the buy services also offered by investor owned corporations in circumstances where co-operatives provide lower prices through more efficient operations.

It isn't as if Republicans in Colorado as a whole have some deep ideological opposition to co-operatives as a form of business organization in any case. In rural Colorado, co-operatives are the primary way people get electricity, receive their telephone service, buy their farm supplies, store their grain, sell their crops, and buy their water. In Denver, Republicans make up a disproportionate share of people who send their children to pre-school through co-operatives, and many people in Colorado already get life insurance, disability insurance and casualty insurance from mutual insurance companies (which is just another name for a consumer's co-operative) like Northwestern Mutual or Amica. A citizen owned football team won the Superbowl this year. Almost every law firm, accounting firm and medical practice in the state is organized as an employee owned enterprise.

None of this changes how health care providers are organized. From their perspective, a health care co-operative is just one more health insurance company to deal with in the billing process - a big one, according to opponents, but not an organization that is actually providing medical services directly to patients.

READ MORE - Health Insurers: Co-ops Too Awesome For Colorado

Cutting the Deficit

House Republicans in Congress are learning that it is hard for them to keep their promises of budget cuts.

The hardest hit agencies would include the Food and Drug Administration, the Internal Revenue Service and the departments of Commerce, Housing and Urban Development and Agriculture. . . . Foreign aid on an annualized basis would take a 6 percent cut. . . .

— The Department of Homeland Security would face a budget freeze instead of the 3 percent increase proposed by Obama. . . .

— Republicans would scale back Obama's proposed 4 percent, $23 billion increase for the Pentagon. Instead, the military budget would grow by just $10 billion.

— Popular programs such as health research and federal aid to school districts appear likely to take a hit when lawmakers write the spending bill for the departments of Education, Labor and Health and Human Services. Republicans promise not to cut the minimum $5,550 Pell Grant for low-income college students.

I proposed a combination of tax reforms, cuts to the defense budget, and cuts to domestic spending last November after the election, as a response to the bad proposals considered by the deficit reduction commission and the Republican proposal made during the campaign. To the domestic spending proposal, I made then, I would also suggest deep cuts to federal higher education funds for for profit higher education, on the order of about $2 billion, in a way that would provide greater confidence of results.

Meanwhile the Colorado General Assembly is considering state budget issues as well. Last summer, I addressed some of the issues it is facing (although mostly longer term fiscal viability issues) in the form of a proposed overhaul of the state and local public finances in Colorado.

READ MORE - Cutting the Deficit

House GOP Priorities

They say that budgets are values documents where you disclose your priorities.

The non-partisan Legislative Council, upon whom the Colorado General Assembly has relied for budget estimates for as long as anyone can remember, says that the legislature needs to close a $1.1 billion shortfall to balance the state's roughly $7 billion general fund budget (much of which it is constitutionally required to devote to K-12 education). Republicans, who control the state house, have decided contrary to the economists, that the state will be $195 million worse off than state economists have estimated.

What did House Republicans then do to address this $1.3 billion revenue shortfall?

They voted to give a $3.7 million sales tax break to farmers for goods including bull semen. Agriculture, by the way, is having one of its most profitable years in recent memory, while the rest of the state economy is in the doldrums.

Republican Secretary of State Scott Gessler, whose predecessor Bernie Buescher had decided to turn over $3.5 million of excess revenues to the general fund, meanwhile, decided last week that he'll keep the funds for new projects. (Although Gessler has backed down from a controversial plan to moonlight for his old election law firm after receiving advice from Republican Attorney General Suthers on the issue.)

READ MORE - House GOP Priorities

Friday Fragments

A few scattered half ideas for a beautiful Friday morning:

* It is highly annoying that perfectly good cell phones can't be switched from one mobile carrier to another, even though both carriers offer the essentially the same phone made by the same manufacturer to customers. Cell phone portability would be a great cause for the Fair Trade Commission, which is charged with regulating anti-competitive conduct by businesses, or the FCC, which regulates telecommunications.

* It would also be interesting to have consumer finance regulations that required cell phone, cable TV and satellite TV contracts that include phones or equipment to break out the service provision, telephone purchase, and finance charge components separately, to require that the finance charge component comply with generally applicable consumer finance laws, and for the FCC or FTC to then limit cancellation fees to the unpaid principal balance for the telephone purchase plus some statutorily limited amount for cancellation of the service contract. Landline phone companies and casualty insurance companies somehow manage in a regime where cancellation charges aren't permitted at all - surely phone companies could do something similar - indeed, loyalty discounts for long term customers at cell phone providers that don't have long term contracts and casualty insurance companies achieve a similar objective.

* Some area convenience stores have petitions in favor of allowing them to sell beer stronger than 3.2 beer. I'm all for it.

* Walker Stapleton's moonlighting job pays more than his job as state treasurer, although it doesn't appear to pose nearly as much of a conflict of interest. I'd personally favor a bill to prohibit all compensated moonlighting for "full time" state and local elected officials in the state accompanied by a substantial increase in pay for those officials. We shouldn't have to worry about any public officials being influenced by an outside source of income.

* I'd also favor a bill to make the Colorado General Assembly officially full time, to have it in session all year rather than 120 days, and provide each state legislator with 3 FTE of staff, while prohibiting all compensated moonlighting for them. Term limits play a much larger role in keeping the Colorado General Assembly a "citizen legislature" than its "part-time" status, and practically speaking, it is a full time job during the legislative session and at least a half time job outside the legislative session anyway due to interim committees, constituent service, and time spent crafting bills for the next session. The compressed session seriously compromises the ability of the general public to monitor what the state legislature is doing, to comment on bills, and to participate in legislative hearings. The lack of legislative staff is one of the main factors that gives lobbyists more power. The low pay for the legislature makes almost every state legislator beholden to a private employer or private clients for their livelihood while addressing the state's business and makes legislators more succeptible to influence from petty niceties from lobbyists that aren't prohibited by the state's gift ban.

* House Republicans want to end the Presidential public campaign financing law that costs about $600 million a year and is authorized by tax return checkoffs that are down about 75% from their peak. I have to agree. While I think that public financing is a much better way to deal with corruption in campaign finance than the existing regulatory regime, this particular version of campaign finance is delivering very little value and isn't so essential that it can't be cut. The decline in tax return checkoffs also show that it is has lost public support.

* RTD is considering asking for a 0.2 percent sales tax hike to help pay for overbudget FasTracks, a move that would bridge the gap but still require delays in finishing the project. Area majors have pushed for a 0.3 to 0.4 percent sales tax hike instead to get the project done sooner. Some of the hike would be compensated for by the expiration of an existing sales tax hike for other purposes (the stadium, I think). I believe that RTD has the better argument, as I don't think that voters have the stomach for a larger tax increase. Area mayors would be better off using their local government budgets to speed up construction in their areas than increasing sales taxes even more.

* It would be interesting to look at which countries have the best land use results and then to see what kind of land use regulation approaches they use.

*

A new democracy barometer from the University of Zurich and the Social Science Research Center Berlin (WZB) shows the development of the thirty best democracies in the world. Denmark, Finland and Belgium have the highest quality of democracy, whereas Great Britain, France, Poland, South Africa and Costa Rica the lowest.

Hello! What are these people smoking? Belgium is on the verge of disintegrating into two nations because its regions are utterly incapable of finding common cause. Deep distrust and lack of communications between the regions has reached the point where fake news stories about the other regions are taken seriously. It went months without a government because Walloons and Flemish parties couldn't agree on a governing coalition. Belgium is a basket case of democracy that is at the top of the list of countries where democracy is not working well

Right behind Belgium on the list, in fourth place, was Iceland whose national government just went bankrupt. Again, what were they thinking?

At the middle of the list, are Ireland at #15 and Spain at #17. Both have wildly unpopular regimes that are eliciting mass street protests and are fiscal basket cases that are en route to imposing unpopular austerity programs and are effectively as beholden to the bond markets as they are to their own people.

Great Britain, in contrast, ranked near the bottom of the list at #26, while it has its problems, seems to be getting along tolerably well and does not deserve such a low rating. It just successfully found a solution to a situation where no one party could command a majority in parliament with a palatable compromise. It is in the process of proposing electoral reforms to be more fair to third parties. It is tightening its fiscal belt in a manner far more sensible than either the austerity plans proposed by nations like Greece and Ireland that have been shoved down their throats by bondholders, or the ideologically driven cuts proposed by Tea Party Republicans in the United States. It has had its share of public discontent (particularly over increases in higher education charges) but has far less public discontent than many of the other countries on the list.

In short, the democracy index is profoundly and fundamentally flawed. Whatever it is measuring, it certainly isn't a sensible measure of democracy.

The press release from the source in German also provides link to a more detailed report. This explains that the index has three components: Freedom (individual liberty, rule of law, public sphere), Control (Competition, Mutual Constraints, Govern. Capability), and Equality (Transparency, Participation, Representation).

The basic problem is that it lets arbitrarily weighted components of democratic virtues overweigh things that are obvioius in the big picture, and focuses too much on process and too little on results.

READ MORE - Friday Fragments

Hungry Kids Not Fair Game, Who Knew?

Hungry Colorado Kids Make Poor Political Targets

Republican State Representatives Cheri Gerou of Evergreen and Jon Becker of Fort Morgan, two of the three Republicans in the Colorado General Assembly's Joint Budget Committee, have thought better of their decision to follow the mean spirited lead of Sen. Kent Lambert, R-Colorado Springs, who really does think that hungry poor kids should be denied free school breakfasts.

Apparently, Gerou and Becker lacked the common sense on their own to know that picking on hungry little children who benefit from the free breakfast program should not suffer because an anonymous state bureaucrat made an accounting error that left the program overbudget. But, they did have the political sense to realize that almost everyone else in the State of Colorado, even in conservative strongholds like Grand Junction, Colorado did realize this point and retreated from their hardline stance.

The Gessler Drama

Newly sworn in Secretary of State Scott Gessler, meanwhile, who outrageously announced last week that he is can't survive on the pay of the office he campaigned to win and secured, and wants to work part-time at his old election law firm, despite the obvious conflicts of interest and appearance of impropriety this creates, hasn't backed down, despite strong editorials from both the Denver Post's right wing editorial board and its token liberal commentator today, explaining just how off base he is for trying to do so. The fact that he can't see why this is a problem is itself troubling.

Equally amusing is his fall back position. He has know made clear that he will look to the Attorney General's office for ethical guidance on the issue. And, who in the Attorney General's office has been appointed to handle that task? Bernie Buescher, the Democrat whom he defeated for the Secretary of State post this past November. It has been a long time since Bernie Buescher actively practiced law, but his four years of experience as Colorado's Secretary of State, many years representing a conservative Grand Junction district as a Democrat in the State House, and abundant common sense, make him well qualified for the task.

Equally disturbing, Gessler claims to have raise the part-time job issue during the campaign, even though no one anywhere can be produced to say that he actually did. Making shit up is a standard part of the Republcan play book, but this blantant instance of it by Gessler is particularly galling, because everyone who is listening knows that it isn't true.

The Denver Post, to give it credit, endorsed Buescher, who was clearly the better man, and to anyone familiar with the two candidates, the choice was clear. But, of course, most people know little about candidates for the Secretary of State's post, which only involves real power when close call election issues come up, and voted based on party labels rather than individual qualifications in a year when Red rather than Blue was the hot political color.

What Next?

It took less than two weeks for the new Republican majority in the state house, and the new Republican Secretary of State to thoroughly embarass themselves by taking stances that even died in wool conservatives can't stomach. Walker Stapleton, our new Republican State Treasurer, hasn't made a miscue yet, but still has plenty of time to allow voters to regret their choices last November.

READ MORE - Hungry Kids Not Fair Game, Who Knew?

Short Takes

* I went to the Burger King restaurant in Cherry Creek earlier this week to get a cheap breakfast sandwich while I waited for the bank to open. The location was previously famous for being the parking nazi of Cherry Creek North, aggressively booting people in its lot. This time, I had to wait several minutes for anyone who worked there to appear, even after calling out an "anybody home?" Their bathroom is also the skankiest in all of Cherry Creek.

* Radio stations in Denver are in a slump. I have twelve FM and six AM pre-sets on my car radio, which I regularly revise with the best available options on the airwaves. Yet, several times in the last week, the elevator music in retail stores around town has been fresher and more interesting than what I can hear on any of those eighteen stations.

* Science Fair is over for another year. Next up, History Day.

* What is with all of the little banks on and around 1st Avenue in Cherry Creek? There must be twenty of them in the neighborhood, most with just one or two locations. You'd think it was Bern, Switzerland, or Luxembourg, or the Cayman Islands. I almost never see anyone actually doing business there, but presumably they have enough customers to stay afloat. I presume that they are catering mostly to a high end, local market clientele making loans to businesses, real estate developers, wealthy individuals and medium sized businesses, but I'm really not entirely clear what the business model is, although it seems to be a very similar business model for all of the banks that are not retail customer oriented.

* Even though Denver was almost 20% below average in precipitation in 2010, the snow pack in all of the state's major river basins was well above average, and since that is what really matters most for both Front Range water users and for the Colorado tourism industry, it's all good.

* Justice Kagan wrote her first U.S. Supreme Court opinion on the subject of the proper way to calculate the car expense in Chapter 13 plan calculations. The ruling was 8-1 with only Scalia dissenting. I agree that her reading was the better interpretation of the statute (it disallowed the expense when there was no actual loan or lease on a vehicle that had to be paid). The court took the case because there was a circuit split on the issue.

* The Article I immigration court based in Denver has a new judge who is married to one of the ICE prosecutors in the Denver office who presses these cases. The new administrative law judge must "must recuse herself from any case directed by her husband" but I have real doubts about whether that is sufficient to remove the appearance of impropriety in this situation.

In an ordinary court, only part of the docket involves cases brought by the government. But, all of the cases before this administrative law judge will be brought by the office of which her husband is a part. The pervasive association the new immigration judge has with one side of every single case before her creates a clear appearance of impropriety. I can't imagine how I could possibly be impartial in her shoes. Immigration judges have immense discretion. Statistically, the judge a person with a case in immigration court is assigned to is the single most important factor in determining the outcome of the case. Inappropriate use of that discretion by immigration judges, mostly to the detriment of immigrants, has flooded the federal appellate courts in recent years, and has cast grave disrepute on the credibility of the immigration courts as institutions where any meaningful kind of due process exists. This development certainly doesn't help the situation. If the recusal were from all cases with ICE involvement, that would probably resolve the problem, but that isn't a viable option for an immigration court judge.

I feel for the couple, who are no doubt both very smart, competent immigration lawyers, each of whom has a good federal government jobs. Neither has personally done anything wrong. But, maintaining this kind of status quo, even with recusals from cases where the other is personally involved really doesn't cut it. In government contexts the concern is not primarily ex parte communications about particular cases or personal gain (the government lawyers don't win or lose anything as a result of the outcome of particular cases), but about bias towards one side or the other on the part of the office, which is just as strong even without personal involvement in the same cases. We are not such a parochial backwater in Denver that we have no choice but to have a conflicted immigration court system because no one else is up to the job.

* Once again, Denver cops are being sued in a police brutality case and fraudulent police report case arising from a January 2009 traffic stop. Westword has more details.

* Marginal Revolution is a superior blog that I will add to my sidebar in due course.

* The percentage of women in Colorado's General Assembly (41 out of 99) is the highest of any state in the United States. The national average is 23.4%.

* Republicans are constantly accusing liberals of inventing constitutional rights that aren't supported by the language of the constitution. But, these days, the shoe is on the other foot. John Tomasic at the Colorado Independent nails it with this headline:

King to Polis: Healthcare law infringes on right to have babies in garbage cans

He goes on to explain:

Iowa Rep. Steve King today on Capitol Hill at a Rules Committee hearing on the GOP plan to repeal the healthcare reform law. He ended up telling Colorado Rep. Jared Polis that the law is unconstitutional because, for instance, it forces uninsured women who deliver babies in garbage cans to buy health insurance. Polis, aghast, searched for words.

Isn't funny how the rights Republicans want to invent always seem to be ones you have no desire to actually exercise?

READ MORE - Short Takes

Colorado GOP Oblivious To Budget Reality

The dominant problem facing the Colorado General Assembly as it begins its 2011 legislative session is that the state needs to close a $1 billion gap in its $7 billion general fund budget.

So, what legislative proposals are GOP state legislators, who campaigned on fiscal responsibility offering at this critical juncture?

* Income tax cuts for parents who send their children to private schools.
* A repeal of hospital fees.
* Sales tax cuts for agricultural products producers.

What part of "we're broke" did they not see in the memo on the state budget? Cutting revenue is a wonderful thing, unless you can't pay your bills.

Bills to make it harder to register to vote are also on the Republican agenda.

READ MORE - Colorado GOP Oblivious To Budget Reality

Still Waiting For Action On Juvie Pardons

In August of 2007, Colorado's Governor Bill Ritter convened a special panel to consider and advise him upon pardons for offenders who committed crimes as juveniles, with the focus of their deliberations being the forty-six juveniles in Colorado who are serving life without possiblity of parole sentences, and on fourteen and fifteen years olds charged as adults who would have been tried only in the more lenient juvenile justice system under current law.

Since those juvenile life without parole sentences were handed down, Colorado's General Assembly has revised the law that made those sentences possible in 2006, allowing parole consideration for new offenders who commit the same crimes after forty years. The General Assembly refrained from making the law retroactive, in part, out of the non-binding separation of powers consideration urged strongly by District Attorneys that correcting sentences already handed down is the perogative of the Governor who has the pardon power allowing him to do so.

Also, since those sentences were handed down the U.S. Supreme Court has ruled that people who commit crimes while under the age of eighteen are not eligible for the death penalty under the 8th Amendment, and in May of this year, the U.S. Supreme Court ruled in the case of Graham v. Florida that "It is unconstitutional to sentence a juvenile offender to life in prison without parole when the crime does not involve murder." The case in question involved a Florida sentence to life in prison without parole in a burglary aggravated by rape. Florida used life parole sentences for serious juvenile crimes other than murder frequently, something done in no other state in the Union to that extent.

Now Is The Time

Governor Ritter has a little more than two weeks left in office. But, the Colorado Juvenile Clemency Board has had more three years and three months since it was created to consider the issue. A year and a half has passed since I spoke with a representative of the Governor's office about the issue in the wake of news reporting about its deliberations. Yet, nothing has happened.

The Governor has issued a handful of pardons in his term, but none of consequence, and none in these high profile juvenile cases for which he convened a special panel to advise him.

Late December (typically in connection with Christmas or New Year's Day) is one of the traditional times for a Governor to issue pardons (Thanksgiving, the other traditional time, has come and gone).

Governors and Presidents tend to be particularly generous in granting pardons particularly when they are leaving office for good, as there are no political consequences for doing so and they are free to act on their consciences in a non-strategic way. There are no indications that Governor Ritter intends to seek higher office in the future, so this month is the end of the political line for him. Granting pardons also clears the deck of worthy cases deserving pardons so that subsequent holders of the office (in this case, Mayor Hickenlooper) don't have to take political heat for doing so.

Governer Ritter's Lens On Pardons

Individuals who look at the pardon decisions that Governor Ritter is faced with making at the close of his term usually point to several factors in his personal life before becoming Governor that have mixed implications.

On one hand, Governor Ritter is Roman Catholic, and the Catholic church, despite its reputation for conservatism on reproductive health issues, has also been a staunch and consistent advocate for mercy for those in prison facing the death penalty, to which the Roman Catholic Church is doctrinally opposed, and for those for whom reform is a possibility. (Note that opposition to the death penalty is a relatively recent development in the history of the Catholic church. The Pope presided over executions of condemned criminals in Vatican City as sovereign leader of the Holy See as recently as 1870, and the death penalty was legal but not used for the crime of assassinating the Pope in Vatican City until 1969.)

Governer Ritter is also a Democrat, and while he is probably more conservative than the median legislative Democrat in Congress, particularly on criminal justice and union issues, his political party has been at the forefront of the movement to turn away from draconian sentences in the criminal justice system, particularly for non-violent offenses and juvenile offenders. Governor Ritter has, with some reservations, assented to and signed many bills spearheaded by his Democratic colleagues in the General Assembly during his four year tenure as Governor that have implemented that vision in Colorado (and greatly reduced the corrections budget in the state as a result).

But, on the other hand, Governor Ritter is the former District Attorney for Denver, a position always associated with tough on crime attitudes, and ran for Governor as a death penalty supporter. In his post in Denver, Governor Ritter was a far cry from the controversial District Attorney Carol Chambers whose hard line approach to criminal prosecutions in Arapahoe County has made headlines and fostered criticism, but he was no softie either. Also, in his capacity as an advocate and person providing policy input for the state's district attorneys' in legislative battles in the state, he has always been adamant about taking the position that the Colorado General Assembly should not retroactively reduce sentences already imposed when it reduces those sentences prospectively. Sometimes this has been posed as an attitude about the separation of powers between a Governor's pardon power and the legislature's law making power. But, it also probably reflects a personal attitude that generally sentences that are legal when imposed should have a high level of finality.

The question in the next couple of weeks will be whether mercy or the hard line attitude of a former prosecutor will prevail in Governer Ritter's personal evaluation of the clemency and pardon requests he considers.

Who Are Colorado's Juvie Lifers?

To recap a little of what we know about those forty-six Colorado inmates:

• 1 of the 46 is a female.

• 57 percent committed their crimes at age 17.

• 22 percent were 16 when they committed their crimes.

• 17 percent were 15 when they committed their crimes.

• 4 percent (two of the juveniles) were 14 years old.

• 26 percent of those serving life sentences are black.

• 29 percent are white.

• Two-thirds of the convictions were for murder, and one-third were for felony murder, in which the juvenile did not personally kill anyone but played a role in a robbery or other dangerous felony in which an accomplice killed someone.

Considering The Crime

While Graham v. Florida does not, by its terms, extend to felony-murder cases (for which the U.S. Supreme Court has permitted the death penalty to be imposed upon adults who are not triggermen and do not solicit murders, despite categorically prohibiting the death penalty for non-murder crimes other than "crimes against the state" such as treason and espionage), the reasoning in that case together with the Colorado General Assembly's stance on the matter, certainly makes a strong moral case for commuting the sentences of the one-third of juveniles in Colorado serving life without parole sentences in felony-murder cases where they did not personally murder someone.

Simply put, someone who happens to be actively engaged in committing a serious crime that he does not anticipate will result in a death and has no personal role in carrying out a murder or ordering one, is not as culpable as someone who actually murders someone or orders someone to murder someone. Certainly, these individuals are guilty of the serious crime that they did intentionally involve themselves in, and certainly they exercised bad judgment in their choice of criminal accomplices. But, the statutes overreach when they equate they find that someone who set out to participate in a burglary where someone doesn't end up getting killed is so much less culpable than someone who participates in a burglary not expecting that someone would get killed and an intemperate accomplice actually does kill someone. A more serious sentence may be appropriate because a more serious outcome resulted from the collective course of action. But, it doesn't make sense to incarcerate a juvenile for life without possibility of parole when that juvenile's level of personal culpability isn't much different from that of juveniles who commit similar crimes where no one is killed who often aren't even eligible to be tried as adults under current law.

The natural thing for Governor Ritter to do would be to commute the sentences of those offenders to the same sentences that they could have received under existing Colorado, i.e. life with parole available after forty years or to the still long sentence (e.g. twenty-four years) that would have been available had they been convicted of the lesser offenses such as conspiracy to commit murder or aggravated robbery, rather than felony-murder, which involve heavily overlapping conduct.

Graham v. Florida is also notable because it is the first U.S. Supreme Court case to clearly enunciate the principle that life without parole for juveniles is different from an ordinary prison sentence, in much the same way that the death penalty is treated much differently than a prison sentence in the criminal justice system.

Considering Youth

The offenders who were younger when they committed their crimes are also particularly attractive as candidates to receive pardons.

Extensive developments in neuroscience have confirmed what most people with common sense have long known. Adolescents are less culpable than adults who commit similar crimes because the parts of their brains relevant to culpability, like ability to control impulses and ability to make good judgments, are less developed. As people get older, the vast majority of people who had developmental deficiencies that made them succeptible to committing crimes mature and are no longer the threats to society that they were when they were younger. Hence, mercy for the individuals, once they have been incarcerated for long enough to "age out" of the period in their lives as their ability to control their conduct and make good judgment has matured, makes sense for them in a way that it does not for someone who continued to commit serious crimes even after becoming a mature adult. The concern is especially strong for the youngest offenders whose capacity to control their conduct, and hence to be culpable criminal actors, is weakest, and who have the greatest potential to mature into more responsible individuals.

Until the U.S. Supreme Court's most recent holding, banning the death penalty for all crimes committed by juveniles, only offenses committed by offenders who were sixteen or seventeen years old were eligible for the death penalty. Now that Graham v. Florida has made clear that life without parole for juveniles is indeed different, life without parole sentences imposed for crimes committed when juveniles were fourteen or fifteen years old look particularly suspect.

Colorado's General Assembly has also made a distinction between juvenile offenders who are sixteen or seventeen years old, and those who are fourteen or fifteen years old in the "direct file" statute that governs when juveniles can be charged with crimes as an adult without the permission of a judge. Direct file prosecutions of first degree murder are still permitted in Colorado when offenderrs are fourteen years old, but the legislative recognition of a distinction between fourteen and fifteen year olds on one hand, and sixteen and seventeen year olds on the other, also argues that this is an appropriate factor for the Governor to consider when faced with commutation requests related to offense committed by individuals when they were juveniles.

The Governor, in considering youth in the context of a pardon petition, also has the benefit of being able to look at how a youth incarcerated for life without possibility of parole has behaved while incarcerated. He might deny a pardon to someone who has been a constant disciplinary problem while in prison, while granting a pardon to someone who has had only the most minor infractions while incarcertion and sought to better himself or herself, despite not having any real prospects for eventual release. This can inform his decision making process with information that was not available to a trial judge had a trial judge had the discretion to decide what sentence would be imposed (which, of course, the trial judge did not). Thus, Governor Ritter can act with greater confidence as a result of this greater information, than the typical trial judge at sentencing in cases where lesser criminal sentences are considered.

Considering National and International Norms

National statistics on juvenile life without parole sentencing elicited in connection with the Graham v. Florida case and recited in that opinion and in related legal briefing also make clear that the younger an offender is, the more highly unusual it is for a life without parole sentence to be imposed on a juvenile offender. Life without parole is available for juvenile offenders at all in only a couple of other countries in the world and used very sparingly in those countries.

The case for pardons (really commutations) for the sixteen and seventeen year olds who personally killed people is the weakest, although the fact that those sentences could not be handed down today in Colorado is relevant.

Considering Discretion

As the Governor considers commutations for juveniles facing life without parole sentences in his final days in office, it is also worth recalling how little official discretion was available in these cases.

Once the prosecutor in these cases made the decision to direct file them as first degree murder cases, the judges in these case has no power to second guess that decision and send the cases back to juvenile court because the offender was not an individual suitable to try in juvenile court. Direct file was a controversial innovation made in 1993 in Colorado in response to the "summer of violence" and resulting in a major increase in the number of juveniles charged as adults in Colorado. Under prior law, juveniles could be tried as adults only with judicial permission. In 2008, 179 juveniles were tried as adults for crimes under the direct file law. Under the old direct file law, prosecutors were not presented with any evidence of mitigating circumstances that might make it appropriate to try a youth as a juvenile rather than an adult when the decision was made by the prosecutor. Mostly, the decision to charge juveniles as adults was made as a matter of course in order to improve the bargaining power of prosecutors in plea negotiations with defendants, thus making a conviction for something more likely.

The juries in these cases had no role in setting the sentence. The jury's role was simply to determine if the charge brought had been established beyond a reasonable doubt, something that is particularly easy to do in a felony-murder case, where the prosecution need only prove that the individual was part of a group committing a serious felony in the course of which someone was killed in connection with the crime by someone. There are circumstances in which one can exonerate oneself from felony-murder liablity after commencing participating in the crime, but the standards for doing so are so onerous that in practice they almost never apply.

The judges in these cases also had no role in setting the sentence. Life without parole is the only sentence available and was mandatory at the time these convictions were handed down. Under the case law in place at the time that motions were presented to judges at trial regarding these sentences and when these convictions were reviewed on appeal by appellate judges, there was likewise no legal basis for striking down the sentences on the grounds that they constituted cruel and unusual punishment. If the trial judge and appellate judges agreed that the individual was found guilty in a fair trial, the sentence was a foregone conclusion.

In most of these cases, if not all, prosecutors offered plea bargains that would have produced sentences of less than life without parole, and Colorado's prisons are full of similar individuals who were offerred and accepted lighter sentences. So, to a great extent, these individuals are serving life without parole sentences not because of their crimes per se, but because of bad decisions they made in the criminal justice process - something that juveniles are particularly prone to make and that may be in some of these cases something that was a product of receiving bad advice from their public defenders.

Also, since those people who believe that they are innocent of the charges against them are mostly likely to fight them, the possibility that some of the individuals who went to trial when facing a certain life without parole sentence if convicted, rather than plea bargain for a lesser sentence, are innocent (or more likely, were probably guilty of something other than a crime as serious as the one for which the individual was convicted) is real. Even people who are convicted in trials that do not meet the high bar for reversal on appeal aren't always actually guilty. The evidence from DNA based evidence to prove innocence in rape cases suggests that juries rule correctly about 90% of the time, although there are features of those cases, like mistaken identity by witnesses who have been harmed by a stranger, that aren't as important in a typical felony murder case where an accomplice seeking leniency may testify as to the identity of a defendant, that may reduce wrongful conviction rates in these kinds of cases.

I don't personally know if any of these individuals has made an innocence claim. Governors with pardon power often make a point of not pardoning those who claim innocence rather than admitting guilty and aspiring to reform, except in the most high profile and extraordinary cases where there have been closely divided judicial rulings, and innocent claims rarely prevail in collateral attacks on convictions in the courts when the death penalty is not imposed, so there is an incentive for these individuals not to make those claims.

Governor Ritter, as a former District Attorney, is well aware that these young people ended up serving life without parole sentences, rather than simply long prison sentences with some hope of eventual release for these crimes committed as juveniles, because of rare combinations of particularly aggressive exercises of discretion by prosecuting attorneys and bad gamesmanship by juveniles defendants in the criminal justice process.

Other Cases For Juvenile Clemency

A significant number of people in Colorado's adult prison system right now are serving sentences for crimes other than murder based on convictions under Colorado's old direct file system that was reformed under a law signed in May of this year by Governor Ritter, and the reforms have been a focus of legislative interest. The bill greatly reduced prosecutorial direct file discretion in Colorado for fourteen and fifteen year olds, although it retained it for fourteen and fifteen year old offenders charged with first and second degree murder and sex offenses after a fourteen day waiting period in which mitigating evidence can be presented to prosecutors.

The original version of the bill that ultimately passed with modifications would have converted old direct file convictions of fourteen and fifteen year olds to juvenile convictions, but that provision was stripped from the legislation, again in deferrence to the Governor's separation of powers concerns in support a constitutional vision of the pardon power as the preferred means by which sentences are changed retroactively. But, the Governor has thus far offered absolutely no mercy to any of the individuals convicted of crimes when fourteen or fifteen who faced the adult justice system under a direct file regime, even though they would be unlikely to have been tried as adults under current law (which has only been in effect for a few months so far).

There are something on the order of hundreds of juveniles serving adult sentences for crimes that they committed at age fourteen or fifteen in prisons in Colorado who would very likely be serving juvenile sentences instead under current law.

READ MORE - Still Waiting For Action On Juvie Pardons