SCOTUS Puts Slight Boundaries On Product Liability Jurisdiction

In a product liability suit arising from an allegedly defective European tire design that caused in injury to a North Carolina resident in Paris, (Goodyear v. Brown) and a product liability suit involving an English machine marketed in some U.S. states but not New Jersey where no more than four of the machines, and perhap just one, ended up being sold, and one of those machines allegedly caused the injury, (but in which the manufacturer did hold a U.S. patent) (J. McIntyre v. Nicastro) the U.S. Surpeme Court held that long arm jurisdiction over the manufacturers was not present on a "stream of commerce" theory.

These would be landmark decisions in personal jurisdiction if they spoke with one voice, but they don't. As the lead opinion in the second case explains:

The rules and standards for determining when a State does or does not have jurisdiction over an absent party have been unclear because of decades-old questions left open in Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U. S. 102 (1987).

The first case, unanimously decided, was as much error correcting and precedent changing. Incidental sales of a few products not marketed there in the forum state, when those product that actually caused an injury to the Plaintiff were never present in the forum state, would not generally give rise to personal jurisdiction under a fair reading of existing law. The injuries involve didn't result from a products being carried in the stream of commerce to the place where the harm was caused in the case.

The second case, decided on a 6-3 basis, with two of the majority judges (Breyer and Alito) concurring in judgment, but not reasoning of Justice Kennedy's ruling on behalf of four judges, is a case that was a close one, quite plausibly providing a basis for personal jurisdiction in a U.S. state under a stream of commerce theory (although Breyer and Alito find that it does not under existing precedents because it involves a single isolated sale with no contacts in New Jersey in particular, rather than a regular stream of products), and it may constrain that theory of personal jurisdiction in personal injury cases going forward. The concurrence also argues that what makes since for a large scale manufacturer may not make sense in the case of a small craft manufacturer operating through big business distributors.

Justice Kennedy's opinion, whose rational fails to secure a majority, rejects a theory based on "fairness and foreseeability" under Ashai, and instead reverts to an earlier precedent out of which the stream of commerce standard arose that is still a touchstone for personal jurisdiction cases outside the product liability area, which holds that a court can have long arm jurisdiction over a party when it "“purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U. S. 235, 253 (1958)."

The dissent would have transferred a clear intent to market in the United States to the particular state, New Jersey, where the product happens to wind up.

The practical impact of these particular cases is material for the defendants involved. French and English forums, in addition to being inconvenient for U.S. defendants, do not award signficant damages for non-economic harms like pain and suffering, do not afford a right to trial by jury for Plaintiffs in products liability lawsuits, and arguably have less generous standards for finding liability at all on failure to warn theories.

But, since the first case was well within past precedents, and the major change in the standard for applying its personal jurisdiction precedents in the second one did not secure majority support (while the broadened standard advanced by the dissenters also failed to secure majority suport), the net effect of all of these suits is to leave the legal standard for asserting personal jurisdiction in product liability suits essentially unchanged while reaffirming that not every single product liability suit brought by a U.S. defendant against a foreign manufacturer is within the long arm jurisdiction of state courts.

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Uganda Lets Anti-Gay Bill Die

Uganda is a country in East Africa at between mass violence torn Rwanda, Burundi, Congo, and Sudan that has itself experienced mass political violence (the best known being massacres by Ida Admin in the 1970s) in its recent history. Its purchased ties to Gaddafi have made it a pivotal in efforts to find a resolution of the situation in Libya, and it has plaed in active and mixed role in addressing regional conflicts.

Uganda is also remarkable for being a nation in Africa where the dominant political forces, sometimes violent, are the local brands of evangelical Christianity. This political wave has manifested itself in major social issue overhauls of its statutes, after long periods of legislative stagnation under less than democratic rule.

One recent wave of legislative change that received widespread praise was one of the most dramatic legislative reforms to establish women's equality and give women's rights that force of law in all of history in a given country as the direction of its constitutional court on April 4, 2007.

Another, which secured widespread international condemnation and massive popular support locally, was a virtulently anti-gay bill that has been considered by its parliament for the last eighteen months:

The Anti-Homosexuality Bill sought to impose the death penalty for a number of reasons, including being a “serial offender” of the “offense of homosexuality.” The bill also called for Ugandans to alert the government to known cases of homosexual behavior within 24 hours.

Religious leaders said they had obtained more than two million signatures in support of the measure[.] . . .

Since the bill was introduced, gay-rights advocates have gone into hiding in Uganda; a vitriolic newspaper published the names and addresses of gay men and lesbians and told readers to kill them; and one prominent activist for gay rights, David Kato, was bludgeoned to death with a hammer in his neighborhood outside Kampala.

The bill expired with Uganda's current legislative session on Friday, in a major victory for gay rights defenders and the international community. The far away legislative debate has made its way to American shores because missions of prominent American evangelical churches have been financial backers of the churches and political organizations that have been pivotal in backing the anti-gay legislation in Uganda. Pressure from gay rights activists on these churches, which often aren't known for their anti-gay stances in their U.S. activities, may be one important behind the scenes reason that the legislation has faltered in Uganda.

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Fines As An Alternative To Incarceration

Colorado, like almost all American jurisdictions, makes heavy use of small fines for petty criminal offenses, but includes fines almost as an afterthought, if at all, as the sanction for more serious offenses and has the option to impose many months or years of incarceration as a sentence even in the case of offenses that are usually disposed of only with a fine such as municipal ordinance violations and more serious traffic offenses.

As the Denver Daily News explains:

The fine for using a prostitute would be raised up to $10,000 under a bill that passed out of the Senate yesterday. The minimum fine for prostitution-related offenses would be raised to $5,000. The current fine for prostitution-related offenses can currently be under $100. Additionally, the bill would create “john schools” that first-time offenders could attend to get a deferred judgment. The scared straight-type program would educate first-time offenders on the harrowing effects of prostitution. The bill passed on a 32-2 vote and now goes to the House.

While sentences of incarceration produce big costs for taxpayers, fines raise revenues. Moreover, the maximum sentence of incarceration for an offense is generally much more severe in terms of economic impact than the related fine.

For example, a judge can impose a sentence of eighteen months of imprisonment for a class one misdemeanor, or a fine of $5,000. But, an eighteen month sentence of imprisonment would deprive the person sentenced of eighteen months of income in a state where the median income in a single person household is $52,430 in Colorado in 2010, depriving that median individual of more than $75,000 of income, in addition to considerable lost future income because the incarcerated individual is very likely to be unemployed for a substantial period of time upon release, and economic harm associated with involuntarily breaking their residential or automotive lease or default on their mortgage and car payments, etc. Even for someone earning only a far below median wage and netting out costs of room and board that are provided in jail, eighteen months of incarceration has far more economic impact than a $5,000 fine for a large share of all convicted criminal defendants.

Similarly, a judge can impose a sentence of a year in jail for a class two misdemeanor, but can impose of fine of no more than $1,000, and can impose a sentence of six months in jail for a class three misdemeanor, but can impose a fine of only $750.

The amounts of the fine somewhat understate the situation, because a variety of courts costs and fees apply when an individual is convicted of a crime, and there are also costs for a privately retained criminal defense attorney (if any), and the possibility of a restitution award. But, the general observation holds true and restitution awards are generally far narrower than the compensatory element of a civil tort judgment.

Of course, one of the reasons that we ended up with this kind of statutory framework is that a large share of criminal defendants in the United States are indigent or near indigent (something that can be estimated by the large percentage of criminal defendants who avail themselves of the services of the public defender), and that when imposed together with incarceration, the defendant has little or no means of generating income to pay it. Imposing fines that can never be paid is pointless and makes it harder to reintegrate the defendant into the community after the defendant is released. Indeed, one of the rules of thumb in the law is that legislators and judges and regulators tend to punish offenses committed by defendants without the financial wherewithal to make those they harm whole with incarceration and tend to punish offenses committed by defendants with an ability to pay with civil judgments and fines.

But, not all criminal defendants are indigent. One of the reasons that a large fine for people who purchase the services of prostitutes is attractive to legislators is that this is a class of criminal defendants who often do have the financial means to pay these fines. Many traffic, vice and white collar criminal defendants, generally, have a substantial ability to pay criminal fines. And, some minority of everyday crimes, especially misdemeanors and less serious felonies, are likewise committed by individuals with an ability to pay substantial fines for whom a sentence of incarceration would be an intense economic burden.  Large fines also make the option of prosecuting criminal cases against corporate defendants more attractive.

The predominant punishment in Germany and many Scandinavian countries for what would be serious misdemeanors or minor felonies in the United States is a "day fine" equal to one day's average income in some recent time period for the defendant times the number of days of fines imposed, in lieu of a maximum term of incarceration of the same length. Defaults result in imprisonment for the number of day-fine days of fines not paid. This keeps the defendant in the community, employed, with an incentive to work more to pay off the fine and shed the burden sooner, and without imposing significant administration costs on the public and without disproportionately punishing low income defendants. Part of what makes that system work is the fact t hat these countries don't have the kind of "underclass" of persistently poor people who regularly get caught up in their criminal justice system that we do in the United States. But, there is still surely a class of offenses in the United States for which a day-fine would be a useful criminal justice option.

This isn't to say that I support this Johns bill just passed by the State Senate. The policy case for criminalizing prostitution between consenting adults at all is weak, and many our world peers tolerate some form of legalized prostitution. In my view, taxing and regulating vice is generally preferrable to using the criminal law to prohibit it and trying to enforce that law.

But, while I don't support increasing penalties for adult prostitution, period, the approach of imposing a high fine for an offense in a situation where there is a realistic possibility that criminal defendants will be able to pay it, rather than incarceration, is an option that has much wider applicability.

Similarly, in cases where the existing fines are the predominant form of punishment for a crime and are adequate to the task, for example, for many traffic offenses that carry criminal penalties, ordinance violations, petty offenses and minor misdemeanors, removing the possibility of a sentence of incarceration would be desirable, because it would lower the stakes of proceeding, reduce the possibility of abuses of judicial discretion in sentencing, elminate the constitutional requirement that counsel be provided at public expense in the proceeding, and have little impact on the day to day outcomes of the criminal justice system in these areas. Where an offense is such that arrest power and brief periods of incarceration are helpful in enforcing the law (e.g. public drunkeness or disturbing the peace), a maximum period of incarceration of a few days, as opposed to many months, might be attached to a significant fine.

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Did Unions Create The Middle Class?

Many people . . . believe there would be no middle class in America if unions did not organize a third of the workforce after World War II. That post-war era, the sixties, still represents one of the most prosperous eras in the nation's history. But that lesson has been lost on most people who oppose unions.

From here.

Krugman agrees.

I don't oppose unions. But, I am also deeply skeptical of the claim by union supporters, and of liberal economists like Krugman, that they were as important an ingredient in creating the American middle class as claimed.

The Comparative View

Consider, for example, Japan and Western Europe. Both societies are far more economically egalitarian than the United States. They pay their executives less, and have a far more even distribution of wealth. But, they do it in two radically different ways.

Japan's big businesses are formally unionized, but their unions are company sponsored affairs that are actually forbidden by law in the United States on the grounds that they would be too management controlled. Japan also has a fairly small public sector, a very paternalistic government, a fairly weak public sector welfare state, and role for married women that is anything but equal even though unmarried women have substantial economic equality with their married peers.

Western Europe is heavily unionized (compared to the United States) with unions that are much more vigorous in asserting their rights than American unions, and those nations also uniformly have a much more comprehensive public sector social welfare state than either the United States or Japan. Germany gives workers at public corporations seats on the Board of Directors of their companies. France tolerates the kidnapping of executives in the course of union-management negotiations and gives public sector workers a frequently exercised right to strike. Sweden has very high taxes that finance a public sector welfare state that makes marriage an economically unnecessary part of being a parent.

The United States has a union movement that was almost as powerful as that of Europe through the 1960s, but that has declined in the four decades since then. It has a public sector welfare state, but it is anemic. We work more hours per year than workers in any other country in the world, and have the most unequal distribution of wealth in the developed world, together with low taxes by developed world standards overall, as measured by tax revenues collected relative to GDP. We have arguably the weakest private sector union movement in the developed world, but have a large, but timid public sector union movement.

The Weak Chain of Cause and Effect

The weakening of private sector unions has not had some of the results that you would expect. Workplace safety is profoundly improved from the standards that prevailed four decades ago when unions were much stronger. The workers whose wages have stagnated have been in industries where unions were strong, not in industries where unions have never had much of a foothold, although, in those industries, union workers tend to be paid more than non-union workers. Disgruntled workers in an American workplace are more likely to call a trial lawyer than a union organizer. American workers have less job security than their peers in either Japan or Europe, although in Japan this is mostly due to a private sector understanding of fairness, while in Europe it is mandated by law.

Income inequality in the United States has risen more or less steadily since 1947. Changing rates of unionization have done very little to alter the trend line, which has arguably flattened a little for families in the bottom 95% of the income distribution in the last decade. Earned income inequality is risen in Europe as well, but has been mitigated by their tax codes and social welfare state, rather than fundamental differences in the structure of economic relationships between people within businesses.

Public sector workers in the United States got job security and good benefits first, and unionized second, many decades after the prevailing accommodation on the shape of public sector employment terms, conditions and compensation were well established.

Did Ethnic Diversity Play A Role?

Some people would argue that American tolerance for inequality has roots in a lack of shared ethnic identity found in both Europe and Japan. I can't rule that out. There is circumstantial evidence that heavy immigration in the late twentieth century has frayed the European consensus on the social safety net and management-labor relations.

Then again, the union movement in the United States has historically been strongest in places where massive immigration has been attracted by job creation, not economically stable places, or places with homogeneous populations. The only place in the agriculture sector that there has ever been any meaningful effort at unionization, for example, has been among immigrant farm laborers. To my knowledge, there are not now, and never have been any unionized plantations. Rural America has produced a great many co-operatives but very few unions.

The deepest economic inequalities in the United States are not in the South where there is the greatest ideological and historical tolerance of inequality in the form of slavery and then, in post-slavery racism, and where opposition to unions has historically been strongest. The plutocrats who have captured such an immense share of the national wealth tend to be based in places like San Francisco and New York City where the financial sectors are strongest, despite the high and progressive taxes that they face there and the strongly liberal local politics. The strongly anti-union Deep South is the home not just of pervasive black rural poverty, but of pervasive white rural poverty.

Southern anti-unionism at the grassroots level may be a product of discontent, in the context of Southern efforts to a great extent successful, to create the "New Rust Belt" in the American South, with existing union efforts to keep new manufacturing investment in the "Old Rust Belt" where their members held jobs in manufacturing companies. From their perspective, Northern manufacturing unions most important position was their opposition to relocating jobs to the South where they lived, rather than any deep felt concern about what it was like to work in a union shop, something few Southerners have experienced.

The current hotbed of union busting sentiment, Midwest states like Wisconsin and Ohio, have historically been relatively homogeneous and inclined to have politics that focused on the collective good. Wisconsin was the epicenter of Garrison Keillor's somewhat idealized middle class heartland where petty village quibbles and small town values prevailed over deep ethnic strife. Where Swedish Lutherans and German Lutherans considered their unions to be mixed marriages. Ohio was one of the first states to proudly embrace a land grant funded system of public education.

Working Class v. Middle Class

Another part of the conundrum of identifying the union movement with the middle class, is that until the relatively recent rise of public sector unionization, unions have been largely the province of the blue collar working class (aka lower middle class). The history of the American union movement is full a smudge faced miners, rank and file factory workers, postal workers trudging through rain, sleet and snow, firemen stinking of smoke, truck drivers and skilled tradesmen.

Today's union movement is more middle class than it used to be because the working class jobs that used to be its core constituency are gone or no longer unionized, while the relatively few middle class unionized jobs have survived and grown relatively more important to the movement as a whole.

The minimum wage and hour laws that unions worked to enact were all but irrelevant to middle class workers who were paid salaries and often exempted from their application. The workplace safety protections and worker's compensation regimes that unions pushed to enact didn't mean much to people who sat behind desks and cash registers all day. The fact that employers started to offer health insurance was as much a product of World War II era wage controls as it was a product of a healthy union movement and benefited non-union workers in factory offices as much as it did union workers on the factory floor.

The entire social class that was at the heart of the union movement has contracted, and the middle class that it now claims used to identify itself with management. Bank tellers have a great deal in common with factory floor workers. They aren't paid much. They are micromanaged. They are rank and file employees of large enterprises that thrive on coordinated mass production. But, factory workers who identified as working class unionized, while bank tellers who identified as middle class, didn't.

A college education and a union card used to be considered contradictions in terms; alternative directions in life. Union leadership is how smart young working class men who couldn't dream of securing a college education or the management jobs that came with it found a way to exercise power in the large institutions where they worked, just as they did as non-commissioned officers did in the military. Yet, a college education is now often considered the defining element of the middle class.

How did access to the college educations that were the thresholds to membership in the middle class open? Mostly through the GI Bill, and after that through the shift of selective institutions of higher education to merit based admissions in the 1960s and the parallel expansion of of state institutions of higher education to accommodate the needs of former soldiers entitled to it as a result of the GI Bill. The political resistance of the civil service that was created to meet this need to being downsized (at a time when higher education employees largely weren't unionized) and student radicalism, rather than labor union efforts, does more to explain why the gates to higher education remained open.

Conclusion

Does all of this mean that unions can't play an important role in strengthening the American middle class? No. They are eager to step up to the challenge and remake themselves as a movement, and it is a task worth taking on.

But, as a matter of history, it is not at all clear that unions played an important part in creating the middle class, which was instead apparently driven by the widening availability of higher education. Instead, unions actually worked hard to secure justice for the American working class and seemed to be making good headway in doing so until sometime around 1970, when that social class in American life entered a period of seemingly permanent economic stagnation.

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Wealth Inequality

Most scholars agree that wealth inequality in the United States is at historic highs, with some estimates suggesting that the top 1% of Americans hold nearly 50% of the wealth, topping even the levels seen just before the Great Depression in the 1920’s. . . . in the United States, the top wealth quintile owns 84% of the total wealth, the second highest 11%, [the third quintile 4%, the fourth quintile 0.2% and the last quintile 0.1%].

From here (Hat Tip Colorado Pols).

In Sweden, the quintiles share of national wealth are respectively 36%, 21%, 18%, 15% and 11%, a distribution preferred by 92% of Americans surveyed and even 89% of Americans with incomes in excess of $100,000 per year. This result, of course, in not terribly surprising, as the Swedish wealth distribution means more wealth for everyone in the bottom four quintiles and only slightly less wealth (collectively) for those in the top quintile who were are not in the top 1%. Indeed, the Swedish wealth distribution would probably be an improvement for everyone in the bottom 95% of the wealth distribution, and would be a deep reduction in wealth mostly for those in the top 2% of the wealth distribution.

Most Americans believe that wealth is distributed much more equally than it actually is and also believe that wealth should be distributed more equally than that, although perfect wealth equality is unpopular.

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Really Big Love and Bunhill Fields

Ziona Chana, a 66-year-old man in India's remote northeast who has 39 wives, 94 children and 33 grandchildren -- and wouldn't mind having more. They all live in a four storied building with 100 rooms in a mountainous village in Mizoram state, sharing borders with Myanmar and Bangladesh, media reports said. "I once married 10 women in one year," he was quoted as saying.

His wives share a dormitory near Ziona's private bedroom and locals said he likes to have seven or eight of them by his side at all times. The sons and their wives, and all their children, live in different rooms in the same building, but share a common kitchen.

The wives take turns cooking, while his daughters clean the house and do washing. The men do outdoor jobs like farming and taking care of livestock. . . . They are supported by their own resources and occasional donations from followers.

From here.

The man leads a Christian polygamous sect (called "Chana Pawl" after the patriarch's late father) founded in 1942 with about four hundred families as members in a single village, "this industrious group manufactures wooden furniture and aluminium utensils."

A brief historical account of the Chana puts it in the context of the "fact that it took barely 50 years for the entire Mizo community to embrace Christianity, then a totally alien religion, [which] has been attributed to the revival movements. . . . The first European missionaries arrived at Aizawl (then Aijal) in 1894, and 12 years later, revival movements effecting mass conversions started. Wave upon wave of revival swept the land until the entire Mizo community abandoned its old religion, animism, for the new religion, Christianity before the end of World War II." Mizoram State is about 95% Christian (Wikipedia puts the figure at 90.5% based on a 2001 census), and the vast majority are adherents of more traditional forms of the Christian faith, predominantly as part of Presybeterian denominations. It was granted statehood in 1986, twenty years after an armed insurgency movement began there. Another sect that arose in the same period consists of people who moved to the jungle and stopped wearing clothes. The revival movement also gave rise to a Jewish sect known as "Bnei Manashe" which has now mostly migrated to Israel.

Islam limits a man to four wives and has canons of interpretation that discourage the practice on the grounds that the fairness to all wives demanded by Islamic law is difficult to manage, although serial polygamy can circumvent this limit to some extent. The limit in Islam was a reform from prior law that permitted more spouses.

The Hebrew Bible, in contrast, has numerous examples of polygamy, some of which involve political leaders with more than four wives, and neither the Christian Old Testament nor the Christian New Testament expressly prohibit polygamy (Reformation figure Martin Luther once wrote a letter privately acknowledging this in a case involving a minor European aristocrat, which his solus scriptura stance caused him to acknowledge was permitted).

Of course, Christian tradition from early on, in part due to the preachings of early church fathers such as Saint Augustine, Basil of Caesarea, Justin Martyr, Irenaeus and Tertullian, has generally strongly disfavored polygamy in practice (with notable exceptions such as the early Mormons and some European Anabaptists). And, while polygamy has been banned by the main denomination of the Church of Latter Day Saints for more than a century and by Utah State law (as a condition imposed for it to receive statehood status), it has been quietly tolerated in communities like Hinsdale that are an open secret, and quietly practiced on a smaller scale in suburban Utah with only rare interruptions (usually for offenses other than polygamy itself) more of less continuously since it was legally banned.

I suspect, but do not know, that this arrangement in India is made possible legally by the facet of private law in India that assigns certain domains of the law, such as marriage, divorce and inheritance in same religion couples to religious authorities rather than secular legislatures and courts (a secular legal regime applies to mixed faith families):

Indian family law is complex, with each religion having its own specific laws which they adhere to. In most states, registering of marriages and divorces is not compulsory. There are separate laws governing Hindus, Muslims, Christians, Sikhs and followers of other religions. The exception to this rule is in the state of Goa, where a Portuguese uniform civil code is in place, in which all religions have a common law regarding marriages, divorces and adoption.

The practice in India actually has roots in the laws of its British colonial rulers, and is rooted in the same freedom of religion concepts that developed into the First Amendment in the United States in a somewhat different manner at around the same time. "This system of distinct laws for each religion began during the British Raj when Warren Hastings in 1772 created provisions prescribing Hindu law for Hindus and Islamic law for Muslims, for litigation relating to personal matters." This was a natural concept for him because at that point in English history, marriage, divorce and inheritance of personal property (although not real estate) were governed by the clergy under canon law, rather than common law courts:

In the Church of England, the ecclesiastical courts that formerly decided many matters such as disputes relating to marriage, divorce, wills, and defamation, still have jurisdiction of certain church-related matters (e.g., discipline of clergy, alteration of church property, and issues related to churchyards).

Their separate status dates back to the 12th century when the Normans split them off from the mixed secular/religious county and local courts used by the Saxons. In contrast to the other courts of England the law used in ecclesiastical matters is at least partially a civil law system, not common law, although heavily governed by parliamentary statutes.

Since the Reformation, ecclesiastical courts in England have been royal courts. . . . practitioners in the ecclesiastical courts were trained in civil law, receiving a Doctor of Civil Law (D.C.L.) degree from Oxford, or an LL.D. from Cambridge. Such lawyers (called "doctors" and "civilians") were centred at "Doctors Commons", a few streets south of St Paul's Cathedral in London, where they monopolized probate, matrimonial, and admiralty cases until their jurisdiction was removed to the common law courts in the mid-19th century. (Admiralty law was also based on civil law instead of common law, thus was handled by the civilians too.)

At the time Hastings made his decree, for example, cemetaries were also segregated by faith under applicable English law, with dissenting religions tolerated, but restricted to cemetaries such as the famous Bunhill Fields that was active at the time (and was elevated to the highest level of historical preservation in England on a par with sites like Number 10 Downing Street, this week as a legacy of the path taken by the British towards religious toleration) despite the fact that it had and continues to have an established chruch, the Anglican Church (prior to the Reformation, the Roman Catholic Church). Notable residents of Bunhill Fields, who would have been subject to persecution and punishment similar to that of political prisoners in authoritarian regimes today in most countries outside England included:

•William Blake (1757-1827), poet, and his wife Catherine (1762-1831)
•John Owen (1616-83), Congregational minister
•Susanna Wesley (1669-1742), mother of John and Charles Wesley
•Daniel Defoe (1661-1731), author of Robinson Crusoe
•John Bunyan (1628-1688), author of The Pilgrim's Progress - his elaborate tomb includes an effigy of Bunyan and bas-reliefs of scenes from his great allegory
•Isaac Watts (1674-1748), hymnwriter
•George Fox (1624-1691), founder of the Society of Friends (Quakers) - in the Quaker Gardens, next to the Bunhill Fields Meeting House

Of course, if you weren't a King, the scope of matrimonial law at the time was pretty meager. For the most part, it consisted of granting women "separation from bed and board" in particularly dire cases (legal separations still exist today, I've litigated them, but are now chosen by parties due primarily to religious beliefs rather than because divorce in unavailable as an option for lack of proof of fault). Divorces were about as common as death row pardons are today, they happened, but were highly exceptional. Unlike the inheritance laws for real estate, in which the most senior male heir received everything in order to prevent the fragmentation of the estate, personal property inheritance in canon law was similar to that under modern inheritance laws that divided it amongst all of a person's closest living descendants.

READ MORE - Really Big Love and Bunhill Fields

Sexual Freedom v. Freedom From Exploitation

Anyone who reads this blog with any regularity knows that I have strong opinions on a great many issues. But, now and then, a case comes along that is so hard to evaluate, that it is very hard to see a right answer. The case of the 41 year old British man with an IQ of 48 who was in a same sex relationship and banned from having sex is one such case. It presents hard issues that are worth grappling with in a situation that is unfamiliar to most of us.

The Facts

The facts, insofar as we know them are as follows:

The 41 year-old [man] had been in a relationship with a man with whom he lived and told officials "it would make me feel happy" for it to continue.

But his local council, which provides his accommodation, decided his "vigorous sex drive" was inappropriate and that with an IQ of 48 and a "moderate" learning disability, he did not understand what he was doing. . . . the man known as Alan was described as being physically able but "seriously challenged in all aspects of his mental functionality". He lived in a home provided by the council, where he developed a sexual relationship with a man called Kieron by the court. Alan was also accused of making lewd gestures at children in a dentists' surgery and on a bus, although no police action was taken.

An IQ of 48 is a level of intellectual functioning lower than 99.8% of the general population, and is commonly described as "moderate mental retardation" per the DSM-IV. It is roughly equivalent to having the mental abilities of an eight year old child.

The Law

The law in Britain gives the state broad powers in such a case: "Under the Mental Capacity Act 2005, [judges on Britain's Court of Protection] have the power to make life-or-death decisions for people deemed to lack the intelligence to make them for themselves - such as ordering that they undergo surgery, have forced abortions, have life-support switched off or be forced to use contraception."

In Colorado, and most U.S. states, an individual in this situation would probably have a legal guardian appointed for him under the supervision of a general jurisdiction or probate court or some other court with comparable equity jurisdiction (a type of jurisdiction named after the British courts that once, but no longer, have jurisdiction over these kinds of cases). In Colorado, a guardian's authority can vary from case to case as set forth in a judge's order, although at common law a guardian of an adult had rights comparable to the rights of a natural parent's rights when that parent's child is in the parent's custody.

In other words, while the issue would present itself somewhat differently, a U.S. court could probably grant a guardian of an adult with an IQ of 48 the right to decisions similar to the ones made by the Court in this British case.

Procedural History

The town hall began court proceedings in 2009 to restrict contact with Kieron on the grounds that he lacked mental capacity, and an interim order was made. . . . A psychiatrist involved in the case tried to prevent the man being given sex education, on the grounds that it would leave him "confused".

Mr Justice Mostyn said the case was "legally, intellectually and morally" complex as sex is "one of the most basic human functions" and the court must "tread especially carefully" when the state tries to curtail it.

But he agreed that the man, known only as Alan, should not be allowed to have intercourse with anyone on the grounds that he did not have the mental capacity to understand the health risks associated with his actions.

Under the judge's order, the man is now subject to "close supervision" by the local authority to ensure he does not break the highly unusual order. The judge concluded: "Alan does not have the capacity to consent to and engage in sexual relations.

"In such circumstances it is agreed that the present regime for Alan's supervision and for the prevention of future sexual activity is in his best interests."

"Since then Alan has been subjected to close supervision to prevent any further sexual activity on his part," said the judge.

Analysis

There are good reasons to be skeptical of this kind of court order. The eugenics movement sponsored movement in the 20th century to sterilize the mentally retarded is generally seen as a class historical instance of government exploitation of vulnerable individuals. There is also a history of government abusing its authority to punish gays in the name of mental hygiene. Some high profile cases in Britain involving prominent intellectuals are particularly notorious.

On the other hand, the exploitation, sexual and otherwise, of people who don't have the capacity to consent intelligently to what people ask of them is also a long standing problem. A central theme of Steig Larsson's Millennium Series (which starts with "The Girl With The Dragon Tattoo") is that vulnerable people, such as wards with guardians appointed for them and illegal immigrant women are subject to a horrible injustice when they are sexually exploited. Sexual exploitation is sufficiently common in this situations that in the popular imagination, at least, at is seen as almost the unpleasant norm in prisons, foster care situations, and households where an impoverished single mother lives with a boyfriend unrelated to her children.

We have statutory rape laws that declare that children under a certain age are incapable of consenting to sex and that someone who does so has committed the crime of rape. While those laws can be controversial when applied to high schoolers who are past puberty and routine have sex with each other, there is a wide consensus that they are appropriate when applied to pre-pubescent children. Likewise, while there is intense controversy over the harsh sentences imposed for people who merely view child pornography, and over the near criminalization of innocent child nudity, there is widespread consensus that it is a serious crime to use pre-pubescent children to create pornography or to pimp out pre-pubescent child prostitutes, and that there is a genuine government interest in destroying the economic market that drives its creation.

Certainly, there would be a very wide consensus that is would be a serious crime for an adult to have sex with an eight year old, regardless of the sex of the parties involved.

But, there are many important ways that a 41 year old is different from an 8 year old, even if they have similar mental capacities. Adults routinely have sex for pleasure. Many adults men are gay or bisexual. Eight year olds have genuine opinions and feelings and are capable of engaging in surprisingly sophisticated relationship, of understanding differences between right and wrong to a considerable extent, and consenting to a variety of agreements. Most parents allow their eight year olds to make many choices about their clothes and room decor and food to eat when eating out, to largely choose their own friends at school, and to spend small amounts of money as they see fit. Eight year olds can play baseball and board games, can hug each other and family members in genuine expressions of love, and make many other decisions for themselves.

Even though statutory rape is often theorized as an incapacity to consent, there is really more to it. Pre-pubescent children aren't just intellectually incapable of consent, they are hormonally and physically not yet at a stage of development where their bodies are ready for sex.

Statutory rape laws for adolescents, which were almost universally adopted initially with the understanding that they would pertain to adolescent or adult men seeking to have sex with teenage girls, were also rooted in the concern that teenage girls due to their youth and adolescent impulsivity are especially vulnerable to making impulsive bad decisions that have the potential to carry with them the serious long term consequences of pregnancy, parenthood and quite possibly either a shotgun marriage for life or a lifetime in which one is unmarriagable and destitute as a result.

A different way to view statutory rape laws, that is gaining increasing credence, is to view statutory rape not as an incapacity to consent in the same class as a stranger drugging you and then having sex with you, but as a distinct subset of cases where someone in a position of trust (by virtue of being an adult in states where there is a Romeo and Juliet exception) abuses that position of trust. In this view, statutory rape is less like a date rape drug case and more like a sexual harassment of a subordinate employee case. The gravamen of the wrong is abuse of power within a relationship by someone whom we presume under the law should know better than to do so.

There is also a widespread view that sexual relationships carried on by someone who isn't ready for them or capable of "truly understanding" what sex involves (do any of us ever really reach that blissful state) will inflict intense psychological trauma that will destroy a person's entire well being, also making it far more serious than other kinds of things to which one might consent.

If a 41 year old man who is physically ready for sex, and perfectly well could be homosexual or bisexual, is voluntarily (to the extent that his eight year old intellectual capacity permits) having sex with another man and enjoying the experience, who is to say that it really is wrong?

This man doesn't appear to be suffering from psychological trauma. He doesn't have to worry about having children or being rendered unmarriagable or forced into a marriage that can't be legally terminated. His body, and no doubt his hormones, are ready for sex and have been for decades. Finding someone who is ready and willing to satisfy his sexual drive probably isn't very easy for a 41 year old with an IQ of 48 who lives on welfare in public housing. It is certainly plausible that Alan is gay or bisexual (indeed, by some definitions his acts and words are sufficient to say that this is true as a matter of definition), that the relationship between Alan and Kieron is as sincere, voluntary, loving and non-exploitative as the sexual relationship between any two single adults, and that the town's intervention is simply a case of an inability to genuinely come to terms with the idea that two men can have legitimate, loving sexual relationships. There are certainly strong hints in this case that this is what is happening in this situation.

On the other hand, it certainly wouldn't be implausible that Kieron is an evil hearted, exploitative manipulator who has managed to get Alan to say things that hide Alan's inner feelings of pain and being used and compelled into something that makes him uncomfortable that Alan isn't capable of articulating to legal system officials in that kind of atmosphere and that Alan has no sexual attraction to Kieron, but has trouble distinguishing between sexual attraction and the kind of platonic physical contact that is normal between eight year old boys.

While Kieron's motives aren't the center of the court's inquiry, which is really about what is best of Alan, it is certainly possible to see Alan as being in a position a bit like someone who is acting happy because he has been tricked into thinking that he has formed a relationship that was really just a scheme to make him the butt of a cruel joke and doesn't know it yet, but is sure to be furiously angry and miserably sad when he realizes it.

By analogy, contrary to common belief, a large share of bona fide childhood sexual abuse victims have trouble remembering the incidents because they weren't as aware of the special meaning that our culture attaches to sexual contacts at the time, and feel the bulk of the psychological trauma that they experience not when the sexual abuse actually takes place, but when they get old enough to gain an understanding of that special meaning and finally realize that an adult whom they trusted exploited them all those years ago. A reasonable person could fear that Alan is at grave risk of experiencing a similar kind of traumatic realization and suffering dearly at a psychological level when and if that happens.

If one thinks that absence of capacity to consent is really all that matters in a case like this one, Kieron's motives are irrelevant and people with the intellectual capacity of eight year olds are morally equivalent to actual eight year olds and shouldn't be subjected to sexual activity. But, if the important question is really abuse of a position of trust that Kieron holds as the intellectually normal close friend of mentally retarded Alan, then Kieron's motives and what is going on in the interactions between Kieron and Alan matter a great deal to the merits of whether a court should or should not prevent Alan from having sex with Kieron.

On balance, I'm skeptical of the British judge and town government's decisions in this case. It bears the stink of a lot of unreasonable prejudices. But, I also recognize that this decision is a highly fact specific inquiry for which ordinary social intuition provides few exact precedents, and that decision makers further removed from the facts are at a decided disadvantage. It is hard to say with any great degree of certainty from the little that we know that the judge's decision was clearly wrong in this unfamiliar territory.

READ MORE - Sexual Freedom v. Freedom From Exploitation

Condos v. Co-ops

A condominium unit is a separate piece of property that can generally be bought or sold without association approval, with its own property tax bill, its own mortgage, and so on, with some common maintenance and covenant enforcement vested in a home owner's association in most cases.

A co-operative, mostly found in New York was a pre-condominium way for people to live in units of multi-family buildings while having an ownership interest. But, in the most pertinent difference from a condominium they don't, or at least, historically didn't, have separate mortgages for each unit. The whole building had a common mortgage, so the co-operative had an intense interest in screening would be members for long term creditworthiness and general personal reputation, which is an insidious affair, especially when conducted by your neighbors. Also, once granted control over whom one's neighbors are, there is a natural tendency of co-operatives to regulate who can buy into a co-op, not simply to insure creditworthiness, but also to manipulate the prestige of the co-op and with it, the value of the properties in it. It is a club in which membership is more valuable when it is more strictly limited.

A recent discrimination lawsuit at one of the most high end co-ops in New York City, the Dakota, illustrates just how much of a mess this approach, which invites wide ranging meddling into the character and personalities of one's neighbors, can produce, although the New York Times article does a poor job of explaining how the differences in history and legal organization of co-operatives from condominiums is pivotal in creating the kind of situation described.

One irony is that in this and in a wide array of private law areas, New York's very late adoption of "no fault divorce" being another, the center of lassiez-faire capitalism and private enterprise is among the most backward and byzantine in the United States.

READ MORE - Condos v. Co-ops

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

Ivory Coast Type Election Issues In Cincinnati

Hamilton County, Ohio, whose principal city is Cincinnati, is faced with an election law issue pertaining to an open, elected partisan juvenile court judgeship election dispute upon which the Ohio Supreme Court and Ohio Secretary of State have ruled one way (don't count the ballots), but a federal district court judge, Chief Judge Susan J. Dlott of the U.S. District Court for the Southern District of Ohio has reached a contrary result.

What is the Board of Elections member (the Board itself is split two to two and does not agree) to do? The officials in question now face a contempt of court hearing today, which puts the officials at risk of personally going to jail or being fined, for failing to honor a federal court order that is contrary to a state court order.

Generally, elections are matters of state law. But, if a federal constitutional right or federal statute is implicated, federal law supersedes state law. And, while the 11th Amendment prevents state governments from having to deal with cases in federal trial courts, state and local government officials in suits not seeking money damages and arising under federal law, and suits against governmental entities distinct from state governments are not subject to that limitations. Doctrines that one learns when studying the federal courts generally provide that a final ruling of either a federal court or state court is binding on the parties who may not then forum shop for another judge with a more favorable outlook on the case. In particular, a federal trial court may not generally sit as an appellate body with regard to a state court ruling in a civil matter. But, since the law in this federal v. state jurisdiction area is so complex, even in cases arising out of purely state office elections (which are far simpler than cases arising out of federal elections, like Bush v. Gore, where a host of special constitutional rules apply), judicial rulings are sometimes hard to predict in this cases and judges come to different conclusions in the face of hot partisan conflict that often sees judges and elections officials lining up along the lines that their political histories would suggest, despite their duties to enforce the laws impartially.

Republican John Williams leads Democrat Tracie Hunter by 23 votes in the official count, but the parties disagree on how to handle 849 provisional ballots that were not counted.

The ballots were set aside on Election Day because poll workers believed they were cast at the wrong precinct.

Dlott, however, has said 149 of those ballots were cast at the wrong precinct because of poll worker error and should be counted. Many may have been cast at the wrong table even though voters cast their ballot in the right building.

The [federal] judge said failing to count ballots that were disregarded through no fault of the voter would violate the 14th Amendment’s requirement that all citizens receive equal protection under the law.

Partisan, Personal and Federalism Issues Involved

There is a partisan dimension to this struggle as there is in most election law cases.

The Board of Elections is split two posts for Republicans, two for Democrats, split evenly by design.

The Ohio Secretary of State is an elected Republican and favors the Ohio Supreme Court position that lets the Republican judge win. Six of the seven officially non-partisan elected justices on the Ohio Supreme Court were nominated by the Republican party and known to have Republican affinities.

The Democrats on the Board, however, would like a recount, as the federal judge, who was appointed by President Clinton, a Democrat, in 1995 when Democrat John Glenn and Republican Mike DeWine were U.S. Senators from Ohio, has ordered. Dayton native Dlott is married to Stanley M. Chesley (a trial lawyer more familiar to me than almost any lawyer in Denver by name, despite the fact that I haven't lived in the area for a copule of decades), lives in the most expensive single-family home ever listed in Greater Cincinnati, shows dogs, and has won praise for her racial sensitivity and even handed management and resolution of complex cases.

The Secretary of State is (by design) normally a partisan tie breaker for county boards of election, in this case on the issue of whether the federal court ruling should be appealed to the 6th Circuit Court of Appeals. If the 6th Circuit overules the trial judge, the conflict between the courts no longer exists, but, should the United States Court of Appeal for the 6th Circuit (which is neither particular conservative nor particularly liberal as federal appellate courts go in the United States at the moment) affirm the trial court's ruling (in which she is entitled to considerable deferrence in a number of respects), its authority vis-a-vis the Ohio Supreme Court's ruling is just as ambiguous as the trial court's ruling. Only the U.S. Supreme Court has clear jurisdiction over both the state and the federal judges in this case.

The case also pits concerns about federal involvement in state and local government operations against concerns about fairness in elections in a system controlled by political allies of the aggrieved candidate. Stereotypically (for modern times), it is the Republicans who are pressing a state's rights argument in this case, and the Democrats who are pressing for federal involvement in the interest of civil rights.

There is also a perceived racial element to the contest. Hamilton County is 70% white and 25% African-American, with the African-American population predominantly in Cincinnati, the central city, ahd the white population disproportionately in suburban Hamilton County. Democrat Tracie Hunter, a former public defender and guardian ad litem, who is also a pastor and radio personality is an African-American woman, while Republican John Williams, a former prosecutor campaigning with a tough on crime agenda in a court where most of the defendants are African-American juveniles and African-American parents, is a white man whose website prominently displays white Hamilton county suburbanites in the background, in a county just on the border between Northern leaning Ohio and Southern leaning border state Kentucky.

To be perfectly honest, if I had been forced to vote in that election, I wouldn't have been terribly happy with either of my choices. Both candidates are partisans seeking a post that demands neutrality and evenhandedness.

Voters were very evenly split in the race, and usually, in this kind of situation, where a significant number of provisional ballots are at issue, a recount will favor a Democrat. It wouldn't be surprising for an apparently heavy handed or partial ruling to lead to a riot in Cincinnati.

The Stakes

This all sounds like a very technical issue of civil procedure and election law, with valid legal considerations on both sides of the case.

The outcome of this case won't directly affect anyone who doesn't do have a connection to Hamilton County Juvenile Court, a county where 99.7% of the population of the United States doesn't live, and with which 95%+ of the population of Hamilton County will never have any business. It has one other judge in addition to the position at stake in this election, and the Juvenile Court's rulings are very important to those who are before the court, and who in making child custody decisions and juvenile delinquency sentencing decisions has immense discretion.

Life will go on with either resolution of the matter, so long as it is resolved, and there is really no room for compromise. Neither candidate has shown any basis for a do over of the election, only one can be elected for a long term to the only judgeship on the court, and the judicial ideologies and the personal experiences that the candidates bring to the court are very different. Either way, unhappen litigants can try to appeal rulings without a proper legal basis.

Cote D'Ivoire Compared

But, while this particular case in Ohio won't change the world, an extremely similar legal issue in Cote D'Ivoire's 2010 Presidential election, in West Africa, in a country only a little larger in size and area than Ohio (it has 20.6 million people up by a third in the last decade alone, while Ohio has about 11.5 million although probably a similar number of adults of voting age; it has 124,502 square miles, while Ohio has 44,825 square miles; both have strong regional and ethnic partisan divides), in which a Board of Elections and independent election observers came to one conclusion on the outcome of a contested election dispute arising out of vote counting concerns (in favor of the contesting candidate Alassane Ouattara), while the Constitutional Court of the country came to a contrary determination (in favor of the incumbent President Laurent Gbagbo).

The election dispute in Cote D'Ivoire has brought that country to the brink of civil war, despite the absence of a complicated mix of federal courts. Scores or hundreds of people have died already in the several week old dispute. The international community has sided with the challenger (in part on the merits, and in part because the incumbent has manipulated the electoral process in undemocratic ways that were to be put behind the country in free and fair elections in 2010), while the incumbent appears to have practical control of most instruments of state power in the country.

UPDATE: The 6th Circuit has entered a stay in the case. All the original source documents you could ever want can be found here.

READ MORE - Ivory Coast Type Election Issues In Cincinnati

Does Recidivist Sentencing Work?

Making the length of a prison sentence conditional on an individual’s offense history is shown to be a powerful way of preventing crime. Under a law adopted in the Netherlands in 2001, prolific offenders could be sentenced to a prison term that was some ten times longer than usual. We exploit quasi-experimental variation in the moment of introduction and the frequency of application across 12 urban areas to identify the effect. We find the sentence enhancements to have dramatically reduced theft rates. The size of the crime-reducing effect is found to be subject to sharply diminishing returns.

From the abstract to Preventing Crime Through Selective Incapacitation by Ben Vollaard.

Some highlights:

[J]udges almost exclusively sentenced drug-using, older individuals under the law for whom there was thought to be no hope of preventing high-rate offending by any other means than incapacitation. Most of the convicted offenders were not able to maintain a normal life style. They were out of work and did not have stable housing. They committed theft for a living, collecting a daily income of some 50 to 100 euro ($70-130) to be able to maintain their habit, which implies stealing property valuing some 300 to 600 euro ($400-800) on a daily basis. By 2001, many of these highly prolific offenders were aged 40 or over: they had fallen victim of the heroin epidemic that swept Europe back in the 1980s. The offenders spent some three to four months in prison each year in absence of the new law, and some had as many as 300 offenses on their criminal record. On average, offenders had been convicted 31 times prior to being sentenced under the habitual offender law. The enhanced prison sentence was not only meant to reduce crime through incapacitation but to provide a window for coercive treatment as well. Incarceration was often combined with drug treatment and other rehabilitative services, such as social skills training. Evaluations of the law suggest the treatment programs had little effect on recidivism. . . .

The offense data show that 85 percent of all offenses known to the police were committed within the urban area an offender has been assigned to. The other 15 percent of offenses were mostly committed in smaller communities directly bordering the urban area. . . .

[T]he rate of theft is some 30 to 40 percent lower as a result of selective incapacitation of prolific offenders. The size of the drop in crime corresponds with the results of some back-of-the-envelope calculations. If 1,200 offenders are responsible for 70 percent of crime, as we argued above, then the close to 700 offenders serving time under the law by mid-2007 are responsible for 40 percent of crime. . . . The crime-reducing effect of the law is smaller than this percentage share, however, since some of the offenders would have been doing time also in absence of the law. Assuming 8 additional months of incarceration per year as a result of the law, the drop in crime can be put at some 30 percent, which is close to what we find. . . . under the assumption that the affected offenders spend 8 additional months in prison per year, the law prevents some 80 thefts from car and 9 domestic burglaries annually per long term incapacitated offender. That implies that the costs per crime prevented are equal to some 600 euros. In other words, if the social costs of a domestic burglary and a theft from car are higher than 600 euros, then the policy is welfare improving. Estimates of the costs of crime are surrounded by controversy. Ex post approaches estimate the cost of crime that has already occurred to identifiable victims. Based on jury awards, Roman (2009) estimates the average costs of a burglary to be $4,444 (3,300 euro). Accounting for all of the costs that are known to be related to crime, including damage and the costs of use of the criminal justice system, the Home Office produces a somewhat higher estimate of the costs of a burglary of 4,600 euro ($6,000) per incident. A separate estimate for the cost of a theft from car is only available from the Home Office study, which puts it at 1,200 euro ($1,600) per incident. . . .

A habitual offender law adopted in the Netherlands in 2001 allowed for a two to three year prison sentence for offenders with ten or more offenses on their criminal record. Although the group of offenders sentenced under the law accounted for only 5 percent of the prison population six years after its introduction, the sentencing policy lowered the rate of burglary and theft from car by an estimated 40 percent through the incapacitation effect alone. The estimated impact of the law is large, but in line with self-reported crime. In addition, police counts of active prolific offenders are found to go down proportionally with the number of prolific offenders serving extra time in prison as a result of the law. . . .

Even for this highly selective sentencing policy that only affected 1,400 offenders in the period 2001-2007 we find evidence for rapidly decreasing returns to scale. The marginal crime-reducing effect of incapacitating another prolific offender declines by more than half from the lowest to the highest rate of application of the law. The benefit-cost ratio drops sharply when more offenders are serving time under the habitual offender law. The social returns to selective incarceration remain positive over the whole range of application of the policy, however. . . .

The incapacitation effect may be particularly large in the case of the Netherlands as the habitual offender law primarily affected offenders that were addicted to drugs, heroin in particular. These offenders tend to have an age-crime curve that is flatter than that of other groups of offenders – even other prolific offenders. Possible negative effects of longer prison sentences on the life of offenders such as disruption of employment, relationships and housing were limited as most of the affected offenders were out of work and did not have stable housing.

The Dutch policy of selective incapacitation started from a low base. The rate of incarceration in the Netherlands around 2001 was similar to the rate in the beginning of the 1970s in the US, for instance. Enhancing prison sentences of a few weeks or months to three years is likely to have a greater payoff in terms of preventing crime than enhancing prison sentences that are already many years long. To compare: an enhanced prison sentence for burglary of 2 to 3 years based on the Dutch habitual offender law is comparable to the default sentence for burglary in the United States. Our finding that the habitual offender law adopted in the Netherlands had a large incapacitation effect should therefore not be interpreted as evidence that all policies of selective incapacitation are likely to have a similarly favorable cost-benefit ratio. Given the rapidly diminishing returns to incarceration, the high costs of the enhanced prison sentences may soon exceed the benefits of crime prevented.

The delicacy with which the Dutch approach a very modest habitual offender law that applies only to those with ten previous offenses (although many of those would be misdemeanors under U.S. law and generally not within habitual offender provisions except under laws that allow aggravation of multiple theft amounts into a single felony theft prosecution), is itself fascinating. Habitual non-violent felony property crime defendants in Colorado and most U.S. states receive sentences many times as long.

Also, the fact that someone in the Dutch public policy process is even seriously trying to quantify the cost-benefit ratio of incarcerating habitual thieves for long periods of time, and considering even the economic impact of the sentence on the thieves themselves, is itself interesting. So too is the fact that somebody in the Dutch criminal justice policy making world finds bicycle thefts, larcenies from cars, and non-violent burglaries of unoccupied dwellings worth of interest at all. By comparison, most American criminal justice policymakers are so interested in reducing violent crime that any other objective is virtually irrelevant.

Felony Sentencing In The United States

A link to the latest data on felony sentencing in the United State can be found here (almost no state or national level statistics are kept on misdemeanor sentencing apart from overall jail incarceration rates, records of court cases commenced, and sometimes a distinction between the share of those in jail who are awaiting trial and those who are actually convicted). This year's highlights:

* In 2006 an estimated 69% of all persons convicted of a felony in state courts were sentenced to a period of confinement--41% to state prison and 28% to local jails.
* State prison sentences averaged 4 years and 11 months in 2006.
* Men (83%) accounted for a larger percentage of persons convicted of a felony, compared to their percentage (49%) of the adult population.
* Most (94%) felony offenders sentenced in 2006 pleaded guilty.

Jury trial rates do not exceed 5% for any category of crimes other than serious violent crimes. Even 61% of murder convictions are the result of guilty pleas.

The average burglary sentence in the U.S. in 2006 was 44 months of incarceration where incarceration is imposed (median 24 months), and the average larceny sentence was 22 months (median 12 months) of incarceration where incarceration is imposed. Of course, many and probably most of those sentences don't involve recidivist offenders.

Life sentences are imposed in the U.S. in about 25% of murders, 5% of rapes, 1.5% of robberies, 0.8% of non-rape sexual assault cases, 0.6% of aggravated assaults, 0.4% of other violent crimes, and 0.1% of non-violent crimes for which incarceration in prison is imposed as a sentence.

Surprisingly, no fine is imposed in 55% or more of cases for every particular kind of felony. Overall, fines are not imposed 62% of the time.

Colorado Sentencing in 2009

In Colorado, there were 42 habitual offender commitments to prison in fiscal year 2009 (see page 23 of the pdf), compared to 26-66 per year in years since 2005. These included a 40 year sentence for forgery, a 25 year sentence for burglary, four cases with an average 36 year sentence for burglary, three theft sentences of an average of 18 years each, four for trespassing or criminal mischief for an average of 11 years each, a 6 year forgery sentence, a 6 year perjury sentence, and an 11 year trespassing/criminal mischief sentence. Three habitual offender sentences were for escape, fourteen were for violent or weapon related crimes, six were for drug crimes, and two were for a felony traffic offense. All but one of the 42 habitual offenders were men and the trigger for habitual offender sentencing is two or three prior felonies of the relevant type under each habitual offender statute (there are several). While these terms are long, they are far more lenient in most cases than under California's controversial three strikes law. The average Colorado prisoner serves about half their full sentence due to good time and other considerations.

About 3% of offenders in Colorado prisons were sentenced under habitual criminal statutes. In all there were 22,961 people in Colorado prisons as of June 30, 2009. Another 12,773 were on parole.

The "need assessments" of Colorado prisoners is always notable.

Educationally, just 1% of those admitted to prison had an associates degree or more education although about 11% have some college, while 37% lacked a high school diploma with 36% being at least functionally illiterates who needed adult basic education instruction, rather than high school level GED instruction which would be too advanced for them. About two-thirds of those with either a high school diploma or GED had a GED rather than a high school diploma. So, less than a quarter of Colorado prison inmates graduated from high school in the ordinary course. In Colorado as a whole, 11% lack a high school diploma or GED, 89% of the age 25+ population has at least a high school diploma or GED, 65% have at least some college, 43% have an associates degree or higher degree, and 33% have a bachelor's degree.

About 8% had an IQ of under 81. A moderate to severe mental health problem is an issue for 30%. A moderate to severe substance abuse problem is an issue for 79%. A moderate to severe medical problem is present in 15%. Sex offenders make up 11% with another 5% suspected of having sex offense histories who are not convicted. An absence of adequate skills to get a job is a factor for 42%. Mental health needs differed considerably based on gender. A moderate to severe mental health problem was an issue for 22% of men and 55% of women.

The DOC doesn't include crosstabs in its annual report or relate needs data to recidivism data, although some data along that line are collected in a separate report and here. Offenders with mental health issues are slightly more likely to lack of high school diploma or GED (31%-32% v. 28%), to lack job skills (94% v. 91%), to be sex offenders (22%-24% v. 18%), to have substance abuse problems (80%-83% v. 78%) and to have anger issues (40%-41% v. 39%) than other inmates. They are much more likely to have medical problems (25%-28% depending on severity v. 16%), to have IQ below 81 (about 8% v. 4%), and to have suicidality issues (about 21% to 30% depending on severity v. 9%). Only 30% of inmates without a substance abuse problem have a high school diploma and 24% have neither that nor a GED.

Some mental health data don't make much sense. Those who were classified as having mental health issues often had prior psychiatric hospitalization (18%-24% depending on severity) and out patient mental health treatment (42%-47% depending on severity), but among those not classified as having mental health issues, 5% had prior psychiatriic hospitalization and 27% had prior outpatient mental health treatment, suggesting significant underdiagnosis of mental health issues by the DOC. Among those with mental health issues 23%-34% had a history of psychotropic medications, but so did 4% of those not so classified. Notably, less than 1% of inmates with mental health issues had a prior not guilty by reason of insanity case.

The most common mental health conditions were drug addiction, depression, bipolar disorder, anxiety disorders, alcoholism, schitzophrenia and psychotic disorders, dsythmic disorders, "disorders usually diagnosed in childhood" like ADHD, and "sexual and gender identity disorders" 1%. In all 34% of disciplinary violations were attributed to the 25% of inmates classified as having mental health issues in the detailed study on the issue, and these inmates were much more likely to be in solitary confinement or "close" supervision than other inmmates (23%-24% v. 11%), despite generally similar offense severity.

The overall percentage of inmates with moderate to severe needs in some category other than job skills (which almost all inmates seem to lack) is probably in excess of 90%, and once job skills are considered is probably in excess of 95%.

The DOC also doesn't detail good time forfeitures or gang crime connections in its annual report, although it tracks both. About 7% of Colorado inmates are eligible for deportation upon release because they are not U.S. citizens. About 9% are foreign born (the same as the 9% of the general Colorado population that is foreign born foreign born), but the remainder are U.S. citizens not eligible for deportation. Colorado's inmates are 45% Anglo, 32% Hispanic, 20% African American, 3% Native American and 1% Asian. Colorado as a whole is 71% Anglo, 20% Hispanic, 4% African American, 1% Native American and 3% Asian.

For prisoners released in 2005 and for prisoners released in 2006, the three year return to prison rate was 53.2% (a little higher for men, a little lower for women). The largest proportions of returns to prison are for technical violations of parole. For example, looking at the cohort released in 2004, the percentage of the cohort commiting ofirst time technical violations or new crimes by number of years from release is as follows:

---------------New Crime----------Technical Violation
Year 1----------8.8%------------------24.1%
Year 2----------6.2%-------------------7.8%
Year 3----------3.6%-------------------1.9%
Year 4----------2.3%-------------------0.4%
Year 5----------1.8%-------------------0.3%

Even a 1.8% crime conviction rate per year is huge compared to the general population. But, inmates in Colorado prisons are highly atypical of the general population in a variety of "needs" categories as well as in having a history of having seriously violated the law. About 43%, however, will go five years from release from prison without a single technical violation forcing their return to prison or new crime, and about 77% will not be returned to prison for a new crime in that five year time period.

Recidivism rates are higher for those with moderate mental health issues than those with none or those with severe mental health issues.

The average annual cost of incarcerating an inmate in Colorado was $32,338 in fiscal year 2009. The state has 23 prisons. None of them was under 100% of capacity. Twelve were over 100% of capacity, in one case at 186% of capacity (Skyline Correctional Center). The state prison system employs more than 6,000 people full time. State prison populations did almost hold steady in 2009 (increasing by only 189 inmates), however, after many years of steady and rapid prison population growth due to both decreased admissions and increased releases. New crime convictions leading to prison sentences declined, while technical parole violations rose.

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