How Much Do Bondholders Recovery In Chapter 11?

A recent study by Wei Wang looked at payouts to bondholders for a complete sample of recent Chapter 11 bankruptcies involving companies with assets of $100 million or more.  Unsurprisingly, subordinated debts (where bondholders agree to receive payment only after all other debts are paid in bankruptcy) had payouts of next to nothing, while secured debt (i.e. debt backed by collateral) usually received full or near full payouts.  Ordinary unsecured bonds received an average of 41 cents on the dollar, although the median recover of 22 cents on the dollars was much lower. The results:

Variables (N) Mean Median

Senior Secured (35) 77.53% 100.00%

Senior Unsecured (278) 41.01% 21.82%

Both Senior Classes (313) 45.09% 28.00%

Senior Subordinated (59) 18.87% 5.28%

Subordinated (52) 11.34% 0.35%

Both Subordinated Classes (111) 15.34% 1.00%

All (424) 37.31% 21.52%
Stockholders receive nothing in 80% of Chapter 11 bankruptcies.

READ MORE - How Much Do Bondholders Recovery In Chapter 11?

Iqbal Almost Doubled Likelihood Of Motion To Dismiss Grant

The most controversial decision in civil procedure in recent history was the Twombly/Iqbal decisions of the U.S. Supreme Court that made it easier to dismiss a case on the face of the Complaint filed in federal court for failure to state a claim in certain kinds of cases (the applicable rule is 12(b)(6) in the federal rules of civil procedure). Under the previous rule, these kinds of motions to dismiss, which are sometimes described as "so what" motions because they argue that even if everything alleged is true that no legal remedy is available, were extremly hard to establish.

The latest statistics confirm that these decisions did indeed matter:

The results indicate that even taking out the pro se cases, the odds of a court granting a 12(b)(6) motion, at least in part, as compared to denying the motion, were expected to be 1.79 times greater under Iqbal than under Conley (p = 0.002), all other variables held constant.

Second, I used only the cases in my database from 2006 (Jan to Dec) and from 2010 (Jan to May 18), and otherwise limited as described above (no pro se, no magistrate judges). Here, the results indicate that even leaving out the pro se cases, the odds of a court granting a 12(b)(6) motion, at least in part, as compared to denying the motion, were expected to be 1.92 times greater in 2010 than in 2006 (p = 0.013), all other variables held constant.

Run of the mill cases are largely unaffected. The main category of cases where Iqbal and Twombly make a difference are cases where the harmed party must show some kind of behind the scenes activity by defendant insiders which is merely circumstantially established at the outset and then, in past practice, revealed if present during the discovery process. The doors to the federal courthouse are now largely closed to such cases without a whistleblower or some form of domestic espionage. The ruling does not directly apply to state courts.

These motions remain rare, affecting something on the order of 1% of cases on the federal docket, and are granted about three-quarters of the time (up from about two-thirds of the time under prior law).

READ MORE - Iqbal Almost Doubled Likelihood Of Motion To Dismiss Grant

Sentencing As A Subnational Federalism Issue

In California, "state prison overcrowding is due in large part to county decisions about how to deal with crime. . . data from 2000-2009 [show that] . . . California’s counties use state prison resources at dramatically different rates, and, moreover, that the counties which use state prisons the most have below-average crime rates. . . . incarceration in state prisons is one policy choice among many, not an inexorable reaction to violent crime.

Counties can and do make different choices about how to respond to violent crime, including the extent to which they use prison. . . . [L]ocalities are crucial - and critically underexamined - contributors to state prison populations. Decisions are made at local levels about prosecution, investigation, plea bargaining, and sentencing, and these decisions are made by officials who are either elected locally (such as DA’s, judges, and sheriffs) or appointed locally (police and probation officers). Local policies and policymakers affect the state’s corrections budget, even though the state has no say in designing or implementing these policies."

From the abstract to "Tough on Crime (on the State's Dime): How Violent Crime Does Not Drive California Counties' Incarceration Rates -- And Why it Should" by W. David Ball.

The notion that criminal justice decisions have budget implications that work like an entitlement program, mandating spending with little regard to the amount appropriated by the state budget for the purpose, is familiar. The notion that local exercises of discretion in the criminal justice system can be as important as the text of the state criminal code in driving incarceration rates is not unfamiliar, if less commonly observed.

But, the notion that disparities in criminal justice discretion are a distributive justice issue between local governments, with excessive incarcerators imposing burdens on other state taxpayers who have no say in those decisions is a conceptual breakthough.

The article linked looks at these issues in California, but they also come up in Colorado, where suburban Denver's Arapahoe County's notorious prosecutor exercises discretion to impose longer and more expensive sentences of similarly situated defendants than prosecutors elsewhere in the state, such as the neighboring urban City and County of Denver. But, I'm not aware of anyone that has done a study looking at the issue from the frame that Ball does in Colorado, even though all or almost all of the relevant data are fairly easily available online in government statistics.

The high sentences sought in Arapahoe County in the criminal justice system impose fiscal burdens on other Colorado taxpayers in a way similar to, but less transparent than the efforts of the exurban Denver area Douglas County school board to unilaterally establish a voucher plan that would give students attending private (mostly religious) schools a partial share of the per student state funding that the district receives (and no local money) if it can succesfully make the case that voucher students count for school funding formula purposes. In other words, both proposals are to a significant extent money grabs at a scarce state general fund by affluent communities led by politicians who have a strong public ideological opposition to taxes and government spending.

Framing sentencing law as a fiscal issue rather than a human rights issue has produced a major withdrawal from war on drugs and tough on crime politics driven long sentences for relatively minor crimes in a variety of conservative leaning political jurisdictions. Perhaps a focus on considering local sentencing discertion in a fiscal frame could elicit further reforms that address abuses of discertion by local political actors in this process, where traditional liberal and academic arguments for sentencing reform have not.

READ MORE - Sentencing As A Subnational Federalism Issue

The Innocence Effect

[S]hadow-of-trial models [of plea bargaining] commonly pay little attention to defendants’ culpability per se. To wit, innocents – who may well face a higher average probability of acquittal at trial – are expected to demand a more lenient sentence in return for their guilty plea. However, if the plea offer is accurately adjusted to defendants’ probability of conviction, innocence in itself plays no role in the defendant's decision. This assumption, which is jointly held by both parties to the plea bargaining debate, is false. . . .

[I]nnocent defendants are significantly less likely to accept plea offers than their guilty counterparts, even when these offers appear objectively attractive in light of the evidence against them and the expected sanction at trial. . . .

[T]he implications of the innocence effect and its underlying causes for the plea bargaining debate . . . requires both camps to reevaluate their policy prescriptions and offering some new proposals of our own to minimize false convictions, better to protect the innocent, and improve the plea bargaining process. . . .

As a result of the innocence effect, plea bargains probably do not increase the rate of wrongful convictions, as argued by some of the plea bargaining opponents, but also do not promote the interests of innocent defendants as argued by the plea bargaining supporters. . . .

One way to reduce the negative effect of plea bargaining on the sentences of wrongfully convicted defendants is to limit size of the plea discount. The law can instruct judges not to approve a plea bargain if the post plea sentence is significantly lower than the sentence expected after a jury trial conviction. If the prosecution’s ability to offer significant sentence discount in plea bargaining would be limited, defendants requiring considerable discount in exchange for their guilty plea would not bargain. Since the innocent demand, on average, significantly lighter sentences than guilty defendants, the proportion of innocent defendants among those who plead guilty will be smaller. . . . Restriction of the guilty plea discount will minimize the gap between the sentence imposed on those who opt for a trial, including relatively many innocent, and that of those who plead guilty, most of whom are guilty. The innocent defendants who will be convicted in jury trial will still be sentenced for longer terms than the guilty pleaders, yet, the difference will be smaller. . . .

When it comes to sentence bargains, it is not a particularly difficult task. Courts can be instructed to reject plea bargains if the proposed sentence is substantially lower than that imposed in similar circumstances after a trial. Limiting charge bargaining is much harder, but it might still be a possible task. . .

Another alternative to plea bargaining can be bargaining for a simplified criminal process. The law can encourage parties to replace plea bargains with agreement on shorter and simplified process in return for a sentence discount. Parties can agree on a bench trial instead of a jury trial, agree that the defendants will be the first to testify, before the case for the prosecution is presented, or make other stipulations which allow a cheaper trial for the prosecution.

True, in such a simplified process, the risk of mistake might be larger. Yet, innocence defendants in such process can gain a discount for the agreement without pleading guilty – something which they are reluctant to do. Moreover, defendants in such simplified proceedings will maintain the right to contest the case, and, if successful, gain an acquitted, a right they waive in regular plea bargaining. Innocent defendants who may be reluctant to plead guilty, would often prefer a simplifies process in which they are not required to plead guilty, are able to avoid the damaging consequences of prolonged litigation and benefit a lenient sentence in exchange for saving judicial time.

True, the defendant in such a simplified trial might have a smaller chance of acquittal. As a result, it is possible that defendants who would have been acquitted in a full trial may be convicted in a simplified trial. Nevertheless, it can be said in confidence that the advantages of the simplified procedure outweigh its disadvantages.

First, the proposed procedure will promote the interest of the innocent defendants by allowing them to benefit from a real legal process which is aimed at finding the truth while benefiting from a sentence discount. Indeed, the cost of this procedure is higher than that of a guilty plea, but the gap between the two is not so big when it comes to substantially simplified process. Additionally, most of the guilty defendants who plead guilty today will continue to do so even when offered a simplified process is an option because in order to be acquitted in such a procedure, they would have to lie to the judge. In most cases that involve conclusive evidence, defendants will find it psychologically difficult to lie to a judge; mostly due to the fact that it probably will not help their case. As shown above, guilty defendants tend to plead guilty simply because they are guilty.

Therefore most of those who plead guilty will continue to do so even when they can get a similar discount in a simplified process. Furthermore, some of the defendants, who in the absence of an alternative procedure would choose a full trial, would now choose the simplified procedure. As a result, judicial resources will be spared and could be channeled towards the implementation of the simplified process. In light of this, the simplified procedure could advance the interests of the innocent without the need for additional resources.

Second, the procedure may also reduce wrongful convictions. Despite the reluctance of innocent defendants to plead guilty, some of them succumb to the desire to quickly end the proceedings or to the fear of a wrongful jury trial conviction, and thus plead guilty. The simplified procedure could provide these defendants an opportunity to challenge the charges against them. In light of all of this, we believe that the benefits of the proposed procedure, in view of innocent’s reluctance to plead guilty, outweigh its disadvantages. Moreover, even in cases where a person might be mistakenly convicted in a simplified process, the moral gravity of such conviction will be smaller because it will be reached after an honest judicial attempt to find the truth. Studies on procedural fairness even indicate that defendants who are not satisfied with the outcome of the trial tend to accept it if they were given an opportunity to argue their case before an impartial arbiter before the verdict. Simplified procedure might be better in allowing the defendant a saveopportunity to present his story, than the adversarial jury trial.

From here.

The process bargaining elements of the authors proposals are expressly a part of the U.S. military justice system, in which a defendant can sacrifice due process protections in exchange for a lower maximum sentence, if the prosecuting authority files a charge that permits that process to be used.

One procedural tool to limit charge and sentencing bargains would be to allow defendants to make a post-sentencing motion to reduce their sentence to some multiple of the worst case scenario that the defendant would have faced under any plea deal offered by the prosecution prior to trial.

Another reform that might be important is to review particular proposed or currently available criminal procedure protections of criminal defendants to determine which do the most and the least to help innocent defendants.

READ MORE - The Innocence Effect

State Securities Law Class Actions In Colorado

Colorado had somewhere from 12 to 16 state court securities law class action lawsuits in the fifteen period from 1996 to 2010, six in the first five years, zero to four in the next five years, and six in the last five years. State securities law class action suits most often arise in states with many publicly held corporations headquartered there (Delaware, California, New York, and Texas) and most frequently involve merger and acquisition deal disputes. The highest number of suits was in 2009, with four, but other years had just zero or one or two filings.

READ MORE - State Securities Law Class Actions In Colorado

The Rationality Movement Manifesto

Less Wrong is a discussion forum that brands itself about promoting "Rationality" which takes a bit of defining, because this philosophy oriented discussion group with a larger agenda is using the term with a secondary meaning that capture what they are after. They are quite predisposed towards metaphysical naturalism, although this isn't necessarily one of their axiomatic beliefs, and towards a scientific, empirically driven approach to understanding the world. An excerpt from a recent post entitled, Epistle to the New York Less Wrongians" captures the sense of it:

Rationality isn't just about knowing about things like Bayes's Theorem. It's also about:

* Saying oops and changing your mind occasionally.

* Knowing that clever arguing isn't the same as looking for truth.

* Actually paying attention to what succeeds and what fails, instead of just being driven by your internal theories.

* Reserving your self-congratulations for the occasions when you actually change a policy or belief, because while not every change is an improvement, every improvement is a change.

* Self-awareness - a core rational skill, but at the same time, a caterpillar that spent all day obsessing about being a caterpillar would never become a butterfly. . . .

* Asking whether your most cherished beliefs to shout about actually control your anticipations, whether they mean anything, never mind whether their predictions are actually correct.

* Understanding that correspondence bias means that most of your enemies are not inherently evil mutants but rather people who live in a different perceived world than you do. (Albeit of course that some people are selfish bastards and a very few of them are psychopaths.)

* Being able to accept and consider advice from other people who think you're doing something stupid, without lashing out at them; and the more you show them this is true, and the more they can trust you not to be offended if they're frank with you, the better the advice you can get. (Yes, this has a failure mode where insulting other people becomes a status display. But you can also have too much politeness, and it is a traditional strength of rationalists that they sometimes tell each other the truth. Now and then I've told college students that they are emitting terrible body odors, and the reply I usually get is that they had no idea and I am the first person ever to suggest this to them.)

* Comprehending the nontechnical arguments for Aumann's Agreement Theorem well enough to realize that when two people have common knowledge of a persistent disagreement, something is wrong somewhere - not that you can necessarily do better by automatically agreeing with everyone who persistently disagrees with you; but still, knowing that ideal rational agents wouldn't just go around yelling at each other all the time.

* Knowing about scope insensitivity and diminishing marginal returns doesn't just mean that you donate charitable dollars to "existential risks that few other people are working on", instead of "The Society For Curing Rare Diseases In Cute Puppies". It means you know that eating half a chocolate brownie appears as essentially the same pleasurable memory in retrospect as eating a whole brownie, so long as the other half isn't in front of you and you don't have the unpleasant memory of exerting willpower not to eat it. (Seriously, I didn't emphasize all the practical applications of every cognitive bias in the Less Wrong sequences but there are a lot of things like that.)

* The ability to dissent from conformity; realizing the difficulty and importance of being the first to dissent.

* Knowing that to avoid pluralistic ignorance everyone should write down their opinion on a sheet of paper before hearing what everyone else thinks.

Boil it down and you get something pretty admirable. They are trying to gather people who believe that it is possible for sincerity and reality bounded civil discourse ot produce a better world, and also are committed to the notion that particating in this discourse and taking it seriously can help the participants live better lives.

The Less Wrongians are not ivory tower philosophers arguing over how many angels you can fit on a pinhead. They recognize the importance of insuring that discussions about important ideas are grounded, while also recognizing that fitting reality into a theoretical construct is an unavoidable and non-trivial exercise that needs to be done right for the rest to hold together with any rigor.

Following that methodology, another recent study notes that one important way to reduce prejudice against those who do not believe in God is for those who have that belief to come out of the closest, because the perception that many people do not believe in God reduces prejudice against them, perhaps through a "present company excluded" kind of social logic.

READ MORE - The Rationality Movement Manifesto

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

Does Intellectual Property Promote Growth?

The historical case that strong intellectual property laws promote economic growth is a weak one.

Talking about Chinese industrial growth, Americans are in the position of 19th-century Europeans who acted as if America’s industrial rise could be explained simply by its vast natural resources and its exploitation of immigrant and slave labor, plus its very casual attitude toward copyright and patent laws protecting foreign, mainly British, books and inventions. (Today, Americans walk the streets of China and see their movies, music, software, and books sold everywhere in cheap pirate versions. A century and a half ago, Charles Dickens walked the streets of young America and fumed to see his novels in cheap pirate versions.)

From here.

READ MORE - Does Intellectual Property Promote Growth?

Experts Make Bad Prophets

When based on the same evidence, the predictions of SPRs [statistical prediction rules] are at least as reliable as, and are typically more reliable than, the predictions of human experts for problems of social prediction. . . even when experts are given the results of SPRs, they still can't outperform those SPRs.

From here.

This is something that I've know for a long time, but the post linked is notable because it shows the extent to which this tendency is widespread and pervasive.

Some of the better known examples of statistical prediction rules that are actually used on a regular basis include:

1. Pre-trial services evaluations of criminal defendants for pre-trial release.
2. A formula used by the Colorado Department of Corrections to assign new state prison inmates to the most appropriate security level prison facility.
3. Credit scores for making loan decisions, and determining the likelihood that a borrower will go bankrupt.
4. Test score and GPA formula based college admissions decisions.
5. Test score based standard for whether or not to accept military recruits into particular military services and into military occupational specialities.

There is a simple SPR for predicting marital happiness, and I recent heard an NPR report describing an SPR that predicted the likelihood that unmarried couples would stick together based on the extent to which their speech patterns were similar.

Uncritical reliance on test scores by low level bureacrats produces better results than consideration of these scores as one factor out of many by highly qualified experts. Finessing the result with expert analysis undermines the virtues that make SPRs work.

There are lots of situations where there simply aren't SPRs available, and in those cases, experts may be the next best thing, but when you have a regularized situation where there is an advantage to be had from making accurate predictions, you are better off devising an SPR from a good data set than relying on experts to make the calls. And, in the era of mass data collection and cheap computing resources to mine it, it is much easier to create a decent SPR than it used to be.

This isn't the only situation where the general cognitive bias towards undue faith in capacity of experts or decision-makers with access to large amounts of data to goods better judgments comes into play. Studies have shown that attorneys systemically overestimate the strength of their cases. People like judges and juries who are able to watch the demeanor of witnesses on the stand testifying are less effective at distinguishing true from untrue statements than people forced to rely on transcripts of the same testimony.

One of the main things that an SPR does is to toss out of the model all of the factors that somebody thought might be relevant but don't actually have an empirical predictive power. But, experts and others with a wider fact set are tempted to consider all of the information, even the irrelevant bits, which inserts non-empirically support biases into the decision making process.

Indeed, one way to understand the structure of legal rules in statutes and precedents is as SPRs that force a highly diverse set of legal expert judges to consider only a small subset of all the facts in a situation according to a particular formula to get a result, rather than relying on the totality of their life experience in making those kinds of decisions.

Limits of SPRs

This doesn't mean that SPRs are the be all and end all solution to all of society's woes.

It is possible to design rules like look like SPRs but don't have the empirical grounding linking potential causes and potential effects accurate or are based on incorrect data or assumptions. Perhaps the classic example of this can be found in the United States Sentencing Guidelines which relied on assumptions like a 100:1 crack cocaine to powder cocaine ratio that was just plain wrong and produced grossly unfair results as a result. Indeed, that example is an apt cautionary tale, because a bad SPR affects large numbers of people in a systemic way, while mistakes by experts tend to be diffuse and to vary in differing directions from the correct prediction.

It is also possible to build a SPR that is the best possible SPR given the data that is used to build it, but remains quite inaccurate because there are factors that it fails to consider. For example, an SPR designed to predict natural gas usage that fails to consider average monthly temperature as an input is going to be much less accurate than one that does considers it.

One can also build a suboptimal SPR by designing it to predict something other than the thing that you actually want to measure. A recent practical example of that kind of problem is the use of law school grades by large law firms to predict law firm success. Law school grades are an important factor, (indeed better than social class or law school prestige) but it turns out that it is a factor that has diminishing returns when you reach a point where all of your applicants have very good law school grades and academic ability. Indeed, lawyers with good law school grades from less prestigious schools, who on average had lower LSAT scores and undergraduate GPAs than their peers at more prestigious schools, actually perform better when hired by big law firms and are happier than lawyers with the same law school grades from more pestigious schools. There are other factors that matter too that aren't measured, but work to develop efficient ways to test these factors in a format such as a two hour test, is in its infancy.

This is a classic case of an SPR with a design problem. LSATs and undergraduate grades predict law school grades, particularly in the first year of law school, as well as any other measure available, but there are far more abilities that are relevant to the practice of law than there are to being a law student. Two dimensions (correlated strongly with each other, but more weakly with "g heavy" LSATs and academic grade point averages) were multiple choice tests of "situational judgment" and "biographical information" which were calculated to predict effectiveness measures such as practical judgment, organization, self-discipline, creativity, and effectiveness in interpersonal communication.

Another problem is SPRs is that they are often formulated in one context and then used in another that they are ill suited to, where they are not validated to work. For example, an IQ test administered in the Standard American English works just fine as a predictor of academic success and many other things when the people taking the test are native speakers of Standard American English. But, it works rather less well when the people taking the test are native speakers of Spanish or Chinese and have only been learning English for a few years.

A recent Army test designed to measure "spiritual fitness" may be reasonable reliable for the Christians who make up most soldiers and for a significant number of people who practice other religions. But, the questions it presents may present category errors that aren't valid when given to people who are considered atheists and agnostics. The fact that the test was developed by a psychologist who also inspired the CIA's torture program also casts real doubt on the methodology used to create it.

More generally, one should be suspicious of SPRs in any situation where there are two or more populations of people who are very different in relevant ways, one of those populations is much larger than another, and the SPR isn't separately validated for each subpopulation. For example, the body measurements that indicate optimal fitness for men aren't likely to be the body measurements that indicate optimal fitness for women.

Likewise, SPRs in the criminal justice system that are predominantly validated with normal "blue collar" criminal defendants and show validity across of wide range of those kinds of criminal defendants, may not necessarily be very useful in accurately predicting how "white collar" criminal defendants, who make up a tiny part of the validation sample but are different in a great many respects from blue collar defendants demographically and otherwise, will act.

Further, many SPRs only make sense for individuals within the "normal range" of whatever they were designed to measure. SAT scores from high school, for example, are a poor instrument to use to distinguish between graduate students who will go on to be professors at less prestigious institutions from graduate students who will go on to be professors at more prestigious institutions. Everyone who finishes graduate school and goes on to become a professor is very academically able, and the SAT is not very discriminating at the high end of the scale. Similarly, an SAT is a poor instrument for distinguishing between someone who has a mild and a severe developmental disability, because it isn't designed to be particularly discriminating or accurate at the very low end of the scale.

Using Imperfect SPRs

Expert supplementation of SPRs is probably best when one knows what an SPR does measure, what factors were ruled out as irrelevant in the formulation of SPR, what flaws have been demonstrated in the SPR, and what factors are known to be relevant but are not measured by the SPR.

For example, credit scores are probably as good as one is going to get at predicting propensity to default on loans. Any loan officer effort to second guess propensity to default on loans from other data (like "good character") is likely to be counterproductive. But, credit scores don't measure ability to pay factors such income and assets. For example, default rates and bad debt losses are extremely low in the case of purchase money mortgages involving large down payments, even when the borrower has very low credit scores.

Similarly, an expert may be helpful in identifying circumstances when an SPR (perhaps a "second best" one) is and is not likely to have validity. Someone who got high SAT scores in high school almost certainly mentally retarded unless some sort of brain injury has taken place since then. But, in the case of someone who got low SAT scores in high school, the SAT may be unhelpful.

READ MORE - Experts Make Bad Prophets

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.

READ MORE - Does Recidivist Sentencing Work?

Do We Need A Better Early Warning System?

Meet Mr. Loughner

Jared Lee Loughner, the Tuscon assassin, was a troubled young man.

It was clear that he was a problem, possibly a violent one, in the community college he attended:

Pima Community College, in Tucson, issued a statement identifying Loughner as the suspect. It said he was a student from the summer of 2005 to fall of 2010, but he was suspended Sept. 29 for conduct violations. It said he agreed to withdrew from the college on Oct. 4.

The college said that from February to September of 2010, Loughner had five contacts with college police for disrupting classrooms and the library. It said he was prohibited from returning to the college.

A spokesman for the college said Loughner's videos troubled administrators and campus police, leading to his suspension. In one video, he "claims that the College is illegal according to the U.S. Constitution, and makes other claims," the college's statement said.

Loughner and his parents, Amy and Randy Loughner, met with administrators, who required him to be obtain a certification that "in the opinion of a mental health professional, his presence at the College does not present a danger to himself or others." . . .

Lynda Sorenson said she took a math class with Loughner last summer at Pima Community College's Northwest campus and told the Arizona Daily Star he was "obviously very disturbed."

"He disrupted class frequently with nonsensical outbursts," she said.

The community college alerted his parents that there was problem, something that they probably already knew. He apparently lived at home with them.

While he has in college, he was prosecuted for a minor drug related charge:

The Arizona Republic reported that the charge was for possession of drug paraphernalia. The charge was dismissed in 2008 by the city attorney after Loughner entered a pre-trial diversion program.

He left his high school after his junior year, despite not leaving the area, and around the time he started in at community college:

Tamara Crawley, director of the Marana Unified School District in Tucson, said Loughner attended Mountain View High School in Tucson for three years but withdrew after completing his junior year in 2006. . . . [A high school and college classmate] described him as having a lot of friends "until he got alcohol poisoning in '06" and dropped out of school.

He wrote odd and disburbing things on the Internet.

In November, less than two months after he was kicked out of college, Loughner had bought a Glock, purchased legally from a Sportsman's Warehouse in Tucson. Less than two months after that six people are dead and fourteen people are wounded, many of them seriously.

Spree Killings Are A Distinct Kind Of Crime

When one looks at the profile of people who commit these kinds of horrific one time explosions of violence, a good share share of them are people like Loughner. The warning signs in Loughner's case were similar to those involving Matthew J. Murray who went on a shooting spree in Arvada and Colorado Springs in 2007. They resemble those of Aaron Synder who tried to kill Governor Ritter in 2007. They have similarities to those shown by Seung-Hui Cho, who carried out the Virgina Tech massacre in 2007. They resemble Robert A. Hawkins who carried out the Westroads Mall shooting in 2007. They show resemblances to Eric Harris and Dylan Klebold who carried out the Columbine High School massacre in 1999.

These cases aren't that different from that of Malik Nidal Hasan, the Army medical officer who was responsible for the Fort Hood shooting in 2009, and Kyle Aaron Huff who carried out the Capitol Hill massacre in Seattle in 2006. They resemble Charles Joseph Whitman who in 1966 went on a shooting rampage at the University of Texas at Austin.

The Malaysians had a word for these kind of acts carried out by these kinds people long before we did that has entered the English language in the phase "running amok", although the force of the term has been diminished from overly casual use in English. The home made equivalent ideom, which has the Malayian meaning of "amok" is "going postal." The more clinical term used by the FBI for this kind of individual is "spree killer".

Spree killings aren't very common, but they do occur at a more or less steady pace all over the world and inevitably make headlines when they happen. The spree killers are almost always men. They almost always commit suicide, are killed by someone else in the course of their spree, or are caught and detained for life.

These men are very distinct psychologically from serial killers, from people who are part of criminal gangs or are "professional" criminals who kill in the course of their crimes, from paid hit men, from people who are normal when they aren't drunk or on drugs, and from people who carry out mass killings in connection with aggressive approaches to a position of authority like police, national guardsmen or soldiers.

While they often have grievances and concerns with a political slant and perhaps colored by the political and religious discussions of the day, and these men generally act alone or with a very small circle of troubled friends rather than as part of an organization, often have vague or irrational agendas. Generally, there is no "sane" person personally coaxing them to engage in violence.

Their crimes involve pre-meditation and planning, and the people who commit them are no doing so with any hope of bettering themselves. They expect to die or be incarcerated forever. These are acts more akin to suicide than to homicides carried out with a rational motive. They are terrorist suicide killings carried out by rebels without a cause that makes any sense. The lack of self-regard make them immune to the deterrence threat of punishment in the criminal justice system. Who cares about the death penalty when you expect that there is a good chance that you will die in the course of your crime anyway?

The Problem Of Definition

In an ideal world, we would have a well honed societal early warning system that would alert authorities to what family members, classmates, co-workers, school administators, bosses, and maybe even police already know, that a particular individual has a real problem and is at grave risk of causing massive harm to other despite having no strong history of violence causing injury, and would have a way of intervening to prevent this individual from causing harm to others.

American law permits involuntary mental health treatment and civil detention for someone who presents a danger to himself or others, aluded to by Pima College in the Loughner case, and we also have a civil restaining order system in place that receives quite heavy use in cases where the danger to others that is particularized to a small number of identifable others. Existing law, although ineffectively implemented, also prohibits those who have been involuntarily committed from buying guns, but bureaucratically, there is not good systemic integration of involuntary commitment records with instant background check systems, and substantively, this narrow definition of mental health problems is grossly underinclusive, particularly in an era in which over the last four decades or so, outpatient treatment of mental health issues have become the near universal approach to treating these issues with institutionalization limited to a very narrow subset of all people with serious mental health problems.

But, the existing system isn't very effective. It isn't clear who is responsible for intervening. It often isn't clear to those around the disturbed individual, especially in the case of an adult, who has the authority to intervene and what that authority entails. Most of all, it isn't clear when intervention is appropriate because often no one person has enough information to clearly establish a danger to others alone, even if many people have enough information to suspect it, and because the symptoms that establish that someone is a danger to others are not well defined.

This is particularly problematic in the American legal system, because our legal system and political culture is particularly suspicious of intrusions on autonomy and freedom for the greater good based on acts on might take, rather than acts one has taken.

On one hand, it is frequently obvious to those who interact with them that something is future spree killers are disturbed individuals. On the other hand, it is often not at all obvious where the line should be drawn. Perhaps one man in a thousand is as intuitively "off" as the people who end up committing spree killings, even though only a handful of spree killings take place in any given year in the entire United States, out of a population of tens of millions of men in the age range of people who commit these crimes.

Statistically, spree killings aren't a major cause of death. But, the immense psychological trauma they impose on the population makes them notable.

An ability to identify a group of fifty thousand people in the United States, from whom it is extremely likely that almost all of the several spree killings a year will be committed would be pretty impressive, compared in scale to the massive and not very effective probation and parole system we have in place. Since most spree killers obtain weapons legally, and many lack adequate mental health care, and a good share of no one who feels responsible for monitoring their well being.

If those individuals could be identified, disqualified from owning firearms via the database used to screen gun purchasers now, pro-actively offered and nudged into seeking mental health treatment, and subjected to light monitoring that would reveal major life changes or disruptions in mental health treatment and would be specifically designed to have a group of designated informants among school, work, family, treating medical professionals, and social contacts who would feel some slight obligation to alert a monitor if the person's situation seemed to be taking a turn for the worse, and that monitor had the authority and responsibility to intervene in those situations, a lot of these incidents could be prevented. The level of intervention required could be somewhat less intense than the kind of supervision that someone on probation or parole receives and still have a measurable effect. It might be that a large set of people so identified would have less intense supervision, simply being banned from purchasing firearms, offered free access to mental health treatment, and annually checking in close associates to let them know who to call if the circumstances changed or the situation appeared to escalate, while others who posed a higher risk would be monitored much more intensely. This would take a tiny share of the societal resources that we devote to the criminal justice system to implement, and it would also help to destigmatize mental illness and reduce the fear people have of the mentally ill who were not identified as high risk.

The payback of this kind of system would be considerably greater than simply reducing the incidence of spree killings for one out of a ten thousand supervised individuals. For every spree killer, there are no doubt tens or hundreds of people or more with a profile that puts them at high risk of becoming spree killers, who commit suicide, who would otherwise kill a particular loved one, who would neglect or abuse a child, who would lapse in taking psychiatric medicines and as a result see their careers and educational aspirations and personal relationships collapse, who would want mental health treatment if they knew it was available and could gain access to it, who cause serious damage to property, who kill someone's beloved pet, who injures others, who commits "suicide by cop," who ends up in prison, or who engages in reckless acts that endanger the public that are on the line between accidents and generalized malice.

Few people who fit a "spree killer" profile may actually commit a spree killing, but a very large share of people who fit that profile would benefit personally, and/or have people associated with them who would benefit, from intervention in their lives.

But, crafting an operational definition that is inclusive of almost all potential spree killers, while excluding people who are not at high risk for being either spree killers or otherwise being a danger to themselves or others, that can be vigorously applied without undue abuse and without unduly impairing the liberties of people who are merely "different" or have principled objections to the mainstream medical approach to treating mental health conditions is not an easy task.

Yet, this must be the kind of definition that becomes as distinct a part of popular culture as CPR instruction, "drop and roll" for people who are on fire, "direct pressure" as the cure all for bleeding, "don't drive drunk," "no means no" and other public health and safety messages, and to be effective, it has to win widespread societal acceptance from a significant share of people even in a lot of fairly anti-authoritarian subcultures. It needs to have the perceived authority of science behind it. It needs to be accepted as legitimate, if not by all people who fit this definition, at least, by a large share of all people who are friends and family and colleagues of people who fit this definition. The closest precedent would probably be the system that requires a large swath of people to report child abuse and neglect and provides a place for others to report it voluntarily.

Almost invariably, when serious consequences are attached to conduct or a condition that is described overinclusively, a large share of all people who suffer those consequences come under the overbroad part of that definition. For example, a surprisingly large share of first degree murder prosecutions involve women who kill their infants in the throes of childbirth or criminal accomplices who did not anticipate that a murder would be committed in the crime that they were involved in and had no personal participation in that murder. Similarly, a very large of racketeering cases involve relatively minor white collar crimes committed in an organized way, rather than anything closely resembling the kind of mafia activities that generated political support for RICO's tough sentences.

Slight overbroadness in defining a high risk category risks bringing far more people than necessary into the net, making the program much more expensive to manage, making the people who run the system less alert to the risk among those they are monitoring than they need to be, and making the intrusion into liberty interests involved much greater.

Another approach to deal with the limits of lay expertise in mental health diagnosis akin to the reasonable suspicion for a "Terry stop" v. probable cause for a "search or seizure" distinction in U.S. law under the 4th Amendment, would be to have a low threshold at which an individual could simply be compelled to receive a mental health evaluation and diagnosis, while limiting anything else to individuals who were diagnosed in a voluntary or involuntary mental health evaluation as suffering from a particular set of symptoms, or were found by some sort of public body (perhaps a tribunal or public office) to have that set of symptoms based on information received in cases where diagnosis is unavailable. Mental health evaluations might also be made a standard part of every criminal case more serious than a traffic stop, even if it is resolved with a diversion program or deferred prosecution.

A two tiered approach might also make members of the public less wary of intervening, as insisting that someone seek professional advice is less weighty making a complaint about someone that would lead directly to significant personal consequences for the person about whom authorities were alerted.

Including a voluntary diagnosis would disturb a bedrock foundation of confidentiality in the mental health care system, but the justification that privacy is necessary to cause people to seek help might be less compelling in a context where the government had the legal authority to compel someone to seek mental health evaluation and diagnosis on the basis of a reasonable suspicion (or probable cause to believe) merely that the individual was clinically mentally ill and could benefit from treatment. And, the individual alerting the system to the need might simply be told as feedback that "an inquiry was conducted based upon the information provided and that it was resolved in accordance with the law" rather than provided with detailed information on how it was handled. In all likelihood, in many cases, alerts would come for individuals who had already been evaluated and diagnosed and were in the system, and would simply lead to a brief memo to a designated mental health care provider.

I don't have great faith that psychiatrists can generally determine with much accuracy at all using existing methods whether or not someone poses a risk of future dangerousness. But, I do have greater comfort that psychiatrists can be reasonably accurate in diagnosing mental health conditions, and that it is possible to distinguish mental health conditions in which there is an elevated risk of someone fitting a "spree killer" profile from those where there is no elevated risk of that kind of activity, and the set of diagnoses where there is an elevated risk is, I suspect, a rather modest subset of all mental health conditions, and this designation is one case where a blanket gender distinction probably makes sense given the gross disproportion of men to women who commit these incidents. (The only American woman who might even remotely qualify is Caril Ann Fugate who claimed innocence but was convincted in a crime that her boyfriend admittedly was involved in committing in 1958 in Nebraska in a episode that is in any case a poor fit to the mental health driven spree killing model described above.)

In an ideal world, an in depth mental health inquiry and background check might be linked to eligibility to purchase guns, since spree killings are almost exclusively committed by people who have purchased firearms, allowing people who choose not to purchase guns and as a result pose far less of a threat to the public to escape supervision in most cases, and casting the mental health inquiry as rationally related and narrowly tailored to a right to do something in particular that poses an elevated risk, a bit like a driver's license, rather than as a punishment. After this inquiry was completed, it would be revocable if new information came to light, but might not have to be re-examined for each new purchase. This kind of inquiry also would have prevented at least some of the small number of shooting range shootings that take place, such as the attempted suicide pact of twins at the Family Shooting Center in Colorado in 2010, where at least one of the suicidal twins had a history of despondancy.

In the current political climate, that is probably not a possibility in the short run, given the strong association of the ascendant Tea Party faction of the Republican party with the Second Amendment and weak gun control laws. Although, even the NRA has supported improved record keeping to prevent those who have been civilly committed from being able to lawfully purchase guns, and many gun owners recognize that a large share of gun control efforts are driven by events like spree killings, and that gun control efforts might be far less intense if there were reasonable measures in place to reduce their incidence, even though spree killings a tiny share of all gun murders. The Heller ruling of the U.S. Supreme Court in 2008 that declared the right to bear arms for self-defense to be a constitutional right made clear in dicta that prohibitions under current laws on gun purchases by the mentally ill were permitted under the Second Amendment.

While the short run political climate may make this approach untenable, I think that one long run, bipartisan secular change in policy attitudes over the rest of my lifetime is going to be increasing intolerance of predictable and preventable tragedies. The more clear it becomes that there is a way to prevent tragedies, the more pressure there will be to take strong measures to prevent them.

Notably, along these lines, in Britain, Doctors agreed this summer to breach medical confidentiality if patients who own guns become seriously mentally ill.

READ MORE - Do We Need A Better Early Warning System?