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29 October 2009

Disaggregating Government

There is a strong tendency in the modern design of American government to disaggregate government authority. Instead of lumping responsibilities onto the plate of an all powerful sovereign (like the U.K. Parliament which has the power to dissolve all subordinate entities at will and no meaningful constitutional limitations outside the area of human rights), the tendency is to to set up self-sustaining systems, more or less independent from the rest of government to perform a function.

The second largest government employer (not just now, but for most of U.S. history) as been the United States Post Office. For more than three decades, however, it has been a state owned enterprise that is primarily responsible for managing itself and raising its own revenues. A good share of the federal appropriation for the postal service amounts to payment for the part of the service that the federal government itself uses.

The nation's major roads and bridges have executive branch departments at the federal, state and local levels charged with maintaining them, but most routine revenue for this system comes from a group of excise taxes, like the gas tax, tailored to the purpose.

The civil side of the court system is overwhelmingly funded with fees paid by litigants. Real estate records, corporate records, vehicle registration, driver's licensing and professional regulation are also financed through user's fees.

Almost all special districts except school districts are funded more or less entirely through their own combination of property taxes, user's fees, earmarked sales taxes, private grants, and public grants. School districts were originally funded almost entirely through local property taxes with state governments stepping up to the plate with general fund appropriations only because local property taxes proved to be a dysfunctional form of school funding in many places.

Public institutions of higher education in Colorado are increasingly becoming non-profit enterprises that receive government grants sporadically, rather than integral parts of the state bureaucracy. Tuition, fees, institutional endowments and research grants pay most of the bills. In an effort to deal with TABOR, much of the aid previously provided to institutions is now provided mostly through scholarships to in state students who may attend public or private institutions with their money. Community colleges have earmarked funding from casino taxes. It may be only a matter of time before high education, which is always first in line for cuts when the general fund grows scarce, may decide that they would prefer to trade general fund appropriations to institutions for some suitably sized dedicated tax source -- severance taxes or a small state property tax levy perhaps. One way to save the federal estate tax might be to give it a constituency for its modest revenue stream, perhaps higher education scholarship and loan funding.

Social security and Medicare, the programs that ate the federal budget are funded primarily through earmarked payroll taxes. Social security has been hived off from the Department of Health and Human Services into an independent agency.

Politically, earmarked taxes are much more marketable than general purpose taxes. One of the key factors that made the European social welfare state politically acceptable, despite the fact that it results in such high levels of taxation, is that social welfare taxes are clearly identified with the services that they are providing to the people who pay them. A payroll tax for health insurance looks less ominous when it takes a hefty health insurance premium out of the firm budget. The highly regressive Social Security payroll tax has retained popularity because almost everybody gets at least the money that they put in back and the net combination of taxes paid and benefits received is meaningfully progressive, even though the tax standing alone is not, and the more generous Social Security is, the less people have to set aside every pay period for private retirement savings.

Deficit hawks have bemoaned the crush of entitlements on the federal budget. But, entitlement programs are a natural fit with the program of setting up autonomous, more or less independently funded and operated systems that meet needs that a governmental responsibilities. The need to compare apples and oranges in a more free wheeling budget process leaves so much room for error, that the legislative branch often ends up ceding really policy making authority in favor of complying with its limitations and honoring the standing mini-deals maintained in executive branch budgets aside from some minor tinkering at the fringes.

Colorado's Amendment 23, which guarantees certain funding levels from the general fund for K-12 education, is similarly a natural move in this direction. It leaves K-12 education with an earmarked property tax revenue stream and a core protected piece of the state general fund that is insulated from the whims of the political budget process to pay for a core function of government. It makes state general fund revenue for K-12 education act like a long term property tax in an area with stable property values instead of like the every contingent food fight for political power that it was before Amendment 23.

This plays out at the local level too. Aurora voters are being asked to separately earmark property taxes for a separate library district, or see dramatic cuts in its library services this year. Aurora could have asked for a general tax increase for a general budget shortfall, but found spinning off one function along with a dedicated source of revenues for it more palatable.

Disaggregating government so that most specific functions of government have earmarked revenue streams creates sustainable, low maintenance systems to keep all of the functions available to provide important services indefinitely to the people with a minimum of political strife.

Of course, this comes at a price. Earmarking revenue is the public sector equivalent of leveraging an investment. The government functions reliant upon residual general revenues face ever more intense budget fights over a highly cyclical amount left over after mandatory payments are made, and the risk of an overconstrained situation where the is no legal way to meet all of the legal obligations of the budget process looms ever larger. It also makes the disaggregated parts free from the need to be efficient with their share if their dedicated revenues turn out to be overgenerous, while leaving those parts with skimpy dedicated revenues at a perilous brink begging for their survival every budget cycle. The insufficiency of gas taxes and lack of political clout for the diffuse users of roads and bridges, for example, has led to scandalously deferred maintenance.

No one has consciously made a decision at a global level about what should and should not be in the general fund. It simply covers every service that has not opted out. But, rather than trying to reaggreate government revenues and centralize the budget process, it may make more sense to openly acknowledge what is going on and to strike to find independent bases of revenue support appropriate to every major and minor function of government, with the legislative budget process fading into the background replaced by a larger process sunset review type process that periodically examines each component of the system and recalibrates its revenue sources with its ongoing needs. This kind of longer run approach aimed at sustainable solutions to parts of the puzzle would promote the more deliberative and episodic decision making model that legislatures are better suited to participating in meaningfully.

Trouble In River City

Some high schools have homecoming dance public gang rapes, 19 student murders in the last year, and a 69% truancy rate. In those that don't, some principals feel a need manufacture the sense that they are the finger in the dike keeping the collapse of Indiana civilization as we know it from coming to an end. There is nothing new under the sun.

28 October 2009

Music and Manga

Western classical music has much the same powerful place to fill in Japan as it does in middle class America. I'm more aware of it now than usual perhaps, as I have one child studying recorder, and the other taking violin lessons. Two exceptional works from the world of anime revolve around this music.

Nodame Cantabile, one of the hits of the Japanese manga world, just completed an eight year run (reprinted in 22 book length volumes) that as spawned live action and anime movie trilogies (the last two parts of the live action movie are due to be released next year) and a worldwide following. It features a sloppy, expressive piano student, Nodame, and her perfectionist next door neighbor, fellow music student and not easily won boyfriend, who aspires to be a conductor.

The light drama is quirky. Its rich characters, some of whom (including Nodame) are based on real people with the same names, have rich relationships that often go in unexpected directions. Minor characters include a brilliant but perverted European conductor teaching at their Japanese school, a gay timpani player with a crush on the male protagonist, and an electric violin playing buddy of just about everyone in the story.

My beloved wife on trips to the local library complains to me sometimes that everything new in print that is either based on somebody getting killed, or is hyper-formulaic women's fiction where a protagonist is a florist, coffee shop owner or caterer, and/or someone is literally using magical powers to win over lovers. Nodame Cantabile is an exception to this rule, it is not violent without being predictable or impossible.

For younger audiences there is the sweet, short anime series Piano, in which a middle school aged girl, Miu Nomura, who is a long time piano student, tries to figure out her life in the face of ambivalence about how serious she is about her music, while her older sister has left home, her parents are struggling in their marriage, and her best friend seems to have such clear direction in her life about sports, boys and all of the other awkward elements involved in coming of age. While it may be coincidence, it was not long after my kids and I watched this that they got the instrument bug, and they did really enjoy it. The Denver Public Library has at least one set of the series.

Both rise above the sometimes hollow girlish or boyish stories that dominate run of the manga series and are easily accessible to people who aren't hard core manga or anime fans.

Home Sales Recover, New Home Sales Don't

While existing home sales have recovered to pre-bubble 2003 levels, new home sales remain about a third below the levels seen any time in the past fifteen years.

In the years 1994 through 2006 (and probably well before then), new home sales were consistently about one-sixth of existing home sales. The ratio of existing home sales to new home sales has risen since then as the housing bubble unraveled. Right now, new home sales are one-fourteenth of existing home sales.

This means that it may take a very long time for the home construction industry to recover. First, existing housing inventories need to be absorbed. The ratio has been rising for almost four years, and even if it returns to normal levels in half that time, this means that the new home construction industry would not return to pre-housing bubble burst levels until early 2012. It could take longer.

Construction and real estate are quintessentially local industries, and the housing bubble was not a national phenomena. In markets like California, Arizona, Nevada and Florida there was an intense housing bubble and subsequent collapse, so there is a good chance that those markets are very overbuilt and that the new housing industry recovery there will take longer. The Denver market and many markets in the American heartland did not see nearly as much of a housing bubble, so there is a good chance that those markets are not very overbuilt and that the new housing industry can recover more quickly there.

This is complicated by the fact that the manufacturing industry has taken a big and probably partially permanent blow in the current financial crisis. The automotive industry through the bankruptcies of General Motors and Chrysler, finally carried out a downsizing that had been looming for years as these companies lost market share. The "New Rust Belt" that runs through the American South and consists of counties with heavily manufacturing reliant economies in otherwise relatively rural areas may have taken a blow as well, although there is reason to think that these newer ventures are more flexible and more prone to come back as the economy recovers. Thus, at least in the Old Rust Belt, the new housing market may be hit just as hard as it was in areas that had severe housing bubbles, and may not come back anytime soon.

Short term stimulus packages are unlikely to provide a long term benefit to the new housing industry in either busted housing bubble areas or areas that have seen permanent declines in their manufacturing job base in the Old Rust Belt. Incentives to buy homes may eat away at the excessive housing inventory for a while, but those incentives also reduce demand in the months that follow because potential new home buyers already bought homes a little bit sooner than they would have in the absence of incentives. When the excess housing inventory is small, this kind of stimulus can return the economy to normal. But, when we have a huge excess inventory, as we appear to now, the excess inventory is likely to outlast the stimulus, so there is little benefit in the medium or long term.

Since the construction industry, particularly in the area of new housing, was a major driver of immigration, this may also mean that immigration, legal and illegal, will recover more slowly than the economy as a whole. This takes pressure off policy makers, as immigration becomes a less significant issue in the economy and also provides a window in which the kind of immigration reforms that President Obama ran for office upon may open up.

Colorado Makes Deeper Cuts To State Budget

Governor Ritter is offering up a new round of state budget cuts to the tune of $286 million, on top of prior cuts, "including reductions in Medicaid provider rates and $145 million from higher education. The cuts come on top of the $1.8 billion budget shortfall the state has already covered over the past year." Revenues are down, Medicaid costs are up, and previously announced cuts to the corrections budget through early releasees were halted.

TABOR greatly limits increases to tax revenues in the short term, so cuts have to come almost entirely out of unresitricted spending.

Denver Sheriff's Deputy's Union Petition Fails

Denver has a consolidated city and county government with both a sheriff's department and a police department. The sheriff's department runs the jail and is the law enforcement arm of the courts that provides security at the court houses, conducts evictions, seizes property to pay for judgments and serves process. The police department, in contrast, is the crime fighting and traffic control force of the city and county.

The sheriff's deputy has limited arrest powers in connection with crimes committed in jail, but doesn't have the full power to make arrests that police do. So, a sheriff's deputy on the way home from work, for example, has no more power to arrest people than any other ordinary citizen. They want that power, and the city has refused to grant it to them.

The city doesn't want to pay for the training that law enforcement officers with full arrest powers must receive, doesn't want to pay the wages that more highly trained jail guards would command, and, doesn't want to have hundreds of law enforcement officers outside the usual chain of command in the police department roaming the streets and creating a risk of liability to them. The city has a hard enough time preventing its regular police officers from engaging in liability creating misconduct.

The union for the sheriff's deputies (the Fraternal Order of Police) tried to do an end run around the decision made by Mayor Hickenlooper's administration and the City Council with a ballot initiative. They needed 41,666 signatures to get on the ballot in a special election in February (which would have cost the city $750,000-$1,000,000). They turned in a little less than 57,395 signatures by the deadline.

I heard rumors that the signature collect quality was very low. For example, ballot officials found apparently forged signatures of people who were actively campaigning against the measure. It isn't that the sheriff's deputies were dishonest, they just "hired a company to collect the signatures" which didn't have high enough standards. This is a long standing problem when your workforce is made up of temporary unskilled workers who are rewarded, directly or indirectly, for producing more signatures. The validity percentage in this case was spectularly low, however.

According to Stephanie O'Malley, the City and County's new elected Clerk and Recorder, the union turned in 22,229 valid signatures and 34,166 invalid signatures. Unless they can cure 19,437 signatures by November 12, the initiative won't go on the ballot, although O'Malley's decision is subject to deferrential court review. Realistically, I'd be stunned if the union could cure that many signatures in time.

Arrest Powers As Gun Control

The debate is, to some extent, a derviative of the gun control debate. The Second Amendment constitution right to be armed for self-defense, subject to reasonable restricts, was established in the Heller case decided by the U.S. Supreme Court by a police officer who wasn't allowed to have a handgun in his own District of Columbia home for personal self-defense. The explicit recognition in Heller of a crime prevention element of the Second Amendment refocuses the debate on who may do what to prevent crimes.

There are two distinctions between the arrest powers of private citizens and law enforcement officers. The first is that private citizens can only arrest people for crimes committed in their presence, and the second is that law enforcement offices, but not private citizens, may use deadly force arrest high risk suspects. Thus, law enforcement officers have greater authority to use guns to arrest people for crimes than private citizens do.

A private citizen in Colorado is permitted to use "appropriate physical force" which "he he reasonably believes is necessary" to arrest someone who "has committed an offense in his presence." Private citizens aren't permitted to use deadly force strictly for the purpose of making an arrest on their own account, or to arrest someone for a crime that someone else says they saw committed.

As a general rule, enforcement of the law through armed vigilantees isn't permitted. Someone using a gun to make an arrest can be criminally prosecuted and sued for doing so, even if the person arrested really was a criminal and a police officer could have legally arrested that person.

Of course, often, in isolated incidents where the arrest would otherwise have been lawful, the District Attorney's office and police will exercise their discretion to take no action against the private citizen, and someone who is later prosecuted and convicted of a crime will have a hard time making a case that the illegal private arrest caused anything more than nominal damages.

Private citizens have no power to used deadly force to make an arrest, separate from the general privilege of all people to use deadly force to protect yourself and others. Even felons prohibited from owning guns have this narrow privilege, although the tools they are allowed to use in doing so is limited to cruder weapons like cars and kitchen knives and clubs, rather than firearms.

The only real except to this rule is that private citizens can also use any kind of force to make an arrest of anyone under the direction of a law enforcement officer, so long as that citizen doesn't personally know to be an illegal direction.

In contrast, a law enforcement officer need only have a "reasonable belief that a person has committed an offense" (a warrant or probable cause are two means of obtaining that belief) to arrest that person. A law enforcement officer may use deadly force in carrying out that arrest if officer believes tha the person used or attempted to use a deadly weapon in a felony or attempted felony, or is likely to endanger human life or inflict serious injury on another if not apprehended without delay (mere traffic violations don't suffice to establish this risk).

Arrests in Colorado are spelled out at Colorado Revised Statutes Sections 16-3-101 to 16-3-203, and Section 18-1-707.)

Since sheriff's deputies already have arrest powers when they are engaged in guarding jails, the primary effect of the intiative they proposed would be to turn off duty sheriff's officers into an unorganized militia or citizen's watch, at least when on duty (e.g. out serving process or en route to an eviction), or employed as a private security guard with city permission.

27 October 2009

Smash and Grab

Someone smashed my car window and looked inside, only to find nothing of consequence that they wanted. They tossed one item out the window onto the street. It is a big mess and means another trip to Perry & Terry. But, honestly, this third time around, I didn't even get angry. It has become as much as force of nature in urban living just as much as a hail storm.

I'd read that there was a wave of these in Denver, so I'm not surprised it hit home.

26 October 2009

About Ardi

Ardipithecus ramidus (ca. 4.4 million years ago) is a pre-human ancestor species that lived before the species commonly known as "Lucy" (Australopithecus afarensis found about 3.2 million years ago). Ardi may have been Lucy's direct predecessor. Several other skeletal finds from 4-6 million years ago could be members of the same or a closely related species, but are too fragmentary to tell.

Where does Ardi fit?

Ardi Compared To Gorillas, Chimpanzees and Bonobos

Ardi seems to have much more in common with the Bonobo than the Common Chimpanzee at an amateur distance.

Common Chimpanzees are 'knuckle walkers', like gorillas. Bonobos and Ardi were 'palm walkers' who use the outside edge of their palms (Lucy was a bipedal walker, much like modern humans).

Bonobos and Ardi were both probably less aggressive than Common Chimpanzees and Gorillas. Ardi did not have adaptations like sharp canine teeth associated with that kind of hierarchy and male-male competition. Neither Ardi nor Bonobos have major gender differences in size. There are no documented cases of Bonobos killing other Bonobos, while intraspecies killing is known for Common Chimpanzees, and Gorilla aggression has also been observed.

Chimpanzees also have greater size differences between males and females than either Bonobos or Ardi.

Chimpanzees: "Adults in the wild weigh between 40 and 65 kilograms (88 and 143 lb); males can measure up to 160 centimetres (63 in) and females to 130 cm (51 in)."

Ardi: "4 feet tall (120 cm) tall and weighing around 110 pounds (50 kg), Ardi was slightly shorter than Lucy but almost double her weight."

Lucy: (3 feet 8 inches) tall or a couple inches shorter and weighed 29 kilograms (65 lb).

Bonobos are:

"Height: Male: 73 - 83 cm (29 - 33"); Female: 70 - 76 cm (28 - 30").
Weight: A survey of most of the world's captive bonobos in the 1990's put the average weight of males at 43 kg (95 lb) and the average weight of females at 37 kg (82 lb)."

Gorillas, Common Chimpanzees and Bonobos all live deep in the jungle now, with both one of the Common Chimpanzee species and the Bonobos living close to Africa's Great Rift Valley. Lucy lived on the Savanna. But, this may not always have been the case. Indeed, Bonobos are sometimes called pygmie chimpanzees, and the jungle habitat that they now inhabit could reflect the same kind of dwarfism seen in the two clusters human groups of pygmies found in the Congo jungle. Ardi lived in an open, ground watered forest between the jungle and the savanna similar to forests found in parts of Kenya today, but found farther North in modern day Ethiopia at the time. Was there are Bonobo ancestor that lived in a more open forest?

Common Chimpanzees and Bonobos are specialized to eat fruit. Ardi was more omnivorous that they were, but wasn't suited to eat rougher savanna foods.

The Chimpanzee Phylogeny

The conventional wisdom based on DNA evidence is that:

[T]he Bonobo and Common Chimpanzee species effectively separated from each other less than one million years ago. The chimpanzee line split from the last common ancestor shared with humans approximately four to six million years ago. Because no species other than Homo sapiens has survived from the human line of that branching, both Pan species are the closest living relatives of humans and cladistically are equally close to humans.

It isn't clear to me if the Chimpanzee-Bonobo split is based on genetic data or the fact that chimps are found North of the Congo River, while Bonobos are found South of the Congo River and the fact that the Congo River came into being 1.5 million to 2 million years ago. The four species of Common Chimpanzee collectively outnumber Bonobos about 15-1 (there are currently about 11,000 Bonobos). The genetic data on Bonobos is apparently not very good.

The authors of the Ardi study argue that Ardi's roots are in a common ancestor of humans, the Common Chimpanzee and Bonobo, and that Common Chimpanzees and Gorillas developed their common traits independently of each other.

Few findings of the scholarly write up of Ardi have received more skepticism than the notion that the common traits of Common Chimpanzees and Gorillas do not bespeak a common ancestor with those traits. But, given the recent divergence of Common Chimpanzees and Bonobos, the alternative explanation is that Ardi and the Bonobos developed their common traits independently.

Neither is a terribly pleasing explanation.

Can I spin any better tales?

In a variation on this scenario, suppose that an Ardi was the common ancestor of humans, the Common Chimpanzee and Bonobo from the Gorilla. The DNA for Gorilla-like characteristics was turned off by not absent from Ardi's genome. Drying conditions shifted Ardi's range away from Lucy's kin. When Homo Erectus or the Neanderthals arose and were successful, Ardi was forced back from a native open forest habitat to the jungle. In one group, the Gorilla DNA lurking dormant in the Ardi genome turns back on in a jungle habitat and came to dominate the area North of the Congo River. In the other group, South of the Congo River, the Gorilla DNA stayed dormant, but jungle conditions lead to dwarfism, giving rise to the Bonobos.

In this view, Bonobos are pygmie Ardi, and Ardi existed jungle refuges until a million years ago, although not in the places where Lucy and other hominids arose.

Where Did Human Evolve?

To the extent that Ardi is a key link in the human evolutionary chain, Ardi is one of the best links for localizing geographically within Africa where human evolution took place. This is because Ardi had a quite narrow ecological niche compared to later human ancestors species. Lucy and Homo Erectus, for example, would have had a much wider range. Places within Africa that were either deep jungles or savannas in the period a little more than 4 million years ago are ruled out as locations where this significant link in human evolution could have take place. These places had to include modern Ethiopia, but could have been broader. Arguably similar skeletal remains have been found in Chad, for example.

The fact that each major genus of the hominid family tree is present in the Awash Valley of Ethiopia, which is also home to some of the earliest known modern human skeletons (about 50,000-60,000 years before humans left Africa), and the higher levels of genetic diversity found in East Africa and Ethiopia than other parts of Africa, all suggest that the Awash Valley is very close to historical Eden, and that "historical Eden" had to include the Awash Valley, even if it wasn't limited to it.

The alternate explanation is that these species of pre-humans were present in other places that were less suited to preserving skeletons or haven't been revealed by the cut of a river valley. For example, one could alternately explain the mix of genetic lineages in Africa through the expansion of the Neolithic farming Bantu people in a way that overwhelmed or replaced earlier hunter-gatherer groups. But, the best evidence that we do have points to East Africa and is largely uncontradicted, and Ardi adds an important piece of evidence to the East African Eden hypothesis.

Middle Names In Colorado

The woman in the picture above is not the person involved in the lawsuit discussed below, although they share a first and last name.

The Colorado Supreme Court is considering a question of Colorado law referred to it from federal court regarding middle names:

No. 09SA257, In re: Rocky Mountain Bank v. France

On September 10, 2009, the supreme court accepted the following certified question of law from the United States Bankruptcy Court for the District of Colorado:

Whether a financing statement, which identifies the individual debtor's correct first and last name, only, but does not include the debtor's middle initial or middle name and thereby does not identify the debtor's full legal name, sufficiently provides the name of the debtor consistent with Colo. Rev. Stat. section 4-9-503(a)(4)(A) so as to establish a perfected and enforceable secured claim.

As a general rule in similar cases involving real estate records, Colorado courts have held that middle names are irrelevant, although this rule hasn't been absolute unequivocal and categorical (i.e. there are some facts and circumstances that come into play). Many of the cases involved are old, however.

This case involves loans with personal property as collateral and I would be surprised if the Colorado Supreme Court reached a different conclusion. Indeed, the premise that a middle name is part of a person's "full legal name" is not well established in Colorado.

The other deep question involved in this case is that Colorado law generally allows for common law name changes. Your name is what you use, even if no formal court document authorizes the change. Common law name changes are a nightmare for the tidy bureaucratic worlds of driver's license bureaus, and Uniform Commercial Code databases and the like. Thus, even if you are born with a middle name, if you don't use it, that middle name might cease to be part of your full legal name.

Normally, a Uniform Commercial Code filing will include a taxpayer ID number and debtor address, and sometimes information about co-debtors rather than just a first and last name in a vacuum. And, since the records are kept at a state level, usually based upon the debtor's domicile, there is always at least some further specificity that rules out same named people in other states. If there are clarifying facts of any kind in the filing, as well as the name, the case that a first and last name is insufficient to identify someone seems increasingly implausible. If a filing identifies one and only one person who resides in the state, the filing can hardly be described as too vague to identify a debtor.

Also, since the filings identify the creditor, who may have additional information, the usual rule is to hold that interested persons should call the creditor if there could be a match, but the match isn't certain.

It appears that the bankruptcy trustee is making the case that middle names or initials are required on behalf of the unsecured creditors of Carl Nelson France and Jamie H. France, and that the bank is the party with a loan that has property owned by the debtors as collateral. The particular names of the parties could be legally relevant in this case, because a common name (Jose Gonzales or Henry Smith, for example) might pose issues different from those of relatively uncommon names like these. One suspects that the Carl France in this litigation is the same Carl France who owns a troubled pipeline company called IXP in Fruita, Colorado and this case involves the Jamie France who lives in Western Colorado, rather than Miss Teen Oregon 2009.

How Many People Read The Denver Post?

The Denver Post has released its first full six month circulation figures:

Circulation for The Sunday Denver Post was reported at 495,485; circulation for The Saturday Post was 410,358; and Monday through Friday circulation was 340,949.

The Post says that "it has retained 86 percent of News home-delivery customers," and that it "showed circulation declines of 5 percent to 8 percent compared with the one-month average after the News closed. About 75 percent of the decline was due to scaled-back statewide distribution and a reduction of free distribution to area hotels, schools and employees. . . . The Post's daily circulation had dropped to about 210,000 before the News closed."

So, the pie is smaller, but the Post is getting a bigger share of the pie without proportionately increasing its expenses. This would be great news for the Post if it weren't for the fact that the Great Recession has devistated advertising revenue.

Real estate sales, car dealers and grocery stores make up a huge share of newspaper advertising revenues. But, real estate sales have been mediocre, car sales are dismal with many dealers being shut down entirely, and their major grocery store advertisers face the prospect of a strike that could cost the chains billions.

Well under half of metro Denver adults read a newspaper of any kind daily. The decline in the total market for newspapers has been slowly accumulating for decades and shows no sign of stopping.

Vote This Week!

If you want to vote in Denver this year, and you don't want to hand deliver your mail in ballot, you need to get it in the mail this week!

22 October 2009

65% of CU Law Grads Unemployed At Graduation

The numbers are bleak for the class of 2009 at the University of Colorado School of Law. About 35 percent of the students had jobs at graduation, down from 55 percent the year before[.]

From here.

So what does CU do? Adopt an every man for himself policy.

Most law schools no longer have traditional “placement offices” that line students up with jobs, [SuSaNi Harris, assistant dean for CU law school’s Office of Career Development] said.

“We got away from that because no office is staffed to place, one by one, each of their students. But what we’re exploring here is sort of a pseudo-placement effort.”

This is true despite the fact that Colorado's economy is relatively healthy nationally, with a below national average 7% unemployment rate.

21 October 2009

Did Farmers Replace Hunter-Gatherers In Europe?

Did Farmers Replace Hunter-Gatherers In Europe? A month ago, I would have said, mostly not. A new study released this month suggests that the answer may be, mostly they did.

About 1.9 million years ago, Homo Erectus left Africa and spread across Eurasia. About 200,000 years ago, a new species, called the Neanderthals, left Africa and also spread across Eurasia. About 100,000 years ago, modern humans left Africa, but the path to Europe was impeded by the ice age until something like 45,000 years ago when modern human hunter-gatherers started to fill the ecological space left open by the extinction first of Homo Erectus, and then Neanderthals. The Neanderthals may have been pushed over the edge to extinction by modern humans either through competition or war or both, as they co-existed in Europe until about 28,000 years ago.

Neanderthals replaced Homo Erectus (they also overlapped, although the Homo Erectus were gone almost everywhere by the time that modern humans left Africa), and modern humans replaced the Neanderthals.

Replacement Or Cultural Change?

This brings us to the next big question regarding ancestry of modern Europeans (a similar issue is present in the Indian subcontinent and is being examined with many of the same tools).

After the domestication of animals and crops in the Near East some 11,000 years ago, farming had reached much of central Europe by 7500 years before the present. The extent to which these early European farmers were immigrants or descendants of resident hunter-gatherers who had adopted farming has been widely debated.

The Early DNA evidence

One of the main tools that has been used to explore the question is genetic evidence. Brian Sykes in his book "The Seven Daughters of Eve" (2001) popularized the early findings made regarding question using mitochondrial DNA (which is simpler than nuclear DNA and inherited matrilineally), and in a brief mention, parallel confirming early findings made using an analysis of Y-chromosome genetics (which is simpler than other chromosomes and is inherited patrilineally).

Those findings suggested that somewhere between one in five (Y-chromosome data), and one in six (mtDNA) of modern Europeans were descended from Neolithic farmers whom immigrated to Europe, while rest of the Europeans were descended from earlier hunter-gatherer populations who took up farming by learning it from the Neolithic farmer immigrants from the Near East.

Sykes had good reason for his conclusion. He grouped mitocondrial DNA data into clusters, and seven of the clusters were found with some frequency in Europe, each assigned a letter. Six were widely distributed across Europe and were distinguished by mutations that probably happened before the Neolithic revolution. The oldest of the groups, U, was dated to roughly the time that hunter-gatherers entered Europe. A seventh group, J is the youngest and probably arose around the time of the Neolithic revolution. Group J is not found in Basque Country (in Northern Spain) which is home to the most distinct European language and has long been hypothesized to include some of the ancestrally oldest Europeans. But, group J was found to be much more common in the places where farming first appeared in Europe. Broken up into one subgroup along the European coast, and another subgroup up through the river valleys where farming first appeared in Continental Europe. Farmers, Sykes supposed, would be less mobile than hunter-gatherers. Group J also looked likely to have arisen in the Near East based upon where mtDNA diversity within the group is greatest (a large share of Berber nomads have mtDNA from Group J).

Skyes' conclusion was also backed by a sample from a single hunter-gatherer era skeleton found in a British cave twenty miles South of the town of Bath, dated to about 9,000 years ago (prior to British farming) called Cheddar Man, which belonged to mtDNA group H which makes up about 47% of modern Europeans.

A confirmation of the general proportions he found with Y chromosome data seemed to seal the deal.

The New DNA Evidence

A study released in the October 2, 2009 issue of Science, "Genetic Discontinuity Between Local Hunter-Gatherers and Central Europe’s First Farmers," by B. Bramanti, et al, casts doubt on this conclusion. It looked at the mitocondrial DNA of about four dozen skeletons, about half from late European hunter-gatherer skeletons and about half from the earliest Neolithic era farmers in Central Europe, which it compared to about four dozen modern European mitocondrial DNA samples and prior studies. It clustered the mtDNA sampled into essentially the same groups used by Sykes and the researches whose work he drew upon.

Rather than having a good mix of the six mtDNA groups that Sykes had believed had intermixed to make up the pre-Neolithic gene pool in Europe, 82% of the hunter-gatherer skeletons had mtDNA from group U (14 from subgroup U5, 2 from subgroup U4 and 2 from an unspecified U type with data not clear enough to distinguish a subgroup), the oldest of the groups, which is now rare in most of Europe. The U5 subgroup includes 1-5% of the modern European population on the Mediterranean coastline, 5-7% of the European population in most core European areas, 10-20% in northeastern European Uralic speakers, and over 40% in the Scandinavian Saami people who are now found in parts of northern Finland, Norway, Sweden and extreme northwestern Russia. The letter U for this mtDNA group probably comes from the of Uralic language group that these people speak, although their ancestral origins were probably further South (the far north was covered by an ice sheet when the mutations that define group U are believed to have arisen). Modern Europeans belong to subgroup U4 at frequencies of 1-5% in most of Europe, "with Western Europe at the lower end of this range and northeastern Europe and central Asia showing percentages in excess of 7%."

The four exceptions in the 22 hunter-gatherer skeleton sample all came from a site in Ostorf, Germany, near Germany's North coast on the Baltic Sea. One was from mtDNA group K, two were from mtDNA subgroup T2, and one was from mtDNA group J. At the eleven other hunter-gatherer sites, all more inland, every single skeleton contained mtDNA from group U. Ostorf, Germany's samples of hunter-gatherers were relatively young (about 4950 to 5200 years ago), and was in an "enclave surrounded by Neolithic funnel-beaker farmers." The other three skeletons from Ostorf were part of mtDNA subgroup U5. So, this may be an exception that proves the theory behind the rule.

Group T, believed to have originated around 17,000 years ago, is the mtDNA group to which about 9% of modern Europeans along the Mediterranean and Western edge of Europe belong, and is particularly common in the west of Britain and in Ireland, suggesting that some of the founding population of Group T was made up of coastal seafarers. It is not surprising then that half of the exceptions to the U group rule were T group members found at a coastal hunter-gather site.

The early Neolithic farmer skeletons in Central Europe, meanwhile, showed multiple mtDNA groups, "mainly N1a, but also H, HV, J, K, T, V and U3 types." The early central European farmer skeletons had no U5 or U4 subgroup members. There were no N1a or H types in the early hunter-gatherer sample.

The N1a subgroup did not become prominently known until a 2005 paper by Haak who is on of the co-authors of the current paper. "N1a became particularly prominent when Wolfgang Haak et al. studies on 7500 year old skeletons in Central Europe revealed that 25% of the Neolithic European population might have belonged to the N1a haplogroup. The skeletons were found to be members of the Linear Pottery Culture which is credited with being the first farming culture in Central Europe. . . . It is a rare haplogroup as it currently appears in only .18%-.2% of regional populations. It is widely distributed throughout Eurasia and Northern Africa and is divided into the European, Central Asian, and African/South Asian branches based on specific genetic markers. Exact origins and migration patterns of this haplogroup are still unknown and a subject of some debate." Group N is believed to be the genetic predecessor of mtDNA groups including groups U, K), HV, H, V, J and T. It is believed to have originated in either the Near East or East Africa, which the evidence for the Near East seeming somewhat stronger as it is not found in Africa outside East Africa despite being younger than subgroups of group N found elsewhere.

The recent study has its own issues. The sample size of skeletons is not huge. It doesn't have hunter-gatherer or Neolithic samples that are from outside Central Europe.

The hunter-gatherer samples in particular are from quite far North, well removed from the areas near the northern Mediterranean coast where mtDNA groups H (ca. 30,000 years ago), V (ca. 17,000 years ago), T (ca. 17,000 years ago) and K (ca. 15,000 years ago), which are common in modern Europe seem likely to have arisen (J probably arose in the Near East about 10,000 years ago), U probably arose in Greece about 45,000 years ago, and X probably arose in the Caucuses about 25,000 years ago).

There could, for example, have been several distinct hunter-gatherer populations in European in the early Neolithic, only one of which (with members overwhelming from the mtDNA subgroups U4 and U5) was found in North Central Europe at the dawn on the Neolithic era, who began to intermingle to a much greater degree around the time that Neolithic farmers immigrated, perhaps first uniting with each other against the invaders, and then adopting the invaders customs (in the paradigm of the Greeks who united to some extent against Roman invaders, with the Romans then adopting much of their culture).

But, this study also offers persuasive evidence that Sykes didn't have available to him. Sykes inferred ancient population patterns entirely from modern European populations and a single British hunter-gatherer skeleton. Bramanti, in contrast, used the direct evidence of mtDNA from actual members of these populations.

Bramanti's small sample size is compensated for by the degree to which his results are emphatically clear that the two populations were separate. In terms of mtDNA genetics, the hunter-gatherers and early farmers in Europe were as distinct as just about any modern non-African populations are today. The odds that this was due to any meaningful degree by to mere random sampling error is extremely low.

There are also a wealth of historical precedents for incoming farming populations almost wiping out previously uncontacted hunter-gatherer populations. It happened in North and South America, and continues today when isolated groups in South America make contact with outsiders. It happened in Australia (whose pre-European population was pre-Neolithic), and to a lesser extent in New Zealand (the Polynesians of New Zealand and the rest of Oceania were post-Neolithic in origins). It has happened in Papua New Guinea and the Andaman Islands. Indeed, small pox, which was an important cause in the great decline of hunter-gatherer populations in these examples would be a plausible culprit in the prehistoric, early Neolithic case in Europe. Small pox was a post-domestication of animals cross over from domesticated animals to which hunter-gatherer populations would not have been exposed. The degree to which modern Europeans show mtDNA links to the hunter-gatherer skeletons in the new study is in line with the experience of historical first contact episodes.

Bramanti doesn't pose an easy resolution to the question of how to resolve the seeming contradictions in different lines of reasoning from mtDNA evidence (although the study does confirm the previous conclusion that even the oldest modern human skeletons do not show genetic links to the Neanderthals). Indeed, the study makes clear that the modern European sample does not have a straight forward link to the early European hunter-gather population or the early European Neolithic farmer populations by descent or population mixing alone.

Comparing and Contrasting the Theories

The fact that even the extremely distinct hunter-gatherer population in Bramanti's study had a more than 50% overlap with the early farmer population in one location, makes clear that these populations were not separate species of modern humans. Neanderthal mtDNA is much more genetically distinct than any modern humans are from each other and there are no cases of Neanderthals with modern human mtDNA, and there are no cases of modern humans with Neanderthal mtDNA out of thousands of samples, carefully chosen to ferret out anomolies in genetically unusual populations, analyzed.

Bramanti's study is making distinctions between two waves of immigrants to Europe, ultimately from the Near East, separated by no more than 25,000-35,000 years.

The analysis that Sykes relies on also concludes that there were at least two wave of immigrants to Europe, ultimately from the Near East, who were separated in time by many thousands of years.

The difference is that Bramanti's analysis suggests that the first wave accounts came overwhelmingly from only one part of the type U mtDNA group, that their matrilineal descendants make up only a small minority (probably less than one in seven) modern Europeans, while Sykes analysis suggests that hunter-gatherers at the time of the Neolithic revolution were much more genetically diverse and that their matrilineal descendants account for 80%-84% of the modern European population.

Neither researcher proposes a complete replacement theory, but Bramanti suggests that pre-Neolithic hunter-gatherers of Europe were overwhelmingly replaced by at least one (and possibly more) waves of Neolithic farmer immigration, while Sykes analysis suggests that the Neolithic farmer immigrants added only a new minority layer to the existing mix, reather than predominantly replacing the existing inhabitants.

There is basically consensus involving mtDNA groups J and U, that together make up perhaps 25-30% of Europe's population. The former was clearly part of a wave of Neolithic farmer immigration to Europe. The latter was clearly part of the earliest hunter-gatherer populations in Europe.

The big issue apparent discrepency concerns what kind of people the matrilineal descendants of the other 70-75% percent of Europe's population in the other mtDNA groups were like and when they arrived. Sykes theory argues that they were hunter-gatherer populations who arose earlier and intermixed with each others. Bramanti's data suggest that they were part of the early Neolithic farmer populations the immigrated to Central Europe later, and it isn't clear at what point they intermixed. Neither approach entirely rules out multiple waves of immigration within hunter-gatherers, or by farmers, although Bramanti's data disfavors multiple waves of hunter-gatherer immigration to Europe.

No one thinks that either set of data is wrong. The question is how to interpret that data and what additional data might clarify the story.

A Possible Story

One possibility is that the Near Eastern people who took up farming in the Neolithic era were genetically diverse. Mutations in the mtDNA groups other than J that arose at various points among coast Mediterranean hunter-gatherers may have been exchanged by early coastal hunter-gatherer populations for many thousands of years and back migrated to the hunter-gatherer populations of the Near East and Asia Minor where farming would later arise in the Neolithic era. Most of the Near Eastern farmer immigrants to Europe in the early Neolithic would have been genetically indistinguishable from the Mediterranean coastal hunter-gatherers with whom they had formed a single population for thousands of years. But, one in four or five of the fairly small founder group of farmer immigrants to Europe would have been part of the very new mtDNA group J that marked this wave of immigration and arose in the Middle East. This scenario would make genetic patterns in current European populations all but useless in determining whether there was a replacement or cultural assimilation by a homogeneous caste of mostly J mtDNA type farmers, with regard to existing coastal hunter-gatherer populations in coastal areas. We would have to turn to other lines of evidence to resolve that issue.

The Neolithic colonists probably consisted of two main groups headed in different directions out of Anatolia and the Near East. One J subgroup may have been particularly strongly represented in the founder group that went out along the coasts of the Mediterranean and Europe. The other J subgroup and the N1a subgroup (an older group that had experienced little mtDNA mutation for a long time period in the Near East), may have been strongly represented in the founder group the moved up through Central Europe's river valleys.

This still doesn't explain why the N1a subgroup all but disappeared. Were early Neolithic farmers of the linear pottery culture wiped out or genetically overwhelmed by a later wave of farmers? Did this mtDNA group coincide with some metabolic frailty that was of no consequence in the Near East, but was a serious survival disadvantage in Central Europe (perhaps burning energy too quickly and not leaving fat stores to survive lean winters)? Did the mutation clock tick independently in most of the ancient N1a mtDNA genomes and produce new mtDNA types?

Perhaps the N1a subgroup was common because of a very small pre-Indo-European Neolithic farmer colonists founder group from the Near East, that stayed small because their farms were fairly marginal in success, and they were overwhelmed in numbers of later Indo-European farmer colonists from the Near East where the Central European branch of the J subgroup made up a larger share of the founder group, in parallel to the two waves of farmer colonization believed to have taken place in India, first a pre-Indo-European (probably animist rather than polytheistic) Dravidian group, and then an Indo-European Aryan group that brought the Hindu religion with them. This group might have been more a group of colonist than a warrior-priest caste that invaded India.

In contrast, the pre-Neolithic hunter-gatherers of inland Europe and central Asia, probably a more sparsely populated group, may have been largely isolated from their coastal ancestors after breaking off from them sometime between 45,000 and 30,000 years ago as the ice pack receded opening up Europe for the first time to modern humans. They would have shared ecological space with Neanderthals in this time period (the most recent Neaderthal sites are dated to about 28,000 years ago), and would have experienced a later ice age that may have forced them to retreat to the South. The last glacial maximum was 18,000 years ago and many of the locations where skeletons of hunter-gatherers were found were exposed by a receding ice pack between 18,000 and 9,000 years ago. Long periods of isolation and harsh conditions caused by extended ice packs may have made this group an unattractive one for coasta hunter-gatherers to interact with, as they might have had different customs and languages that further disouraged interaction.

When Neolithic farmers arrived in Central Europe, they may have partially seen their numbers decline and partially retreated further North towards colder climes where their life style continued to be the most adaptive.

The Big Picture

Less technically, Bramanti's study is consistent with (although it does not compel) the hypothesis that in much of the world, a very large percentage of all of the non-African descendants of modern human hunter-gatherers were wiped out. Their population were overwhelmed in most local gene pools (including Europe's) by a small number of distinct populations of Neolithic farmers.

This is also supported by evidence that a very large proportion of languages spoken today show common origins in the Neolithic era time frame, rather than the plausible far earlier time frame of the departure of modern humans from Africa. The implication is that the vast majority of the languages used by pre-Neolithic hunter-gatherers in Europe, Asia and Africa have gone extinct, something that the languages of people who are overwhelmingly outnumbered in their own lands by foreigners and suffer gross population falloffs tend to do.

Footnote On India

Lingistic, archeological and historical evidence point to multiple waves of immigration to the Indian subcontinent; genetic evidence of that history is in the process of being collected and has puzzles, just as the European evidence does.

The first wave of modern human immigration to India is sometimes described as a wave of hunter-gatherers, linguistically linked to the people of Southeast Asia and the related languages spoken in a few pockets of Northeast Central India, who probably came to India by a coastal route when sea levels were low and ice caps were large. There is evidence that these people have genetic links to the oldest modern inhabitants of the Andaman Islands.

The second wave of modern human immigration to India is associated with the Dravidian language family and the earliest Indus River Valley civilization.

The third wave of modern human immigration to India is described as Aryan (a term that has fallen into disfavor after appropriated by the Nazis but still used widely in English language discussions about ancient India) who are associated with the branch of the Indo-European language family exemplified by Sanskrit and Hindi, and with the Hindu religion.

Some mtDNA evidence suggests that India's genetic makeup is very homogeneous across caste, linguistic and geographic lines, something that suggests that the Aryan wave of immigration may have involved a fairly small number of poeple with a large cultural, but not a large genetic impact. This wouldn't be inconsistent with the examples of hunter-gather populations being devistated by first contact with peoples who have historically farmed. India's mtDNA homogenity, could come either from the Dravidian wave of people culturally transforming earlier hunter-gatherers, or from the Dravidian wave of people replacing earlier hunter-gatherers and being homogeneous themselves, either due to founder effects or due to blending of subpopulations over thousands of years. The Dravidian populations themselves might not have been as devistated by an influx of Aryan immigrants to India because as farmers themselves, they might have had greater immunity to the devistating diseases that come with agriculture from domesticated animals.

But, the Y-chromosome evidence seems to argue for a much greater Aryan influence, with as much as half of the male population in Hindi speaking areas showing Aryan influences, while a much smaller percentage of the population in areas that speak the Dravidian languages showing this link.

This too isn't necessarily inconsistent. We know that the armies of Ghengis Khan had an immense genetic impact on the Y-chromosomes found in Asia. It wouldn't be much of a stretch (and fits the historical and culture myth) to imagine the incoming Aryans as an army made up disproportionately of men who had disproportionate reproductive success with predominantly local women, sometimes on a polygamous basis. As rulers, their cultural impact would also be disproportional.

20 October 2009

Army Unhappy With Non-College Bound

About 70% of high school graduates go to college. Of those who do not, "nearly half of them have physical (most are overweight), psychological (can't handle the stress or discipline) or legal (have a felony on their record) problems that keep them out" of the Army's recruiting program.

Big City Murders Rarely Random

In Baltimore, about 91% of murder victims this year had criminal records, up from 74% a decade ago, police reported. . . .

Philadelphia also has seen the number of victims with criminal pasts inch up — to 75% this year from 71% in 2005.

In Milwaukee, local leaders created the homicide commission after a spike in violence led to a 39% increase in murders in 2005. The group compiled statistics on victims' criminal histories for the first time and found that 77% of homicide victims in the past two years had an average of nearly 12 arrests.

While it was common in the past for murder victims to have criminal records, the current levels are surprising even to analysts who study homicides. . . .

In Newark, where three young friends with no apparent links to crime were executed Aug. 4, roughly 85% of victims killed in the first six months of this year had criminal records, on par with the percentage in 2005 but up from 81% last year, police statistics show.

From an August 31, 2007 story in USA Today.

In the general population about 6.5% of people have felony records and about one in fifteen has gone to prison at some point. More would have some kind of criminal record. For poor men, the percentages are much higher, although not as high as the percentages found among big city murder victims.

It is a fair guess that a disproportionate share of murders where the victim does not have a criminal record involve domestic violence or child abuse. One study from a less selective sample, reports, for example, that:

19% of family murder victims had a prior record, compared to 51% of nonfamily murder victims. Also, 56% of family murder defendants, compared to 77% of other murder defendants, had a prior record.

Family murder victims make up an minority, but important subset of murder cases:

Among murder victims 6.5% were killed by their spouses, 3.5% by their parents, 1.9% by their own children, 1.5% by their siblings, and 2.6% by some other family member.

Indeed, these numbers understate the issue, according to another study linked at the same source:

The fact that only 75% of murderers have adult crime records should not be misunderstood as implying that the remaining 25% of murderers are non-criminals. The reason over half of those 25% of murderers don't have adult records is that they are juveniles. Thus, by definition they cannot have an adult criminal record. Juvenile criminal records might well show these murderers to have extensive serious criminal records.

The hopeful side of this picture is that it might be possible to concentrate incarceration so that the highest risk felons get long sentences, while a less fear driven approach can be taken towards others who are convicted of crimes. For example, almost 90% of murderers with criminal records have criminal records that involve prior violent crimes. Recidivism is bad, but the harm caused by a typical property crimes is not so great that any degree of recidivism is intolerable.

The numbers are interesting because they say a lot, implicitly, about why murders take place and what kind of social networks are involved in killer-victim relationships. This also plays out in the geography of murder. For example, when I lived in Buffalo, a stunningly high percentage of all murders in the metropolitian area took place in the ghettos of the East Side neighborhood of Buffalo proper.

Colorado's U.S. Attorney Testifies On Sentencing

David M. Gaoette, U.S. Attorney for the District of Colorado, presented prepared remarks to the U.S. Sentencing Commission at a public hearing in Denver about the federal sentencing guidelines that it has crafted. The guidelines were declared non-binding because binding guidelines would be unconstitutional, by the U.S. Supreme Court in the Booker case. He notes:

Of the six federal judges in our district, three follow the guidelines, one sometimes does, and two do not use the guidelines. One judge has told one of my AUSAs that the sentencing guidelines are arbitrary and would not be followed.

How were the guidelines used in practice:

[O]ur federal law enforcement agencies have teamed up with their state and local colleagues in numerous joint task forces throughout the State. Some of the most effective task forces include the Metro Gang Task Force, the Safe Streets Task Force, North and West Metro Task Forces, and the Front Range Task Force, just to mention a few. . . . Our partnership with these various task forces has flourished, at least in part, due to the existence of tough and predictable federal sentences associated with the sentencing guidelines. It is important to note, and I can say this with certainty from the not-so-distant past when I personally handled drug trafficking cases as an Organized Crime and Drug Enforcement Task Force (OCDETF) AUSA, that many would-be criminals were fearful of the strict sentencing guidelines used by the “feds.” These drug dealers or gang members did not want to end up in federal court, because they knew they would be going to jail rather than receiving a probationary sentence, which was a likely sentence from a state court judge operating without such mandatory sentencing guidelines. In fact, some defendants actually admitted that they consciously decided not to bring a gun to a drug deal, fearing the federal sentencing enhancements.

The fact that the U.S. Sentencing Guidelines (which are more removed from the democratic process compared to either state or federal judges) cause the federal courts to subvert the decisions which would be made in the state criminal justice system, in fundamentally intrastate crimes, is troubling, not something that shows that they were a success. And, it isn't very impressive that the primary reason that we have so many task forces regarding basically intrastate crimes is to help federal and state law enforcement officials engage in venue shopping driven by legal provisions that were not formulates by Congress or a state legislature's considered decision on the merits.

Another interesting point was made about child pornography sentencing, an area which has received widespread criticism for being to harsh under the federal sentencing guidelines:

I should note that some judges are making it clear what they believe an appropriate sentence should be with little or no consideration of the advisory guideline range. Child pornography cases are especially becoming troublesome in this district, and I know the Commission has heard the same from some of my fellow U.S. Attorneys across the country. Here in this district, a defendant convicted of child pornography who possessed an extensive collection of such pornography and whose advisory guideline range was calculated at 97 to 121 months, was sentenced to one (1) day of imprisonment, credit for time served and lifetime supervision.

The U.S. Attorney for the District of Minnesota, likewise notes that below guidelines sentences are particularly common in cases of fraud (including tax fraud), firearms cases, and prostitution/pornography cases.

Judges in all areas of the country appear to believe that U.S. Sentencing Guideline sentences for child pornography are unreasonably high. He identifies 172 cases nationally in the last year where below guidelines sentences were imposed with governmental cooperation in prostitution/pornography cases and another 546 cases where judges made that call despite government opposition. He notes that:

[I]n fraud cases, the average contested below-range sentence was 5.2 months, an average decrease of 9.5 months from the guideline minimums. In firearms cases, the average contested below-range sentence was 35 months, an average decrease of 13.5 months from the guideline minimums. And, in pornography/prostitution cases, the average contested below-range sentence was 59 months, an average decrease of 26.8months from guideline minimums. . . .

The impact of Booker and its progeny on sentencing is probably felt most keenly in child pornography cases. For example, in a 2008 case where the defendant had more than 23,000 pornographic images he shared through a peer-to-peer online network, the Court ordered him to serve 24 months, even though the guideline range was 78 to 97 months. In imposing the sentence, the judge repeatedly discounted the serious nature of the crime of possession of child pornography, characterizing it as “mere viewing” (United States v. Kahmann).

In another recent child pornography case involving possession, the sentencing judge cited Kimbrough in ordering the defendant to serve 48 months, even though the Guidelines indicated a sentence of 120 months would be more appropriate. Again, the judge, although a different judge from the one in the case summarized previously, said he disagreed with the severity of the guidelines in “mere possession” cases (United States v. Kennedy-Hippchen).

Perhaps federal judges (the majority of whom were appointed by Republican administrations) are rebelling against federal sentencing guidelines in this area because they are ill crafted and out of proportion to sentences to more serious and comparable crimes like actual child molestation.

If federal judges acting in isolation across the United States believe that the sentencing guidelines are overkill for a category of offenses, then their opinion needs to be given serious consideration. Judges, not prosecutors, are responsible for deciding appropriate sentences within the statutorily authorized range, and if the U.S. Sentencing Commission can't command their respect in a period when sentencing guidelines are advisory, there is no point in having sentencing guidelines.

Both federal prosecutors were of the view that almost any sentence with an expressly articulated basis will be upheld on appeal.

19 October 2009

Murder By Holiday and Modern Witch Burnings

Sometimes the truth is more frightening than any thriller novel or movie.

South Asians in Britain are "lured" to the rural Punjab state in India. When they arrive, contract killers paid a little more than $1,000 carry out a killing, often procured by a family member or business associate. The motive may be want to avoid a divorce or business breakup, for example. About 50-100 such killings take place every year. Often, local police don't catch the killers.

In a world where we are bombarded by all manner of violent mayhem in the media and fiction is rare to come across something like this that had never occurred to you.

People Still Persecute Suspected Witches

Also notable is an outbreak of attacks on children denounced as witches by pastors in evangelical Christian churches in two Nigerian states:

Pastors were involved in half of 200 cases of "witch children" reviewed by The Associated Press, and 13 churches were named in the case files. . . . The idea of witchcraft is hardly new, but it has taken on new life recently, partly because of a rapid growth in evangelical Christianity. Campaigners against the practice say about 15,000 children have been accused in two of Nigeria's 36 states over the past decade and about 1,000 have been murdered. In the past month alone, three Nigerian children accused of witchcraft were killed and another three were set on fire.

Nigeria is one of the heartlands of abuse but not the only one: The United Nations Children's Fund says tens of thousands of children have been targeted throughout Africa.

The children who are most often denounced are "the orphaned, sick, disabled or poor." Families are often happy to be relieved of an economic burden, and family members often carry out the actual torture or killing or bring in a child for a violent exorcism by someone else.

A shelter established in 2003 by the Children's Rights and Rehabilitation Network houses 120 to 200 children accused of witchcraft at any one time.

Pastor Joe Ita from Liberty Gospel Church in Eket, Nigeria, in that area, who has accused children of being witches explains the practice:

We base our faith on the Bible, we are led by the holy spirit and we have a programme of exposing false religion and sorcery. . . . To give more than you can afford is blessed. We are the only ones who really know the secrets of witches. Parents don't come here with the intention of abandoning their children, but when a child is a witch then you have to say "what is that there? Not your child." The parents come to us when they see manifestations. But the secret is that, even if you abandon your child, the curse is still upon you, even if you kill your child the curse stays. So you have to come here to be delivered afterwards as well. . . . We know how they operate. A witch will put a spell on its mother's bra and the mother will get breast cancer. But we cannot attribute all things to witches, they work on inclinations too, so they don't create HIV, but if you are promiscuous then the witch will give you HIV.

Northern Nigeria is predominantly Muslim. At the intersection of the two, driven by the movement southward of the fringes of the Sahara desert, there is often violent conflict. Southern Nigeria has historically been animist, but in the last half century it has increasingly become Christian in a form of Christianity significantly different in character from the denominations that missionaries from abroad brought to them. The Akwa Ibom State in Nigeria, where the Children's Rights and Rehabilitation Network is based, is on the Southern border of Nigeria is currently predominantly Christian and has a resident population of about 5 million.

The Pentecostal Fellowship of Nigeria, which is the fastest-growing religious group in Nigeria, with more than 30 million members, is implicated in many of the cases.

Colorado State Tax Revenues Hard Hit

Colorado's state tax revenues were down 23.6% in the second quarter of 2009. Only six states had larger declines. The national average drop was 16.3%, and only two states had drops of more 27.3%, New Mexico (30.8%) and Alaska (86.5%).

The result is surprising because Colorado is not currently one of the states that is hardest hit economically by the financial crisis.

I suspect that part of the issue is that tax receipts may be a lagging indicator of economic hard times, which are impacting Colorado now because it hit its economic bottom earlier than many other states. Heavy reliance on sales taxes relative to income taxes, and the absence of a state property tax, may also be hurting Colorado's state tax collections.

Colorado K-12 Funding Suit Moves Forward

The Colorado Supreme Court has decided by a 4-3 margin in the case of Lobato v. State that a lawsuit alleging that the state of Colorado has failed to meet its minimum state constitutional duty to fund K-12 education may be considered on the merits by state courts.

Justices Rice, Coats and Eid dissented, primarily arguing that the courts should not be involved in this suit because it presents a political question. The dissent proposed a test to determine when a case presents a political question.

Similar suits have been brought, and have often prevailed (with serious problems in the enforcement area) in other states. The State had argued that the issue is a political question which the courts should leave to the Governor and Colorado General Assembly and that the Plaintiffs lacked standing to sue. The Colorado Supreme Court found that the parents had standing and that it was permissible for the school boards to be joined if they were raising the same claims as the parents.

The political question argument that is particularly strong when the state constitution also expressly provides for minimum funding levels for K-12 education under Amendment 23 and these rules have been obeyed. But, the Colorado Supreme Court recognized that the issue presented in the lawsuit is whether the families and districts bringing the suit have received adequate funding under a proper formula, not the aggregate level of funding for education for the state as a whole. In particular, the Plaintiffs argue that property tax base poor districts face an insurmountable burden in their attempt to raise adequate funds to operate their schools. The Colorado Supreme Court's rejection of the political question doctrine, more generally, leaves it more powerful in future constitutional disputes.

As the Colorado Supreme Court summarizes in it introduction to the case:

Plaintiffs are composed of two groups. The first group consists of parents from eight school districts across the state acting in their individual capacities and on behalf of their school age children (“plaintiff parents”). The second group consists of fourteen school districts in the San Luis Valley (“plaintiff school districts”). Plaintiffs brought suit against the State of Colorado, the Colorado State Board of Education, the Commissioner of Education, and the Governor (collectively “state defendants”), alleging constitutional deficiencies in Colorado’s public school financing system. Plaintiffs claim that the system, because it is underfunded and allocates funds on an irrational and arbitrary basis, violates the education clause’s mandate that the General Assembly provide a “thorough and uniform” system of public education. See Colo. Const. art. 6 IX, § 2. Plaintiffs further claim that the local school districts have standing to challenge the adequacy of the state’s public school financing system because severe underfunding and irrational disbursement of funds undermine the districts’ interest in local control over educational instruction and quality. See Colo. Const. art. IX, § 15.

The trial court and Colorado Court of Appeals resolved the case on the face of the Complaint without considering evidence. Both held that the school districts lack standing to sue. The trial court held that the parents lacked standing to sue, but the Colorado Court of Appeals reversed that ruling and instead had that their "claims present a nonjusiciable political question."

The Colorado Supreme Court's ruling, as it must in this procedural posture, assumes that all facts stated in the Complaint are true. The ruling still poses a difficult barrier for the Plaintiffs:

We have never applied the political question doctrine to avoid deciding a constitutional question, and we decline to do so now. We interpret this court’s decision in Lujan v. Colorado State Board of Education, 649 P.2d 1005 (Colo. 1982), to hold that it is the responsibility of the judiciary to determine whether the state’s public school financing system is rationally related to the constitutional mandate that the General Assembly provide a “thorough and uniform” system of public education. Such a rational basis review satisfies the judiciary’s obligation to evaluate the constitutionality of the state’s public school financing system without unduly infringing on the legislature’s policymaking authority. The court’s task is not to determine “whether a better financing system could be devised,” Id. at 1025, but merely to determine whether the system passes constitutional muster.

As was the case in Lujan, this claim triggers the court’s responsibility to review the state’s public school funding scheme to determine whether the existing funding system is rationally related to the General Assembly’s constitutional mandate to provide a “thorough and uniform” system of public education. Treating the plaintiffs’ allegations as true, we hold that plaintiffs’ constitutional challenges to Colorado’s public school financing scheme are justiciable.

Article IX, section 17 of the Colorado Constitution (“Amendment 23”) does not affect our holding that the plaintiffs present a justiciable claim for relief. Amendment 23 prescribes minimum increases for state funding of education, but it was not intended to qualify, quantify, or modify the “thorough and uniform” mandate expressed in the education clause, which Lujan recognized as an appropriate subject for judicial review and interpretation. Amendment 23 neither relates to nor concerns the “thorough and uniform” mandate in the education clause and, therefore, does not affect our holding that the plaintiffs present a justiciable claim for relief.

Accordingly, the plaintiffs must be provided the opportunity to prove their allegations. To be successful, they must prove that the state’s current public school financing system is not rationally related to the General Assembly’s constitutional mandate to provide a “thorough and uniform” system of public education. On remand, the trial court must give substantial deference to the legislature’s fiscal and policy judgments. It may appropriately rely on the legislature’s own pronouncements concerning the meaning of a “thorough and uniform” system of education. If the trial court finds the current system of public finance irrational and thus unconstitutional, then that court must permit the legislature a reasonable period of time to change the funding system so as to bring the system in compliance with the Colorado Constitution.

Hence, we reverse the judgment of the court of appeals. We remand this case to the court of appeals to be returned to the trial court for proceedings consistent with this opinion.

The rational basis test the trial court has been told to apply is extremely lenient. And, even if the state loses, it has considerable time and flexibility to take action to address the problem. But, since K-12 education is one of the largest parts of the state budget, the rest of the state budget (and the budget of other districts within the education budget) is highly sensitive to any compromises that are made to resolve this suit.

But, the Colorado Supreme Court's mere recognition that the claim could be valid if established gives school districts with modest property tax bases a better bargaining position in the school funding budget process.

The suit also adds fuel to the cause of good government advocates and people like Andrew Romanoff who have worked to simplify the state budget process through state constitutional reforms. Currently, the budget is so highly constrained under TABOR, Amendment 23, the balanced budget requirement, this decision, and other state and federal statutes, that Colorado is approaching a point where it may be impossible to comply with all of the legally binding limitations on the budget when revenues are low. While this case, by itself, isn't making particularly onerous demands upon the state, it could be the straw that breaks the camel's back and helps to create the political will needed to reach a larger compromise on state constitutional reforms to the state budget process and tax system.

Downtown Estes Park Buildings On Fire

It is a sad day for the Park Theater Mall in old fashioned downtown of Estes Park, Colorado. It is in flames today, although no people or animals have been injured or killed. The area was at a tourism low point this week. A cause for the fire is not yet known.

This is the most devistating blow to a small town in Colorado since a crazy guy in Granby, Colorado destroyed many historic buildings with a home made tank on June 5, 2004.

Colorado GOP Short On Gentlemen

The case of Shawn Mitchell is just one more in a long line of cases of Colorado Republican officeholders who seem utterly incapable of acting like gentlemen. It isn't that Democrats don't have a lapse now and then, but the cases are far less common, and far less prone to be tolerated.

The irony of it all is that the Republicans used to see themselves as the party of the establishment. The Democratic party was for the unwashed with fewer social graces and a fire in their belly. Perhaps the demise of the Rockefeller Republican wing of that party is at fault. Perhaps a lack of an ideological commitment to big tent tolerance is the problem.

Whatever the reason, a leading Republican is talking about a Democratic legislator's underwear, while Democrats are trying to balance the budget, fix broken insurance bureacracies, and develop environmentally sound sources of energy. Their young janissaries, meanwhile, are busy eating their own.

Mentally Ill Have Ordinary Headaches

Sometimes, a headache is just a headache.

Researchers have long thought that the wicked headaches found in combination with clinical depression and an anxiety related mental health disorder were different manifestation of the same problem. For all practical purposes, they were wrong.

Treating the severe headaches of people with clinical depression or anxiety related mental health disorders just like those of anyone else with severe headaches works just as well.

FDIC Too Patient?

"The FDIC’s Office of Inspector General analyzed 23 lenders taken over by regulators from August 2008 to March and found that for 20, the agency’s examiners didn’t identify the issue early enough or should have taken stronger supervisory action after recognizing the banks had dangerously high levels of the loans before they failed. ...

“It’s often we’ll see in our reports that the FDIC detected problems in the bank in a timely fashion, but in some cases forceful corrective action wasn’t required by the FDIC to be taken quickly enough,” Jon Rymer, the FDIC’s inspector general, said in a telephone interview." . . .

This is recurring theme. The examiners in the field, for both the FDIC and the Fed, recognized problems fairly early, but the agencies failed to take aggressive action.

From here.

The good news is that something as simple as a new policy regarding how soon the FDIC's existing powers are used could materially reduce bank failures and FDIC losses.

Probably the hardest issue, which we see over and over again in this Financial Crisis and past instances of regulatory failure, is how to avoid complacency. How do you get regulators to put the heat on when the economy is "about due" for trouble after a prolonged, economic disaster free interval?

16 October 2009

U.S. Sentencing Commission in Denver Oct 20-21

The U.S. Sentencing Commission writes the sentencing guidelines that used to be mandatory in federal criminal sentencing, and now are merely advisory due to U.S. Supreme Court intervention. They set the guidelines after holding hearings like the one planned for Denver, Colorado this month. The Official Notice of Public Hearing states:

October 20 - 21, 2009

Pursuant to Rule 3.4 of the Rules of Practice and Procedure of the United States Sentencing Commission, a public hearing is scheduled for October 20-21, 2009 in Denver, Colorado. On October 20, the public hearing will commence at 8:30 a.m. and will conclude at approximately 4:30 p.m. The public hearing will reconvene on October 21 at 9:00 a.m. and will conclude at approximately 11:45 a.m.

The public hearing will be held in Mineral Hall (Rooms F & G, 3rd floor) at the Hyatt Regency Denver, 650 15th Street, Denver, Colorado, 80202.

As detailed in the agenda, the purpose of the October 20-21, 2009, public hearing is for the Commission to solicit information from invited witnesses regarding federal sentencing policy.

The lengthier agenda makes clear that most of the testimony will be invited and pre-scripted:

October 20, 2009
8:30 a.m. - 4:30 p.m.

Opening Remarks (8:30 a.m.)

Panel I. View from the Appellate Bench (8:45 a.m. - 10:00 a.m.)

Honorable James B. Loken
Chief Circuit Judge
Eighth Circuit Court of Appeals

Honorable Deanell Reece Tacha
Circuit Judge
Tenth Circuit Court of Appeals

Honorable Harris Hartz
Circuit Judge
Tenth Circuit Court of Appeals

Panel II. View from the District Court Bench (10:15 a.m. - 11:30 a.m.)

Honorable Alan B. Johnson (invited)
District Judge
District of Wyoming

Honorable John Thomas Marten
District Judge
District of Kansas

Honorable John L. Kane
Senior District Judge
District of Colorado

Panel III. View from the Probation Office (11:45 a.m. - 12:15 p.m.)

Kevin Lowry
Chief United States Probation Officer
District of Minnesota

Ronald Schweer
Chief United States Probation Officer
District of Kansas

Panel IV. View from the Executive Branch (1:45 p.m. - 3:00 p.m.)

David M. Gaouette
United States Attorney
District of Colorado

B. Todd Jones
United States Attorney
District of Minnesota

Panel V. Community Impact (3:15 p.m. - 4:30 p.m.)

Diane Humetewa
Principal, Public Advocacy
Squire, Sanders & Dempsey L.L.P.
Phoenix, Arizona

Paul Cassell
Ronald N. Boyce Presidential Professor of Criminal Law
S.J. Quinney College of Law, University of Utah
Salt Lake City, Utah

Ernie Allen
President and Chief Executive Officer
National Center for Missing and Exploited Children
Washington, D.C.

October 21, 2009
9:00 a.m. - 11:45 a.m.

Reconvene & Opening Remarks (9:00 a.m.)

Panel VI. View from the District Court Bench (9:00 a.m. - 10:15 a.m.)

Honorable Robert W. Pratt
Chief District Judge
Southern District of Iowa

Honorable Fernando Gaitan, Jr.
Chief District Judge
Western District of Missouri

Honorable Joan Ericksen
District Judge
District of Minnesota

Panel VII. View from the Defense Bar (10:30 a.m. - 11:45 a.m.)

Raymond P. Moore
Federal Public Defender
Districts of Colorado and Wyoming

Nick Drees
Federal Public Defender
Northern and Southern Districts of Iowa

Thomas Telthorst
Kansas City, Kansas

Adjourn (11:45 a.m.)

In other words, it is a public hearing in the sense that the public is free to listen to interesting expert testimony presented there, rather than a public hearing, in the sense of a hearing at which public input is genuinely solicited.

Judge Kane (now on senior judge status) has been one of the most outspoken critics of the way the Sentencing Guidelines work, and his testimony on the late morning of October 20th is likely to be on of the highlights of the hearing.

When people talk about concepts like the banality of evil, they are talking about institutions like the U.S. Sentencing Guidelines system.

While the concept of the Commission seems benign and scientific, in practice, the first set of guidelines, together with statutory mandatory minimum sentences, that were being enacted at the same time, were set in a way that led to insanely long sentences for drug crimes, particularly those associated with crack cocaine, and to much longer sentences for a variety of other offenses, such as white collar crimes.

Judges were disempowered at the expense of prosecutors who were encouraged to overcharge cases. Once set, the guidelines are, in practice, difficult to amend. Even provisions like the crack guidelines that have been widely condemned almost since their inception, remain on the books.

On the other hand, the Sentencing Guidelines have tended to be more lenient with regard to serious violent crimes, which often end up in federal court because they arise on Indian Reservations, than comparable state law sentences.

The guidelines embody, almost in their entirety, the screwed up priorities of the federal criminal justice system.

The guidelines also have profound procedural flaws. While the guidelines do not permit the maximum sentence of the crime of conviction to be exceeded, the sentence for a crime doesn't have to be based upon the conduct giving rise to that conviction that was established at trial. Judges may consider conduct a jury acquitted a defendant of at trial, and alleged criminal conduct by a defendant that was never charged. Determinations that aquitted or uncharged crimes were committed do not have to be made based upon the evidentiary standards that apply at even a civil trial to the judge. This makes a mockery of the federal constitutional right to a jury trial and any common sense standard of justice.

Some non-binding state sentencing guidelines have had much greater success. But, the federal system is sentencing guidelines is arguably one of the most dismal failures in modern criminal sentencing practice, and remain a strong force in federal sentencing because guideline sentences must still be calculated and are presumed reasonable, so appellate relief for a guideline sentence is just short of impossible to obtain. The best thing that the U.S. Sentencing Commission could do would be to immediately scrap all of the guidelines and start over from scratch, even though there would be no guidelines for an interim period.

I'd eat my hat if that actually happened, but that is really what is called for at this point in time, because the foundation that the existing guidelines provide is fundamentally flawed.

Colorado Tax Mix Typical

A study of the relative importance of different kinds of taxes, like sales taxes, property taxes and income taxes, in the overall state and local tax basis, finds that Colorado is typical of the nation.

State And Local Tax Mixes Vary Widely

There is no one right way to do state and local taxation. Few areas of law show more variety between the states, and even regional trends are elusive.

Washington State is at one extreme, with 62% of tax revenues coming from sales taxes, and no individual or corporate income taxes.

Neighboring Oregon State is at the other extreme, with sales taxes providing less than 10% of state revenues, while individual and corporate income taxes provide 44% of state tax revenues.

Alaska, which has no statewide sales or income tax but relies heavily on natural resource taxes, also has seen a sharp revenue decline as oil prices have fallen. According to the Tax Foundation, Alaska draws a nation-high 52.6 percent of its state and local revenue from a group of taxes that includes severance taxes on natural resources, stock transfer taxes, estate taxes and fees for hunting, fishing and driver’s licenses. Other states that rely heavily on this category of taxes include Delaware (34.1 percent), Wyoming (30.1 percent), North Dakota (20.7 percent) and Montana (18.8 percent).

Besides Oregon, Maryland (39.7 percent), Massachusetts (35.6 percent), North Carolina (32.7 percent) and New York (31.8 percent) are the other states that are most reliant on individual income taxes.

Sales taxes bring in 62 percent of state and local revenue in Washington state, more than in Nevada (58.2 percent), Tennessee (56.8 percent), South Dakota (54.1 percent) and Arkansas (53.2 percent). The sales taxes counted by the report include general sales taxes as well as “selective” taxes on products such as gasoline and cigarettes.

Property taxes, meanwhile, bring in 61.3 percent of New Hampshire’s combined state and local revenue, far more than in the next four states that rely most on property taxes: Vermont (42.1 percent), New Jersey (41.7 percent), Texas (41.6 percent) and Rhode Island (41.1 percent).

Colorado Is Typical

The breakdown in Colorado is (followed by the national average and difference from the national average):

Property Tax 30.4% (30.1%, +0.3%)
General Sales Tax 27.1% (23.5%, +3.6%)
Selective Sales Tax 8.2% (10.9%, -2.7%); Sales Tax subtotal 35.9% (34.4%, +1.5%)
Individual Income Tax 25.8% (22.6%, +3.2%)
Corporate Income Tax 2.7% (4.7%, -2.0%); Income Tax subtotal 28.5% (27.3%, +1.2%)
Licenses and Other Taxes 5.9% (8.2%, -2.3%)

The Trends Don't Capture Conventional Wisdom About Colorado's Unique System

Given the strong incentive created by TABOR to use licenses and users fees that might be counted as taxes for the purposes of this study, it is surprising that Colorado raises a considerably smaller share of its revenues this way than other states. Colorado would have also been on obvious candidate to be high in this are as it has considerable resources subject to severance taxes. But, its economy is more diversified than the states that rely more heavily on these revenue streams.

It is likewise interesting that despite Colorado's constitutional limitations on property tax values for residential real estate created by the state constitution's Gallagher Amendment, which shifts the property tax base from residences to businesses, that property tax levels in Colorado are very close to the national average as a percentage of state and local tax revenues. Many observers had perceived that Gallagher encouraged local governments to favor sales taxes over property taxes.

Colorado is more prone than most states to favor general sales taxes over "sin taxes" and fuel taxes.

Colorado's corporate income tax collections are surprising low (almost half as large as a percentage of individual income tax collections). compared to its individual income tax collections. This is surprising given that it uses the federal tax code with little modification as the source of taxable income in each case. The cause could be something simple, like a much more widespread use of pass through tax entities in Colorado than in the average states, or an economy disproportionately made up of privately held companies than can use tax planning to reduce or eliminate corporate level taxes. But, it could also signal that Colorado lawmakers have been unusually generous in dishing out corporate tax breaks and have understaffed their ranks of corporate income tax collects at the Colorado Department of Revenue.

Colorado's Revenue Stability

Since general sales taxes are highly cyclic, and income taxes are somewhat cyclic, and Colorado relies upon these taxes to a greater degree than more stable sources of revenues like property taxes, Colorado's revenues follow boom-cycles slightly more than the would in a typical state.

The numbers available don't distinguish between the more stable components of income taxes, like taxes on payrolls, and less stable components of income taxes like capital gains, that have provided such a hard hit to New York State's state income tax collections. The numbers also don't distinguish between highly graduated state income taxes found in the East, that are more responsive to shifts in income among high income workers, and flatter income taxes like the one use in Colorado, the response to shifts in aggregate income without much regard to who is impacted by it (although the Colorado income tax base is still quite progressive, so income losses by the working class and poor have little effect on its tax collections).

The biases in Colorado's revenue mix, however, are mitigated somewhat by its diversified economy. Natural resources economy driven states like Alaska, are heavily impacted by commodity prices. New York State's tax revenues are deeply influenced by Wall Street's health which has a huge fiscal impact on the state even though it involves only a modest share of the state's total population. Michigan's economy is dominated by the manufacturing sector. Colorado, after periods when its economy was dominated by gold and silver, by coal, by farming and by oil and gas, has finally achieved a diversified economy that isn't thrown off by a single industry bust. Its diversified economy and diversified tax base, together, have put it in a better than average position in the wake of the Financial Crisis.

Where Are The Interesting Colorado Tax System Stories?

Colorado is interesting not because its mix of revenue sources is odd, but for two other reasons.

First, TABOR has kept state tax collections low. This has kept state spending on programs like education, and in particular high education, low and has encouraged deferred maintenance of state infrastructure. The lack of state funds has also encouraged local governments to secure revenue (particularly sales tax revenues) that, in most states, would be collected at the state level and distributed to local governments through state grants. Colorado's local governments, as a result, have more economic autonomy, but also more cyclic revenue streams than most local governments.

Secondly, the Gallagher Amendment and the heavy use of retail sales taxes as a revenue source by local governments makes the revenue interests of municipalities and businesses deciding where to locate within a metropolitan area particularly intense. Residential developments with their artificially low property tax valuations and lack of a retail sales base, are artificially unattractive to existing local governments, since the services that these communities need exceeds the level of taxes that they generate. Retail sales developments, which provide sales tax revenues and inflated property tax valuations, a highly sought after by competing local governments. Office and manufacturing developments which pay property taxes at above average levels but don't generate sales taxes are relatively neutral, but still generally generate more tax revenues than it costs municipalities to provide them with services.

The land use contests between local governments play out in a variety of ways, but tax issues are frequently drivers of that drama in Colorado.

One state and local tax proposal that I have favored for Colorado, for a variety of reason, is a revenue switch. In my view, municipalities should give up their sales taxing power to the state in lieu of increased use of property taxes, school districts should discontinue property taxation in lieu of state funding, and the state should use some combination of increased sales and income taxes to make up for funds that school districts would lose if they go out of the property tax business.

My revenue switch proposal keeps total state and local sales and property tax revenues, and government funding at all levels, very similar. But, this would give the State of Colorado a single sales taxing authority, which would provide administrative advantages, simply interstate sales tax collection efforts, and reduce the revenue uncertainties faces by local governments that don't have the resources to do elaborate economic projections and consider contingencies in their budget processes. It would also discourage intrastate competition for sales tax revenues that can lead to an excessive focus on developing new residential areas in unincorporated areas and excessive efforts to attract new mall developments even when the metropolitan area as a whole is overbuilt with respect to shopping malls.

The demise of school property taxes would allow most municipalities to replace the lion's share of their lost sales tax revenues with property tax revenues. Some municipalities would have to charge higher property taxes than others to provide services, based upon the size of their property taxes bases, but these disparities are less troubling at the municipal government level than they are in the state's K-12 education system where there is an expectation that every child in the state should have equal educational opportunities. Municipalities provide the every day basics of life, and a stable tax base for municipalities would insure that basics like police and fire department services, street cleaning, trash collection and the like could continue without regard for economic boom and bust cycles, given the state a solid foundation.

Near complete state funding of school districts would allow Colorado to travel down a path it has already gone far down where statewide school choice is the norm, and every child is on an equal footing regardless of where that child lives. Children unlucky enough to live in a place with a weak property tax base shouldn't have inferior educations. Increased states sales tax revenues acquired from municipal governments, and the generally broad, if regulated, power of the government to collect taxes, would be well suited to this task.

A shift of school district funding away from municipal governments (and removal of school board members from the property tax collecting system) would also cause decisions about school attendance to be less entangled with decisions about zoning and home buying. While geography obviously influences the school choices that parents make, in a purely state education system, it would play a much less dominant role than it does today.

This plan wouldn't change the basic mix of state and local taxes in Colorado, which isn't the problem. Colorado is typical on that front. But, by better matching taxes to the entities that are best suited to impose them, Colorado tax policy could produce more sensible school funding, more stable municipal finances, and intergovernmental competition for development could return to fundamentals rather than artificial tax issues.