Social Class, Delayed Gratification and the Physiological Costs Of Social Climbing

IT BEGAN with some marshmallows. . . . Those who had resisted, he found, did better at school than those who had given in. As adults they got better jobs, were less likely to use drugs and got into trouble with the law less frequently. Moreover, children’s family circumstances suggested that impulsive behaviour was as much learned as inherited. This suggested that it could be unlearned—improving the child in question’s chances in life 

. . . . Recent observations, however, raise the possibility that developing self-control is not always an unalloyed good. Work published two years ago by Gene Brody of the University of Georgia, who looked at a group of young black Americans, showed that those who exhibited self-control as teenagers did indeed get the expected benefits. But if such self-controllers came from deprived backgrounds, they developed higher blood pressure, were more likely to be obese and had higher levels of stress hormones than their less-self-controlled peers. That correlation did not apply to people who started farther up the social ladder.

Dr Brody and his colleagues have followed this study with one that comes to an equally astonishing conclusion: for people born at the bottom of the social heap, self-control speeds up the process of ageing. This research, just published in the Proceedings of the National Academy of Sciences, looked at DNA methylation . . . . Dr Brody and his colleagues followed almost 300 black American teenagers of different backgrounds as they aged from 17 to 22. For the first few years the researchers assessed their volunteers’ levels of self-control, and also looked for signs of depression, aggression and drug use. They assessed, too, those volunteers’ socioeconomic backgrounds. But the last examination, when participants were 22 years old, was different. Then, the researchers took a blood sample, recorded the DNA-methylation patterns of cells in it, and worked out how much these deviated from the pattern expected at that particular age. . . . for people from high-status backgrounds, higher self-control meant lower cellular ages. For those whose background was low-status, the reverse was true. Their cells were ageing faster. Add this to the previous data on blood pressure, stress and obesity, and the medical prognosis of these initially low-status individuals does not look promising. . . . 

No biologist would find surprising the idea that an animal—any animal—which was rising through its social hierarchy would find the experience stressful. And research into gene methylation, part of a field called epigenetics, suggests changing methylation patterns are a common response to changing circumstances as well as changing age, as the body’s physiology struggles to keep up.

From the Economist.

Another possibility, of course, is that self-controlled is less of a learned behavior, and more of a genetic one, a flaw that could arise because researchers inferred from their never perfectly clear data because they interpreting their results at a time when a prevailing emphasis on nurture v. nature tended to overstate nurture effects was at its apex. Impulsivity is part of a complex of personality traits that are about 50% inherited and some sub-aspects of that personality trait may be even more strongly inherited.

If impulsivity is strongly inherited, then higher blood pressure, obesity, stress hormones and cell aging could reflect the costs of struggling against natural genetic inclination, rather than the stress effects of social climbing.

Either way, the question is: Are the well documented benefits of impulse control are worth the struggle for those at the bottom of the social pyramid?

I think that most people would say that they are. But, it is also worth recognizing that social climbing through behavior modification is personally costly for the people who do it.

from Wash Park Prophet
via Denver News

Quote of the Day

The evil zombie sock-puppet condition of the GOP is the most gruesome single symptom of our failing democracy, and one that has inflicted immense harm not just on our country but the entire world. . . . The Republican Party did not organically evolve into a xenophobic, all-white party of hate that seeks to roll back not just the Civil Rights movement and feminism, but the entire Enlightenment.

Andrew O’Hehir

from Wash Park Prophet
via Denver News

Free Again From Jury Duty

On May 15, 2015, I joined the largest jury pool in Denver history in one of the first cases in which the Denver District Attorney has sought the death penalty in a very long time (People v. Dexter Lewis, Denver District Court case number 12CR4743). Friday afternoon, I was released from service after not being selected with the following message from the Court:

12CR4743 Reporting Instructions


The jury panel has been selected. All other potential jurors are now released from further jury service in this case. Unless you were selected to be on the jury, the court orders regarding your conduct are no longer in effect, and you may speak to other people about the case and perform research about the case if you wish.

Thank you, again, for your participation in this process.

There were a variety of reasons that I could have been selected or not selected for jury service in this case, which was anticipated to last three weeks for the trial, and three more weeks if there is a conviction for a capital offense and a sentencing phase of jury service is required.

I could have been removed for cause, because I had dined several times at the scene of the crime (Fero’s Bar and Grill) and knew one of the victims in passing as a result, because I had visited the scene after the crime and followed newspaper coverage of the crime carefully, or because as a lawyer, I knew too much about the law that jurors should not know.

I also could have been removed via a pre-emptory challenge, because my juror questionnaire caused one side or the other in the case to think that I would be more inclined to rule against them than other jurors in the pool.

As it happens, I ended up not serving for the most benign of reasons.  A sufficient number of jurors to fill the panel survived challenges for cause based upon voire dire and a jury questionnaire responses over the two months of jury selection in the case to create a jury pool large enough to appoint all of the necessary jurors and alternate jurors after each side exhausted their pre-emptory challenges, before my juror number was called.

In the mean time, I have been subject to a variety of rules preventing me from discussing or researching the case, and preventing me from communicating with the media for any reasons, and from communicating with various other persons about the case until today, when I was released from jury service.

In the end, I saw no news coverage about the case for which I was in the pool by chance that I would have had to avoid.  But, I did have to withdraw from my participation in a panel discussion with the media about criminal justices unrelated to this case that had been scheduled, and had to deal with having a major unknown that could potentially have been very disruptive to my schedule looming over me for a couple of months.

I also refrained from making posts at this blog about issues that could touch on those strongly implicated by the issues in the case where I might be a juror.

I was ambivalent about serving.  If I had been selected, I would not have tried to escape service due to financial hardship, even though it would have cost me tens of thousands of dollars to be away from my job for nine days every two weeks for six weeks when I am self-employed, even after considering the pitifully small stipend that is paid to jurors (which is not even minimum wage).  I also refrained from making false statements on my juror questionnaire about my personal beliefs that would have assured that I would be disqualified from jury service in ways that could never be proven to be wrong, even though, as an attorney who had handled several jury trials, I knew how to do so.

I do feel that participating on a jury is a powerful personal experience and is important for the functioning of a legal system that it is an integral part of my life to participate in.  I was also inspired by the fact that Chief Justice of the United States Roberts showed up when called for jury duty shortly before I was and made no effort to avoid serving (although he was unsurprisingly not selected to serve on the panel) even at a very busy part of the U.S. Supreme Court’s term.

My Thoughts On The Death Penalty

Personally, I feel that the decision regarding whether a person convicted of first degree murder receives life in prison, or is sentenced to death, is one of the least important decisions made in our criminal justice system which receives far too much judicial, academic and political attention.

Either way, the individual is permanently removed from society with a high degree of probability, and even if the individual is sentenced to death, that individual will spend many years in prison before an execution and there is a reasonable chance that that individual will ultimately be spared an execution either due to the legal and pardon process, or because the person dies of natural causes first.

I would have tried to make the decision fairly, if it came to that, and I am not morally opposed to the death penalty, even though I think that as a matter of public policy, the expense of administering the death penalty out weighs its benefits, and I think that the administration of the death penalty in some other statutes that have it, particularly in the South, like Texas, Florida, Arkansas and Louisiana does far less to respect the due process of law than the administration of the death penalty in states in the North and the West like Colorado.

As a juror, the cost would have been a sunk cost as a result of policy decisions already set in stone with respect to this case, so cost would be an irrelevant factor, and it would boil down to aggravating factors and mitigating factors pertinent to culpability.

But, the first phase of the trial, to determine the guilt or the innocence of the person of the crime charged is far more important from a moral perspective and a policy perspective.

This is why I also think that one of the most problematic aspects of the death penalty in the United States today is a feature of jury selection that is applied in death penalty cases, but not in any other kind of criminal case: death qualification.

Prosecutors have a right to exclude prospective jurors from a jury pool “for cause” on the grounds that the juror is morally opposed to the death penalty.  Most opponents of the death penalty are also among the most liberal members of a typical jury pool and are most likely to take seriously defense arguments on the question of guilt or innocence.  So, simply by electing to seek the death penalty, the prosecutor secures a jury which is more likely to convict, on average, than a jury in any other criminal felony case that he prosecutes.

A law that materially increases the likelihood that a defendant will convicted based upon a decision to charge a more serious offense for the same conduct is deeply problematic.

One of the reasons that I felt morally obligated to try to not dodge jury duty in this case, when I had the ability to do so in ways that would have had no negative consequences for me other than guilt for being insincere and not taking a civic duty seriously, was that I felt obligated to mitigate the harm to the defendant that would result if liberals in the jury pool generally, either sincerely or as a result of their own self-interest, claimed opposition to the death penalty in order to escape having to serve for six week which would be an economic hardship.

In principle, even if the case for a first degree murder charge is weak and unlikely to result in a conviction on that count, a prosecutor who might not otherwise press that charge is tempted to do so in order to increase the likelihood of conviction on a lesser charge or to force a plea bargain to a lesser charge.  Some prosecutors are known to do exactly this, including some who serve or have recently served in Colorado.

To be clear, I am not saying that in this particular case that the Denver DA was engaged in such conduct.  The Denver DA has prosecuted a great many first degree murder cases during his tenure without seeking the death penalty.  And, there is certainly, in this case, probable cause to support the conclusion that the facts meet the requirements for a capital murder conviction on one of the two alternative theories (felony-murder and premeditated murder) under which the Denver DA is seeking it, as I explain below.

The Case Itself

The following account (except for the links) of the case is based upon newspaper accounts that I read of the case before I was called for jury duty.  It does not reflect anything that I learned while in the jury pool from the court or otherwise, as I followed the Court’s instruction not to conduct any research.  But, since the case was so serious and so close to home, I had followed it very closely, and because I am a lawyer, I was able to analyze the facts that I was aware of in light of the relevant law.

On October 17, 2012, a restaurant on Colorado Boulevard near Alameda Avenue, close to my old office at 3773 South Cherry Street, owned by a Korean-American woman who was the landlord of one of the alleged co-conspirators in the case, was robbed.  Several people were killed, including the owner, and the restaurant was destroyed in an arson that failed to destroy much of the key evidence.  Autopsies determined that the murder victims were stabbed to death before the building was set on fire.  The case was cracked quickly with all suspects arrested within two or three days, based upon information provided by a government informant who had been participating with them in an investigation of unrelated felonies (I don’t recall if it was for drug offenses, firearms offenses or both) by the group of men accused of committing the crime.  Two of the defendants were brothers.  The informant allegedly did not participate in the crime itself, having excused himself from their company when it looked like the situation would take a turn for the worse, and then was present after the fact to see the robbery proceeds divided.  The informant told his handlers what he knew about the crime and where the defendants would be and they were promptly arrested and charged.

Two of the defendants pleaded guilty to serious crimes carrying long prison sentences, but with no prospect of a death penalty, in exchange for their pleas and cooperating in prosecuting their co-defendant.  Lewis did not plead guilty and was charged with first degree murder in a case where the death penalty was sought.  It is not clear what plea deal, if any, Lewis was offered by the DA.  If the DA was convinced that he was more culpable than his co-defendants and the informant, the DA might have decided that the death penalty was the only appropriate option for him in a case resulting in multiple murders during the course of a robbery and covered up by arson, and might not have offered him any deal.  We may never know.

The strongest defense that the defendant has in this case is probably that the prosecution witnesses (including a witness who was a government informant on unrelated matters when this crime was committed and co-defendants who escaped the death penalty in exchange for their cooperation in this trial) will twist their testimony to mitigate their own exposure to criminal penalties in a way that falsely exaggerates (or outright fabricates) the involvement of Mr. Lewis in the crime.  The defense will likely make that argument as one or many in the guilt or innocence phase of the trial, and the jury will have to decide the prosecution has rebutted that defense beyond a reasonable doubt.  The fact that the sentences of the co-conspirators who pleaded guilty were so long, however, will make it harder to impeach their testimony than it would be if the discounts were as extreme as the informant’s freedom from any criminal sanctions.

But, Colorado’s felony-murder statute, like most such statutes nationally, greatly lowers the bar of facts that the jury must find beyond a reasonable doubt, to convict.

The prosecution’s theory of the case is that Lewis personally killed some of the multiple victims in the case during a robbery committed with some accomplices who have already pleaded guilty, and then burned down the building where this took place to cover up the crime.  To establish a felony-murder conviction, however, the prosecution doesn’t have to show that Lewis personally killed someone, or had any intent that anyone die.  The prosecution also need not establish that he was a leader of the group carrying out the robbery or the arson, or even that his participation in either of these crimes was particularly important.  The prosecution need only establish that he was a knowing participant in any part of the group’s robbery of the restaurant or the arson to cover up it and the murders, and that someone died in the robbery or arson.

Overwhelming evidence will establish that multiple people died as a result of stabbing wounds in the course of those crimes.  Overwhelming evidence will establish that the building was destroyed through arson.  Very strong evidence, which Lewis’s attorneys can do almost nothing to rebut without implicating their client as a participant in the murders or arson, will show that a robbery took place.

Thus, the question of guilt or innocence in this case will boil down to a determination regarding whether Lewis really did, or did not participate in either the robbery or the arson.  If he did, even if he never expected that anyone would be hurt, even if he urged his co-conspirators not to kill the victims and even if he did not personally participate in killing them, he is guilty of first degree murder and eligible for the death penalty (which may be imposed if the jury agrees that it is warranted in the sentencing phase).

Only if he did not participate in the robbery, the arson or the murder, can he be acquitted of the felony-murder charge if the jury does not engage in jury nullification, for example, to prevent the death penalty from being imposed, and the death qualification of the jury makes that particularly unlikely.

Of course, the jury has the power to convict Lewis, age 25, of robbery and/or arson, and acquit him of murder entirely, even though it is logically impossible given the state of the evidence for this to be a legally correct verdict when a felony-murder charge is pending and there is no dispute that the victims died in connection with the crime.  A jury acquittal may not be appealed by the prosecution, although the sentencing judge might be inclined to impose a maximum possible sentence for the robbery and arson counts, even though those crimes were otherwise unremarkable, if the jury did that, creating something close to a de facto life sentence for Lewis.

A variety of evidence may be offered to prove that Lewis participated in the robbery, the arson, or the murders.

Three people who know Lewis well, two of whom are accused of being co-conspirators with him and one of whom was a police informant in an unrelated case at the time, will all testify to Lewis being involved in the crimes both at the scene, and from testimony related to a division of the robbery proceeds after the crime was completed.  All three of them could lie on the stand.  But, there is no real risk that any of these three witnesses would have mistaken Lewis, whom they knew well, for someone else.  Misidentification is the most common cause of wrongful convictions.

I am not aware of any other witnesses to the crime itself who escaped alive.  But, I could be mistaken.  There may also be minor prosecution witnesses who can help to establish the time of the crime, the presence of a vehicle used by Lewis or one of his co-conspirators, to corroborate other evidence in order to bolster the co-conspirator and informant’s accounts, and the absence of an alibi for Lewis during the time that the crime was committed.

There may be security cameras from the neighborhood showing Lewis, or at least a vehicle regularly used by him and his co-conspirators, arriving at and/or leaving the scene at the right time.  There may be fingerprints or DNA evidence or other physical evidence from the scene of the crime that link Lewis to the scene of the crime, or even to a murder weapon or one or more victims of the crime from the scene of the crime.  There may be evidence found someplace other than the scene of the crime linking Lewis or someplace that he went afterwards to the scene of the crime.

The jury will probably not be told, and the prosecution will probably be under strict direction set in order on pre-trial motions in the case, not to reveal that Lewis has a record of prior serious felonies and was part of a gang that was actively being investigated for more serious felonies at the time, even if that takes considerable contortions in how the evidence is presented.  But, his prior criminal record will be presented to the jury to impeach his credibility, if Lewis testifies in his own defense, which he is unlikely to do unless he hears something in the testimony of his alleged co-conspirators and the government informant that he thinks that he could effectively rebut with his own testimony that outweighs the negative effects of these disclosures (which will come out in the penalty phase anyway if he is convicted of first degree murder).

There is no indication in this case, the Lewis will invoke the insanity defense as the Aurora Theater shooting defendant did, unsuccessfully with the Arapahoe County jury convicting him today.

In that trial, where the defendant had a long history of mental illness and was under psychiatric care until not long before the shooting, it was a natural approach to take in a case where he was caught more or less on the scene as victims in the theater were still dying in an outfit that made him unmistakably the perpetrator seen by large numbers of survivors of the shooting and corroborated by a wealth of incriminating evidence from his apartment and from documents that he mailed to his psychiatrist.  Ultimately, the jury found that the Aurora Theater shooting defendant, while he may have been mentally ill, did not have the right kind of mental illness to qualify for the insanity defense to murder in Colorado, although his mental illness will be a potential mitigating factor as the jury considers whether to sentence him to death.

Overall, the likelihood of a conviction in this case is great, unless Lewis can present a convincing alternative story at trial of which the media is unaware, that does not make him equally guilty of felony-murder.  The fact that he had motives to harm to of the victims which none of the other co-conspirators did is a corroborating fact that biased testimony from co-defendants and the informant can’t cast in doubt.  Searches likely revealed bleach on his clothing corroborating the informant’s testimony about efforts to destroy evidence of the crime and a cell phone with a police scanner app as the informant claimed.

Sentencing Considerations

Lewis is not a minor, and there has been no indication in this case so far that he is mentally retarded to a sufficient extent to be constitutionally ineligible for the death penalty.

As is frequently the case when the death penalty is sought, the Lewis capital murder case in Denver involves a group of black men accused of killing victims some of whom (at least) were white or Asian-American.  There is some room to argue racial basis in choosing him of all people to face the death penalty.

In the sentencing phase of the trial, the fact that Lewis probably has a serious prior criminal record and was currently being investigated for other serious crimes probably will come out and constitute aggravating factors.  Lewis will likely argue in the sentencing phase that his experience growing up in a poor black household with parents who may have either neglected him or treated him poorly, and a school system that failed to meet his needs growing up, should be considered as mitigating factors in the sentencing decision, and he will also likely try to humanize himself which he may have little opportunity to do if he does not take the stand in his defense in the guilt or innocence phase of the trial.

One of the stronger mitigating factors for Lewis may be the fact that none of his co-defendants face the death penalty, and that the informant will not receive any criminal sanction despite significant involvement that could have been used to secure a felony-murder conviction against him as well.

It is hard to say what a jury in a penalty phase would decide on the death penalty.

After the fact, I looked at the stories and learned that my memory, while not perfect, was close.  The case was cracked in the first twenty-four hours.  Five people were killed (four white and one Asian-American).  The landlord and the restaurant owner were the two targets but were not the same person, and these targets were chosen by Lewis based upon his grievances against them.  The informant (for the federal alcohol, tobacco, firearms and explosive agency), who happens to be Hispanic, allegedly witnessed two suspects (Lewis and the older brother) personally stab victims to death while he was present, the fled the scene, rejoined the group, and shared in the robbery proceeds after having helped case the joint but did not personally harm anyone himself.  Guns were present but not used, they arrived with masks in the car.  The informant faces no criminal charges, while the two brothers in the case have pleaded guilty.  While Colorado law allows felony murder charges based on robbery or arson, the felony murder charges relate only to robbery, probably because the victims were dead before the arson took place.  A gun was allegedly present but not used, in the robbery.

Regarding criminal records: “Lewis’s dad was a gang member who died violently in 1994. His criminal record includes robbery, menacing and misdemeanor sexual assault. He’s said to be engaged to be married, with a fiancee who’s pregnant and only weeks from delivering (in October of 2012). As for the Hills, who are brothers, Lynell had a couple of misdemeanor assault charges in Arapahoe County in 2010 and 2011. More recently, Lynell is said to have been involved with a talent agency, while Joseph managed a hotel.”  Lewis was just twenty-two years old at the time and apparently racked up his criminal record of robbery, menacing and misdemeanor sexual assault, in just four years while he was an adult. There is a good chance that Lewis was on parole at the time. Lewis will have been incarcerated for 33 months while awaiting trial when his trial commenced, and for not quite three years by the time that a guilt or innocence verdict and a death penalty verdict (if necessary) have been issued.  The affidavit suggests that all of the men were part of the same gang.  There may be further juvenile offenses.

If He Is Convicted

If Lewis is convicted, he will join about 1800 men and women (mostly men) in prison in Colorado prisons for offenses including homicide, of which, as of 2006, there were 668 which were convicted of first degree murder (all of whom were eligible for the death penalty if sought by the prosecution), with 374 of them not having a possibility of parole, and the rest of the homicide defendants were convicted of lesser homicide charges).  Thus, only about one in 222 persons eligible for the death penalty in Colorado based upon the crime of conviction is actually sentenced to death in a sentence that is legally upheld in the end.

If he is sentenced to death, he will join three other men on death row, although Governor Hickenlooper has suspended enforcement of the death penalty indefinitely against the one Colorado death row inmate whose appeals have run out (Nathan Dunlap who is black, murdered four people, all white, in a Chucky Cheese restaurant in 1993 or 1994, and was convicted in 1996).  All three men on death row in Colorado right now are there for offenses committed in Arapahoe County.

The other two, both of whom were African-American, were involved in the murder of two people in an effort to prevent testimony against one of them from being presented at a criminal trial much more recently (one was convicted in 2008 and the other was convicted a few months later); both victims were African-American, although one was also part Asian-American.

The last and only time that Colorado executed someone since the death penalty was reinstated in 1972 was when death penalty volunteer Gary Davis was executed in 1997 for crimes he confessed in open court to committing.  At least two former death row inmates in Colorado have left death row.  Once, Tim Masters, was released after it was determined he was wrongfully convicted.

An Odd Coincidence – The Many Recent Arson Incidents In Or Near Glendale

The arson in the Lewis case is one of three several serious cases in that vicinity in recent years.  A leather store called the Sheepskin factory was burned down by an environmental terrorist less than a block away two years earlier.

A couple of years later, an apartment complex under construction a couple of long blocks away was burned down in Glendale at S. Cherry Street and Cherry Street South.  An in between the fire at the construction site and the one in the Lewis case, there was another arson apartment fire in Glendale brought in order to strike back at a resident acquaintance of the perpetrator who was just about to get married.

The coincidence also calls attention to a jurisdictional issue in this case.  This crime took place within the boundaries of the City and County of Denver where I live, which is why I was on a jury pool for the case.  But, the other side of Colorado Boulevard would have been in Glendale, Colorado, an incorporated enclave of Arapahoe County, Colorado that is entirely surround by the City and County of Denver and contracts for fire protection services from the City and County of Denver’s fire department (so does Englewood, Colorado).

Generally, if you are a criminal defendant, the City and County of Denver, which has more liberal jury pools on average than Arapahoe County, and a more liberal leaning prosecutor than Arapahoe County, is the better place to face serious criminal charges.  But, in this particular case, it is unclear that the choice of venue will make much of a difference for Lewis.

It isn’t impossible to believe that the hundred yard happenstance between being tried in Denver and being tried in Arapahoe County may have been one factor of many that helped persuade the Denver DA to feel right about pressing for the death penalty in this case when he had declined to do so in so many other cases.

from Wash Park Prophet
via Denver News

Epic Justice

Ordinary Justice

Courts are in the business of “ordinary justice” against particular persons named as defendants for legal wrongs arising out of particular transactions, in the “recent past” as that is defined by law.

In practice, in a state like Colorado, this means that all but a dozen or two cases a year (involving narrow exceptions to the rule that typically have three or fewer parties) involve events that have taken place within the last twenty years involving parties who are currently alive, or have died within the last few years.

A case with a dozen or more parties, or a criminal case with more than a dozen defendants and victims combined, would ordinary be considered exceptionally complex.

But, many of these cases with exceptionally large numbers of parties still fit well within the “ordinary justice” paradigm.  For example, a traffic accident injuring everyone on the same bus or train or plane or ferry, or the mass shooting at an Aurora Theater by a single gunman, while involving many people, involves adjudication of rights from events in the recent past, under the laws that existed at the time, involving one or a small number of particular transactions, with a well defined discrete pool of people involved.

Intermediate Cases

Certain kinds of cases such as mechanic’s lien disputes, bankruptcies, probate cases and receivership cases, all of which typically involve large numbers of claimants whose interest in a single asset or pool of assets is adjudicated at once to maintain distributive justice, routinely impact larger numbers of individuals in a pro-forma way.  But, all of these cases involve relatively recent events that trigger the need to allocate a pool of assets: a single construction project gone bad, someone’s death, or the insolvency of a single or small related group of debtors and often individual sub-disputes can be handled separately in what amount to separate sub-cases (called “adversary proceedings” in bankruptcy, and often entirely separate lawsuits in a receivership).

At the extreme edge of “ordinary justice” is class action litigation, asserting either private rights or civil rights.  Like ordinary lawsuits, these suits typically involve wrongdoing by a modest number of defendants, in the recent past, under the laws that existed at the time.  But, the number of people harmed is generally much larger, is often indeterminate, and the people harmed in class action cases (as in criminal cases and attorney-general or private attorney-general cases) are necessarily directly involved in supervising the litigation.

Ordinary justice isn’t limited to private individuals.  It can involve governmental entities, large corporations, even foreign countries.  But, it deals with groups of people organized into pre-existing organizations, or around their dealings with one person or a small number of persons who are organized after the fact by a court into an organized class (in bankruptcy, this organization even involves the appointment of a committee to speak on behalf of the class and the appointment of a trustee to defend their interests).

Beyond the class action lawsuit, perhaps the closest that ordinary justice and epic justice come to intersecting is in a war crimes tribunal, like the ones trying war criminals from genocidal campaigns in Bosnia and in Rwanda respectively, and the ones held at the end of World War II.  War crimes tribunals resemble forums for delivering epic justice, but differ because the epic wrongs were so comparatively recent that it is viable to punish individuals who were culpably involved in them.

Even war crimes tribunals, however, are quasi-criminal and do not offer compensation and reparation to those who were harmed, often they do not even provide meaningful apologies.  Truth and justice commissions, serve a similar purpose to war crimes tribunals, but trade quasi-criminal punishment for apologies and full disclosure of what happened from the perspective of the people who committed the wrongs.

Epic Justice

In contrast, courts don’t generally handle cases of “epic justice”, which are remedies for “epic wrongs”.

Epic Wrongs Defined

“Epic wrongs” are instances when a large, often indeterminate group of people who were in hindsight clearly wronged in a large scale systemic manner, which may have been legal under the laws in place at the time.

Even if the wrong was illegal at the time, any right to a remedy under ordinary civil and criminal statutes was barred long ago by any reasonable reading of the applicable statutes of limitation or other constraints on the timing of the lawsuits.  Often, even if the conduct was theoretically illegal at the time, it would have been futile, impossible or impracticable to seek relief through the courts at the time.

Often, epic wrongs were inflicted on members of that class who are now all or mostly deceased, although members of the class may have left behind descendants who continue to suffer indirect injury from the wrongs committed against their ancestors.

Often, the governmental regime that engaged in the wrong doing no longer exists has been replaced with a new regime not in continuity with the regime that committed the wrong.  Often the individuals who were most culpably involved in the wrong doing are dead and many of the organizations involved no longer exist.  Sometimes a proportionately small number of junior participants in the wrongdoing are still living and some of the organizations involved are now in existence but have disavowed the policies that led to the wrongdoing.  Sometimes, all individuals and organizations involved are no more.

But, advocates for it argue that the epic wrongs for which “epic justice” is sought were so enormous, and so clearly culpable under modern moral and legal standards, and have given rise to harm so great that it has had multi-generational impacts on the descendants of those who experienced it, so some remedy ought to be devised today from society as a whole, or from that part of society that benefited most from, or is most meaningfully identified with, those epic wrongs.

Examples of Epic Wrongs

The examples below illustrate some of the alleged epic wrong which people have sought to remedy with epic justice of some kind.

* The various wrongs committed against Native Americans that ultimately decimated their numbers, divested them of their lands, violated their sovereign and treaty rights, and deprived them of their culture.

* Slavery, the absence of reparations (“40 acres and a mule”) paid to freed slaves, and the de jure racist legal system for freed slaves that persisted for a century from Reconstruction through the Civil Rights movement.  Some (although not nearly so many) would call the Emancipation proclamation, which ended slavery without providing compensation to slave owners as England and many other regimes did, an epic wrong as well.

* The Armenian Genocide.

* The Holocaust committed by the Nazi Regime during World War II.

* Japanese internment in the United States during World War II.

* Japanese rapes and war crimes directed at Chinese and Korean subjects in the early 20th century.

* Land reform movements in India and Zimbabwe seeking to undue unfair advantages of a privileged class that owned almost all economically valuable land which they obtained unfairly during a previous unfair regime and have maintained that advantage with their property rights.

* Apartheid in South Africa.

* Cultural Revolutions in China and Cambodia.

* Efforts to redress the loss of political power and land that Palestinians experienced in the time leading up to the formation of the Israeli nation, upon the formation of Israel, and during the course of the Israeli regime once it was established.  This example is notable because the formation of modern Israel was itself largely motivated as an effort to secure epic justice for Jews who were collectively harmed in the Holocaust.  More generally, the narrative of the Hebrew Bible is largely a narrative framed in terms of epic justice, sometimes punishing them and sometimes rewarding them, for the Jewish people.

The Limits and Politics of Epic Justice

Even “Epic Justice” has limits.

Limitations of Time

When Britain and the U.S. advocated for the formation of the state of Israel, this was conceptualized as a remedy for the Nazi Holocaust, not for the pogroms that Jews endured for centuries in Europe, or for the exile of Jews from Britain in the early modern period, let alone as some sort of atonement for Rome’s destruction of the Jewish temple in 70 CE that led to the end of any semblance of a Jewish political regime and the Jewish diaspora.

No one is advocating for justice for the Jomon people of Japan who lost their land, their language and much of their culture to the advances of the rice farming, horse riding Yaoyi soldiers two thousand years ago.

Koreans do not ache for justice from the subjugation to the Mongol Empire that the suffered until the Mongols were forced out five hundred years ago.

The British do not seek relief for the indignities that their loyalists experienced during the Revolutionary War.

No one seeks to hold the government of, or the people of, Mexico, accountable for the human sacrifices committed by the Aztecs, nor do the modern Puebloans seek justice for wrong committed in the pre-Columbian era.

The Italians feel no guilt for the Roman Empire’s extermination of the Etruscans roughly two thousand years ago, or the Roman Empire’s suppression of pagan religious practitioners sixteen hundred or so years ago.

Epic wrongs are vivid only if the culmination of them persisted into the last couple hundred years or so.  Older wrongs may be recalled, but generally only if those wrongs persisted into the last couple of hundred years.

Limits of Identity

Some of the limits on the time horizons of epic justice are not simply matters of the passage of some fixed amount of time.  There must be people who feel a sense of identity with those who were wronged who survived the wrong to make claims of entitlement to epic justice viable.

The Native Hawaiian Trust which holds in trust the wealth of the Hawaiian king who was deposed in the events leading up to the admission of Hawaii into the United States as a state is accepted, despite a general strong distrust of racially discriminatory policies (which its agenda of benefiting descendants of Native Hawaiians clearly is), because it is acknowledged as a form of Epic Justice.

The descent need not be a biological one.  The Union movement seeks epic justice for the wrongs done to their forebears in the Union movement, even in instances when many current members of the union movement arrived in the United States long after those injustices took place.

There is no real movement for redress for wrongs done to pagans in Europe, in part, because there are almost no pagans in Europe who can trace their beliefs continuously back to the pagans of pre-Christian times.  Outside the Mari people and the Kalish people at the fringes of West Eurasia, there are virtually no pagans in Europe who are not relatively recent converts.

In contrast, ancient wrongs to Galileo remain current in demands for epic justice, as mild as Galileo’s own punishments were at the hands of the Roman Catholic Church, because scientists the world over identify with his plight five centuries ago and continue to fear a war on science even today.

The Politics of Epic Justice

There is a clear partisan divide on the issue of epic justice, but it isn’t quite as simple as conservatives being for it, and liberals being against it.

Conservative white Evangelicals in the South, for example, have spent the last half century of resistance to the Civil Rights movement cultivating the Confederate flag and Confederate symbolism as a form of epic justice for what they see as the wrongs perpetrated on their ancestors in the Civil War by the Yankees, a sentiment that has been a strong one for their demographic since Reconstruction, even though a century passed before Confederate symbolism was used to capture it.

Still, for the most part, these days, liberals are advocates for epic justice, while conservatives see this attempts to stretch the bounds of ordinary justice as a bridge too far.

Yet, Christianity’s success in its formative era, when it was an openly socialistic and leftist movement, had as a central doctrine “forgiveness”.  This concept has lost political valiance now, but consider the time and place where this religion emerged.  The society of the Levant was a cousin marrying, clan oriented culture of honor in which ancient grievances and feuds between clans persisted for centuries.  American soldiers coming back from Iraq have remarked on the extent to which this is still the case in much of the Middle East to an almost absurd degree.

In that civilization, a religion with a core value of forgiveness was an effort at wholesale reform of a culture rooted in vengeance which was dysfunctional in the modernizing Roman world, and transformed it into a culture more capable of functioning in an urban environment where getting past wrongs from the past was a necessary precondition to moving forward as a society.

from Wash Park Prophet
via Denver News

In The Past Is Not Even Past Department

It’s nice that not only does the Baker County, Florida have a courthouse mural heroically portraying the Ku Klux Klan, but that said mural was painted in 2001.  

Since we all know our racist past and modern politics are totally unrelated, I’ll just note that Baker County was Mitt Romney’s second strongest showing in the state, winning it 79-20.

Via Lawyers, Guns & Money (the allusion in the title is to Faulkner’s famous statement).

from Wash Park Prophet
via Denver News

Trade Credit Insurance

It is will understood that bondholders and long term secured creditors of publicly held companies are financial creditors making a long term investment who need to consciously consider the creditworthiness of the company during the life of a bond when they make their investment and bear the risk of loss upon a default.  Also, there may be hundreds of thousands of bondholders in a typical publicly held company, but typically, the bondholder’s interests are managed by a trustee for the bondholders and the total number of trustees for bondholders for a publicly held company is rarely more than a couple of dozen, and often there are just a handful of them.

The same cannot generally be said of the legion of trade creditors of a typical publicly held company.  These may number in the tens of thousands, have claims that range from tiny to substantial, they are not organized collectively outside of bankruptcy, and they almost always predominantly get paid in full in the long run during a Chapter 11 reorganization bankruptcy.  For those not familiar with the term, “trade credit” generally refers to willingness of a vendor or customer doing business with a company in the course of its day to day operations to defer payment for a short period of time (typically thirty to ninety days) without interest.  It wouldn’t be unusual for trade credit (also known in accounting terms as “current liabilities”) to be 10%-20% of the book value of a firms assets at any given time.

I’ve proposed in the past that trade creditors of companies formally be given priority in bankruptcy so as to recognize the economic reality that manifests in Chapter 11 reorganizations, and for reasons described below for an alternative approach involving insurance and/or bonding of companies by private (but perhaps, if necessary, government chartered) insurance companies.

But, there is another approach, which borrows from the area of deposit insurance in financial institution insolvencies that has been very effective in preventing financial institution insolvencies from causing wider damages to the economy.

What if publicly held companies, either to secure favorable terms with trade creditors in the marketplace, or as a matter of regulatory mandate, secured “trade creditor insurance” from a suitably regulated insurance company with adequate reserves and financed this system by paying premiums for this insurance, which would guarantee payment of the company’s trade debts (but not its financial debts) in the event of its insolvency, just as comprehensive general liability insurance (which is not legally required, but is universally maintained by publicly held companies presumably to reassure investors) is routinely secured to finance a company’s tort debts.

The company providing the trade creditor insurance would in turn have a priority claim in any insolvency proceeding similar to that of the FDIC, to be indemnified for the claims it paid.

Thus, trade creditors of a bankrupt company would not need to panic because they would be assured immediate prompt payment of their claims in full almost as quickly as they would have been paid by the company had it been solvent, and only trade credit insurance companies and financial creditors of firms would have to seriously investigate a publicly held company’s creditworthiness.

If this sounds familiar, it should.  This kind of arrangement is routine in the construction industry, and is almost universal among government entities employing contractors to do doing construction work, and is called ‘bonding”, as in the familiar phrase “licensed, bonded and insured.”

If publicly held companies and privately held companies seeking to compete in the same markets with them, were routinely bonded, this would reduce the transaction costs involved in dealing with such firms, would produce more prompt and dramatically simplified resolutions of insolvencies of bonded companies, and would greatly reduce systemic risk in the economy at large, making it more robust during economic downturns.

But, because the risk that a publicly held bonded company would be unable to pay trade creditors in the long run would already be so low (perhaps 1% of outstanding trade credit or less), in part, because of debt to equity ratios mandated by stock exchanges in order for a company to be listed, and by corporate bondholders as loan covenants, typically limiting debt to something like 50% of assets in non-financial companies, the premiums that a publicly held company would have to pay for this kind of bonding would probably be quite modest. They would be lower still if trade creditor insurance indemnification claims were given priority in bankruptcy.  And, they could be lowered even further if bonding companies imposed their own covenants upon companies that would mitigate the risk of defaults on trade credit in advance.

Indeed, the creation of an industry with an institutional and lobbying interest is controlling systemic risk in American’s big business sector, and powerful tools through insurance underwriting to accomplish those ends, might arguably, in the long run, be as important for the American political economy as the direct benefits of the policy itself.

One of the problems that led to the financial crisis was that credit rating firms, which have immense impact on insolvency risk management in the big business sector, had no skin in the game to temper the small dollar incentives created by fees charged to firms to have their credit rated so that they could obtain bonds.  The harm caused by inaccurate credit rating assignments by these firms far outweighed any capacity those firms had to compensate people harmed when those inaccurate credit rating assignments were the result of negligence or outright fraud.  They were judgment proof.

In contrast, firms providing bonding and/or trade credit insurance (to the extent that the two are distinguishable) would have substantial financial reserves which would give these firms a powerful economic incentive to set premiums accurately relative to risk for particular publicly held businesses or for privately held businesses seeking to participate in the marketplace with those publicly held businesses on an equal footing.

from Wash Park Prophet
via Denver News

Present Company Excluded And The Confederate Flag

One of the most powerful reasons that the South Carolina legislature has done an about face and voted to take down the Confederate flag, is that one of the nine people murdered by a flag touting white supremacist was one of their own, a state senator.  Many of those legislators attended his funeral at the church where the shooting took place and some discussed that experience in the debate of the matter on the floor of  the legislature.

Legislators are by nature social animals and the identification with a murder victim who was one of their own crossed party lines.  What I call the “present company excluded rule” is the principle of etiquette and social interacts that considers it rude, to the point of being socially prohibited, to insult or be openly hateful towards someone who is part of your social circle with whom you regularly interact.

This murder brought home to state legislators in South Carolina that their persistence is keeping up the Confederate flag violated this rule as to people within their ranks, and not mere outsider citizens, and acted accordingly.

Similar observations can be applied to gay rights.  For example, it is no coincidence that the laws in Colorado favorable to gay rights were almost all enacted while the Colorado General Assembly has openly gay legislators and in many cases those legislators were the sponsors of the bills.

from Wash Park Prophet
via Denver News

A Positive Review Of Czech Insolvency Laws

Physics blogger Lubos Motl recounts his positive experience with the Czech Republic’s bankruptcy system for insolvent non-bank financial institutions and the Czech equivalent of the FDIC, after a credit union he invested in went under, probably due to fraud.

FWIW, I don’t agree with his analogy of this situation to the Greek government’s current financial crisis, which would imply quite extreme measures, even though some sort of institutional way for handling insolvencies of countries, dependencies and U.S. states (Puerto Rico is also in deep financial trouble, for example), similar to Chapter 9 of the United States bankruptcy code (for municipal bankruptcies), might be a good idea.

from Wash Park Prophet
via Denver News

The Sexual Purity Movement As A Political Tactic

Sexual purity movements, past and present, are not ultimately about promoting a biblical view of sexuality. They are about explaining large-scale culture crises (e.g. Anglo-Saxon decline, the Cold War, changing gender roles and sexual mores) and providing a formula for overcoming those crises.

Today’s movement is laden with a therapeutic rhetoric that presents these choices as the best choices for those who seek to conform their behaviors to God’s will. It promises that those who conform will enjoy spiritual, physical, and emotional satisfaction in their marriage relationships. Other scholars have parsed these claims in more sophisticated ways than I do and many other writers have demonstrated that these expectations are anything but a path to personal well being. What I’m saying is that sexual purity has never been about personal well-being for evangelical adolescents— or anyone.

Each historical example I analyze demonstrates that purity work and rhetoric has emerged at moments when socially conservative evangelicals seek to assert and maintain their political power. Sexual purity isn’t about what Abby and Brendan do on a Friday night, it’s about constructing a view of the United States as a nation in distress and claiming that evangelical Christianity can not only best explain the crisis, but save us from our demise.

– Sara J. Moslener, author of Virgin Nation, writing for

from Wash Park Prophet
via Denver News

Canada Is Burning As Usual, But Worse

Across Canada, there are more than 418 wildfires burning. To date, there have been more than 4,500 that have charred more than 2,150,000 hectares of forest. There are twice the number of fires that there were at this time last year when just over 2,200 fires burned 515,732 hectares of forest.

From here.

The result is haze in the Eastern U.S. (including Denver) and a lot of burned out land in Canada. Most of the places where the wildfires are largest aren’t heavily populated, and there have apparently not been many serious injuries or deaths or even massive property damage.  But, forests take a long time to recover from these events as we know all too well in Colorado.

from Wash Park Prophet
via Denver News