To patent, or not to patent. . .

For most of us on the Western Slope, the topic of patents is pretty dull.

Yet, from the iPhone to e-cigarettes; aspirin to airplanes, all these great inventions we love and loath are the product of inventors, innovators, and entrepreneurs, who, in exchange for sharing the technology with the public, are granted a monopoly (patent) over the invention for a limited number of years, usually twenty.

Patents allow inventors to recoup the cost of research and development and to be able to make a profit from their hard work. Strong patents rights also have a consumer benefit. When competitors are blocked from copying and flooding the market with cheap knock-offs, it means real innovation has to occur in order to avoid infringement. If a copycat is merely tweaking, society’s knowledge base isn’t being expanded.

US Supreme Court hear 90 minutes of arguments in
Oil States v. Greene on Nov. 27, 2017. Matt Soper photo.

On Monday, Nov. 27th, the U.S. Supreme Court heard oral arguments in Oil States Energy v. Greene's Energy, a case which could drastically change whether an inventor opts to patent new technology, or, like the Coca-Cola recipe, keep it as a trade secret.

The legal question is fairly simple: whether patents are property rights, like land or cars, or whether they are public rights, similar to a marriage licence, driver’s licence, or licence to practice medicine.

If patents are held to be property rights, then only a Federal Court has the power to take that property away from its owner. If the Supreme Court decides patents are akin to licences, then the U.S. Patent & Trademark Office (PTO), as an administrative agency, may invalidate the patent at any time after its been issued.

Let’s say you have spent thousands of dollars and hours researching and developing an invention, then several thousands more in attorney and PTO fees, and then, after a cumbersome multi-year process of examination against prior art, the PTO finally issues you a patent. With this patent you build a business and hopefully are successful. At this point in time, you aren’t going to take too kindly to the Patent Trial and Appeals Board within the PTO accepting a petition to review the validity of your patent, especially since the Board doesn’t afford parties the same due process and procedural protections as courts.

The America Invents Act 2011, among other reforms, created the Inter Partes Review (IPR) process for administratively reviewing the validity of issued patents.

Congress created IPR on the presumption that the PTO had issued too many bad or weak patents over the years. Patent trolls take these “bad patents” and assert frivolous lawsuits with the goal of scaring the end user into a settlement. IPR was designed to make challenging bad patents cheaper and faster. However, as of Jan. 2018, it will cost a petitioner $30,500 to initiate an IPR and the patent owner will spend at least $300,000 defending the patent.

Instead of juries determining whether a patent was nonobvious or novel, Congress moved this determining process to the PTO – an executive agency. Such a change also meant patents were no longer treated as property and presumed valid, unless proven otherwise, but instead, IPR treats issued patents as if they are still in the application process.

Currently, roughly 75% of patents subjected to the IPR process are declared invalid. The losing party may appeal to the D.C.-based Court of Appeals for the Federal Circuit (CAFC). However, CAFC has only reversed 10% of the PTO’s IPR decisions.

The Court's liberal justices appeared to voiced support for IPR. Justice Sonia Sotomayor noted during oral arguments that the ability to appeal “saved” the IPR system.

Colorado’s-own Justice Neil Gorsuch questioned the fairness of a system that could allow a government agency to take property after it had been granted.

Conservatives on the Court seemed concerned about the government’s ability to void patents too easily.

The fact that an overwhelming majority of patents subjected to IPR are revoked and CAFC acts as a rubber stamp for the PTO means small businesses and micro inventors are discouraged from pursuing and developing patented technology.

This author believes issued patents are vested rights that should only be taken away through a court of law and not via an administrative board.

A decision is expected in June 2018.

* Matt Soper, a legal scholar, is a CMU alumnus and resident of Delta, Colo. He holds law degrees from the Universities of Edinburgh and New Hampshire. Contact him at matt.soper@alumni.law.unh.edu. 

_________________________________

Matthew Soper, "To patent, or not to patent." Grand Junction Daily Sentinel (Dec. 3, 2017) p. B5.

Unified Patent Court question illustrates complexity of Brexit, Europe & the EU

Rare are the times that intellectual property questions sneak into the conversation of a major Brookings Institution, who were discussing, “Europe and the U.S.: The old order faces a new world,” in front of a live audience and the nation, via C-SPAN, were hit with a very specific, “in the weeds” type question from one audience member. “When can we expect to see the [European] Uniform Patent Court treaty ratified and why is Germany holding up the process?” The panel of experts made a good faith attempt at an answer, but admitted their knowledge in this particular area was limited. After the question was addressed, a sea of diplomats, lawyers, academics, and scholars in the audience could be seen googling “Uniform Patent Court.”

European Patent 0080627B1
Opening & closing for retractable fountain pen nib
25 Feb. 1987 European Patent Office

Washington think tank. Experts at the

The UPC may not be sexy like Brexit, Russia, or China in terms of US – European wonk talk, but the entangled mess is worthy of analysis, because it is directly related to Brexit, domestic state parochialism, harmonization of patents, and a developing a more integrated EU.

In June 2017, a complaint was submitted to Germany’s Constitutional Court, asking the court for an einstweilige Anordnung, to temporarily enjoin the ratification of the German Unified Patent Court Agreement Act. At the request of the court, the Office of the Federal President agreed to suspend the ratification process until a decision on the merits has been rendered by the court.

The complaint was submitted by Düsseldorf IP lawyer Ingve Björn Stjerna, and alleges a violation of the right to democracy, "democratic deficits and deficits in rule of law with regard to the regulatory powers of the organs of the UPC", "perceived lack of an independent judiciary under the UPC", and non-conformance of the UPC with EU law.

At the end of August 2017, the Federal Constitutional Court “invited the German Government, the German Bar Association and the European Patent Lawyers' Association to provide observations in response,” according to Lexology.

As of 15 September 2017, there is still no indication on a timeline for resolving the stay of ratification. Germany is an essential element for the UPC to come into force, as the treaty requires at least 13 EU states ratify the UPC under their domestic constitutional framework, plus the three largest patent filing states at the time of adoption. Those three states, as of 19 February 2013, were France, Germany, and the UK.

Courts for resolving patent disputes will be in France, Germany, and the UK, along with regional courts in other states. The registry and court of appeals will be located in Luxembourg.

In contrast to Germany, the UK did ratify acts which pave the way for the UPC to come into force, however, in navigating its exit from the EU, the UK has to make the case that the Unified Patent Court is the product of an independent treaty and not an EU institution. According to BNA, the May Government has said Brexit will end the Court of Justice of the European Union’s “direct legal authority” over the UK. On 23 August 2017, the UK government released a position paper which emphasised that parties to international treaties commonly agree to submit disputes to a non-state court.

The future of the European Patent Court is an analogy for the future of Europe; a complex web of rules, state sovereignty, Brexit, pressure from international business, and a general lack of leadership to define a future and pursue it. The experts at Brookings should rest assured that the question they were posed is one that even constitutional judges in Germany are having a difficult time answering. 

The Ute Council Tree - forever in our hearts

Ute Council Tree
Jim Wetzel / Delta County
Historical Society Photo 2017

Why do we care about an old tree in Delta, Colorado? When headlines and social media are log jammed with racial tensions, calls for an end to bigotry, and peace.[1]

The Ute Council Tree in Delta is an important reminder because its once-living timber absorbed the themes of the modern day debates in bygone eras.[2] Arguments by local Natives concerning hunting and horse betting, debates on how to interact with other tribes, dreams of equality and peace among the races, or discussions of diplomacy and war.

The tall and mighty cottonwood tree lost its last living branch on a windless Aug. 1 – Colorado Day.[3] At 9:30 AM on Aug. 25 – the anniversary of Chief Ouray’s death – a public ceremony was held to mark the conclusion of this tree and immediately thereafter it was cut down to protect persons and property.[4]

Within the written history, the Delta County Historical Society has found no causal connection to any Ute councils, treaties, or forums held around this tree.[5] The oral history of the Utes has recognized this tree as symbolizing their heritage and a living connection to their ancestors[6] who wandered these hills and named the Grand Mesa -- Thunder Mountain. Because of this, the Ute Council Tree site will forever be venerated.[7]

Legend has it, that this is the tree Ouray met in council with his fellow leaders, and it was under this tree that Ouray did the unthinkable -- he invited his wife, Chipeta, a woman, and his most trusted confidant and adviser, to join in the council's decision making.[8]

It was beside this tree that the Utes passed as they were removed from their tribal lands in late-August 1881.[9]

And it was past this tree that Chipeta would later return and visit settlers whom had become her friends. She visited the area often, with her final journey occurring in September 1923.[10]

For 215 years[11] this old cottonwood tree has stood firm, a stone’s throw from the confluence of the Uncompahgre and Gunnison Rivers and a testament that a tree, planted by a river, won’t fear drought, because strong roots will allow leaves to provide shade in summer’s heat.

In 1802 America was still young and the Louisiana Territory still belonged to France. As a matter of fact, the seedling wasn’t even growing in French or United States territory – at that time, today’s Western Colorado belonged to Spain. When Mexico gained independence from Spain in 1821, it inherited the Spanish claims which included modern-day Delta County.[12]

The Ute Council Tree survived destruction when Antoine Robidoux, a fur trader based out of Santa Fé, cut nearby cottonwoods to construct Fort Uncompahgre in 1828 along the Old Spanish Trail. The delta of the Uncompahgre and Tomichi[13] (modern day Gunnison) Rivers was an ancestral wintering encampment for the Utes.[14]

By the end of the 1830s beaver pelt prices had declined precipitously and to make up for lost revenue, Fort Uncompahgre increased its trade in California horses and Indian slaves. Powerful tribes would capture the women and children from weaker tribes and then sell them at the Fort.[15]

The Ute Council Tree stood strong as Eastern industrialization and improved routes of trade resulted in a drop in trading prices. The Indians concluded that the Santa Fé and Taos traders, including Robidoux, had cheated them for years.[16]

During the summer of 1843 two events occurred which would impact the Council Tree. First, the Indians raided Fort Uncompahgre and killed everyone except Mexican trapper Calario Cortez, who narrowly escaped the carnage.[17] Second, a traveling band of Tabeguache Utes came upon a burnt-out Kiowa village and heard a baby girl crying. Everyone else was dead. They rescued the baby and named her Chipeta – meaning White Singing Bird.[18]

As a teenager, Chipeta had taken care of Ouray and his family. Black Mare, Ouray’s first wife, died in 1859.[19] Later that year, Ouray, the tribe’s respected hunter and warrior, married Chipeta.[20] A testament to Ouray’s greatness, he and thirty warriors defeated 300 Arapaho warriors. During the battle, Ouray’s five-year-old son disappeared in the confusion.[21] Ouray and Chipeta would look for years, but never found the son.

With the discovery of gold and silver in the San Juan Mountains, there came a flood of Whites into the Ute lands. Those winter councils around the tree must have raised questions of enormous magnitude regarding the tribes’ future.

During one council meeting, Ouray persuaded the tribe to allow him to negotiate a treaty with the US Government. With the help of Kit Carson, Ouray would travel to Washington, DC and successfully negotiate a series of treaties that would guarantee specific boundaries for the Tabeguache and Mouache Utes; and in exchange for outlying lands, the US government would pay the Ute tribes money, food, and supplies.[22]

Not everyone liked Ouray. In 1872, Ouray and Chipeta had just arrived at the Los Pinos Indian Agency when Sapovanero attempted to assassinate Ouray. Sapovanero nearly missed and Ouray then sought to kill him on the spot. Chipeta threw herself in-between the two warriors and pleaded for life. Sparing Sapovanero’s life avoided a dangerous rift amongst the Ute tribes.[23]

Ouray and Chipeta had only recently settled down as farmers near Montrose when news of the 1879 Meeker Massacre reached them. The White River Utes attacked the new Indian agent, Nathan Meeker, after he destroyed their race track and insisted on them using their time for farming, rather than horse racing and betting. Meeker sent for troops and Major T.T. Thornburgh was sent with 178 soldiers. They were attacked en route to the agency and 13 of Thornburgh’s soldiers were killed. Upon hearing that Meeker had called in the army, Chief Douglas and his warriors murdered Meeker and 11 others at the agency. They took the women and children hostage and held them at the tribe’s mountain camp.[24]

At the urging of Chipeta, Ouray called for peace. He wrote the White River Utes and called for an end to hostilities and for the hostages to be sent to his home outside of Montrose immediately. The hostages were released unharmed, but the uprising sealed the fate of the Colorado Utes.[25]

Last branch fell off on 1 Aug 2017
Pat Sunderland/
Delta County Independent Photo

In 1880, Ouray and Chipeta travelled once more to Washington, DC and signed the final treaty between the Ute Nations and the United States of America. President Rutherford Hayes signed on behalf of the federal government and hosted Ouray and Chipeta at the White House. Upon Ouray’s return to the West Slope, he had one mission; to have the remaining tribe – the Southern Utes at Ignacio, sign the treaty. Ouray fell ill near Durango and died of Bright’s disease on August 25, 1880.

The following year, the US government removed the Uncompahgre Utes to a reservation in eastern Utah. A wave of White settlers rushed into the Gunnison River Valley in October 1881. In the shadows of the Ute Council Tree, a town was formed and appropriately called – Uncompahgre.[26]

By 1882, Uncompahgre was renamed Delta when the Post Office Department refused to recognize a name with so many letters.[27] The following year, Delta County was created from a portion of Gunnison County.[28]

From time to time, until her death on August 16, 1924, Chipeta would come through Delta and visit the land she once called home.[29] Each time she came to visit, she would stop by the old Ute Council tree and take a solidary moment. In September 1923, Chipeta made her last trip through this area.  As a young boy my grandfather, Guy Howard, recalled seeing Chipeta and Buckskin Charlie in Delta.  Later he acquired two of Chipeta’s baskets, which are now on permanent display at the Delta County Historical Society Museum located at 251 Meeker St. in Delta.[30]^, [31]

At the public ceremony held to mark the conclusion of the 215 year old Ute Council Tree, many Utes made a pilgrimage to pay homage to a tree which symbolizes their heritage. Many prayers were offered and official letters publically read, then the waiting trucks and saws began cutting the tree.

A complete history of the Ute Council Tree written by Jim Wetzel may be purchased at the Delta History Museum for $10. Wetzel's history is more specific to the tree, whereas the above is a general history of the area that the Council Tree would have borne witness too over the last 215 plus years.[32]

---

[1] “History worth preserving.” Editorial. The Grand Junction Daily Sentinel (Grand Junction, Colo., 18 August 2017) A4.

[2] Deborah Doherty & J. Wise. Delta, Colorado: The First Hundred Years. (Delta, Colo: DCI, 1981); and James Wetzel, A Spirit Returns: Delta County, Colorado: A Pictorial History. (Virginia Beach, Va.: Donning, 2003); See also: Muriel Marshall, Where Rivers Meet: Lore from the Colorado Frontier. (Texas A&M University Press, 1996).

[3] Pat Sunderland, “Historic landmark damaged.” Delta County Independent (Delta, Colo., 2 August 2017) A1; Pat Sunderland, “Ute Council Tree to be cut down.” Delta County Independent (Delta, Colo., 16 August 2017) A1+; “Old tree to fall on Ouray anniversary.” The Grand Junction Daily Sentinel (Grand Junction, Colo., 17 August 2017) A3.

[4] Pat Sunderland, “Ute Council Tree’s roots run deep.” Delta County Independent (Delta, Colo., 30 August 2017) A1+; Keith Lucy, “Personal Interview.” President of the Delta County Historical Society. 16 August 2017; Kelly Slivka, “This is part of our heritage: Centuries old tree revered by Utes Tribe, dramatically cut back” The Grand Junction Daily Sentinel (Grand Junction, Colo., 26 August 2017) A1+.

[5] Gary Harmon, “Historic Ute Council tree has rotted, must be cut back.” The Grand Junction Daily Sentinel (Grand Junction, Colo., 12 August 2017) A1+.

[6] James Wetzel, The Ute Council Tree (Delta County, Colo., 25 August 2017) 5.

[7] Colorado Tourism Office 2017, http://www.colorado.com/historic-places-districts/ute-council-tree. Accessed 16 August 2017.

[8] Jeanne Varnell, Women of Consequence: The Colorado Women's Hall of Fame (Johnson Books, 1999) 32-7.

[9] Ute Indians v. US (1910), Cases Decided in the Court of Claims of the United States, Vol. 45. (W.H. & O.H. Morrison, 1911) 440+.

[10]  Matthew Soper, “Chipeta, legendary wife of Ute Chief Ouray” Delta County Independent (Delta, Colo., 26 July 2004) A8.

[11] Professor C.W. Ferguson, University of Arizona at Tucson, dated the Ute Council Tree as being 212 years old in 1985, which would make the tree 244 years old in 2017. Jess Fults, City of Delta Tree Board, dated the tree as being 180 years old in 1985; which is where the generally accepted age of 215 years old came from in 2017 news reporting. It is fair to say that the seedling, which became the Ute Council Tree, began its life between 1773 and 1802.

[12] Thomas J. Noel & Carol Zuber-Mallison, Colorado: a historical atlas (University of Oklahoma Press, 2015).

[13] The Spanish name at the time was Rio de San Javier (Xavier), however Catholic Priest Silvestre Vélez de Escalante noted upon seeing the river in 1776 that Juan Maria de Rivera, the first non-native to see the river, called it: “the great Rio del Tizon”. See: Steven G. Baker, Juan Rivera's Colorado, 1765: The First Spaniards Among the Ute and Paiute Indians on the Trails to Teguayo. (Western Reflections Publishing, 2016).

[14] Chris Miller, "Fort Uncompahgre." Colorado Encyclopedia, http://coloradoencyclopedia.org/article/fort-uncompahgre. Accessed 17 August 2017. See: Ken Reyher, Antoine Robidoux and Fort Uncompahgre: The Story of a Western Fur Trader (Ouray, CO: Western Reflections, 1998). See also: Rufus B. Sage, Rocky Mountain Life, or, Startling Scenes and Perilous Adventures in the Far West during an Expedition of Three Years (1859; repr., Lincoln: University of Nebraska Press, 1982); C. Gregory Crampton and Steven K. Madsen, In Search of the Spanish Trail: Santa Fe to Los Angeles, 1829–1848 (Layton, UT: Gibbs Smith, 1994); and Joseph J. Hill, “Antoine Robidoux, Kingpin in the Colorado River Fur Trade, 1824–1844,”Colorado Magazine 7 (July 1930).

[15] Id.

[16] Id.

[17] Id.

[18] Jeanne Varnell, Women of Consequence: The Colorado Women's Hall of Fame (Johnson Books, 1999) 32-7.

[19] For a complete history of Ouray and Chipeta, see: P. David Smith, Ouray: Chief of the Utes. 2d ed. (Wayfinder Press, 1986); Cynthia S. Becker & P. David Smith, Chipeta: Queen of the Utes. (Western Reflections Publishing Co., 2003); and Vickie Leigh Krudwig, Searching for Chipeta: The Story of a Ute and Her People. (Fulcrum Publishing, 2004). For a general history of the Utes, see: Wilson Rockwell, The Utes: A Forgotten People. 2d ed. (Western Reflections Publishing Co., 1998); Jan Pettit, Utes: The Mountain People. Rev. sub. ed. (Johnson Books, 1990); and Virginia McConnell Simmons, The Ute Indians of Utah, Colorado, and New Mexico. (University Press of Colorado, 2001).

[20] Op. Cit. Varnell, Women of Consequence.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Ute Indians v. US (1910), Cases Decided in the Court of Claims of the United States, Vol. 45. (W.H. & O.H. Morrison, 1911) 440+.

[27] Olivia Spalding Ferguson, “A sketch of Delta County history” The Colorado Magazine (The State Historical Society of Colorado, Denver, Colo., October 1928) Vol. V, No. 5.

[28] Op. Cit. Wetzel, A Spirit Returns; and Doherty, The first hundred years.

[29] Matthew Soper, “Chipeta, legendary wife of Ute Chief Ouray” Delta County Independent (Delta, Colo., 26 July 2004) A8.

[30] Id.

[31] Aaron Porter, “Austin youth uses history to shape future” The Grand Junction Daily Sentinel (Grand Junction, Colo., 18 March 2001) 2A+.

[32] See: James Wetzel, The Ute Council Tree (Delta County, Colo., 25 August 2017)

Nursing Homes: the business of taking care of our loved ones

My great-aunt Mabel and me. 2017 Author's Photo.

My great aunt has been in the nursing home for nearly a decade. Her retirement yields a little over $5,000 a month (post tax). The nursing home monthly bill is $7,000. We've finally depleted all invests, annuities, and other assets and will be making the move to Medicaid.

I find it amazing that in Delta County, where the cost of living is the lowest in the state and the aides, cooks, and most of the support staff earn minimum wage, and through all this, a monthly bill is over $7,000! All this gets you a twin bed in a shared room where they provide one shelf for personal affects and tell you not to hang family photos, repaint, or other change the sterile institutional white room. My brother's sub had more personal space than these nursing homes.

With an occupancy rate of say 50, this is $350,000 per month or $4.2 million per year, plus an additional million in subsidies for providing ageing care services in the rural areas. The institution is a non-profit, so there aren't really any taxes to worry about, which begs the question of how in the world is so expensive?

What is even more amazing is that the nursing home is subsidised directly by state and federal government and the facilities themselves are at least 25+ years old, so it's not like the price point reflects a modern state of the art facility.

Lesson learnt: Don't worry about saving. Take that expensive trip. Deplete the cash reserves. If you have any inkling you'll end up in a nursing home, you won't need to worry about a will, as the only thing you'll pass on is a burial bill.

Hopefully no one interprets this rant the wrong way. The ability to make your loved ones a little bit comfortable at the end of life is worth everything you have. No one should ever expect, nor be given anything in life. You earn your way, by starting out with nothing, immediately going in debt, climbing out and becoming a successful member of society. That is the American Dream.

In many ways, inheritance is a corruption on society. It passes on the successes on one generation to another, only the receiving generation was not the creator of success, but merely a beneficiary. By removing the grit and hard work, and the sweat and blood, we create a lazy, privileged, and unmotivated culture.

Yet, the debt that is piled on now days is hard to overcome: rising costs for higher education, unaffordable health insurance with high deductibles, the cost of health care itself is through the roof (don't get ill or injured), being able to save for a down payment on a house is more challenging, as the cost of living pretty much eats up a month's income. Even regulatory barriers make entering many business markets a challenge.

At what point in time are the masses unable to pay their debts and earn their way? Schemes that deplete wealth, especially the middle class, should be very worrisome. Until the cost/income ratio is able to balance a bit, any help families can provide to one another is essential to creating members to society who will be able to pay their own way.

Crime, homelessness, economics, & the politics of cannabis

Local policy makers are touting the economic benefits of commercial cannabis cultivation as a meansNational Public Radio’s Central California affiliate, a one-acre grow operation could bring in $19 million a year![1] While profits vary, jobs in the 420-industry, such as bud trimmer earn $12-13 an hour, according to Forbes. The grow master or cultivator can expect to earn $100,000+ per year.[2] to replenish depleted coffers. Looking at the numbers, it is hard to deny their claims. According to a report by

Colorado’s Amendment 64 was passed by the voters in November 2012; and the commercial sale of marijuana to adults, 21 years of age and over, for recreational use began on January 1, 2014.[3] This date is important, because in the March 15, 2017 issue of the Grand Junction Daily Sentinel, it was reported that property crimes and all crimes reported saw a major increase from 2014 onwards. While violent crimes declined in the year 2014, thereafter, violent crimes have also seen a significant increase.[4]

One hypothesis is that crime and homeless have increased in Colorado since the legalisation of recreational marijuana.

The Sentinel article quotes Grand Junction Police Chief, John Camper, as saying, “I talk to police chiefs throughout the state and they’re seeing the same thing that we’re seeing – a level of violence that we haven’t seen before,” noting that it’s hard to pinpoint the reason for the rise.[5] Chief Camper is quoted later in the article as saying increases in property crimes are “often an indication of an increase in drug activity.”[6]

From 2014 to 2016, School District 51 students, who are broadly identified as homelessness, soared nearly 55% from 388 to 600, according to a Daily Sentinel article at the time.[7]

The 2016 Housing and Urban Development Report on Homelessness, reports that “Between 2015 and 2016, the number of individuals experiencing homelessness increased in 22 states. The largest absolute increases were in California (4,504 people), Washington (1,374 people), and Colorado (721 people).” [8] Percentwise, this was 13 points up from the previous year and represented a reversal of the trend which showed homelessness slightly declining over the past decade.[9]

In privileged conversations, some Western Colorado policymakers have expressed to this author their belief that the legalisation of recreational cannabis has led to an increase in crime and homelessness.

Looking at the numbers state-wide, the Colorado Bureau of Investigation reports that all major crime classes have increased 6.20% since the beginning of 2014.[10] Between 2013 and 2014, crime actually decreased by one percent. Looking at the aggregate picture of crime in Colorado for the decade 2005 to 2015, crime generally was decreasing annually until 2012.[11]

Comparing these state-wide numbers with more pronounced local findings, there does suggest a slight correlation between increased crime and legalisation of recreational cannabis. More data and in-depth analysis will be required to know for sure, but certainly those who have expressed concern are not without merits.

The Financial Crisis 2007-08, sparked by the subprime mortgage market and excessive global barrowing and risk taking, had major ramifications at the local level. By 2009, Colorado hit the high-water mark with 46,394 home foreclosure filings.[12] Smaller jurisdictions, such as Delta County saw their worst numbers in 2010, with 264 foreclosure filings.[13]

In 2009, a small group of Delta citizens, from various churches, concerned by seeing homeless people lingering around town, organized to start a homeless shelter. As the Financial Crisis became entrenched and foreclosures mounted, industries such as the local lumber company and saw mill closed, followed by the North Fork coal mines. At the same time, Mesa County saw a major reduction in the Oil and Gas industries. As the layoffs, failures, and foreclosures mounted, so did the homeless situation.

Homelessness had increased enough locally, that in November 2014, the Abraham Connection (Delta County’s Homeless Shelter), made the decision to move out of the Delta Methodist Church’s basement and begin construction of a $750,000 facility,[14] which opened in November 2015.

During the Nov. 2013–May 2014 season, the Abraham Connection provided 840 bed nights. Contrast that number with 2,665 which was the total number of bed nights provided during the Nov. 2016–May 2017 season.[15] In three years’ time, that is a 217% increase in homelessness.

Looking at Delta County as a case study, with over 1,000 coal mining jobs gone, a couple hundred timber related jobs chopped, and countless ‘mom and pop’ stores shut for good, a rising homeless population and a school district and hospital struggling under declining revenues due to ratcheted-down property valuations, many policy makers have turned to marijuana as the saviour.

Delta County Commissioner, Mark Roeber, told the Denver Post that he receives calls “almost daily, saying marijuana is going to save us.”[16] While Delta County, and the municipalities within the county, have sustained a prohibition on commercial retail and cultivation since 2013, some towns have explored the retail pot question.

In 2014 Paonia voters rejected a retail pot question, as was the case in Hotchkiss in 2016. By 2017, Orchard City considered repealing their prohibition on commercial marijuana, as did the Paonia town council.[17]

Aside from the cultivation operation owner, the grow master or cultivator is the only employee who would earn what a displaced coal miner had earned annually.[18] Other jobs in the 420-industry would pay comparable to entry level west slope salaries.[19]

While the Green Rush has more likely than not increased crime and homelessness, the costs of these increases to local societies should be calculated when setting budgets for social serves, programs, and law enforcement. Communities should factor in all costs when considering the economics of boosting a city or county’s coffers.

---

[1] Romero, Ezra David. "California Farmers Consider Cashing In On A New Crop . . . Marijuana." Valley Public Radio. NPR, 15 Dec. 2015. Web. 15 Mar. 2017.

[2] Borchardt, Debra. "The Five Best Marijuana Jobs." Forbes. Forbes Magazine, 27 May 2016. Web. 15 Mar. 2017.

[3] Healy, Jack. "Up Early and in Line for a Marijuana Milestone in Colorado." The New York Times. The New York Times, 01 Jan. 2014. Web. 15 Mar. 2017.

[4] McIntyre, Erin. "All Categories 
of Crime in GJ 
rising Sharply." GJSentinel.com. The Grand Junction Daily Sentinel, 15 Mar. 2017. Web. 15 Mar. 2017

[5] Ibid.

[6] Ibid.

[7] Langford, Katie. “Homelessness on rise for kids in District 51: Increase due to better identification, economic and family reasons.” The Grand Junction Daily Sentinel, 18 April 2016. A1+

[8] “The 2016 Annual Homeless Assessment Report (AHAR) to Congress.” US Department of Housing and Urban Development. Office of Community Planning And Development, Nov. 2016. Web. 1 May 2017. Pg.14.

[9] Ibid.

[10] “Crime in Colorado Annual Reports 2005-2015.” Colorado Bureau of Investigation. Colorado Department of Public Safety, 2016. Web. 8 May 2017.

[11] Ibid.

[12] “Foreclosure Reports and Statistics 2002-2015.” Division of Housing. Colorado Department of Local Affairs, 2017. Web. 8 May 2017.

[13] Delta County Treasurer’s Office Report 2006-2016.

[14] Press Release Nov 2014. Abraham Connection / Delta County Homeless Shelter.

[15] Facebook announcement 1 May 2017. Abraham Connection / Delta County Homeless Shelter. Web. Accessed 8 May 2017.

[16] Finley, Bruce. “Collapse of Colorado coal industry leaves mining towns unsure what’s next.” The Denver Post, 14 May 2016. Web. Accessed 8 May 2017.

[17] Soper, Matt. “Timeline details Marijuana votes and regulations (Delta County, Colorado).” Delta County Independent, 1 March 2017.

[18] Op. Cit. see Finley article and Borchardt article.

[19] Ibid. 

Legal Perspective: Doctrine of abatement ab initio

The doctrine of abatement ab initio is a common law creation which operates to extinguish all criminal proceedings initiated against defendant from indictment through conviction, where the
defendant dies pending appeal.

The reason for such a doctrine is twofold: 1) unfair to maintain conviction against a deceased Defendant, where conviction is untested by appellate review, and 2) the primary purpose of criminal proceedings is to punish behaviour and correct behaviour and warm others not to engage in similar behaviour. With Defendant death, the state can't really punish or correct anymore.

Aaron Hernandez entering a courtroom.
2017/NY Post photo

The first part of the reasoning for the doctrine is rooted in Blackstone, which is quoted in the Sports Illustrated article by University of New Hampshire Law Professor Michael McCann, as it is better that 10 guilty go free, than one innocent be punished. This same quote was refashioned by Benjamin Franklin to be 100 guilty go free, than one innocent be punished. The idea is that without a conviction being reviewed by an appellate court, even the narrowest or margins for innocence are untested.

The second part of the reason is the idea that if the person for whom punishment and correction is sought no longer is alive, then the state's interest in penal justice ceases too.

The doctrine dates back to the 19th Century, earlier references being matters of bankruptcy and debt collection, rather than the voiding of a criminal case. The first US Supreme Court case fully addressing the issue was List v. Pennsylvania (1888) 131 U.S. 396. In List, the Court ordered abatement and dismissal of the writ of error. The reasoning was that it was a criminal case. Courts' focus in the 19th and early 20th Centuries was on punishing crime and upholding due process, thus abatement ab initio flows very logically. Later, victims became more of a concern for courts.

 A Texas Court of Appeals in the 1879 case of March v. State, held that a criminal proceeding were still pending when an appeal was being taken. Because defendant died before opinion of appeals court was announced, the court declared that the prosecution abated in toto. March v. State (1879) 5 Tex. Ct. App. 450.

In 1892, the Illinois Supreme Court took the view that, "[a] judgment cannot be enforced when the only subject-matter upon which it can operate has ceased to exist." O'Sullivan v. People (1892) 32 N.E. 192.

Interestingly, some states never developed the doctrine of abatement ab initio, Connecticut is one example. In 1971 the issue came before the state supreme court and the court refused to render opinion, citing that the issue was "neither briefed, nor argued before." State v. Raffone, 285 A.2d 323, 325-26 (Conn. 1971).

The doctrine in the US derived from the issue of whether the obligation to pay penal fines abated with death of the defendant. In the 1907 case of US v. Pomeroy, the Second Circuit Court of Appeals noted there was little precedent for the court, but the judges did reason on policy grounds, stating that the purpose of the criminal is to punish the defendant and not the relic and issues. Court held that defendant's penal monetary obligation abated along with the judgement against defendant and thus the estate was not liable. United States v. Pomeroy, 152 F. 279, 280 (C.C.S.D.N.Y. 1907), rev'd sub. nom., United States v. N.Y. Cent. & H.R.R. Co., 164 F. 324 (2d Cir. 1908).

Throughout the 20th Century the doctrine developed along the lines of Pomeroy. The idea being that the personal representative, estate, spouse and children of deceased defendant should not bear the obligation. Boyd v. State, 108 P. 431 (Okla. Crim. App. 1910); also see: Blackwell v. State, 113 N.E. 723, 723 (Ind. 1916) and People v. Alexander, 281 P. 697, 697 (Cal. Ct. App. 1929).

In the US, "there has never been a constitutional right to appeal a criminal conviction. The ability to review a conviction is essential to protecting due process and ensuring that 'the innocent will
not be punished'." Timothy A. Razel, Dying To Get Away With It: How the Abatement Doctrine Thwarts Justice--And What Should Be Done Instead, 75 Fordham L. Rev. 2193, 2202 (2007).

By the late 20th Century and early 21st Century, the rights of victims emerged as worthy of preserving. 1 Wayne R. LaFave et al., Criminal Procedure § 1.4(k) (2d ed. 2000).

In 1982, President Ronald Reagan commissioned a task force on victim's rights that recommended amending the Sixth Amendment of the US Constitution to ensure victim's right to be "heard" in all phases of criminal proceedings. President's Task Force on Victims of Crime, Final Report 114 (1982). Amending the constitution didn't go anywhere, but proponents were able to convince Congress to pass the Victim and Witness Protection Act of 1982, Pub. L. No. 97-291, 96 Stat. 1248 (codified in scattered sections of 18 U.S.C. (2000)).

Today, the majority of courts, including most all of the federal circuits, allow abatement ab initio. A dozen states refuse to abate a jury conviction and therefore the conviction stands post-defendant death. Around seven states allow a substitute party to continue the appeal on behalf of the defendant, but not abating. The Third and Fourth Circuits abate all but restitution orders. Some states, such as Connecticut, just don't recognise the doctrine.

Victims have an interest in receiving compensation for loss due to crime perpetrated against them by the defendant. The doctrine can have devastating effects on the ability of victims (or their families) to recover damages in a civil action. If the record is not vacated, victims or their families in death cases, can use the criminal conviction in a later civil trial for damages.

Massachusetts has been the scene of three prominent abatement cases. The first is the case of  John Salvi who opened fire on an abortion clinic in 1994, killing two women and injuring five others. After Salvi's conviction, but before appeal, Salvi committed suicide. The court abated and one of the deceased victim's mother took the the pulpit and said it is as if the judiciary wiped Salvi's record clean for the history books. The Massachusetts legislature nearly passed a law the following session to abolish abatement in criminal matters.

The next case is that of Father John Geoghan, a priest who was convicting of sexually molesting children. Geoghan was murdered by a fellow inmate in his prison cell whilst awaiting an appeal. The court abated, rendering him innocent by operation of law. After the order, one lawyer quipped that abatement "revictimize the victims."

The last case is also one that is pending in Massachusetts. Former New England Patriots' Tight End Aaron Hernandez had been convicted, after a nine week jury trial, in April 2015 of murdering, in the first degree, Odin Lloyd. Hernandez was sentenced to life in prison. "On Apr. 19, just five days after being acquitted of two murders in Boston, Hernandez hung himself in his jail cell at the Souza-Baranowski Correctional Center in Shirley, Mass." Michael McCann, Examining the effects of a potential abatement in the aftermath of Aaron Hernandez's death, Sports Illustrated online ed. 2 May 2017.

According to McCann, the prosecution has asked that the court not abate in this case. Time will tell whether the Hernandez case could contribute to the growing trend towards abrogating abatement; or whether the court will follow stare decisis, whereby the court follows precedent.