The November 2016 Ballot Measures – Part 1 – Statewide Measures

October 18, 2016

This is the first of several posts I’m going to do on the November general election.  There’s too much on the ballot to put it all in one, or even two posts.  Just in terms of statewide ballot measures, there are seventeen of them.  That may not be a record, (The most in recent history was 20 in November of 2000) but it’s still a lot to get your arms around.

My starting point in commenting on them will be the recommendation of the Courage Campaign, a generally “Progressive left”membership group in California.  (Membership is defined loosely – no dues or anything, just a willingness to call yourself a member and participate in occasional lobbying efforts and membership poll.)  They polled their members and came up with a set of recommendations on the measures.  I don’t always agree with them, but it’s as good a place to start as any (and probably better than either the official Republican or Democratic Party positions).  In case you’re wondering what other groups’ opinions are, the Courage Campaign has put together a compilation of recommendations.  Here‘s the link to it.

Here goes:

Proposition 51 – $9 billion bond to fix and upgrade CA school facilities — Courage’s position: Neutral.  My position, Oppose.  I have become more and more skeptical of bond measure as I’ve seen more and more of them get twisted out of shape from what the voters are promised.  The state constitution requires that bonds be spent on what the voters approved, but the courts have been notably lax in enforcing those requirements, so I have become much less trusting.  In this case, however, there are other problems as well.  The $9 billion dollars is to be given out on a “first come-first served” basis, which will tend to favor the well-financed and well-organized (i.e., wealthy) districts who can get their applications in quickly.  The measure doesn’t prioritize poorer districts or those with more pressing capital needs (e.g., districts with older, earthquake vulnerable building or with overcrowded facilities).  The measure also take pressure off developers to pay for the schools needed to service big residential projects they build.  They are making the profits; they ought to pay for the public improvements those projects require.
Proposition 52 – Make Hospital Fee Permanent to Pay for Healthcare Services — Courage’s position: Neutral.  My position, Support.  While ideally we ought to have a single-payer system where everyone gets the healthcare they need and we all pay for it collectively through taxes.  (Clinton and Trump both reject single-payer, but what do you expect of candidates raking in donations from the healthcare, pharmaceutical, and private insurance industries.)  Given that we aren’t going to single-payer any time soon, at least this will make sure the neediest people in our society get at least some healthcare.  Yes, hospitals will pass on the fee to their users, but until we go to single payer, it’s probably the best we can do.
Proposition 53 – “Stop Right-Wing Millionaire from Blocking Infrastructure Projects” [Courage Campaign’s description, not mine]. Courage’s position –  Oppose.  My position –  Support. Big public project can bring with them big problems.  Nationally, there was Boston’s “big dig.”  Here in California, we’ve had the new Bay Bridge project and the BART to airport projects (Oakland & SF), all of which have had large cost overruns and questionable results.  (Both BART project have turned out to be big money losers.)  The main thing motivating this measure is Jerry Brown’s twin tunnel “peripheral tunnel” proposal for shipping more water south.  Because Southern California agencies would pick up most of the tab, this wouldn’t require a general obligation bond [which would already have to go on the ballot], but a revenue bond, which currently doesn’t require voter approval.  This measure would require voter approval for such measures if the involve over $2 billion.  Given the Legislature’s (and local agencies’) untrustworthiness,  this  seems to me to be a good idea.  Also, what happens if the revenue doesn’t cover the costs, or if one of the agencies promising to pay goes belly up.  Who do you think will end up picking up the tab?  Us, the California taxpayers.
Proposition 54 – 72-Hour Publication of Bills Prior to Vote — Courage’s position – Neutral.  My position – Support.  Particularly near the end of the legislative session, the Legislature now often resorts to so-called “gut and amend” measures, which take a bill that has already passed one house, removes all of its substance, and quickly replaces it with something entirely different.  Such “end of session” bills are notorious for being approved, with the connivance of the legislative (Democratic) leadership and the Governor, with little opportunity for public scrutiny or comment.  IMHO, this is really bad public policy, and in the past has resulted in some really bad bills.  Yes, this would slow down the legislative process, and might keep some measures from getting enacted, but that, to me, is not necessarily a bad thing.
Proposition 55 – Extend the Tax on the Wealthy to Fund Education and Healthcare — Courage’s position – Support. My position – Support.  This again is a stop-gap measure.  As Bernie Sanders said repeatedly in his campaign, we all benefit from making quality education available to all, and healthcare ought to be a right, not a privilege.  In almost all other developed countries, it is.  Why not here, because moneyed special interests control the legislative process, both in Congress and the Legislature.  This measure isn’t really what we need, but it’s better than the alternative of not having funding at all.

Proposition 56 – $2 per pack tobacco tax.  Courage’s position – Support.  My position – Support.  Opponents of this measure label it a “nanny tax” – government using its tax powers to force us to do “what’s best for us.”  If it’s approved by the voters, this won’t be government telling us what to do; it’ll be us deciding what WE want to do.  I sympathize with people who’ve been sucked into tobacco addiction; and there’s absolutely no question it’s an addiction, just as much as heroin or cocaine; and far more than marijuana.  Problem is, it’s a really harmful addiction, and we, as a society, end up picking up much of the tab for dealing with its harmful results – heart disease, emphysema, cancers of all sort – you name it and whatever harmful medical condition you think of is probably either caused by or worsened by tobacco use.  At least the proceeds of this tax will help somewhat pay for all those costs, as well as help pay for programs to get people to kick the habit.  Big tobacco, of course, opposes this.  I can’t think of a better reason to support it.

Proposition 57 – Reform California’s Broken Parole and Juvenile Trial System [Courage Campaign’s label].  Courage’s position – Support.  My position – Support.  You should read up on the details of this measure.  How things are run now is the sad legacy of twenty years of “tough on crime” ballot measures that have left our prisons overflowing  with inmates, destroyed many thousands of people’s lives, and haven’t really worked in terms of reducing crime.  Californians have had a schizophrenic attitude towards crime – on the one hand wanting to “correct” bad behavior and on the other wanting to punish it.  Even with pets, it’s become clear that punishment isn’t a good way to teach behavior.  People are much more intelligent than pets (at least mostly) and all punishment does is build resentment.  Prisons ought to be a last-resort place to put people that we can’t prevent from harming others any other way.  This measure was really forced on us by the federal courts’ acknowledging that  California’s current way of running its prisons – overcrowding them and focusing on punishment – violated the 8th Amendment’s prohibition on cruel and unusual punishments.  We’ve had to be dragged kicking and screaming to this measure, but at least we’re there.  Much more needs to be done before our criminal justice system begins to bear any relation to justice and recognize the realities of what we’ve learned about correction in the past hundred years.

Proposition 58 – Repeal the ban on bilingual education.  Courage’s position – Support.  My position – Support.  We’re finally undoing some of the mischief done by the over-simplistic and ideologically motivated ballot measures of the ’80s and ’90s.  Remember “English Only”?  Supposedly, bilingual education let non-english speakers go through school without learning english, and “immersion” in english would be “tough love.”  It didn’t work.  All it did was further reduce non-english speakers’ motivation for staying in school.  Without bilingual education, many non-english speakers will get no education.  How does that help us as a society?

Proposition 59 – Overturn Citizens United.  Courage’s position – Support.  My position – Support.  For any of you who may have been asleep for the past few years, “Citizens United” was the name of a U.S. Supreme Court case where the court, by a 5-4 majority, decided that 1) corporations had a right of free speech, and 2) donating money to political campaigns was equivalent to free speech and therefore could not be regulated.  Since then, corporate control of our government has mushroomed even beyond where it was before, with “dark money” political committees able to raise unlimited funds from corporate sources while those contributions were hidden from public disclosure.  Is it any wonder that our two major presidential candidates are both almost totally beholden to Wall Street and other big-money interests?  Unfortunately, this measure does little more than register whether California’s voters are unhappy with the current situation.  It remains to be seen how much California’s congressional delegation will pay to the results.

Proposition 60 – Mandatory Condom Use in Adult Films. Courage’s position – Neutral.  My position – Support.  This has been one of the more controversial measures on the ballot, because it deals with California’s huge porn movie industry.  There are two issues here: 1) should California outlaw unsafe sex in porn movies as a public health measure, and 2) should California stop porn movies from showing, and thereby glamorizing, unsafe sex?  My answer to both questions is yes.  We’ve known for more that 20 years that sex without condoms can spread sexually transmitted disease.  Maybe if people were all totally monogamous, and only had sex with one person – ever – condoms would only be needed for birth control (but isn’t that a good enough reason in itself?), but porn movies more often than not portray casual sex which is exactly where condoms are most needed.  Yes, it’s true we show lots of stupid human behavior in movies.  How about we eliminate one of the stupider ones?

Proposition 61 – drug price ceiling in California.  Courage’s position – Support.  My position – Support.  This measure would cap the price California pays for state-supported drug purchases (e.g., MediCal) to the price paid by the Federal VA, which negotiates prices with drug companies and does a very good job of it.  Short of going to single-payer [strange how that keeps popping up] this is another way to at least get some handle on reining in the explosive increases in prescription drug prices.  Not surprisingly, many mainstream organizations, like the Democratic Party, that get lots of money from the pharmaceutical industry, don’t support this measure.  Also not surprisingly, the Sanders campaign’s successor group, Our Revolution, does.  So do I, for the same reasons.

Proposition 62 – Repeal the Death Penalty.  Courage’s position – Support.  My Position – Support.  Here we go again.For some reason, Californians still seem to believe that the death penalty somehow makes sense.  Nevermind that study after study shows that it has virtually no deterrent effect, and that states and countries that have abolished the death penalties have no higher rate of what California calls capital crimes than states and countries that still execute people.To me, though, the most convincing argument is that juries are not 100% accurate.  We’ve seen over and over cases where someone was convicted and sentenced to death, only to discover years later that they didn’t do the crime they were accused of.  It’s bad enough when they’ve spent years in prison.  What do you do when they’ve already been executed.  Saying, “Oops, we’re sorry,” is so inadequate as to be criminal in itself.  If California wants to call itself a civilized state, it must eliminate the death penalty.  NOW.

Proposition 63 – Increased state controls on guns and ammunition.  Courage’s position – Support.  My position – Support.  I don’t care what the NRA says.  While guns, by themselves, don’t kill people (at least not usually), people with guns and ammunition do.  As has been pointed out innumerable times, when private citizens have more guns, the amount of gun violence goes up, not down.  In my humble opinion, the U.S. Supreme Court made one of its stupider decisions (other than Citizens United) when it decided the right to bear arms applied to individual private citizens.  Well, since we’re stuck with that (and Citizens United) for the time being, at least this makes private gun ownership a little bit safer for those of us who aren’t NRA fanatics.

Proposition 64 – Legalized Marijuana use.  Courage’s position – Support.  My position – Support.  OK, so marijuana isn’t a totally harmless drug.  If you’ve been smoking wed, your probably shouldn’t be driving a car, or operating machinery; but it’s no more dangerous than drinking alcohol, and a lot less dangerous (and addictive) than smoking cigarettes.  The prohibition on marijuana use is a hold-over from the days when the state was considered responsible for regulating private morality – along with prohibiting alcohol consumption on the Sabbath and prohibiting public displays of affection.  Folks, this is not Iran, and we don’t need to have the government regulating private morality and creating victimless crimes that get people thrown in prison.

Proposition 65 and 67 – plastic bag fee versus repeal of plastic bag prohibition.  Courage’s position – Oppose 65; Support 67.  My position – Oppose 65; Support 67.  Both these ballot measures are the result of the financial power of the plastic bag industry.  It circulated and qualified a referendum [Prop. 67] of the Legislature’s prohibition on disposable plastic bag use (like in supermarkets) and then qualified its own initiative measure that would allow them but put a fee on them to go into a state fund.  All you need think about is the huge island of plastic, much of it plastic bags, floating in the middle of the Pacific Ocean.  You can also think about the thousands of birds and sea creatures who die each year when they mistake plastic bags for sea creatures like jellyfish and choke on them.  also think about how much cleaner beaches and parks have gotten where disposable plastic bags have been eliminated.  We need to greatly reduce our use of plastic. Period.  It’s bad for the environment.  Yes, it’s regulating behavior, but so are many hundreds of laws that nobody complains about.  Regulating objectionable behavior is one thing government does.  Using plastic bags, unlike marijuana, isn’t victimless.  Ask a sea turtle that’s died from one.

Proposition 66 – Make the Death Penalty more “Efficient.”  Courage’s position – Oppose.  My position – Oppose.  As should be evident from my position of Proposition 62, I consider this proposition an embarrassing holdover from the years when Californian’s approach to crime was “lock ’em up” or “kill ’em.”  That approach didn’t work.  Making the death penalty more “efficient” – i.e., quicker to decide and carry out – will only increase the likelihood of mistakes.  I consider this measure little short of barbaric.  Hell, if we want to make the system more “efficient,” how about when someone’s accused of a crime, they’re immediately brought before a judge, who flips a coin.  Heads you’re innocent, tails you’re guilty.  That’s efficient, but it’s sure not justice.


Next post will deal with local ballot measures.  Third post will deal with candidate.



What about the Judges?

October 17, 2010

I think the question I get asked most about the election ballot is, “How should I vote on the judges?”  It’s understandable.  For one thing, the judicial campaigns provide very little information.  Other than the local superior court races, the official election pamphlets say absolutely nothing, and there is no campaign material provided by the “candidates”.  The other thing is that, as an attorney, it’s assumed that I’ll know all about the various judicial races and their candidates. 

Well, it is true that as an attorney who does litigation, including handling appeals, I do have some contact with a portion of the bench, but my knowledge tends to focus in my particular areas of practice and my particular appellate district.  There are really two salient facts about judicial races:  1) the vast majority of the electorate has no idea about what makes a good judge, nor sufficient information about the candidates to make informed choices, even if they did; and 2) except for elections for open seats on the local bench, almost all judicial retention elections are little more than formalities.  With the exception of when the Republicans targeted the Rose Bird court, I’ve never seen an appellate judge get less than a 90% vote in favor of retention.  Does that mean that everyone’s happy with their performance?  No, it just means voters don’t feel qualified to vote no — and they’re right.

In fact, I’d argue that the general public isn’t qualified to vote on any judicial office.  Voters simply don’t, and can’t be expected to, know enough to make informed choices.  So, what should we do instead?  Should we go to the federal system, where a judge, once appointed, serves for life?  Maybe, but that means the only way to remove a poorly performing judge is impeachment, which is a drastic, very rarely used, and very cumbersome procedure.

I’d argue that, at least at the appellate level, there’s another option.  Instead of having judges go before the voters every six years for a retention vote, how about if they go before the legislature every six years for a similar vote?  After all, judges, especially appellate judges, spend a lot of their time interpreting laws that the legislature wrote.  Who better to decide whether they’ve done a good job or not?  To prevent the votes from becoming merely a partisan removal process, only a 2/3 vote for removal in both houses would remove a judge from office.  This would not, however,  be like impeachment.  There would be no trial; no specific allegations of wrong-doing.  Rather, it would be akin to the reappointment of other state officials, like members of the coastal commission or the state water resources control board. 

As for local judgeships, it does appear to me that there needs to be a way for better information to be made available to the voters about sitting  judges’ performance, as well as the qualifications of those seeking election.  Perhaps there could be, in each county, a nonpartisan judicial evaluation committee elected by the attorneys whose offices are in that county.  The committee would be charged with doing an evaluation, prior to each judicial election, of the candidates.  As with the evaluation of judicial appointment candidates, there would only be a limited number of ratings:  less than qualified, qualified, well qualified, and perhaps very well qualified.  The committee would also be responsible for compiling objective statistics for judges running for re-election.  The information would be included in the voter information handbook.

Perhaps these suggestions are less than perfect, but they’re certainly better than the groping in the dark that voters now do.

On Torture, the Constitution, and the Exclusionary Rule

May 22, 2009

I’m going to shift gears today from my recent series of posts and talk about something that has nothing to do with elections or California politics.  Instead, I’m going to discuss the question of what to do with the prisoners currently being housed at the “GITMO” — The Guantanamo prison facility built to house terrorism suspects.

President Obama has proposed dividing the GITMO prisoners into five categories, each with a different proposed treatment.  To cut to the chase, I agree with Obama about four of his five categories, but I take strong exception to how he proposes to deal with the fifth category.

The easiest category to address is those prisoners who apparently did nothing wrong — other than being at the wrong place at the wrong time.  Those prisoners should be promptly released.  They should also (although Obama hasn’t proposed this) be paid generous compensation for their wrongful imprisonment and be offered the formal apology of the U.S. government for its misdeed in holding them these many years without good cause.

A second category, at the other end of the spectrum, is those for whom there is good evidence supporting criminal prosecution on terrorism or other criminal charges.  They need to be brought to the U.S. and quickly brought to trial, with the full protections accorded by the U.S. Constitution.  Hopefully, justice will be done.

The third category is those for whom there is strong evidence of illegal acts of war.  They need to be treated as prisoners of war and tried under the military justice system, although again with the proper Constitutional protections afforded by that system.

A fourth category is those who committed no offense under U.S. law, but appear to have committed criminal acts properly addressed by another country’s justice system.  Unless there is good evidence that trial by that country would amount to unwarranted persecution, those prisoners should be promptly extradited to the appropriate country and brought to trial there. 

Finally, there’s one last, and highly controversial, category — those for whom there is good evidence of criminal offenses, including terrorism, but some of the evidence necessary for conviction was obtained by the use of torture or other means that violate U.S. Constitutional rights.  President Obama has proposed that these prisoners be relegated to a kind of permanent confinement limbo — detention without trial — due to their inherent danger if released.  I find this highly problematic.  It maintains the same fiction that the President bravely spoke out against during the presidential campaign — that practical expediency can justify voiding the Constitution’s protections for individual rights.  That assertion was wrong when applied to hundreds of prisoners; it’s still just as wrong even if only applied to two or three.

The crux of the problem is the exclusionary rule.  This rule, adopted by the Warren Court in the 1950s and 1960s, says that if evidence was obtained in violation of a defendant’s constitutional rights, that evidence cannot be used to convict the defendant.  A corollary is what’s often referred to as the “fruit of the poisonous tree” doctrine.  That rule says that not only is the improperly-obtained evidence excluded; so is any evidence developed based on the excluded evidence.  A classic example would be a murder suspect who’s interrogated without informing him of his Miranda (Fifth Amendment) rights.  If the suspect, during that interrogation, tells the police where he hid the murder weapon, not only his admission but also the murder weapon itself would be excluded from use as evidence.   The Supreme Court explained that part of the rule’s purpose was prophylactic — to deter police from being tempted to use improper techniques by denying them the “fruit” of such improper and unconstitutional actions.

The exclusionary rule is a very powerful and important rule.  It has done much to reform the activities of police and prosecutors.  However, courts have come to recognize a wide variety of exceptions to the exclusionary rule — situations where the exclusion of evidence isn’t warranted in spite of the Constitutional violation.  I would suggest that this last class of GITMO prisoners may warrant creation of an additional category of exception.

There’s little question that some GITMO prisoners were tortured.  There’s also little question that the evidence obtained by such torture, while potentially valuable, has reduced evidentiary value because it was obtained through torture.  Much psychological evidence shows that, under torture, a prisoner will say almost anything, including obvious falsehoods, to stop the pain.  There is, further, little question that an exclusionary rule absolutely prohibiting the use of evidence obtained during torture is a powerful deterrent to the use of torture.  Unfortunately, under the Bush Administration, it was apparently not powerful enough. 

We’re now left with a small group of prisoners who, under torture, revealed information implicating them of serious crimes.  Presumably, additional corroborating evidence has since been obtained, perhaps as the “fruit” of information obtained through torture.  The problem is that if all this evidence is excluded, there may well not be enough evidence to obtain a conviction.  Still, it’s not right or Constitutional to hold these prisoners indefinitely without allowing them the opportunity to try to prove their innocence.  What to do?

My suggestion, which would eventually have to be accepted by a court, probably the U.S. Supreme Court, would be to create a very limited and partial exception to the exclusionary rule for this situation.  To begin with, this exception would need to be retrospective only.  Its very creation would serve notice that it could not be invoked to “save” evidence obtained from future application of torture.  Second, the exception, while it would allow the introduction of evidence obtained through the unconstitutional use of torture at GITMO or other locations, would also allow the defense to introduce any and all evidence relevant to showing the questionable value of that evidence in terms of its credibility.  Third, and perhaps crucially, the exception would create a presumption that evidence obtained through torture was not credible, and the burden would be on the prosecution to show, by clear and convincing evidence, that the evidence had sufficient credibility to allow its introduction.  

Such a rule would be far from perfect, which is an important reason why its use would need to be limited to being retrospective only.  If allowed to be use in future instances, it could fatally undermine the prophylactic value of the exclusionary rule and encourage extremely dangerous abuse of the state’s police powers.  Further, the rule would also sap the value of the “poisonous fruit” doctrine, because the secondary evidence might not be directly linked to the torture, and therefore might have reasonably high credibility.  (Going back to the previous example, while the suspect’s confession might be of questionable credibility, the murder weapon, including such things as fingerprints, evidence of recent use, etc., would not share that lack of credibility.)

While the Bush administration’s actions have created a Hobson’s choice for dealing with those who underwent torture, the limited exception to the exclusionary rule that I have outlined seems far preferable to President Obama’s (and former President Bush’s) proposal of permanent unconstitutional detention.

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