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Saturday, November 01, 2008

Propositioning the voters of California

Third Corollary to Borenstein’s Law: Drastic measures which are intended as progressive reforms often yield reactionary results. (refer to the Law of Unintended Consequences.)

The direct initiative process was used by Progressives in the early 20th Century as an antidote to the corrupt ultra-conservatism of state legislatures, which were then in the grip of monied interests. The idea of direct legislation by "the people" seemed the only way to "democratize" the process.

Since the 1970's, the process has been a means of evading a legislature which was perceived as being in the grip of liberals. Proposition 13, put forth by Howard Jarvis, who for years had been one of several crackpot low tax gadflies, provided a template for the future use of the initiative process to roll back liberal reforms.

This year, Coloradans will vote on whether life begins at conception, defining every conception as creating "a person". Whether voters will base this vote of their vast scientific expertise, their religious beliefs, or the toss of a coin is a question. How it will affect people in Colorado is another question: is every terminated pregnancy going to be murder?

In the field of civil liberties and criminal law, this means of altering the law has been particularly effective. Clever labeling ("Victim’s Bill of Rights," "Speedy Trial Initiative,") and no organized opposition interest groups (the ACLU has been repudiated as an effective voice for civil liberties) resulted in easy passage of these propositions.

These initiatives resulted in changing evidentiary rules to make it more likely that innocent people would be convicted, while also lengthening prison sentences. The electorate was barely aware of the details of these drastic changes they approved.

For instance, what voter anticipated or intended that "the three strikes law" would demand that a shoplifter be sentenced to life if he had a couple of juvenile burglaries in his past? So too, who understood that a person who has no intention to kill anyone can be executed if someone is accidentally killed by an accomplice during a crime?

The L.A. Times today reports that five of the propositions on the November 4th ballot are pet projects of billionaires. George Sauros, the liberal minded magnate backs Proposition 5(with $1.4million), which would extend expand the trend toward treatment rather than incarceration of drug violators. T. Boone Pickens backs Prop 10 with over $15 million, expecting to profit from conversion to alternative fuel vehicles because of his major investment in natural gas.

Two propositions, 6 and 9, which stiffen criminal penalties and reduce civil liberties in criminal cases, are the babies (almost $6 million) of Henry T. Nicholas, III, founder of Broadcom. They are responses to his own family’s tragedy — his sister was a murder victim.

Scant media attention has been paid to Propositions 6 and 9, which put more nails in the coffin of the Bill of Rights. There have been few debates, programs, ads, or discussion about these proposals.

Proposition 6 is an example of the dangers of this kind of law making. Like most of its ilk it contains a wish list for law enforcement.

The 2008 voter pamphlet consists of 143 pages. Prop 6 is contained in 15 pages of fine print. It amends or creates sections in the Evidence, Penal, Government, Health and Safety, and Welfare and Institutions Codes.

It is labeled "THE SAFE NEIGHBORHOOD ACT" and includes provisions for increased police funding as well as money to build jails.

But way down near the end are the vastly increased criminal penalties and drastic changes in evidence law that further endanger the fairness of the judicial system.

Among many other tidbits, It further eviscerates the Sixth Amendment by expanding the use of hearsay in gang cases.

In effect, if a person claims the defendant committed a crime, but refuses to testify or fails to come to court to face his accuser and cross-examination because he says he was intimidated or threatened, a police officer may testify in his stead to claims purportedly made.

Prosecutors complain constantly that gang cases are hard to prove. It is true that witnesses are reluctant to come forward in such cases. However, the law already provides many shortcuts which allow police "gang experts" to fill in gaps in evidence. These gang cops are notoriously unreliable in fact, dangerously biased zealots who have no reluctance to coerce witnesses, plant evidence, shade their testimony and worse, in order to get convictions. Occasionally, we find that witnesses claim they were threatened and intimidated by police, not gangs, to make incriminating statements.

Proposition 9 (THE "2008 VICTIM’S BILL OR RIGHTS; MARSY’S LAW")is another in a string of efforts to expand the rights of "victims" of crimes. Notice of bail, OR or parole hearings are fine. However, packed in are provisions that victims have the rights (1) "to prevent disclosure of confidential information.... to the defendant’s attorney ... which could be used to ... disclose confidential communications made in the course of medical or counseling treatment ...; (2) "to refuse an interview... or discovery request by ... the defendant’s attorney ...."

The law already provides that any witness may refuse to be interviewed, but expanding this choice into a constitutional right is foolish and contrary to the presumption of innocence that exists before a person is convicted of a crime.

Before such conviction, the accusing person is rightly called an "alleged victim," who is a witness like any other witness, subject to the Constitutionally guaranteed rights of confrontation and cross-examination by the accused.

By changing the rules of discovery and evidence the chances of false accusations increases exponentially.

The Constitution envisions a legislative system in which proposed laws will go through a rigorous vetting process, including hearings by committees peopled by lawmakers who understand the existing law, with aid of experts in law enforcement, financing, and most importantly, the rights of all citizens.

In bypassing the representative government that the founding fathers set up, this direct process of lawmaking by teh uninformed and easily manipulated electorate will upset the checks and balances that keep our delicate justice system respectably fair.

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