MIS-INFORMING THE ELECTORATE - THE INITIATIVES OF 2016

"The cornerstone of democracy rests on the foundation of an educated electorate." . . . “An informed citizenry is at the heart of a dynamic democracy.”- Thomas Jefferson

I just received my “Official Voter Information Guide” for the November 8, 2016 election. It is 220 pages of print about the ballot propositions, which are numbered 51 through 67. That is 17 proposals for changes in California law.

The changes included the extremely serious — whether to the eliminate the death penalty (62) or facilitate quicker executions (66); place more limits on firearms (63); modify the parole system to emphasize rehabilitation (57) . . .

. . . The usual range of tax measures: school bonds (51); medi-cal hospital fee (52); revenue bonds (53); tax extension (55); cigarette tax (56) . . .

A couple of measures that are controversial for special interest groups: English proficiency (58); political spending by corporations (59); state prescription drug pricing (61); . . .

And a few that involve social policy: marijuana legalization (64); adult film performer condoms (60); carryout (grocery) bag charges (65); and ban on plastic bags (67).

The book which was prepared by the California Secretary of State, contains a 9 page “Quick-Reference Guide” that sums up each proposal in a paragraph, with short arguments for and against. If that is not enough — and it certainly is not, considering the complexity and gravity of many of these measures — there follows (page 18-113) the Legislative Analyst’s supposedly objective estimate of the fiscal effects of each measure; detailed arguments pro and con by supporters and opponents.

Then there are a few pages giving an “Overview of State Bond Debt” and one with “Candidate’s Statements” by Kamala Harris and Loretta Sanchez, running for the Senate.

Page 118-222 includes the “Text of Proposed Laws,” the actual language of the statutory  and constitutional changes suggested by each proposition. It is in the fine print and legalistic language we lawyers love to use.

SO, this is democracy at its rawest. The People are asked to decide issues directly — no legislators or committees or councils intercede. In the Progressive Era during the early years of the 20^th century, this process was considered to be a necessary reform of a corrupt political system. For many years, federal, state and local legislatures, the judiciary, and executive offices, all were controlled by an elite group of power brokers: railroad and oil magnates, real estate tycoons, and political machines.

The chosen route to progressive reform was the Referendum, Initiative and Recall, that sidestepped the professionals and put issues directly to the voters.  

When I first arrived in California in the 1960’s, the processes mostly had fallen into disuse. The three branches of the political system seemed to be effective; it was an era of economic and population growth. The states infrastructure was new and a model for the country. Same with the education system — state colleges and universities were considered tops (and mostly tuition free). The El-Hi schools around the state were highly rated. Funding for the education system was based on local property taxes, on the social theory that local homeowners had a stake in the education of local residents. In the growing state, property values were rising each year.

But that caused a problem. A fellow named Howard Jarvis had been around for many years. He was one of many considered “tax kooks” who were always whining about the rise in taxes. Jarvis and others had often pushed for laws to limit taxes and spending. He got nowhere with the legislature and turned to the initiative process. Many times he was unable to get the necessary signatures even to get on the ballot.

But as real estate continued to boom, home prices soared, and as a result, people who had bought a modest home years before now found themselves in houses valued many times more, and had to pay taxes based on the theoretical market value.

In 1978, Proposition 13 passed with a two-thirds majority. It permanently altered the State Constitution to limit real estate taxes to less than 3% of market value.    

[Over time, the results have been disastrous. California schools have had to scrounge for funding. The state’s infrastructure continues to decay. In personal terms the inequity is shocking. If you bought your home before 1978 and stayed in it, you pay the same minimal property tax although the value of your house has skyrocketed. Your new neighbor who just bought the house next door must pay many times the property tax you do.]

The floodgates opened after Proposition 13. It has been used for many other things than tax reform. Due to a series of measures that constituted a wish list for prosecutors, draconian criminal laws are now in place. The result is the most crowded death row in the nation, the largest prison population in the American history, and a justice system that makes it more likely to convict the innocent.

The state legislature is considered by many to be a sick joke. Term limits — Prop140 in 1990 — eliminated anyone who understood how laws and government worked. It put the state government firmly in the hands of lobbyists and powerful interest groups who had all the information at their fingertips and the passion to push their agendas. In 2012, another initiative (Prop 28) had to be passed to reform the reform by extending limits to 12 years in offices.

One look at the 220 page book makes the problem clear. People don’t understand what they are voting for. They certainly don’t read this book. For most people their first view of the measures is while examining their ballot while voting. That is why proponents of measures take great pains in titling their proposals: “The Victim’s Bill of Rights” is one of my favorites. Who could possibly vote against that, no matter what it contained (including things you might not approve if you read it).

That leaves it up to advertising to “inform” the electorate. The 30 second ads that inundate the air and now social media prod us one way or the other with dire warnings or utopian promise for each proposal. If you are quick and sharp-eyed you might see the underwriting in fine print . . . “paid for by Americans For . . . (or against) . . . ”

Here’s a sample of the current pushers from the Quick-Refence Guide:

Many begin “Californians for . . .

Eg: “. . . for Quality Schools”

“. . . to Protect Local Control”

“. . . For and Effective Legislature”

“. . . For Hospital Accountability . . .”

“. . . For Budget Stability”

“. . . For English Proficiency”

“. . . for Lower Drug Prices” vs. “. . . Against the Deceptive Rx Proposition”

“. . . Aganst Waste”

At the end of the legislative analyst’s pages for each measure, web sites are named that might lead to the discover the “top 10 contributors” to the measures.

These give you clues to aid your decision making. For example, Prop 53, “Revenue Bonds,” requires statewide voter approval to sell more than $2 billion in bonds. Supporters call it the “Stop The Blank Checks Initiative.” The “Howard Jarvis Taxpayers Association” is one of its spokesgroups. Opponents include “Firefighters” and “Sheriffs” Associations who want continued local control over funding for infrastructure and capital improvements.

The arguments pro and con (and rebuttals to each) are included in mostly conclusionary mini-essays.

Generally, you are given enough information to at least get a sense of who is pushing and who is pulling, and why. But is it a better way to decide this issue than representative government?

If this was before the state legislature (Senate and Assembly) committees made of elected representatives of the voters from each community in the state would consider it by hearing and questioning witnesses for and against, comparing the evidence, fitting it into the other fiscal and policy considerations they deal with. They would ask constituents for opinions, would see where the money is most needed and where wasted.

That is how it is supposed to work. We know that it hasn’t lived up to ideals, not by a long shot. But look what we have now. We are at the mercy of the manipulative nature of advertising by the very special interest elites that the Initiative process was intended to protect us from. It adds to the polarization of voters: automatic knee-jerk reaction: against any taxes or spending for anything . . . and then complain about how education fails and the potholes and the broken water lines . . . basing justice reform on anecdotal evidence — a drug dealer gets off in Sacramento . . . so change the state law that has worked for years and incarcerate a generation of young men with no hope . . . until we might pass another initiative when we finally wake up.

... And You're Out (Finally)

The L.A. Times reported today that a man who was sentenced to life in prison for entering a church to steal food as a "third strike" should be released from prison after a mere eight years. Even D.A. (and California attorney general candidate) Steve Cooley apparently claimed some credit for this, having cited it as one of the reasons for his policy not to seek a third strike conviction where the underlying crime is so minor.

His policy, by the way, results in another injustice, almost as egregious as the disproportionate life sentence of the three strikes law. By "striking a strike" on condition that the defendant plead guilty, the D. A. assures denial of a fair trial and a still outrageous sentence -- double the sentence that would have been given without a strike and a requirement to serve 85% (rather than 50%) of the stated prison sentence. Thus, a defendent committing a petty non-violent crime might still serve many years in prison.

The three strikes law, like many changes in criminal procedures over the past twenty years, is the product of the Initiative Process, based on propositions written as a wish list of District Attorney associations allied with so-called victims rights groups. Most of these laws take discretion away from judges and juries and give it to prosecutors. This increase in power has resulted in a corrupt, complacent, political, dictatorial prosecutor-driven justice system.

The cost to the society of these mistakes will be incalculable, but you can start by counting all the wasted money spent to incarcerate non-violent prisoners for many years.

Cal Supremes show "Initiative" and "Restraint"

A corollary to Borenstein’s Law is that measures which are intended to be progressive reforms often evolve into tools for repression.

Opponents of Prop. 8, the anti-gay marriage initiative, have suddenly discovered the flaws in the Initiative process. Like Captain Renault in Casablanca, bloggers and commentators interested in gay rights are shocked by the ease with which perceived "individual rights" of minorities can be extinguished by the majority of voters.

They shouldn’t have been surprised. This has been happening for a long time. The voters have had many chances to show their contempt for individual liberties.

The difference is that a powerful and vocal constituency now see themselves as the victims of the process. A smaller, less powerful interest group, those concerned with the rights of criminal defendants, have whimpered in this wilderness for many years.

It is only a slight stretch to compare this attitude with the lesson derived from Christian disinterest in the fate of disappearing Jews in Nazi Germany ... you know, "when they came for the Jews, I didn't care because I was not a Jew ... now when they come for me, there is no one to complain..."

In 1982, the voters understandably passed a measure ironically titled "Victim’s Bill of Rights", which amended Article I of California’s constitution, reversing a generation of court rulings that "favored" criminal defendants. It included a broad wish list designed by frustrated prosecutors - limiting California courts to minimal federal rules of evidence, especially relating to 4th Amendment issues; requiring "truth-in-evidence" to prevent judges from excluding evidence prejudicial to defendants, such as prior crimes; eliminated the defense of "diminished capacity", returning the law relating to mental illness to the 18th century definition of insanity; purporting to restrict plea bargaining.

In 1990, Proposition 115, the "Crime Justice Reform Act", also called the "Speedy Trial Initiative", authored by a L.A. deputy District Attorney (Sterling Ernie Norris) and the state D.A. association, tilted the playing field further toward the prosecution. Hearsay was permitted in preliminary hearings, defendants were forced to disclose their defenses, among other "reforms."

Now, Chief Justice Ron George, writing for the 6-1 majority of the California Supreme Court, upholding the constitutionality of the the anti-gay marriage initiative which the voters passed in 2008, has implied that he and his brethren have serious misgivings about the ease with which California’s constitution can be altered. In a fine example of the philosophy of judicial restraint, George and his cohorts claim to set aside their qualms and "personal opinions" and decided the case solely on "the law."

The nation’s founding fathers wisely made the process of amending the federal constitution resistant to momentary moods of the majority, requiring super majorities in Congress, or unwieldy constitutional conventions, ratification by two thirds of the states, a lengthy process that insures thorough vetting. Even so, mistakes have been made, Prohibition being the most notorious example.

In the Progressive Era of the early 1900's, Senator Hiram Johnson championed direct democracy as an end run around corrupt state legislatures, which were in bondage to hide bound big business interests which regularly squelched reform measures. Recall, referendum, and initiative were intended to redress the perceived flaws in the system, which impeded needed reforms to "liberalize" the society.

These days, the California legislature is totally constipated, hamstrung by other seemingly brilliant ideas swept in by the initiative process over the past thirty years - proposition 13 (the Jarvis Initiative, limiting increases in property taxes), term limits, and balanced budgets.

California’s Supreme Court used to be a respected protector of individual rights, its holdings followed by other courts around the country. Beginning in the 1970's and continuing today, advocates of "judicial restraint" and "strict constitutional interpretation" have forced the Court to retreat to a reactionary stance that has made the state comparable to, if not worse than, the most repressive states in the South, minimizing individual rights in favor of the will of the majority of the people.

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.