Thank you for reading my analyses and recommendations on the California statewide. Read Part 1 (51 through 57, bonds and constitutional amendments) here.
In this Part 2, I am moving on to 58 through 67, which are all initiative statutes, items that become part of law, but not the Constitution, and could be amended later by the Legislature – though usually with limitations like higher voting thresholds.
Continue to keep your eyes peeled for local Oakland and Alameda County measures, as well as a handy cheat sheet with all my statewide recommendations condensed to a less bloviatory size.
Proposition 58: Bilingual education
Prop 58 is a story of California’s past 30 years in microcosm, the story of how our Trump-lites of the 1980’s and 90’s traded on racism, how it backfired on them, and how, after a period of stasis, we are now moving into a new, racially and ethnically inclusive polity – but still shakily.
Prop 58 does away with the worst aspects of Prop 227, whose tagline was “ban bilingual education”. English instruction is a huge practical issue for California schools, with 1.4 million English learners enrolled in 2016, 1.1 million of those Spanish speakers. Technically, Prop 227 doesn’t ban bilingual education, but it requires instruction to be in English by default, with a one-year crash course for students who can’t manage that, and anything more must fall into certain categories and have parents sign waivers regularly (opt-in) – they must even physically visit the school to sign such waivers, according to the law. Prop 58 eliminates the waiver requirements, and allows school districts to choose for themselves – with community input – what kind of programs make the most sense to offer children, as part of the local control funding system being developed.
The ballot arguments and much of the discussion I’ve seen acts as if this were a factual matter of which education methods work best. But in fact, the key issue is race. In the 1990’s, Californians saw the state was growing more Latinx, and a common reaction was anxiety (not to say racism, unless you count apophasis). Prop 187 in 1994 sought to deny all state and public benefits to undocumented immigrants; it passed with 59% of the vote, although much of it turned out to be unconstitutional. Prop 227 was another response of the day. At the time, the most-cited reason in an exit poll was not effectiveness, but “If you live in America, you should speak English”. We’re all familiar with the litany of resentment: the whipping up of those who bristled at seeing or hearing Spanish in new contexts like automated phone lines, the painting of demographic change as takeover or loss of national character – that is, whiteness.
To belabor a point that should be obvious, but somehow is not: no such takeover is happening or will happen in the foreseeable long term. In the United States, immigrants come and their children assimilate; we used to have daily newspapers in many parts of the country in German, Italian, Russian, even Yiddish. It may seem otherwise to some in the case of Spanish, but only because new immigrants continue to arrive; plenty of Latinxs speak shaky Spanish or none at all. (And let’s not forget either that this state was once part of a Spanish-speaking country; English entered at the point of a gun.)
At the same time, I’m sure there were some who voted for 227 thinking it would be better for students. Some of the Latinxs in support (37% were, according to the same exit poll) seem to have been dissatisfied with how long it was taking their children to learn English, and were open to a sink-or-swim approach more like that of their childhood, although many (more?) had hated those days, too. But I strongly suspect the environment they were reacting to was one of starved education spending; if children were being ill served in bilingual classes, it was because the schools were struggling in general. There is good evidence that bilingual education is likely at least as effective for English-learning, when taught well, and has the advantage of fostering fluency in the birth language, also good for children, both in their mental development and for the sake of overall cultural richness.
The norm for education is that we try different things over time and try to evaluate them and do the best by children. Teachers, administrators, and parents are partners and ultimately are trying to serve common goals. They need to be adequately funded so they can do the best job they can, and given flexibility to work together. The only reason to try to choke off one particular type of education via the ballot box is prejudice. Finally, California’s politics may have transformed enough that it is no longer a hot-button issue to try to undo this relic. In 1998, Latinxs were 12% of the electorate; in 2014, 18%, and our political consensus is worlds more inclusive – for example, we lead the way in humane treatment of immigrants, including government benefits.
Some more details. Prop 58 does not mandate bilingual education: it preserves as a core goal of our school system ensuring rapid English proficiency. English immersion programs, such as Prop 227 called for, remain the basic program to be offered at a minimum. Dual-immersion programs (the hot new thing, often sought after by parents) or transitional programs that use both languages (closer to bilingual education) are also options, to be determined with public input. Although parents do not need to sign waivers to bring their children into bilingual education, schools are required to accommodate parents’ requests for specific language acquisition programs if there are more than 20 requests in a given grade.
There is another advantage of Prop 58, from the point of view of those opposed to ballot clutter. Its backers may prefer this point be kept quiet, but there should be no need to misinform people to get them to support a good cause, and in fact I laud the backers for the decision they made here. Initiative statutes typically bar the Legislature from amending them except to further serve their purposes, and usually also require a two-thirds majority. This was true of 227, but 58 makes it easier for the Legislature to amend its provisions going forward by simple majority vote. In other words, Prop 58 gives our Legislature its proper regulatory role back and makes it less likely that this issue will have to be decided at the ballot again.
Utilitarian recommendation: Yes
Anti-clutter recommendation: Yes
Citizens United statement
At last, one I can knock out quickly. This is a purely advisory proposition, with no force of law. It would express the will of the people of California to overturn the Citizens United Supreme Court decision that effectively allowed unlimited money in politics, and more generally to empower Congress to make reasonable regulations limiting campaign spending.
This statement is clearly a good thing, and thankfully, it does not make the mistake of pretending that Citizens United is the only part of campaign finance that needs fixing. We have had bad campaign finance jurisprudence for some time, elevating the “money is speech” theory over the reasonable interest of the public to keep the political process open and fair; Citizens United merely took it from very bad to catastrophic. The statement does include as a core principle the ability of individuals to express themselves, which is good because the slogan-y declaration that “money is not speech”, if made into a legal principle, could be twisted against free speech. Taking money entirely out of campaigns with public financing would be ideal, but I’ll settle, at this point, for Congress’s ability to comprehensively regulate.
It is good to keep up the drumbeat for campaign finance reform, and Prop 59, despite its nonbinding nature, is part of that. If it gets something lopsided like 80% of the vote, it could conceivably make people sit up and think about the constitutional amendment route.
The anti-clutter version of the recommendation will, of course, reject Prop 59, because it self-admittedly does nothing concrete. I am not sure I’m going to follow that recommendation personally, because of how strongly I feel about this particular issue.
Utilitarian recommendation: Yes
Anti-clutter recommendation: No
Prefatory observation: Props 60 and 61
Propositions 60 and 61 are on different subjects but have the same initiator and primary funder, the AIDS Healthcare Foundation, and share some traits: they address a knotty issue where action is needed, and take aggressive action in what could well be a positive direction. They both have well-funded No campaigns from the industries they would impact, and those campaigns have filled the air with a lot of negative talking points, mostly spurious.
Proposition 60: Condoms in adult films
Proposition 60, from the AIDS Healthcare Foundation and its head Michael Weinstein, sets as its goal to make condom use universal in pornography, and does not take no for an answer.
Its argument is strangely watered down from what it could be. It describes itself as about worker safety – that the current status quo without condom use puts performers at unacceptable risk of AIDS and other STIs. In fact, I think the best argument for condom use in porn is spreading this practice as the norm in the general public. There is a pretty wide awareness that people’s (especially men’s) sexual expectations are heavily influenced by what they watch; it gets into the culture. (As I recently heard a stand-up comedian say, “I don’t watch porn, but I feel like I know it pretty well from the shit guys try to pull on me.”) If it were a norm in film, it would go a long way toward reducing STIs, including the over 4,000 annual HIV infections in California.
Making it a norm in film is not as simple as requiring it in California. The industry could pick up stakes and go. But this is harder than they make it out to be: the state is large, and it’s not just history but also networks, infrastructure, and support services that all come together and make an industry sticky in place, especially with so much of the non-adult film industry here. (I have also found it said, though contradicted elsewhere, that laws in most other states put the industry more at risk.) And if California, the largest state in the country, takes this kind of decisive action, many other states could more confidently take the same step; even, conceivably, the federal government. It could catch on quickly.
So how would Prop 60 go about requiring condoms in California? Technically, they already are required, under CalOSHA regulations, but that is not really enforced. Prop 60 would write the rule fully into law, add fines ranging from $1,000 for negligent first offenses to $70,000 for repeated offenses after warnings, and, crucially, would introduce a private right of action: anyone with some reason to believe there’s been a violation has to first make a complaint to CalOSHA, but if it does not act within a prescribed time, they can sue the producer directly, and keep 25% of any fines if they win, plus legal fees and expenses.
The private right of action is an ambitious step. It allows for a glut of lawsuits unless the state quickly and comprehensively enforces the strengthened law. Allowing non-injured parties to sue is cumbersome and not usually how the legal system works, but there is the False Claims Act, which allows anyone with knowledge of someone bilking the federal government to sue and claim a share of the recovered money; similarly, many environmental laws, like the Endangered Species Act, Clean Air Act, Clean Water Act, and California Environmental Quality Act, give a wide range of people, or anyone, the right to sue in the public interest. So this mechanism is far from unprecedented.
Other provisions of 60:
- Adds strict penalties for coercing someone into performing in violation.
- Extends liability to not just producers but also in some cases distributors and talent agents, if they are knowingly involved.
- Requires film production to be licensed before the fact; potential suspension of licensure for violating the condom rule.
- Requires producers, not performers, pay for all STI testing and related medical work.
- Signage on sets in 48-point font disclosing the requirement.
Some other objections addressed:
- “It is intrusive / promotes everyone spying on each other.” It’s extremely typical for anyone opposing a new law to say it will lead to everyone spying on each other to find violations. They said that about the Fair Housing Act in the 1960s; AirBnB is saying it about regulations on renting private apartments today. In this case, it’s rather rich to call it intrusive when the behavior in question is filmed for sale.
- “There are emerging new means of prophylaxis that might end up more effective.” There’s PreP, but that’s only for HIV; it’s disingenuous to oppose a regulation because unspecified future technology might make it unnecessary, like saying we don’t need emissions controls because cold fusion is on the way.
- “It appoints Michael Weinstein as a perpetual government employee.” Not strictly wrong, but makes sense in context. It’s a defense against what happened with Prop 8, which went through judicial appeals at a disadvantage because the Governor and Attorney General declined to defend it; the original Prop 8 supporters tried to step up instead, but ultimately couldn’t. Although the outcome was good in that one case, it is odd and somewhat unfair that a law duly passed by the people would fare worse in court because of elected officials’ opposition. So Prop 60 specifically says that if and only if the state declines to defend it when called on, its proponent (Weinstein) is deputized for that one purpose instead. The Legislature can still remove him from that role for cause by majority vote. Language allowing others to step in was also written into 8 of the other statewide propositions on the ballot, though not always specifying the proponent as directly, but that is the intention.
- As a small gesture of good faith, the measure would also fine Weinstein $10,000 for wasting everyone’s time if the courts strike down the measure in whole or in part for some reason.
- “It would expose all performers to lawsuits.” Only those who also have a financial interest enough to also be called producers, which is how you need to do it if you mean to put the disincentives on those with money at stake; the industry has tried many times to blur the distinction by saying “many” performers. But see below for more on other consequences.
- “It’s their choice.” No more, typically, than it’s people’s choice to work at a sub-living wage; they do so for pretty much the same reason, because employers have more power than they do, which is why we have wage and work safety laws in the first place.
- “There is tremendous market demand for condomless porn, and it will be satisfied somehow.” Condom use became the norm in gay porn long ago due to pressure; most consumers will take what is generally available, without being too particular. Producers may prefer to do it this way because they see marginally more profit in it, but well-enforced regulations are precisely what forestall this race-to-the-bottom problem endemic in market competition.
- “Michael Weinstein is a shady character who shouldn’t be trusted.” He’s certainly a divisive figure in his community – litigious and idiosyncratic, has rubbed many the wrong way. But even though he’s filed lawsuits I’ve found personally infuriating, objectively I don’t see any good evidence he’s more than an extremely passionate advocate for what he feels is right. And really, isn’t that exactly the combativeness one wants in an AIDS activist, even while disagreeing on details?
However, I think there are reasons Prop 60 falls short in the end.
First, it appears the AHF is not actually pursuing Prop 60 for the reasons I see as most pressing, to promote condom use among the general public, because of how it is written. It does not specifically require condoms to be visible in the final product, merely says that if condoms are not visible, it creates the legal presumption there was a violation, which the producer can rebut with evidence. This seems to open up the possibility of films routinely simulating condomlessness, while keeping video evidence of their use for legal protection. If that became the norm, it would not have nearly the public health impact. That may not actually be the consequence, but it speaks to the core goals which could show themselves in other ways.
What does that leave as the core goal of Prop 60? Performer health, especially preventing HIV/AIDS infection. On that score, there is fairly aggressive STI testing as an industry standard: performers are tested every two weeks and must show up to every performance with clean results. This is not airtight: HIV can stay latent and transmissible but undetected for several months. I would never argue that the industry must do everything it can because infections are “not in their interest”; that’s a libertarian argument that’s trotted out for pretty much every bad thing companies can and do engage in. But in this case, it is a lot more than the general sexually active public does, and it seems likely that the actual rate of HIV transmission is at least no worse than in the general population. I have found six documented infections of performers since 2004, so assuming about 3,000 performers in any given year, that works out to about 17 infections per 100,000 people per year (6/12/3000), compared to 14 per 100,000 in California at large. And of course it is a very small number of infections in absolute terms, so it’s an odd place to devote so many resources (public or private) if you’re trying to stamp out AIDS. There are high rates of other STIs like gonorrhea among adult film performers, but those are not as dangerous.
There is one large objection raised that I don’t trust highly, because it emerges from the well-funded industry opposition, but on research I haven’t been able to dismiss it to my satisfaction either. It is said that people looking to harass small-scale individual performers could sue them to identify their real name, home address, or other personal details through the court process. First, of course, this would only be performers who have a financial interest, which is probably more limited a range than the industry asserts. There are probably many reasons such lawsuits would not be a practical or reliable way of exposing personal information: legal costs could be prohibitive; if CalOSHA followed up on their initial complaints, no lawsuit would be possible; many or most performers, even those small ones who operate on their own, likely have corporations or other intermediaries that separate their personal lives from their business even for judicial purposes; there are potential penalties for frivolous suits, including recovery of court costs; but without close direct knowledge of the court system, these are all surmises on my part on how it would work out in practice.
It is not true that harassment is part of the goal of Prop 60 (heavily implied by the No campaign, whose website is dontharassca.com); at worst, it would be an unintended consequence. It is certainly true that adult performers are often vulnerable in many dimensions, especially LGBT ones, and deliberately inviting a raft of lawsuits could provoke a wide range of other unintended consequences that would hurt them disproportionately.
In general, if there’s anything we’ve found over decades of hands-off government, it’s that looking to enforcement by private action is clumsy and unreliable, even though it may be better than a completely do-nothing government. The existence of private rights of action under the various environmental were better than the alternative during the Reagan years, but they’re no substitute for an engaged and right-thinking executive branch. Another example of unintended consequences through this particular means of implementation: CEQA, while a good thing overall, allows for NIMBYs and those who benefit economically from less development to tie up new projects in the courts. I could absolutely imagine larger adult film companies using Prop 60 in the same opportunistic way – getting into compliance themselves and then driving smaller competitors out of business with lawsuits. That, then, could drive some production further underground, threatening even the current testing regime.
I understand why AHF has gone to this length and wants a private right of action in alternative to a regular political structure that can seem ossified. When CalOSHA tried to strengthen its condom requirements in 2014, the same adult film industry now out in force deluged it with complaints and likely with other political pressure. Although the vote ended up three-two in favor, two on the board didn’t vote; the move failed for lack of a majority. AHF also tried to get a strict requirement through the Legislature (without private right of action), but it was bottled up in a committee. So it is not obviously wrong for AHF to feel the existing process is ineffective and needs a kick. But they have a good argument to make: their setbacks are not eternal, and they should keep trying. The civil court system, due to the resources it requires, tends to lock in socioeconomic inequality; we should be hesitant to use it as our primary tool.
Finally, we should all give some deference to the “no” positions of advocacy organizations like Equality California, the Courage Campaign, and the Transgender Law Center. These organizations know more on the ground than I do, and their stances should be taken seriously. AIDS advocates are not lined up either: the LA AIDS Project and the SF AIDS Foundation are in opposition.
Utilitarian recommendation: No
Proposition 61: Prescription drug price control
Prop 61 may be the biggest-impact issue on the ballot, with the greatest amount of money being spent. Like 60, it is the brainchild of AHF and Weinstein. The pharmaceutical industry has raised over $80 million, and TV advertisements are becoming ubiquitous.
Getting a handle on prescription drug spending is a critical part of keeping health care affordable and sustainable, especially now that we see the light at the end of the tunnel toward universal coverage. We spent $457 billion on prescription drugs in 2015, about 17% of all our health care dollars, and about $1,420 for every woman, man, and child. In the past 10 years, our spending has grown by 4.4% per year. It makes sense: drug companies have a tremendous amount of economic power, especially for patented drugs that enjoy monopolies; that is supposed to be in exchange for important medical advances, but too often they have been able to gain exclusivity based on minor changes that do not help people, and there is a lot of concern that they are gaming the system in other ways, such as by changing study parameters or burying negative findings to exaggerate the case for their products. They also claim that the prices are necessary to pay for R&D, but they have never satisfactorily shown those costs are actually commensurate (see Marcia Angell, The Truth About the Drug Companies, and many similar works), and we know since they are generally public companies that they are making a great deal of profit, not to mention passing on huge amounts in executive salaries. So let’s take as an assumption that drug prices are excessive due largely to market power and gaming of the system. Where, then, do we go from here?
It’s generally agreed that a big part of the solution is using the power of all patients as a collective – represented by the government, which is to say, all of us – to counteract the pharmaceutical industry’s market power, and enforce the social contract whereby they enjoy the benefit of government-funded basic research that leads to developable, patentable products with reliable profits, in exchange for keeping prices reasonable and products high-quality. Virtually all developed countries do this, negotiating collectively to set prices. (Pharma argue that the US, by paying much more, is subsidizing their necessary R&D, but again, this is a self-serving argument they have never properly backed up.) The health care payer in the US that probably is the worst offender in overpayment is Medicare, which is prohibited by law from negotiating prices, and must provide everything “reasonable and necessary” a doctor might prescribe, without regard to price. Since Medicare and the seniors it covers makes up such a large part of health spending, its standard pushes up what commercial insurance must put up to satisfy pharma.
Note that a tradeoff we face is choice. With often multiple products covering the same conditions, a payer that wants to negotiate needs the power to pick and choose from possible products, and patients do not necessarily like that. (It often means formularies, where special administrative approval is needed to pick a drug not on the basic list.) But some kind of judicious selection mechanism is inevitable; we cannot go on saying “yes” to everything as the cost becomes increasingly out of reach.
Prop 61 attempts to do as much as possible at the state level – not by negotiation, but by an extremely demanding and flat mandate. The state pays for drugs via Medi-Cal, for the low-income, children, and the disabled, via CalPERS, for state employees and retirees, and via the prison system and other miscellaneous programs. Prop 61 is just one page of legislation, saying that the state may not pay for any individual drug at a price higher than the US Veterans Administration pays.
The VA is an odd duck, much more centrally and rationally managed than almost any other part of the US health system, and enjoying significant power to negotiate prices. It has often been offered up as a model for Medicare and the rest of the health system, although it is not without its own problems. The VA gets both a legal maximum price, set by the federal government based on private payer prices, and other federal payers like DoD share in this price; then, the VA can further negotiate prices down. Its purchasing power allows it to get low prices, but these often are kept secret per contracts as a tradeoff.
Prop 61 requires that the state – so, again, Medi-Cal, CalPERS, etc. – pay VA rates. With tens of millions covered, the drug companies might have difficulty going against this. But how is the state to know the VA rate if it’s confidential by contract? The VA being federal, the state appears to have no ability to pry open that information. Would we then pay simply the legal federal ceiling? According to a 2005 CBO report on the net impact of all the different federal price programs, for brand-name drugs, the public federal ceiling the VA, DOD, etc. enjoy is about 49% of list price; prices paid by state Medicaid programs, including negotiations and legally required rebates, are about 51%; the confidentially negotiated VA rates are the lowest, at 42%. By contrast, commercial health plans pay something in the 60-80% range, and Medicare is likely similar. So the federal ceiling would be less savings, but still some. Even moving down two percentage points of list would mean huge savings, and could be more when calculated individually, drug-by-drug.
⇨ One important takeaway for future policy: the ability to keep negotiated prices confidential, whether for drugs or for other services like doctor and hospital rates, is detrimental to the entire system’s ability to manage and benchmark. Transparency of information, the ability to compare, is a prerequisite for market processes to work at all, even under classical economic models. Support all-payer claims databases and a federal ban on such confidentiality provisions in health care contracts. (Single-payer would also sweep away many of these problems, though not all.)
One odd omission of Prop 61 is that it applies to Medi-Cal as a whole but exempts Medi-Cal health plans, which the state pays monthly rates to in exchange for taking responsibility for the care of about three-quarters of all Medi-Cal beneficiaries. That leaves only the Medi-Cal “fee-for-service” patients that Prop 61 really applies to, the people kept out of managed care for one reason or another, often because they are just in the process of getting onto the rolls, or have partial coverage, or have simultaneous Medicare coverage (low-income seniors). So this would not affect prices for the vast majority of the people helped by Medi-Cal.
Critically, the LAO offers a number of ways drug companies could procedurally resist the mandate, which is why LAO is unable to project clear savings. If California could learn the negotiated rates, but pharma saw them as too much to bear, they could raise prices for the VA as a whole, scotching negotiations and falling back on the legal ceiling; in addition, they could increase what they charge non-governmental payers, which will push up the ceiling too. To be clear, this resistance would be deplorable on the part of the drug companies because they would be saying, effectively, that raising prices on veterans or on everyone is better than any slight reduction to profits. It is pretty revolting that they themselves are funding so many ads implying such price increases are natural and automatic, as opposed to morally culpable, and that they are coopting veterans to echo their arguments. If they did react by raising prices, it would probably provoke backlash and maybe more consensus around tighter price control in the future. But in the meantime, it could come down to a high-stakes game of chicken, with patients in the middle, because it is not clear that the state has any good option if the drug companies refuse to back down; AHF would be happy to sue them for it.
One conclusion I’ve come to from my research is that while Medicare’s payment mechanism is clearly unjustifiable and an easy target for reform, the price-control mechanisms other federal payers have built up over the years are horrendously complicated, a combination of many laws over the years guaranteeing certain discounts, rebates on top of that, some payers piggybacking off others, some going the negotiation route, too, and so on and so forth, without rhyme or reason in aggregate. Look at Table 1 of the CBO report I cited: you have to contend with Average Manufacturer Price, Nonfederal Average Manufacturer Price, Federal Supply Schedule Price, Federal Ceiling Price, FSS Big 4 Price – it’s a complete mess. Prop 61 could have decreed statewide all-payer negotiation that almost everyone in the state would have benefited from, breaking out of these knots; instead, it engages in more of the same piggybacking, ties us in further knots, with highly uncertain outcomes.
If anyone thinks they might support 61 for all its imperfections because they want struggling families and individuals to get personal relief from high drug copays and cost-sharing: that is not really a benefit of Prop 61, even if it succeeds. All the people with high-deductible health plans through Covered California or from their employers? Prop 61 leaves those plans alone. Same for people with high Medicare copays. Of the programs implicated, CalPERS currently has pretty low cost-sharing, similar to large-employer plans. Medi-Cal has no cost-sharing at all for the vast majority of patients, under federal law. Lower prices for Medi-Cal and CalPERS would relieve the state budget as a whole, helping everyone in the long run, but few people, maybe nobody, would get immediate pocketbook relief.
Overall, I oppose Prop 61 in the same reluctant way I do 60. It takes decisive action in an area where policy is disappointingly static, due to industry power over the normal levers of change. I am tempted to say, screw it, change is needed, let’s shake things up and roll the dice, give the industries a scare and make them realize the weight of public opinion; certainly the anti arguments are overblown. But I can’t in good conscience recommend that decision, because of the huge uncertainties involved, and the problematic inflexibility in how both initiatives are written. In the end, for all the faults of the regular legislative and executive policy processes, they are still better suited than the initiative process to address these problems, since policies can be tested, evaluated, and modified over time without spending millions of dollars on new ballot measures or lawsuits or both. There is no silver bullet; I wish there were.
Utilitarian recommendation: No
Propositions 62 and 66: Death penalty
At this point I barely feel I need to provide links: there have been so many miscarriages of justice exposed far after the fact that whether or not you believe in the death penalty as an abstractly good idea (which I do not), it should be obvious that our judicial system has no ability to apply it with the accuracy that is morally needed.
Propositions 62 and 66 are both about the death penalty, but in two different directions. 62 eliminates it; 66 says that the real problem is that the people on death row are not being executed with any promptness.
There are currently 748 inmates on death row, but nobody has been executed since 2006. There are a number of simultaneous high-level, tricky lawsuits under way, about the humaneness of execution methods as well as the various appeals looking into the adequacy of the court cases and potential exculpatory evidence like DNA discovered later. (The man executed in 2006 had been convicted in 1980.) They are kept in a special, extra-costly setting in San Quentin.
Proposition 62 converts all prior and future death sentences to life sentence without possibility of parole. In the future, the kind of circumstances that currently allow for a death sentence for a murder conviction in the Penal Code – second conviction of murder, killing law enforcement officers, using bombs, killing witnesses, etc. – would instead merely trigger life without parole. Due to all the legal, court, and prison costs that would become unnecessary, it would save a whopping $150 million a year.
Other than tough-on-crime, fearmongering arguments, the only significant anti-66 argument I’ve heard was against a similar initiative that failed in 2012: that capital prisoners currently receive a fairly high level of public legal defense, which they would lose if their sentences are commuted. That is mildly unfortunate, but the higher level of public defense is awarded precisely because they were sentenced to death. We need more and better public defense for everyone, not just the narrow segment of people who may or may not be sentenced to death; and ending the death penalty is a good thing in itself.
This is a strong yes for 66, and by both rubrics: by anti-clutter, a ballot measure is needed because the Legislature is unlikely to take the leap without explicit public support.
By contrast, Proposition 66 is a large laundry list of changes to the death penalty process, trying to “tighten it up”. The most noteworthy aspect is a time limit, that all appeals must take no longer than 5 years put together; crime victims are allowed to sue if that is not met. But I count 11 other provisions regarding the legal process: a clock on filing certain types of appeals from when counsel is assigned; allowing a wider range of attorneys, including those with less defense experience, to be appointed as counsel (even potentially on an involuntary basis); letting trial courts handle more of the case work; waiving the Administrative Procedures Act for executions; allowing the state to acquire and administer lethal injection drugs without a doctor’s prescription; and requiring the State Supreme Court to generally be “expeditious” in coordinating the death penalty appeal process.
There are a couple of provisions not about law but merely about the treatment of death row prisoners: most notably, allowing them to be housed in locations other than San Quentin.
Finally, it takes the Habeas Corpus Resource Center, which works these cases but is intended to operate semi-independently from the court system, and attempts to cut down on its independence by eliminating its Board of Directors. And most vindictively, it requires the Center’s staff salaries be no greater than those at the regular state public defender’s office, even though the required skills and experience are likely higher.
This is not only movement in the wrong fundamental direction – we need to end the death penalty, mending it is a fool’s errand – but there are also some problems with the structure of Prop 66 that could backfire. Time limits may raise federal constitutional issues that will require their own appeals. The provisions leave it unclear how the process is supposed to work if a time limit runs out. Appointing a wider range of counsel, some of whom might not even want to do the work, and paying existing counsel lower salaries could result in even more appeals down the road for inadequate counsel or various mistakes made.
Prop 66 is a measure very hostile to the judicial system as a whole, taking as its premise that if appeals are taking a long time, it must be bad faith on the part of the courts, as opposed to their conscientious effort to take their responsibilities seriously when the matter is as weighty as a person’s life.
Prop 66 would save a small if meaningful amount of money – much less than abolition in Prop 62, because it would keep our expensive machine in place, and arguably add more gears. The savings are from moving inmates out of San Quentin, and only in the few tens of millions’ range.
Finally, Prop 66 would entrench itself into the law codes even more firmly than most initiative statutes because it requires amendment by a three-quarters vote of the Legislature, rather than the more normal two-thirds. Perhaps a desire to make sure Republicans, just barely holding on to one third now, always retain a voice in the process? Who knows. The point is that even if any of its many, many discrete ideas turn out to be impractical or impossible, it would require a very high level of consensus from the Legislature merely to fix, if it gets the slightest bit politicized. Ill-conceived in theory and practice, it should get no one’s vote.
Utilitarian recommendation: 62 yes, 66 no
Anti-clutter recommendation: 62 yes, 66 no
If you’re worried you might not remember which of the death penalty measures is which, here’s some awful doggerel of my own to use as a mnemonic:
Sixty-two, death penalty’s through;
Sixty-six, makes it stick […maybe].
Proposition 63: Gun and ammunition control
Better gun control is desperately needed; let’s leave the principle at that, I can only work out so many things from first principles in one sitting. Proposition 63 is gun control, or rather a handful of elaborations on the theme. There is already some fair basic gun control in California, so most of what lawmakers are finding is out on the edges:
- Ammunition sale regulation: licenses for sellers, background checks for buyers, import control.
- Measures for those convicted of crimes to disclose and give up any firearms upon conviction.
- Mandated for dealers to promptly report loss (or theft) of ammunition.
- Mandated for anyone who loses a gun to report this within 5 days. It’s just an infraction to start, fine of $100 first time, $1,000 the second time, misdemeanor with the same fine and up to 6 months in county jail for third and later offenses.
- Tightening who can own large-capacity magazines.
- Making all firearm theft a felony rather than a misdemeanor. This is actually fixing what some in law enforcement called an unintended side effect of Prop 47 two years ago, which reduced to misdemeanor status most simple theft of anything worth less than $950, which could have included some guns. I said at the time that this was not a significant flaw of Prop 47, but that seems like an instance where it makes sense to keep the penalties up, and fix it if there is a chance.
- Obligation for the state Department of Justice to participate in the national criminal background check system, whereas now it does but is not required to.
The additional court, law enforcement, and probation workload would cost a small amount, tens of millions a year. It allows future amendments toward its purposes with a 55% vote (funny number; everyone wants to be original). The trouble is, most of this could have been simply passed by the Legislature; in fact, some of it was this summer, and as a result, some of its provisions are already in law, with minor differences in detail; others, like the penalty for not reporting theft, Jerry Brown vetoed earlier this year. My understanding is that the ballot measure route is at least in part to pad the resume of Gavin Newsom for when he runs for governor in 2018.
I’d say the measures are likely to have only a small positive beneficial effect. For many it’s easy to cross state lines and get what they want; so as long as the federal laws stay where they are, the state controls are semi-symbolic, although not nothing (laws do change some kinds of behavior). So Prop 63 is a good target for opponents of clutter.
Utilitarian recommendation: Yes
Anti-clutter recommendation: No
Proposition 64: Marijuana legalization
I have written a great deal on the details and policy facets of Prop 64, which would legalize marijuana for recreational use in the state, in this space earlier this year. You can find my whole six-part series linked here, with a supplemental note on penalties made later. In short, it’s legalization the good way, similar to the Washington and Colorado models. Some high points:
- It eliminates or reduces penalties for marijuana offenses going forward: also, releases many previously convicted, or lets them clear their records if they are already out – an aid to thousands.
- Significant taxation on legal marijuana, making lots of projected revenues, over $1 billion a year once up and running, mostly to go to youth substance use prevention and treatment, other parts to environmental protection, law enforcement, research and evaluation, and grants to communities disadvantaged by the drug war.
- Allows concurrent local and state regulation of marijuana business, so that cities or counties don’t have to allow stores or farms if they don’t want, which is essentially how it stands today with medical marijuana dispensaries. Regardless of what city they lived in, everyone 21 and up would be able to hold 1 ounce and grow up to 6 indoor plants for recreational use.
- Requires strong quality testing and content labeling standards for the legal market; truth in advertising, no marketing to minors allowed, brownies notched in 10g-THC chunks, all that.
- Gives some leeway for people of color to not get locked out of profit-making in the legal system, by making sure simple drug offenses do not disqualify anyone from being licensed.
- Employers can still drug-test freely.
Various contra arguments addressed briefly:
- No, it does not limit medical rights under the Compassionate Use Act of 1996 (Prop 215).
- Yes, it may affect small businesses due to more competition; but that is an acceptable side effect of bringing it into the light and establishing standards for wages, safety, labor rights, etc.; it does in fact have several provisions hoping to keep the market competitive and not behemoth-dominated, but not as strongly as it could have.
- “It’s being funded by people who want to take over the market” – it’s mostly funded by Sean Parker, who is a tech billionaire twice over and has made no moves to invest in the industry; there is some funding from the marijuana industry, but it’s nothing remotely resembling a takeover like what Ohio rejected recently.
- Does not establish standards for driving under the influence of cannabis, simply because those standards would be unscientific if established (urine and blood tests are unreliable). Does allocate a bit of money for the Highway Patrol to work on the problem.
- Would technically allow advertising to be broadcast in media markets/timeslots with some small proportion of children watching, although the Legislature could probably tighten that, and federal rules apparently prohibit all broadcast marijuana advertising for now regardless.
- “Taxes will make prices rise and hurt medical patients” – prices are likely to fall steeply after a few years even with the tax incorporated.
- “Gummy candies” getting into children’s hands: this is one of the greatest canards of the anti arguments because the initiative explicitly bans packaging, labeling, or designing any products in such a way as to be appealing to children or confused with candy.
- “It’s so long, it has to be sinister” – its length simply makes it clear that it is putting in a solid regulatory structure.
So yes, high time to join the bandwagon, take this step which constitutes maybe a quarter of the way toward ending the drug war. Up next, we’ll need to find the right structure for other drugs, too, one that avoids incarceration and centers on medical treatment.
Also, we’ll need to remember that this is not something that will automatically end disparate racial arrests and convictions. There is disparate policing and justice throughout the system for drug crimes and non-drug crimes alike, so that issue will still need to be addressed on its own terms. Prop 64 will, however, greatly reduce the absolute number of arrests, infractions, and other criminal punishments, so it will be a step forward.
Anti-clutter: As Prop 64 is a bold measure, it is one the Legislature unfortunately needs a mandate from the masses on; also, a two-thirds vote would have been required to incorporate the taxes. So it is reasonable for it to be on the ballot. It would likely not generate clutter into the future, as it gives the state wide latitude to test and develop appropriate regulations; also, to the extent we want to further reduce the remaining criminal penalties going forward, the Legislature can do that with a simple majority vote.
Utilitarian recommendation: Yes
Anti-clutter recommendation: Yes
Propositions 65 and 67: Plastic bags
As before, with the car insurance initiatives, you should very rarely trust an initiative that is funded by a single industry or financially involved individual. 65 and 67 fit the bill, being both by the same industry group, throwing its oar in; the confusing part is that they each require different votes if they are to be thwarted.
There’s been a ban in California now for a little while on stores handing out plastic bags, and requiring a ten-cent fee for bags of any kind. My county adopted it early; we got used to it quickly, and ecological damage and resource waste is down as a result. A simple and good measure. Unfortunately, tediously, predictably, the plastic companies don’t like this and want things the way they were.
They put both of these on the ballot, but the tricky part is, the rules are different for Prop 67, because when you are specifically overturning a law the Legislature recently passed, it’s called a “referendum” instead, where a vote of Yes means affirm the original law passed (do ban plastic bags), while No means reject the law (allow plastic bags).
Prop 65 is different: it would take the fees that stores collect for reusable bags (10 cents each) and put them into a special state fund for environmental purposes. This would be a feel-good, do-nothing measure even if it were meant to stand on its own terms; in fact, it seems meant to confuse voters in one of a few different ways. If they vote yes on both 65 and 67, 65 could interfere with 67. Or if voters go one level deeper and get disgusted with all the trivial-seeming, industry-funded items on the ballot, and vote no on both, then plastic is back.
If you want to do what big money doesn’t want, and make big money less likely to put these things up in the long run, vote yes on 67, but no on 65.
Utilitarian recommendation: 65 no, 67 yes
Anti-clutter recommendation: 65 no, 67 yes
And with the doggerel once more:
When to the weary end you leaven,
Remember yes on sixty-seven.