The UnOfficial
Crotty Voter Guide
For November 6, 2012
? th
Edition (I’ve lost track)
It’s time to assist you in breaking through the
misleading straight talk, provide controversy where there was none, make things
personal when they are not, and get to the bottom of the upcoming – and very
exciting – November 2012 General Election. I had something to say about all of
the statewide initiatives, but I’ve skipped some of the boring stuff and
anything about which I don’t care.
As
usual, I’ve broken the ballot propositions into excruciating detail, so if you
have no patience, no time, or no interest in the minutiae, read the first and
last paragraphs and vote the way I say I will.
My Now-Obligatory Standard Intro:
For
those of you receiving this for the first time, let me explain that this is one
more in an increasingly occasional series of election guides since 2000,
wherein I discuss some of the interesting issues and individuals appearing on
the ballot for your consideration and illumination. The voter guide began in
response to the myriad ballot initiatives California citizens and legislators
spawned over the last decade or so, accompanied by clever or stupid or
misleading or devious, but certainly confusing campaign ads. Of course, if not
for the folks who always called to ask how they should vote, this would never
have started, so you can’t blame me. You know who you are.
Grab a
drink, get comfortable, and let’s begin.
Proposition 30: Sales and Income Tax Increase Initiative
Campaigns usually disregard the name
assigned to their ballot initiatives and call it something that’s more
marketable. Prop 30 should be called something other than a “sales and income
tax increase.” When polls are conducted, they read the title and summary of the
measure because that is what most voters will see in their ballot books.
This is but one of the many mistakes
made by the Governor and his team, led by Ace Smith – who is usually brilliant.
The Governor’s tax measure could
have been called the “Save our Schools and Balance the Budget Initiative,” or,
“Not Molly Munger’s Initiative,” or, “Vote Yes or California Will Go Bankrupt
Initiative.” There is no reason to tell voters it’s a “Tax Me Two Ways for Four
Years Initiative.”
I was a big fan of the "Millionaire's Tax." Sponsored and
funded by the California Federation of Teachers, the measure would have
increased income taxes for those earning over $1,000,000, which would be
distributed as follows:
1. K-12
schools – 36%
2. Services to
children and senior citizens – 25%
3. Public
colleges and universities – 24%
4. Public
safety – 10%
5. Road and bridge maintenance – 5%
There was something for everyone, except
millionaires. The measure was approved for circulation as an initiative statute. To be placed on the
state's 2012 ballot, sponsors were collecting what they hoped would be 504,760
valid signatures. In addition to the California Federation of Teachers, the initiative had the backing of the Courage Campaign and the California
Nurses Association, who collectively had the funds and
the bodies to qualify it.
Had CFA continued
with its efforts, the initiative placed on the ballot, and approved by voters,
the Millionaires Tax would have:
1. Added 3% to California's personal
income tax rate on annual earnings over $1,000,000.
2. Added 5% to California's personal
income tax rate on annual earnings over $2,000,000.
3. Provided local governments
discretion to decide, subject to financial audits, how to spend the new funds,
with the exception that funds could not go toward capital outlay or certain
administrative costs.
The CFA met with the Governor’s campaign
team in February and was shown a poll paid for by
the Jerry Brown Tax Hike Initiative indicating that the Millionaire's Tax
enjoyed the support of a majority of likely voters. However, that poll also
suggested that if the Millionaire's Tax, the Munger Tax and the Jerry Brown Tax
(the latter two are not referred to by their actual campaign names) were all on
the same ballot, none of them would win.
Unlike Molly Munger, who we will discuss
later, the sponsors of the Millionaires Tax
(Courage Campaign, California Federation of Teachers, California Calls, and the Alliance of Californians for Community Empowerment (ACCE))
agreed to a compromise with the Governor, combined elements of both measures,
and threw in with the Prop 30 folks.
Looking back, the Millionaires Tax would
have fared better than Molly Munger’s Proposition 38 or the revised Proposition
30.
The Revised Proposition 30
In preparing the FY2012-13 budget,
Governor Jerry Brown and state lawmakers could not cover the cost of programs
with estimated revenue. The Governor and Democratic legislators agreed to
approve a budget that included significant cuts.
However, they left the funding for
K-12 schools, community colleges, local public safety programs that were transferred to local government
last year, and helping to balance this year’s state budget to voters in the
form of Proposition 30.
Prop 30 will make temporary increases in sales tax and personal income taxes. The
sales tax will increase by ¼ cent (0.25%) for four years.
I don’t like sales taxes because they are regressive. The sales tax rate progresses from high to low,
and in terms of individual income and wealth, sales taxes impose a greater burden on the poor than on the rich
because there is an inverse relationship between the sales tax rate and the
taxpayer's ability to pay as measured by assets, consumption, or income.
In addition, Prop 30 will increase
income taxes on people with more than $250,000 of taxable income per year and
couples filing jointly with more than $500,000 of taxable income per year for
seven years.
Further, Prop 30 will require the
state to continue to fund local public safety programs that were transferred to
local government last year.
If voters do not approve Prop 30,
the budget agreement requires “trigger cuts” of $6 billion, almost exclusively
to K-12 education, community colleges, and public universities.
Essentially, the Governor’s plan is to make voters hold their noses and
vote to approve the tax increases because the alternative is even more cuts in
services about which voters care the most.
Another problem I have with this measure is that it
fails to address the fundamental flaw with balancing the state budget – it can’t be done. There is a structural flaw whereby revenues
generated are not sufficient to cover costs to which the state has obligated
itself. The only way to fix the problem is to scrap everything and start anew.
Another element of the structurally flawed budget is Prop 13, which restricts
the ability to assess equitable property taxes. Yet another contributing factor
is the plethora of statewide initiatives mandating spending on the sponsors’
favorite issue. Plus, statewide
initiatives have become a playground for the rich, corporate interests, and
labor unions. Real people can’t afford to play in that sandbox anymore.
Returning to Prop
13, it will be another generation before those folks who voted for Prop 13 or
who have since benefited from it die off and we elect decision-makers who are
too young to remember Prop 13 and make the common sense decision to repeal it.
During the Gubernatorial election, I
thought this latest incarnation of Jerry Brown might take on the admittedly
Herculean task of trying to fix the budget mess. Brown has played around the
edges, but lacking two Democratic seats in each house
(from reaching a 2/3rd majority, which presumably allows the Democrats do
whatever they want for the first time since 1965), he does not have the votes
to approve the sweeping overhaul that it will take to fix the budget. Someone needs to do something soon, or we’ll end up with another flawed
ballot initiative that purports to solve the problem, but ends up making things
even worse.
Will Prop 30 win?
Prop 30’s numbers were close to 60%
in initial polling. However, that support has been eroding. As of October 14,
the measure was at 51% and falling. There are opposition campaigns and knocking
a few percentage points off the bare majority it is currently hanging to by a
thread is not only possible – it’s highly probable.
Most labor groups
support Prop 30, especially the California Teachers Association (CTA).
Following is a list of $1 million or more donors:
California Teachers Association – $7,739,080
SEIU/California
State Council of Service Employees – $6,471,858
American Federation of Teachers – $3,858,700
California Association of Hospitals and Health Systems – $2,000,000
PACE of California School Employees Association – $1,500,000
Democratic State Central Committee of California – $1,046,172
California Nurses Association – $1,003,669
United Brotherhood of Carpenters – $1,000,000
Opponents include
the Republican Party, Charles Munger, Jr., who has contributed about $30 million to a “No on 30, Yes on 32” committee,
and Jonathan Coupal of the Howard Jarvis Taxpayer’s Association – yes, Howard Jarvis, the chief proponent of
Prop 13 in 1978, which, in large part, is responsible for our budget mess in
the first place.
A late entry into
the “No on 30” sweepstakes is Molly Munger, older half-sister of Charles, with
as much inherited wealth as he (more on both in discussions of other ballot
initiatives below).
Molly, a
Democratic activist and lawyer, is the sponsor of Proposition 38, another
school funding measure that would not touch sales taxes and raise income taxes on all but the poor to increase school financing by
$10 billion a year for 12 years.
Probably because
Governor Brown and some other prominent Democratic elected officials asked her
to stop criticizing Prop 30, Molly wrote a $5 million check to buy TV ads
attacking Prop 30. The production value wasn’t great, but the message that
“Sacramento politicians” couldn’t get their (infer “grubby little” here) hands
on her Prop 38 sent Prop 30 spinning downward, probably not to climb back to
50% or more.
And, the $5
million TV buy was peanuts compared to the total amount of the about $33.5
million Molly has contributed to Prop 38, which has proved a poor investment,
polling at only 42% in favor and 52% in opposition.
This tit-for-tat is being called “murder suicide” by my peeps in Sacramento because Molly will kill Prop 30 and, in so
doing, choke off support for her own Prop 38.
A likely result
of this scenario is that the woman with her eyes on running for Governor in two
years will see that dream die (politically) from self-inflicted wounds.
Absentee ballots will favor
Republicans and the “No” side. Labor unions are known for being good
campaigners and especially good at getting out the vote (GOTV). GOTV
is what will determine whether Prop 30 is approved.
I do not enjoy being held hostage.
However, I don’t trust the
legislature’s ability or the huevos to find
the money to back-fill the K-12 schools,
community colleges, or local
public safety programs that will face the axe if the measure fails.
Therefore, I’m voting “Yes,” but I’m far from enthusiastic about doing
so.
Proposition
31: Two-Year State Budget
Cycle Initiative
Proposition 31 will allow the state
to approve and adopt a biennial budget. Current practice is to adopt a state
budget every year.
Lawmakers would have to find a way
to pay for any new law that would call for more than $25 million per year in
either spending or tax cuts.
In financial emergencies, the
Governor would have greater power to cut spending to balance the budget. Local
governments (counties, cities, school districts, community college districts,
and special districts) would set up new ways of coordinating to provide services,
and Prop 31 would transfer some money from the state for that purpose.
Transferring state funds for local
government collaborations would decrease state sales tax revenue by $200
million every year, but since the funds would go to local governments, it’s a
wash.
Prop 31 claims it will:
1. Require a real balanced budget
(unlike the unreal “balanced budgets”
of the last decade or so).
2. Prohibit the State Legislature from
"creating expenditures of more than $25 million unless offsetting revenues
or spending cuts are identified."
3. Permit the Governor to cut the
budget unilaterally during declared fiscal emergencies if the state legislature
fails to act.
4. Require performance reviews of all
state programs.
5. Require performance goals in state
and local budgets.
6. Require publication of all bills at
least three days before a vote by the State Senate or State Assembly.
7. Give
counties the power to alter state statutes or regulations related to spending
unless the state legislature or a state agency vetoes those changes within 60
days.
8. Probably end up in court because of the
amount of power the Governor would have over the budget and the amendment of
four sections of the California Constitution, adding a section to an existing
article and creating an entirely new section (proposed Article XI A, entitled
“Community Strategic Action Plans).
The trend among state governments
for the past 70 years has been to abandon biennial budgeting for annual
budgeting. Forty-four states enacted biennial budgets in 1940. Only 19 do now.
HOWEVER, PROPOSITION 31 IT ISN’T REALLY ABOUT THE BUDGET PROCESS. IT’S
ABOUT GIVING COUNTIES THE AUTHORITY TO ROLL BACK CEQA AND OTHER ENVIRONMENTAL RULES AND
REGULATIONS.
Look closely at
the language at #7 of things the initiative claims it will do: “Giving counties the power to alter state
statutes or regulations related to spending unless the state legislature or a
state agency vetoes those changes within 60 days” sticks out like a sore thumb.
Counties are
generally the lead agency on CEQA. CEQA requires an expenditure of funds for an
EIR or a Negative Declaration. Most other county environmental regulations
provide some sort of trade off, like set-asides or other types of mitigation,
which costs money.
Therefore, most
environmental regulations, especially CEQA, are “related to spending.” If the California Department of Fish and Game
decides it doesn’t want to interfere with a County’s decision not to use CEQA,
or if a majority of the State Legislature chooses not to veto a County decision
to ignore the Endangered Species Act, the County can – and will – choose not
to apply such rules and/or regulations.
Supporters of
Prop 31 include the Republican Party. Opposition includes the Democratic Party.
That’s enough for me, especially since Republicans are a
dying breed in Sacramento and just about everything they do these days is
simply an effort to keep them relevant.
One must admit
that it’s a clever attempt to disguise an effort to roll back environmental
regulations buried in an otherwise boring initiative about budgets.
Unfortunately for
Prop 31 proponents, they chose a mundane issue – biennial budgets – that automatically
raises red flags because the legislature can’t get one budget adopted in the
mandated timeframe. Who knows what would happen if they had to do a 2-year
budget in one year?
Had they thought
of something that was boring and seemed
benign like the some of the responsibilities of the California Department
of General Services (DGS), which include Fleet
Administration, Procurement, the State Architect, and State Publishing, they
might have pulled it off.
As it is, the
Proposition 31 sleight of hand won’t work.
Vote “No.”
California
Proposition 32: the "Paycheck Protection" (aka “Screw the
Labor Unions” Initiative)
UPDATE: This just in. Charles Munger Jr. has ponied up another $13 million
to kill off Gov. Jerry Brown's Proposition 30 tax increase and to pass the
anti-union Proposition 32. The donations, made over the last two days, brings
Munger's stake in the measures to some $35 million.
The money was sent to the Small Business Action Committee, the same
organization that received an $11 million contribution from an unknown
Arizona-based group that has not disclosed its donors. That transaction has
drawn interest from California's Fair Political Practices Commission, which
went to court today to compel Americans for Responsible Leadership to provide
more documentation before the Nov. 6 election. A hearing is scheduled for
Tuesday.
With the Charles Munger, Jr. and Americans for Responsible Leadership
contributions, spending on Prop 32 now exceeda $100 million.
We now return you to your regularly scheduled Voter Guide.
Currently, most unions use funds they obtain from payroll deductions for political
purposes. This includes contributions to campaigns for candidates, campaigns
for ballot measures, or “independent expenditures” not directly coordinated
with a campaign for a candidate or a ballot measure.
Unlike the pro-Prop 32 TV commercials imply, other than unions, few, if any, corporations or other organizations
obtain funds from payroll deductions to use for political purposes. In fact, business and corporate donors
outspend labor unions by about 15-to-1. Even among PACs - the favored means
of delivering funds by labor unions - business has a more than 3-to-1
fundraising advantage. In soft money, the
ratio is nearly 17-to-1.
Let’s not forget the Citizen’s United ruling where the
Supreme Court conferred “personhood” upon corporations, entitling them to First Amendment freedom of speech, which in this case meant
corporations could spend as much money on most forms of political speech as
they can amass (hence “Super PAC’s”).
Recently, a University of Kansas law
professor authored an article arguing that the court failed to consider the
real power brokers — corporate groups — and that the Citizens United opinion illustrates how courts are taking different
views of what it means to be a corporation in the same area of the law. The
Court in the Citizens United opinion provided two different views in the same
opinion.
There are myriad cases dealing with
corporate identity. In most of them other than Citizens United, the Court clearly answered the basic question of
whose voice corporations represent.
In Citizens United, the Court did not address that issue. In fact, it seems the Court was
entirely unconcerned about the political power of corporate groups.
Since corporations are not mentioned
in the Constitution, almost every other court and the Supreme Court, up until Citizen’s United, held that only certain
constitutional rights should be extended to them.
A year after the Citizens United ruling, the high court
in Janus Capital Group Inc. vs. First
Derivative Traders, found that Janus Capital Group was not responsible for
misleading information made by an affiliated fund in the sale of securities. In
other words, what the court found in Janus
Capital Group was entirely contrary to its finding concerning corporate
speech in Citizens United.
The UK Prof has a complicated theory
as to why this happened and why other courts are having difficulty with
defining the rights and responsibilities of corporations.
My theory is less complex. This Supreme Court decides what it will rule,
finds a Justice to come up with a legal rationale (no matter how far fetched),
and only then writes the opinion.
In addition, this Supreme Court’s
opinions are just that – opinions.
They couldn’t care less about the law. It’s surprising that they bother issuing
opinions at all. They might as well rule by fiat!
Oh, wait … that’s kinda what they did … like installing George W. Bush
as President …
What Prop 32 would do:
Prohibit any corporation, labor union, government
contractor, or government employer from using payroll deductions
for political purposes. Prop 32 would also prohibit any government contractor (including public sector labor unions) from contributing to elected officials
who play a role in awarding a contract to
the contractor (reardless of whether union members authorized the expenditure, because that is what is currently required no matter what the pro-Prop 32 campaign ads say).
• 99% of California corporations don’t use payroll deductions for political
contributions, so everyone should know that Prop 32 is aimed specifically at
limiting union political contributions to Democrats.
•
Prop 32 does nothing to stop corporate Super Political Action Committees or
independent expenditure committees.
"Workers
of the world, unite.
You have nothing to lose but your chains"
VOTE NO!
Proposition 33: Automobile Insurance Persistency
Discounts
Often, persistence is a virtue. This is not one of those
times.
In California, the price of car
insurance is based on three main factors:
1.
A driver’s safety record
2.
The number of miles driven each year
3.
The number of years a person has been driving
Currently, insurance companies are
not allowed to use a driver’s history of insurance coverage as a factor in
setting prices.
If Prop 33 is approved, that will
change. Prop 33 would allow insurance companies to include a driver’s history
of insurance coverage as a factor in setting prices.
1. Insurance
companies would be allowed to give discounts to new customers who had a history
of continuous coverage with their former insurer.
2. Insurance
companies would also be allowed to increase prices for new customers who
did not have continuous coverage.
No wonder
George Joseph, the owner of Mercury Auto Insurance had this initiative drafted
and put $16 million into the “Yes” campaign.
He even conscripted the Automobile
Insurance Companies’ puppet in the state legislature, Juan Vargas, to go on
record supporting it.
Opponents
Brian Stedge of
Consumer Watchdog said, "Mercury Insurance is back with another costly
ballot initiative which attempts to trick voters into giving insurance
companies new power to increase premiums and punish consumers. Mercury
Insurance has a terrible history of mistreating its customers, ignoring the
law, and trying to deceive voters, and Californians need to know that you can't
trust Mercury Insurance. The last thing Californians' need is another
self-serving ballot initiative by a corporation hell bent on increasing its
profit margins on the backs of already struggling families."
Richard Holober,
Executive Director of the Consumer Federation of California, said, "When
was the last time a billionaire insurance magnate spent a fortune to save you
money? Never. This proposition is nothing more that an insurance tycoon's
self-enrichment scheme."
Elisa Obadashian,
the director of the West Coast Office and State Campaigns for Consumer's Union,
which is the policy and advocacy division of Consumer Reports, opposes Prop. 33.
Some other
arguments against Prop 33, if they are even necessary at this point, include”
1. It’s another deceptive insurance
company trick to raise auto insurance rates for millions of responsible drivers
in California.
2. Proposition 103 was approved by
voters in November 8, 1988. The key reforms in
Proposition 103 were to mandate that three primary factors are to be considered
in setting car insurance rates:
·
The driver's safety record
·
The number of miles driven annually
·
The driver's years of experience.
In addition, Prop
103 specifically prohibited insurers from using the absence of a prior policy
as a factor in rate setting.
3. Mercury Insurance spent $16 million
on Proposition 17 on the June 8, 2010 ballot, which sought to overturn the
absence of coverage provision of Prop 103 and was defeated. Now George Joseph
and Mercury Insurance are at it again.
4. Proposition 33 'will allow insurance
companies to increase cost of insurance,' according to the Attorney General’s
Official Summary—even on motorists with perfect driving records.
5. Beware: the California Department of
Insurance has said the so-called 'continuous coverage discount' scheme 'will
result in a surcharge' for many California drivers.
6. Prop. 33 deregulates the insurance
industry, making big insurance companies less accountable—which is why this
measure is 99% funded by an insurance billionaire whose company, Mercury
Insurance, has a record of overcharging consumers. The California Department of
Insurance says Mercury has "a deserved reputation for abusing its
customers and intentionally violating the law with arrogance and indifference.”
Any questions? No, not you, Juan.
I didn’t think so.
Vote “No.”
Proposition
34: End the Death Penalty Initiative
In California, some murder
convictions can get sentences of either death (first-degree
murder with special circumstances; sabotage; train wrecking causing death;
treason; perjury causing execution of an innocent person; fatal assault by a
prisoner serving a life sentence), or, life
imprisonment with no chance of parole. Most death penalty cases last for
decades.
There have been 111 people released
from death row because DNA evidence proved they did not commit the crime for
which they were convicted.
Even with this information, 55% of
the public feels confident that the death penalty is applied fairly, while 39%
say it is not.
Use of the death
penalty in the United States was practiced regularly, dating back to 1608,
until a temporary ban was established in 1967, during which time the Supreme
Court reviewed its constitutionality.
In 1972, in Furman v. Georgia, the Court found the
death penalty to be a violation of the Eight Amendment ban on “cruel and
unusual punishment.” This was determined based on what the Court felt was an
unguided jury discretion, resulting in arbitrary and capricious sentencing.
However, the
ruling did open the possibility of reinstating the death penalty, if states
redrafted their sentencing laws to avoid such problems. The death penalty was
reinstated in 1976 after 10 years of being abolished.
Since 1978, when the death penalty
was reinstated in California, 900 individuals have received death sentences.
Only14 of them have been executed.
The average time span between being
sentenced to death and being put to death is 9 - 12 years although many have
lived on death row for up to 20 years. Prisoners on
death row have much higher court and prison costs than people serving life
sentences.
“Assessment of Costs by Judge Arthur
Alarcon and Prof. Paula Mitchell” (2011, updated 2012), concluded that the cost
of the death penalty in California has totaled over $4 billion since 1978:
1. $1.94 billion – Pre-Trial and Trial Cost
2. $925 million – Automatic Appeals and State Habeas
Corpus Petitions
3. $775 million – Federal Habeas Corpus Appeals
4. $1 billion –
Costs of Incarceration
The authors calculated that, if the Governor
commuted the sentences of those remaining on death row to life without parole,
it would result in an immediate savings of $170 million per year, with a
savings of $5 billion over the next 20 years.
The additional cost of confining an inmate
to death row, as compared to the maximum security prisons where those sentenced
to life without possibility of parole ordinarily serve their sentences, is
$90,000 per year per inmate. With California’s current death row population of
670, that accounts for $63.3 million annually.
Using
conservative projections, the Commission estimated the annual costs of the
present (death penalty) system to be $137 million per year.
The cost of the
present system with reforms recommended by the Commission to ensure a fair
process would be $232.7 million per year.
The cost of a
system in which the number of death-eligible crimes was significantly narrowed
would be $130 million per year.
The cost of a
system that imposes a maximum penalty of lifetime incarceration instead of the
death penalty would be $11.5 million per year.
Since
1973, over 130 people have been released from death row with evidence of their
innocence. (Staff Report, House Judiciary Subcommittee on Civil &
Constitutional Rights, Oct. 1993, with updates from DPIC).
From
1973-1999, there was an average of 3 exonerations per year. From 2000-2011,
there has been an average of 5 exonerations per year.
DEATH
ROW INMATES BY STATE: April 1, 2012:
California: 724
Florida: 407
Texas: 308
Pennsylvania:
204
Alabama: 200
N. Carolina: 165
Ohio: 150
Arizona: 132
Georgia: 100
Louisiana: 90
Tennessee: 88
Nevada: 80
Oklahoma: 66
U.S.
Gov’t: 60
S. Carolina: 56
Mississippi: 53
Missouri: 47
Arkansas: 40
Oregon: 37
Kentucky: 35
Delaware: 18
Idaho: 14
Indiana: 14
Virginia: 12
Connecticut: 11
Nebraska: 11
Kansas: 10
Utah: 9
Washington: 9
U.S. Military: 6
Maryland: 5
S. Dakota: 5
Colorado: 4
Montana: 2
New Mexico: 2
Wyoming: 1
N. Hampshire: 1
TOTAL: 3,170
Prop 34 would end the death penalty, and make life imprisonment with no chance of
parole the maximum punishment for murder.
This change would apply to prisoners
currently on death row. Prop 34 would also set up a new “SAFE California Fund,”
providing a total of $100 million over 4 years to local law enforcement
agencies to make faster progress on open murder and rape cases.
Effect on the state budget:
The state and counties would save
about $130 million each year from less court activity and lower prison costs.
The state would spend a total of $100 million over 4 years on the SAFE
California Fund.
HOWEVER, THE DEBATE ABOUT THE DEATH PENALTY HAS NOTHING TO DO WITH
MONEY. IT’S ENTIRELY ABOUT VENGEANCE.
In California, the definition of
murder is “the unlawful killing of a human being, or a
fetus, with malice aforethought.”
For those of you who didn’t attend
law school, slept through law school, or watched any of the many TV shows about
law and/or criminal justice, “malice aforethought” is “the conscious intent to
cause death or great bodily harm to another person before [the] person commits
[a] crime.” It is equivalent to “malice aforethought” if the killer has “a
general evil and depraved state of mind in which the person is unconcerned (the
case we were taught called it ‘reckless disregard’) for the lives of others.”
One reason the California definition
of murder includes the phrase “the unlawful killing” is to differentiate it from self-defense.
One could argue that the phrase is
included to allow the death penalty.
The death penalty is
state-sanctioned killing. When that killing is done in order to seek vengeance
or as retribution for someone who has been killed, it is tantamount to murder.
As Oliver Wendell Holmes wrote in The Common Law, “retribution is vengeance in disguise.”
The four
acknowledged reasons for having state sanctioned punishment include:
1.
Rehabilitation
2.
Prevention
3.
Deterrence
4.
Retribution
Rehabilitation
can be ruled out as a factor for the death penalty, unless the executed finds
salvation in the afterlife. Prevention is moot because the sentence of life
without parole accomplishes the same goal. There are reams of statistical
evidence that show the death penalty is no more effective than life
imprisonment in deterring murder, if either serve as a deterrent at all.
The only reason
left for the death penalty is retribution. In other words, the state kills some
criminals for revenge or vengeance or some other word or phrase that allows an
otherwise civil society to feel comfortable for killing someone.
In ancient times,
“blood feuds” were commonplace. “A victim’s family might seek vengeance by killing
a member of the murder’s family, provoking a long cycle of murder and
retaliation” (Costanzo, 10). An
organized society cannot function efficiently in this manner. As a result, the state assumed the task
of punishment for murderers to preserve community order and restrict the scope
of killing motivated by vengeance.
The first
established death penalty laws date as far back as the 18th century B.C. in the
Code of King Hammaurabi of Babylon, which codified the death penalty for 25
different crimes. A murder was avenged by taking only the life of the
murderer, “lex talionis,” or “an
eye for an eye.”
G.W.F. Hegel
heavily influences the argument for the death penalty as retribution. Hegel
believed that “crime upsets the equality among persons and that retributive
punishment restores that equality” (Reiman, 89). In a society based on civility and democracy, the
application of lex talionis relies on the assumption that everyone is equal and
crimes of murder threaten to destroy the moral balance. In other words, the
death penalty is necessary because “the equality and rationality of persons
imply that an offender deserves, and his victim has the right to impose on him,
suffering equal to that which he imposed on the victim” (Reiman, 92).
“Retribution derives from the Latin
'retribuere,' which means ‘to pay back.’ It means punishment that is deserved
and appropriate to the crime” (Lifton, 201). It is difficult to distinguish
between retribution and vengeance since it commonly believed that “revenge is
related to vindicate, vengeance, and vendetta. Rather than renounce one’s personal anger ... one pours that
anger into action” (Lifton, 200).
The effort to distinguish retribution from
revenge is not an original endeavor, nor is it a straightforward one.
The modern system
of criminal justice is founded on the belief that revenge is a primal and
improper human instinct. The law is created to repress it.
“Legal punishment
can be founded on reason, due process can discipline passion, and these
categories are knowable and distinct” (Sarat 1, 39).
In theory, there
appears to be a conceptual boundary between retribution and revenge. However,
in more and more cases, so-called “justice” is usurped by the vengeful anger of
the victim’s kin.
The civil rights
movement was followed by the women’s liberation movement, which gave way to the
movement to expand the rights of criminal suspects. Legal rights were followed
by the “victims’ rights” movement in the early 1970’s, which quickly became a
powerful political influence. Advocates believe they are speaking for “the
forgotten men and women of the criminal justice system” (Sarat 1, 268). The
modern victims’ rights movement has become the means by which raw, vengeful,
human emotion infiltrates death penalty proceedings in the criminal justice
system.
Because of the
unique nature of capital punishment, both prosecutors and jurors allow
supplementary factors influence decisions to pursue and decide upon the death
penalty. For example, although seldom discussed openly, “part of the
calculation in deciding whether to try for the death penalty has to do with
what some prosecutors call ‘victim quality’” (Costanzo, 82). The reasoning
behind it is logical and practically reasonable, albeit prejudicial. Jurors are
more likely to impose a sentence of death on a defendant if the victim was
someone with whom a juror could relate.
It is easier to obtain a death sentence if the victim was a law-abiding,
altruistic, father of four than if he was a drug addicted, dead-beat dad with
an arrest record.
The decision to seek to death penalty is
pragmatic as much as legal. “Victim quality” is not on any official list of
aggravating factors. Jurors, perhaps subconsciously, often “assess the worth of
the victim” (Costanzo, 84).
The empathy the jury feels for the victim
has a direct connection with the acceptance of revenge as valid reasoning for
retribution. If the jury feels that the victim is someone of similar or
admirable background, a pseudo-personal connection is formed. This connection
has the potential to become as strong as one shared between the victim and
their family or friends. Naturally, primitive instincts of revenge and
vengeance surface if an act of violence has been committed against a member of
your family, social sphere, or community.
The victims’ rights movement has amplified
the attention brought to victim quality, in turn, increasing the biased
influence of revenge and vengeance in capital cases.
Advocates of capital punishment often have an almost unassailable response to
any argument for the death penalty – what
about the victims? The question is framed to force a choice of sides. One
must either be on the side of the victim’s family (henceforth, “victim” refers
to any person(s) connected to the primary victim who feel wronged by the crime)
or on the side of the murderer. This creates problems for arguing against
victim impact statements, because those who do must do so from an inferior
moral ground. Such as dynamic may have been a motivation behind the Supreme
Courts’ ruling in Payne v. Tennessee
(501 U.S. 808).
In Payne,
the Supreme Court found that although sentencing hearings are solely to
determine the procedural admissibility of evidence, victims' rights, and stare decisis, testimony in the form of
a victim impact statement in a sentencing hearing was admissible and
constitutional in death penalty cases, thereby reversing earlier rulings in Booth v. Maryland (1987) and South Carolina v. Gathers (1989).
Payne effectively “ended the repression of
revenge and gave it constitutional legitimacy in a way that no other decision
of the United States Supreme Court ever had” (Sarat 1, 35). Payne v. Tennessee opened the floodgates. For dissenting Justices Stevens and Marshall
(both of whom were joined by Justice Blackmun), the use of victim impact evidence erodes the separation of reason from
passion.
Justice Stevens wrote that the only way to preserve the retributive
theory for capital punishment was to prohibit the use of such statements.
Nevertheless, the
victims’ rights movement wanted revenge and the Supreme Court gave it to them. The Court in Payne legitimized
revenge and caused irreparable damage by fusing the emotion of vengeance with
the calculation of retribution. The case “gave a voice to victims by
expanding the legal recognition of victimhood to include the collateral
suffering of those left behind and insisting on vengeful justice for the
survivors” (Sarat 1, 44).
The
transformation death penalty sentencing has undergone because of victim impact
statements “is remade into what sociologists call a ‘status competition’
between the offender and those who were directly or derivatively injured by the
crime” (Zimring, 54). The sentencing hearing is now a competition between the
claims of private parties.
The connotations
behind the terms revenge and vengeance are not pretty. These terms do not
improve the image of pro-death politicians, nor do they alleviate the
collective conscience of the public. In order for revenge as retribution in
capital punishment cases to continue, the issue needed to be re-framed. In this
context, “the evocative term ‘closure’ was a public relations godsend”
(Zimring, 57).
At the same time,
victims convinced themselves that only through the death of the perpetrator
could they find “closure.” Of course, in a series of interviews, victim’s
families seeking “closure” were forced to admit that executions provided none.
Sister Helen Prejean’s “Dead Man Walking” directly addresses the concept of
closure, or lack thereof, for victim’s families after executions take place.
Not surprisingly,
many clinical psychologists believe that the concept of “closure” is an
illusion. “Family members’ sense of horror, pain, and loss may gradually
diminish over time, but no outcome can enable them to be free of such feelings”
(Lifton, 204).
The term
“closure” was primarily created to boost public opinion about capital
punishment and increase the support for the victims’ rights movement. According
to U.S. news sources, “the combination of ‘capital punishment’ and ‘closure’
grows almost geometrically” from 1986 to 2001 in published articles (Zimring,
60). The expansion of the term is directly related to the shift in
justification for the death penalty.
Since 1981,
public opinion surveys concerning the death penalty show a wide margin of
respondents becoming more comfortable with stating retribution as the main
reason for supporting state sanctioned killings. A Gallup poll in February 2000
found that “46% cited retribution; 12% stated that it ‘saves the taxpayer
money,’ and only 8% mentioned deterrence” (Lifton, 219).
Justice Thurgood
Marshall, in his concurring opinion in Furman
v. Georgia, stated his belief that
“the fact that the State may seek retribution against those who have broken its
laws does not mean that retribution may then become the State’s sole end in
punishing.”
By rejecting the
ideology of retribution and revenge, the last justification for the death
penalty is rejected. No reasonable theory of constitutional government can
support the proposition that one of the legal system’s objectives is to act out
of revenge. Revenge usurps the legal system and invalidates any moral authority
society claims to have in order to obtain justice.
Stop state sanctioned murder and
save money! (Now, that’s a powerful campaign slogan!)
Vote “Yes” on
Proposition 34.
Citations:
1. Sarat, Austin. When the State Kills.
Princeton University Press; Princeton, NJ. 2001.
2. Sarat, Austin. The Killing State:
Capital Punishment in Law, Politics, Culture. Oxford University
Press; New
York. 1999.
3. Lifton, Robert. Mitchell, Greg. Who
Owns Death?. William Morrow; New York. 2000.
4. Pojman, Louis. Reiman, Jeffery. The
Death Penalty: For and Against. Rowman &
Littlefield Publishers, Inc;
Lanham, MD. 1998.
5. Zimring, Franklin. The
Contradictions of American Capital Punishment. Oxford University Press;
New
York. 2003.
6. Costanzo, Mark. Just Revenge: Costs
and Consequences of the Death Penalty. St. Martin’s Press;
New York. 1997.
Proposition 35: the "Californians Against Sexual Exploitation
(CASE) Act"
State law defines “human
trafficking” as forcing or misleading people into doing 1) labor or 2) sex acts
for sale. Under state law, trafficking is punishable with up to five years in
prison, or up to eight years if the victim is under age 18. If the victim
suffers great injury, up to six more years can be added to the prison sentence.
Proposition 35, which is being bankrolled
primarily by $4 million from former Facebook executive, former Democratic
candidate for State Attorney General, and measure co-author Chris Kelly, would
increase the prison terms for convicted traffickers from the current five to
eight years to 12 years to life.
It also raises fines from $100,000 to $1.5
million, money that would be routed to the fight against trafficking and
helping victims. In addition, the measure would force convicted traffickers to
register as sex offenders for life and require police to get a minimum two
hours' training on how to handle complaints of trafficking.
In all, if approved by voters, Prop
35 will:
1. Expand the definition of trafficking
to include crimes related to distributing obscene materials depicting a child.
2. Increase prison terms for human
traffickers.
3. Prohibits evidence that the victim
engaged in sexual conduct from being used against victim in court proceedings.
4. Require convicted sex traffickers to
register as sex offenders.
5. Require all registered sex offenders
to disclose their internet accounts.
6. Require criminal fines from
convicted human traffickers to pay for services to help victims
7. Increase trafficking prison
sentences up to 15-years-to-life, and trafficking fines up to $1.5 million.
8. Fines collected would go to services
for victims and to law enforcement.
9. Mandate law enforcement training on
human trafficking.
Effect on the state budget:
State and local costs could increase
about $2 million every year with the increase in criminal justice activity.
Higher fines could bring in a few million dollars every year, which would be
spent on helping victims and of law enforcement. Collectively, local governments
could need to spend a few million dollars on training for police officers on a
one-time basis.
While practically
no one would oppose tougher penalties for human
traffickers, Prop 35 has drawn some unlikely opponents: organizations that work to protect trafficking victims.
The opponents, who range from a Bay Area
nonprofit to a co-author of California's current law against trafficking, say
that, instead of helping, Proposition 35 will set back their work by years.
Chief among their concerns is the measure's focus on hefty penalties rather
than a collaborative attack on the problem, which they say helps convict
traffickers and protect victims.
"It incorrectly presumes that
increased prosecution and protections of trafficking survivors is entirely
premised on increased penalties and fines rather than a comprehensive
approach," said Cindy Liou, a staff attorney at Bay Area-based Asian
Pacific Islander Legal Outreach.
Many of those who work with trafficking
victims are troubled by the measure's reliance on heavy penalties to fight
trafficking. That approach, they say, ignores the victims, who are vital in
building cases against traffickers and are the focus of groups such as Morgan
Hill-based Community Solutions.
Perla Flores, a program manager at
Community Solutions, said the measure's training requirements are negligible
and the hefty fines could provoke convicted traffickers into seeking revenge on
victims or their families. Also, there is nothing in the measure, she said, to
encourage nonprofits, police, city services and victims to work together.
"The work of human trafficking, it's
not just all up to the prosecutors," Flores said. "It's also
everybody else who has been at the table for years, developing a system that's
collaborative and victim-centered."
Flores' concerns are backed up by a draft report due this year from
Attorney General Kamala Harris' office, titled "Human Trafficking in
California." The report notes prosecutors need
to collaborate with victim case workers. A strong rapport with victims leaves
them more willing to share the kind of information that leads to convictions
for traffickers.
Harris’ upcoming report, which would be far overshadowed by the passage
of Prop 35, also calls into question the motives of Kelly, who is still
interested in statewide elected office. Kelly said that
he took on the issue after being shocked during his time at Facebook about what
sexual predators thought they could get away with due to the presumed anonymity
of the Internet. I’m shocked, shocked I
tell you!
While nonprofits working on the human
trafficking issue are concerned with Proposition 35, those in law enforcement
have had next to no reservations. District attorneys in Santa Clara, Alameda,
Kern, Stanislaus, San Bernardino, and Contra Costa counties have lined up to
support the measure.
I’m sure Bonnie Dumanis will get to it around November 7th.
Several real
newspapers around the state, including the Los Angeles Times and the Sacramento Bee both
editorialized against Prop 35. A “kinda” real newspaper, the Fresno Bee,
editorialized against it, and an “only in San Francisco” newspaper, the San
Francisco Bay Guardian, editorialized against it as well. Any of these
newspapers carry much more credibility than the newspaper that used to be the
San Diego Union Tribune.
What’s with the name “UT San Diego?” It’s
tantamount to some idiot buying the New
York Times and deciding to re-name it the “NY Times,” or perhaps more to
the point, the “New York T.”
Back to real
newspapers and their arguments against Prop 35. The Los Angeles T, explained its concern in a cogent, thoughtful,
reasoned, and well written editorial (those were the days!) that read, in part:
“Proposition 35 all too well displays the
weaknesses of the ballot process. For example:
1. It imposes new life terms for some
offenders — and would keep them in place even if experience shows no
correlation between longer terms and fewer or less egregious offenses.
Significantly, proponents present no studies to document or predict such a
correlation. As is typical of criminal laws adopted by initiative, this one
assumes, foolishly, that criminal minds think, plan and react the same way law-abiding
citizens do. California is just now coming to terms with the costly
consequences of a generation of long prison sentences adopted only after the
state's crime rates began their historic nose-dive; other states, meanwhile,
have been driving down crime by focusing on data and evidence-based policy and
sentencing.
2. It expands the sex offender registry
and, in so doing, converts it from a useful tool to help police and residents
track the whereabouts of potentially dangerous sexual predators into a list that
includes non-sex criminals, including traffickers who extort money. This
muddies the purpose of the database. Traffickers, along with existing sex
offenders, would be required to provide local police with their Internet
providers and screen names. Few Californians would feel sorry for criminals who
have to provide information, but it is a poorly targeted approach to the
problem with the registry — the largest in the nation.
3. It would change evidence laws to
block defendants from raising the sexual history of a victim of human
trafficking in a trial, something that is often done to attack the credibility
or impeach the character of the victim. That's a well-intentioned provision, no
doubt, but it would most likely face serious constitutional challenges.”
For what it’s
worth, the ACLU (Northern California), California Church IMPACT, and Friends (Quakers) Committee on Legislation of California oppose Prop 35,
as does the Peace and Freedom Party (of which I was a member while in college
at UC Berkeley).
Unfortunately, $4
million versus pocket change and a few headlines usually equals the passage of
Prop 35. Let’s hope that whatever Chris Kelly’s political motives, he ends up
hoisted by his own Prop 35 petard.
Vote “No” on
Proposition 35 and feel good about yourself for doing the right thing.
Proposition 36: Change the "Three Strikes Law" Initiative
Proposition 36
will modify elements of California's "Three Strikes" Law, approved by
the state's voters in 1994. In 2004, voters rejected Proposition 66, which,
like the 2012 measure, was an attempt to change some aspects of the original
"Three Strikes" Law.
A Little History About 1994’s Proposition 184, The “Three Strikes and
You’re Out” Initiative
October 1993, a Petaluma 12 year old named
Polly Klaas was abducted from her home and subsequently slain by an ex con
named Richard Allen Davis. The Klaas killing was all over the news. It went
national and international. Polly Klaas' funeral became a political happening,
with Governor Pete Wilson using the occasion to deliver a tough on crime
campaign speech.
The funeral was packed with politicians.
President Bill Clinton referred to the tragedy in a speech.
The political beneficiary, however, was a
Fresno photographer named Mike Reynolds, whose own daughter had been shot to
death in 1991 by an ex-con during a purse-snatching incident.
In the wake of his own tragedy, Reynolds
had started a campaign to lock up repeat offenders by increasing their prison
time –in some cases to life. Reynolds dubbed the effort "three strikes and
you're out." He worked with Fresno Assembly members Bill Jones, a
Republican, and Democrat Jim Costa, to craft a piece of legislation based on
Reynolds’ idea and which the two subsequently sponsored in the state
legislature. However, that three strikes bill died before an Assembly Public
Safety Committee.
Frustrated by this legislative failure,
Reynolds converted the bill into an initiative and began to gather signatures
to place it on the ballot. His effort attracted little attention until the
Klaas kidnapping and its crush of publicity. Politicians began rummaging around
for vehicles upon which to bandwagon their tough on crime positions.
One politician who discovered Reynolds was
Congressman Michael Huffington (R-Santa Barbara), who, entirely coincidentally, I’m sure, happened to be a candidate for the
U.S. Senate. Huffington signed on as a sponsor and was made co-chair of the
initiative campaign after providing Reynolds' activity with a great deal of
money. In addition, the newly formed Polly Klaas Foundation helped gather
petition signatures.
Meanwhile, in the aftermath and public outcry over Klaas' killing, renewed legislative
efforts were made, with lawmakers nearly trampling over themselves to introduce
tough on crime bills. The resultant package of crime legislation included half
a dozen three strikes options. All
of them quickly made their way through the legislative process, but the most
vociferous political pressure were applied on behalf of Reynolds' original
bill.
Although many lawmakers thought another
version authored by Assemblyman Richard Rainey (R-Walnut Creek), a former
Contra Costa sheriff was a better alternative because it applied only to
violent crimes, Reynolds and his legislative allies refused to compromise. Even
though Marc Klaas, father of the slain teenager, supported the Rainey bill, the
Legislature ultimately passed only the Reynolds bill and, of course, Governor
Pete Wilson signed it into law.
While this took away the necessity for the initiative, Reynolds and his
supporters continued their campaign, asserting that they were safeguarding the
law against “legislative tampering.” Several legislators did try to put an
alternative three strikes bill on the ballot, using provisions from the Rainey
proposal and supported by the District Attorneys' Association. This version
would have limited the third strike to violent or serious felonies and disqualified
residential burglary, which supporters said would save the state billions of
dollars. However, Governor Wilson made it clear he would veto the effort,
killing the bill.
Thanks to Michael Huffington and Pete
Wilson, and to a lesser but still culpable degree, Assemblymen Bill Jones and
Jim Costa, Proposition 184 was born. Under Prop 184, if a criminal has had one
previous serious or violent felony conviction, the mandatory sentence for a
second such conviction was doubled. After two violent or serious felony
convictions, any further felony, violent
or not, triggered a third strike; the mandatory sentence would then be the
greater of: 1) three times the term ordinarily required, 2) 25 years, or 3) a
term determined by the court. In addition, crimes committed by a minor of at
least 16 years of age counted as strikes. The amount of credit that a second or
third strike felon could apply towards eventual release was reduced from one
half to one fifth, and probation was not an alternative.
Voters passed Proposition 184 with 72% in favor and 28% against. The concept swiftly spread to other states, but none of them chose to
adopt a law as sweeping as California's. By 2004, twenty-six states and the
federal government had laws that satisfy the general criteria for designation
as "three strikes" statutes — namely, that a third felony conviction
brings a sentence of life in prison, with no parole possible until a long
period of time, most commonly twenty-five years, has been served.
On November 7, 2000, 60.8% of the state's
voters supported an amendment to the statute (offered in Proposition 36) that
scaled it back by providing for drug treatment instead of life in prison for
most of those convicted of possessing drugs after the amendment went into
effect.
Controversial results
Some unusual
scenarios have arisen, particularly in California — the state punished, up
until 2011, shoplifting and similar crimes involving under $400 in property as
felony petty theft if the person who committed the crime had one prior
conviction of any form of theft, including robbery or burglary and who had
served time in jail or prison for that offense. (The law was changed in 2011 to
require three prior theft related convictions before a petty theft could be
charged as a felony.)
As a result, some
defendants have been given sentences of 25 years to life in prison for crimes
including shoplifting golf clubs (Gary Ewing, previous strikes for burglary and
robbery with a knife). In addition, along with a previous conviction for violent
assault, Jerry Dewayne Williams stole a slice of pepperoni pizza from a group
of children (Williams’ previous convictions were robbery and attempted robbery,
sentence later reduced to six years).
In Rummel v. Estelle (1980), the Supreme
Court upheld life with possible parole for a third-strike fraud felony in
Texas, which arose from a refusal to repay $120.75 paid for air conditioning
repair that was subsequently considered unsatisfactory. Rummel was released a
few months later, after pleading guilty.
In California,
criticism has come from organizations such as Families to Amend California's
Three Strikes (FACTS). On a practical level, the Stanford Law School Three
Strikes Project is working to reverse life sentences imposed for non-violent,
minor felonies.
Enforcement of
the provision differs from county to county in California. For instance,
current Los Angeles County District Attorney Steve Cooley does not pursue third
strike convictions against offenders whose felony is non-violent or non-serious
in nature.
California is the
only state in which a misdemeanor crime can be made into a third strike. In
Leandro Andrade’s case, he was given two 25 to life sentences for various
shoplifting charges that were deemed felonies given California’s three strikes provision
that would otherwise, if a first offense, result in just 6 months of jail. He
appealed his case on grounds of cruel and unusual punishment under the 8th
Amendment. His case was determined not cruel and unusual because no precedent
existed that a three strikes sentence was cruel and unusual. In the California
Supreme Court case People v. Williams,
the Court stated that a sentencing judge could not impose a life sentence if
the defendant’s “character, background, and prospects” place him “outside the
spirit” of the three strikes law. They ruled that a trial court is required to
conduct this analysis of the spirit of the law, but without clear clarification
on how to do so.
Contradicting
interpretations and sentencing commissions limit the consistency of determining
the “spirit of the law.” Even though a judge may have more discretion,
mandatory sentencing laws ensure grand punishments that manifest in higher
ratios of convictions and severity of prosecutions, lower ratios of appeals to
convictions, and lower percentages of overturned convictions on appeal. The
three strikes law is an application that simplifies consequences for habitual
criminals, leading to lower accuracy.
Racial
disparities
The Three Strikes
law costs approximately $500 million per year to implement. Studies conducted
conclude that the policies have played little to no role in the reduction of
crime.
There are social
and economical costs associated with Three Strikes. The application and
enforcement of Three Strikes are varied demographically, and the analyses of
prison populations reflect this. In California, the costs are borne
disproportionately by African American men, who constitute only about 3% of the
state’s population, but represent approximately 33% of second-strikers and 44%
of third-strikers among California prison inmates.
Upon examining
the intersection of age, race, sex, and employment status as controlling for
legal factors, young Black and Hispanic males faced greater chances of
imprisonment than middle-aged white males. Evidence shows that judges would
often include stereotypes and characteristics of subgroups in order to apply
the Three Strikes law. Higher levels of racial heterogeneity in a population
have been directly linked to the implementation of Three Strikes Laws –
demonstrating racial disparities amongst the prison population. A large
percentage of crime, particularly drug crimes and robbery, is convicted under
three Strikes policies.
California’s
Three Strikes Law was enacted because of a citizens' initiative that gained
support from special interest groups and an unpopular governor seeking to
revitalize his campaign.
Projections show
that by 2026, an estimated 30,000 “three-strikes” prisoners will be serving
sentences of twenty-five years to life. This aging population will place an
extraordinary burden upon the resources of an already overburdened California
penal system.
Examples of Why
Prop 36 is Over-broad and Needs to be Changed:
• On November 4, 1995, Leandro
Andrade stole five videotapes from a K-Mart store in Ontario, California. Two
weeks later, he stole four videotapes from a different K-Mart store in
Montclair, California. Andrade had been in and out of state and federal prisons
since 1982, and at the time of these two crimes in 1995, had been convicted of
petty theft, residential burglary, transportation of marijuana, and escaping
from prison. Because of the prior convictions, the prosecution charged Andrade
with two counts of petty theft with a prior conviction, which under California
law can either be a felony or a misdemeanor. Under California's three strikes
law, any felony can serve as the third "strike," which is why Andrade
received a sentence of 25 years to life in prison.
• Kevin Weber was sentenced to 25
years to life for the crime of burglary (previous strikes of burglary and
assault with a deadly weapon). Prosecutors said the six-time parole violator
broke into a restaurant to rob the safe after a busy Mother's Day holiday, but
triggered the alarm system before he could do it. When Weber was arrested, his
pockets were full of cookies he had taken from the restaurant.
• Gregory Taylor was serving a 25
year to life sentence for trying to break into a soup kitchen in 1997 when he
was ordered to be released by Judge Peter Espinoza of California Superior Court
in 2010.
• Santos Reyes committed a burglary
as a juvenile with no jury trial (strike one). His second strike was a robbery
that didn't involve injury to anybody. After ten years had passed without
incident, Reyes was convicted of perjury for submitting a false application
while under oath and, because of the three strikes law, he was sentenced to 26
years to life.
The U.S. Supreme Court Doesn’t Help – No Big Surprise.
On March 5, 2003,
the U.S. Supreme Court held by a 5–4 majority that life sentences imposed for
non-violent, minor felonies as a “Third Strike” do not violate the Eighth
Amendment of the U.S. Constitution, which prohibits "cruel and unusual
punishment."
In two separate
opinions handed down on the same day, the court upheld California's three
strikes law against an attack on direct appeal from conviction, Ewing v. California, 538 U.S. 11, and a
collateral attack through a petition for habeas corpus, Lockyer v. Andrade, 538 U.S. 63 (2003).
Writing for the
plurality in Ewing, Justice Sandra Day O'Connor analyzed the serious problem of
recidivism among criminals in California, applied rational basis review, and
concluded:
“We do not sit as
a "super-legislature" to second-guess these policy choices. It is
enough that the State of California has a reasonable basis for believing that
dramatically enhanced sentences for habitual felons advances the goals of its
criminal justice system in any substantial way … To be sure, Ewing's sentence
is a long one. But it reflects a rational legislative judgment, entitled to
deference, that offenders who have committed serious or violent felonies and
who continue to commit felonies must be incapacitated.”
In his dissenting
opinion in the companion Lockyer case, Justice David H. Souter shot back at the
majority: "If Andrade's sentence ...
is not grossly disproportionate, the principle has no meaning."
Proposition 36,
specifically, will:
1. Revise the three strikes law to impose
a life sentence only when the new felony conviction is "serious or
violent.”
2. Authorize re-sentencing for offenders
currently serving life sentences if their third strike conviction was not
serious or violent and if the judge determines that the re-sentence does not
pose unreasonable risk to public safety.
3. Continue to impose a life
sentence penalty if the third strike conviction is for "certain
non-serious, non-violent sex or drug offenses or involved firearm
possession."
4. Maintain the life sentence penalty
for felons with "non- serious, non-violent third strike if prior convictions were
for rape, murder, or child molestation."
If Proposition 36
is approved by voters, approximately 3,000 convicted felons who are currently
serving life terms under the Three Strikes law, whose third strike conviction
was for a nonviolent crime, will be able to petition the court for a new,
reduced, sentence. Reducing the sentences of these prisoners could result in
saving the state somewhere between $150 and $200 million a year.
About 8,800
prisoners are currently serving life terms in California prisons under the 1994
law.
Effect on the state budget:
Savings could be between $70-90
million every year, because fewer people would be imprisoned for life, and some
current inmates would get sentence reductions. The cost of court activities for re-sentencing could be a few million dollars in the first few years.
Grieving fathers and desperate
politicians don’t result in good law.
Prop 36 is a good step in right
direction.
Next, we need to fix all mandatory minimum sentencing.
Three Strikes is Out!
Vote “Yes” on
Proposition 36.
You can be tough on crime and
practical at the same time …
Proposition
37: Mandatory Labeling of Genetically Engineered Food
“Genetic engineering” (GE) is a
process of changing plants or animals so they behave differently. For example,
common GE foods are corn or soybeans that have been changed to resist pests or
tolerate pesticides. It is estimated that between 40% and 70% of food sold in
California may contain GE ingredients. No current law specifically regulates GE
foods, or requires identification of GE foods.
Proposition 37 is
a fight the natural and organic foods industry picked against most of the
nation’s largest food producers over whether food in California should bear
labels when made from genetic material has been changed or engineered.
Lined up against
the initiative is a virtual who's who of huge food companies. Among the $1
million or more donors against Prop 37 are:
Monsanto $7,105,582
E.I.
Dupont De Nemours & Co. $4,900,000
DOW
Agrisciences $2,000,000
Bayer
Cropscience $2,000,000
BASF Plant
Science $2,000,000
Syngenta
Corporation $2,000,000
Pepsico,
Inc. $1,716,300
Coca-Cola
North America $1,174,400
Nestle USA
$1,169,400
Conagra
Foods $1,076,700
Other,
not-so-munificent, but still wealthy and well-known members of the opposition
are household names with which many of us grew up, like:
General Mills $908,200
Del Monte Foods $674,100
Kellogg Company $632,500
Hershey Company $498,006
The J.M. Smucker Company $388,000
Council for Biotechnology Info. $375,000
Grocery Manufacturers Assn. $375,000
Hormel Foods $374,300
Bumble Bee Foods $368,500
Ocean Spray Cranberries $362,100
Sara Lee $343,600
Bimbo Bakeries $338,300
Pioneer Hi-Bred International $310,100
Pinnacle Foods $266,100
Dean Foods Company $253,950
Biotechnology Industry Org. $252,000
Campbell's Soup $250,000
McCormick & Company $248,200
Wm. Wrigley Jr. Company $237,664
Rich Products Corporation $225,537
Cargill, Inc. $202,229
Dole Packaged Foods $171,261
Knouse Foods Cooperative $135,831
Mars Food North America $100,242
Sara Lee! “Nobody doesn’t like
genetically engineered food …” It just doesn’t have the same ring to it.
How about
Campbell’s, “MmmMmm, good, MmmMmm, good,
genetically engineered soups-n-stuff are MmmMmm, good!” Darn, it simply
doesn’t ring true anymore, does it?
Just one more
group of opponents who didn’t pony up more than $100,000 (chumps!):
Sunny Delight Beverages
McCain Foods
Heinz (John Kerry probably talked his wife out of
giving away the big bucks)
Idahoan Foods
Richelieu Foods
Land O'Lakes
Morton Salt
Godiva
Chocolatier (Now I have a good reason to
tell my wife that I can no longer buy her Godiva chocolate! Thank you,
Godiva, for being against food labeling!!!)
On the
"yes" side, are Nature's Path Foods, Dr. Bronner's Magic Soaps, and a
host of small donors, including organic farms.
Then there is Joseph Mercola, the
second-largest donor with $1,115,000 invested in the passage of Prop 37 (the
largest donor is the Organic Consumers Fund, which has contributed $1,334,865.
The Organic Consumers Fund is a non-profit 501(c)4 that lobbies and politically
organizes members of the Organic Consumers Association (OCA), a 501(c)(3)
non-profit, “campaigning for health, justice, and sustainability. The OCA deals
with issues of food safety, industrial agriculture, genetic engineering,
children's health, corporate accountability, Fair Trade, environmental
sustainability, and other key topics. We are the only organization in the US
focused exclusively on promoting the views and interests of the nation's
estimated 50 million organic and socially responsible consumers.”
“The Organic Consumers Association was
formed in 1998 in the wake of the mass backlash by organic consumers against
the U.S. Department of Agriculture's controversial proposed national
regulations for organic food. Through the OCA's SOS (Safeguard Organic
Standards) Campaign, as well as the work of our allies in other organizations,
the organic community over the last eight years has been able to mobilize
hundreds of thousands of consumers to pressure the USDA and organic companies
to preserve strict organic standards. In its public education, network building,
and mobilization activities such as its Breaking the Chains campaign, OCA works
with a broad range of public interest organizations to challenge industrial
agriculture, corporate globalization, and the Wal-Martization of the economy,
and inspire consumers to "Buy Local, Organic, and Fair Made."
“The Wal-Martization of the economy!” I’ll have to remember that line to use in a
piece of political direct mail one day.
Okay, so you know
about the non-profit organizations that give to Super-PACs but don’t have to
report who gave or how much? The Organic Consumers Fund is one of them. That’s
not a bad thing per se, just a thing I thought you might want to know.
Anyway, back to
Joseph Mercola. He is an osteopath who lives in suburban Chicago. So, I guess what he’s saying is that as the Military Industrial Complex
is to U.S. citizens, these giant food and other stuff producers are to healthy
living.
So, why pick a fight you can’t win?
Attempts at
labeling bio-engineered foods have had mixed luck around North America and the
world. Labeling of genetically engineered products has been defeated by
legislators in 19 states, but is required in more than 40 countries including
Japan, Australia, and most of Europe.
Labeling would
remain far from universal here even if Proposition 37 passes; it exempts
restaurant foods, alcoholic beverages and foods made from animals fed or
injected with genetically engineered material, but not genetically engineered
themselves — cow's milk and most meat are thus exempt, but soy milk would have
to be labeled.
Among the
arguments against the measure is a claim that enforcement will increase
government costs. But the official ballot pamphlet estimate indicates
enforcement may not run more than a few hundred thousand dollars, a pittance in
state government terms.
Stores would do
most enforcement, with the proposed law requiring they get sworn statements of
purity from any suppliers not labeling their foods as genetically engineered.
Opponents say this could open the door to myriad nuisance lawsuits against
grocers and their suppliers, besides increasing costs to farmers and food
processors by a purported $1.2 billion yearly.
Backers' main argument is that all food shoppers should have the right
to know exactly what's in every product they buy. This will cost next to nothing, they say, because manufacturers will
have almost two years to phase in new labels or change their products.
There are, of
course, competing scientific claims (and I always
believe the big-money, multi-national companies that have everything to gain): The big food companies insist there is no
harm in bio-engineered foods. Bob Goldberg, professor of molecular, cell and
developmental biology at UCLA, writes on the opposition website that
"Foods made using modern biotechnology are thoroughly tested and proven
safe. Labels are misleading and unnecessary."
Methinks the Professor doth protest too much!
Opponents insist
that the unspoken, but unmistakable, implication of labels is that genetically
engineered foods are unsafe. Of course,
they think that, that’s what they do!
Among the
arguments against the measure is a claim that enforcement will increase
government costs. But the official ballot pamphlet estimate indicates
enforcement may not run more than a few hundred thousand dollars, a pittance in
state government terms.
Interestingly,
the single largest donor to the "No" side is Monsanto Co., which
bills itself as "a sustainable agriculture company" while selling
many brands of seeds and weed killers. In England in the 1990s, the Monsanto backed labeling of the precise
sort it's now fighting. One of its ads then said "Before you buy a
potato, or any other food, you may want to know whether it's the product of
food biotechnology … We believe you should be aware of all the facts before
making a purchase."
Monsanto says the
reverse now, while Proposition 37's proponents virtually echo the company's
long-ago ad as their principal argument. They also say some genetically
engineered foods might cause allergies.
Program #
|
Compliance
Program Title
|
7303.003
|
Import Acidified and Low-Acid Canned Foods Program
(FY06/07/08) Implementation Date: 7/31/2006
|
7303.037
|
Domestic
and Imported Cheese and Cheese Products (FY99/00/01) Implementation Date:
"Upon Receipt"
|
7303.039
|
National
Drug Residue Milk Monitoring Program (FY98/99/00)
Implementation Date: "Upon Receipt" (Abeyance)
|
7303.803
|
Domestic
Food Safety Program (FY 07/08) Implementation Date: "TBD"
|
7303.803a
|
Domestic
Acidified and Low-Acid Canned Foods Implementation date:10/8/2010
|
7303.819
|
Import
Foods – General Implementation Date: 9/5/2006
|
7303.842
|
Domestic
Fish and Fishery Products (FY08/09/10)
Implementation Date: 12/18/2007
|
7303.844
|
Import
Seafood Products Compliance Program Implementation Date: 7/1/2010
|
7303.847
|
Juice
HACCP Inspection Program Implementation Date: 11/02/2010
|
7304.004
|
Pesticides
and Industrial Chemicals in Domestic and Imported Foods
Implementation Date: 9/5/2006
|
7304.018
|
Chemotherapeutics
in Seafood Compliance Program (FY 09/10/11) Implementation Date: 10/01/2008
|
7304.019
|
Toxic
Elements in Food & Foodware - Import and Domestic
Implementation Date: "Upon Receipt"
|
7304.839
|
Total
Diet Study (FY 10/11/12) Implementation Date: "Upon Receipt"
|
7307.001
|
Mycotoxins
in Domestic and Imported Foods (FY 07/08)
Implementation Date: 01/22/2007
|
7309.006
|
Imported
Foods - Food and Color Additives (FY 09/10/11)
Implementation Date: "Upon Receipt"
|
7318.002
|
Retail
Food Protection - State (FY 12/14) Implementation Date: "Upon
Receipt"
|
7318.003
|
Milk
Safety Program (FY 09/10/11) Implementation Date: "Upon Receipt"
|
7318.004
|
Molluscan
Shellfish Compliance Program Implementation Date: 10/1/2011
|
7318.029
|
Interstate
Travel Program - Conveyances and Support Facilities
Implementation Date: 10/1/2006
|
7321.002
|
Medical
Foods - Import and Domestic Implementation Date: 8/24/2006
|
7321.005
|
Domestic
and Import NLEA, Nutrient Sample Analysis General Food Labeling Program
Implementation Date: 7/31/2006
|
7321.006
|
Infant
Formula Program - Import and Domestic (FY 06/07/08)
Implementation Date: 7/31/2006
|
7321.008
|
Dietary
Supplements - Import And Domestic Implementation Date: 7/31/2006
|
The FDA does not
mandate labeling for most of the products listed above. They allow producers
(or is to “creators?”) of genetically altered food to take “an alternative approach may be used as long as the approach satisfies the
requirements of the applicable statutes and regulations.”
What are the
“requirements of the applicable statutes and regulations?”
If the result is substantially similar in it’s chemical make-up and the impact on humans, then it’s okay
with the FDA!
If all of the
makers or packagers or importers of foodstuff above If everyone is doing it,
why won’t Coke, or Nestle’s, or General Mills, or Kellogg’s?
Once, Prop 37 was
ahead statewide by more than a 2-1 margin, it still led 48.3% to 40.2% in a
poll released October 11, 2012 by the Pepperdine University School of Public
Policy and the California Business Roundtable. Undecided voters accounted for
11.5%.
Pollsters now foresee a tightening race, as
opponents continued a media blitz financed by $35 million in campaign
contributions.
"This is a
great example of the power of advertising," said pollster Chris Condon of
M4 Strategies, which conducted the survey … Participants were asked to read the
official ballot description and pro and con arguments before responding.
The new poll
results marked a big change from previous polls that showed broad support for
the measure, with some showing backing in the high 60% range. The poll took
place just as a pair of televised anti-Proposition 37 spots hit the air.
"A lot of
money has been poured into the No side, and the effect has been dramatic,"
Condon said. "It's down 19 points" since the previous biweekly poll.
Both sides of the
Proposition 37 battle reacted predictably to the latest sounding.
The Yes campaign
has been hurt by "10 days of incessant, pounding lies" on television,
said spokeswoman Stacy Malkan, "but in the end, Californians will
value knowing what's in their food, and we're confident they will vote yes on
Proposition 37."
At the No on 37
campaign, spokeswoman Kathy Fairbanks said greater skepticism shown in the poll
was the result of a combination of television advertising, news stories and
newspaper editorials opposed to the measure. "The more people learn about
Proposition 37, the less they like it," she said.
Unfortunately,
the labeling requirements in Proposition 37 will not be implemented in the near
term.
It’s another case
of hot pockets – I mean, deep pockets – thwarting the will of a small group of
dedicated people concerned about the common … and not so common … good.
Confused voters vote “no,” especially with a
one-sided barrage of campaign commercials, as the "no" side vastly
outspends backers, what amounts to a scientific decision, and disinformation
from both sides.
The lack of
evidence (which is what the industry giants argue concerning GE foods) is not
evidence, especially when you’re not certain what you are looking for or when
it will present itself (one year, ten years, fifty years … who knows?)
That’s the
problem. Nobody knows.
I’m voting “Yes,”
… just in case characters like those from the movie “The Hills Have Eyes”
start popping up.
Proposition
38: State Income Tax Increase to Support Public Education
I became friends with attorney and Long Beach civic leader Doug Otto
when I ran his fist campaign for public office in 2000. The position to which
he was elected was Long Beach Community College Board Trustee (aka Long Beach
City College Board, as City College is the only school in the District). Doug
has been as active and involved in his city as anyone I know in any city. He’s
smart as a whip. He’s also a smart-ass, which is probably why I like him so
much.
I ran Doug’s campaign for re-election to the Community College Board
earlier this year. The first time I ran his campaign, it was more about
defeating a well-funded, well-known opponent. This year, it was explaining
California’s 112 Community Colleges that provide educating and training 2.4
million residents.
Doug, as usual, has thrown himself into not
only into his position on the Long Beach City College Board (LBCC), but also
has become a forceful advocate for California’s Community College system, which
is unlike any higher education institution in the nation.
I learned a great deal.
Why am I telling you this?
One of several very important differences between Proposition 30 and
Proposition 38 is that Prop 38 funds will go to K–12 school districts, early
childhood programs, and for four years to repaying state debt. I support all of
those goals, although I’m certain that Munger threw in the debt reduction
provision to make it seem her measure was comparable to Prop 30.
I am peripherally concerned that under Prop 38, even if the economy
improves, more people get back to work, and, with or without necessary
education reforms, the tax increases continue for the next twelve years.
Similarly, “if you earn $17,346 or more per year in taxable income,
Prop. 38 will raise your California personal income tax rate by as much as 21%,
on top of what you pay the Federal government."
Joe Matthews of
NBC 4 on Prop 38
“In the new film
The Hunger Games, children are forced to hunt each other in a dystopian future,
all for the entertainment of the wealthy. I would love to apply a possible
metaphor from this tale to California's political moment, but there are simply
too many metaphors to choose from.
So let's leave it
at this: Molly Munger has nothing on those kids in the Hunger Games.”
My major concern is that our
state’s community college system won’t get one penny if Prop 38 is approved.
Whether it's retraining unemployed workers for new jobs, helping
students earn a degree or transfer to a four-year institution, or teaching
recent immigrants to speak English, community colleges provide value students
and to the state’s economy.
You may have heard the President or any number of economic researchers
say that California must dramatically increase the number of college-educated
workers to remain competitive globally. According to the California Workforce
Investment Board, nine of the top 10 skilled jobs in the next decade will
require college training.
However, education and workforce training priorities will need to be
refocused in order to produce the workforce our state's economy needs. We must
restore wide access to higher education, and to improve the success rate of
our students.
California's system of higher education is intentionally
interconnected. Fifty five percent of California State University graduates
started at a community college, as did 28% of University of California
graduates. The majority of nurses, law enforcement officers, and first
responders are trained at community colleges, and nearly 50% of UC's bachelor's
degree holders in science, technology, engineering, and math transferred from a
community college.
Over the past three years, community colleges have had their budgets
cut by $809 million, or 12%. The cuts led to denial of access to 485,000
students statewide. That's more students than attend all Cal State campuses
combined.
These draconian cuts come at a time of peak demand. More workers than
ever are seeking retraining because of the weak economy. More veterans
returning home are seeking a college degree or training for civilian jobs.
A record number of high school graduates are vying for entry to the
state’s higher education system, and more students are turning to community
colleges because of state budget induced tuition and fee increases at CSU
and UC.
This year, students who were lucky enough to get into community
colleges found fewer classes, fewer instructors, higher fees, and larger class
sizes.
This is where Prop 30 comes in and Prop 38 comes up short. If Prop. 30
fails, midyear budget cuts would result in 180,000 fewer students being served,
and could result in some community colleges failing financially.
If Prop. 30 is approved, it would stop the cuts and allow community
colleges to begin adding back a few of the classes they have been forced
to eliminate.
California’s higher education system, driven by the 1960 California
Master Plan for Higher Education was the envy of the of the nation. It was also
one of the reasons that California's economy from the 1960’s through the 1990’s
resulted in unprecedented prosperity.
I came to California to attend UC Berkeley
and it seemed I had unlimited choices for my future. California college
students deserve no less.
Vote “No” on Prop 38, accompanied by your “Yes” vote on Prop 30 and
keep your fingers crossed that the Mungers have yet to doom both measures to
defeat.
WHAT HAPPENS IF VOTERS APPROVE BOTH PROP 30 AND PROP 38?
Both Prop 30 and Prop 38 would
increase personal income tax rates, but in different ways. When sections of two
or more ballot measures conflict like this and voters approve both, the state Constitution says the measure
that gets more YES votes will be the one to go into effect.
Both propositions are written
similarly. Prop 30 says that if it gets more YES votes, then Prop 38 will not
go into effect. Prop 38 says that if it gets more YES votes, then Prop 30’s tax
increases will not go into effect.
If voters approve both Prop 30 and Prop 38, the courts will most likely
need to decide what sections of those measures go into affect.
However, if Prop 30’s tax increases do not go into effect, it will force
$6 billion in “trigger cuts” that lawmakers set as a backup plan if voters did
not approve Prop 30.
Vote “No” on Prop 38 and “Yes” Prop 30.
Proposition 39: Income Tax Increase for Multistate
Businesses
It seems November
2012 is the year of the billionaires.
There is Charles Munger Jr., who has put $36 million into a committee to oppose
Proposition 30, the Governor’s tax initiative and support Proposition 32, which
would effectively deny labor unions the right to fund political advocacy.
George Joseph of
Mercury Insurance has put $16.4 million into his Prop 33.
Chris Kelly,
former Facebook executive, former Democratic candidate for State Attorney
General, and co-author of Proposition 35 is giving $4 million to his campaign
to give longer prison sentences to human traffickers.
There’s Joseph
Mercola, Proposition 37’s backer who has invested $1.12 million.
Molly Munger, who
has bankrolled the entire campaign for her Proposition 38 with $33.5 million.
Now, hedge fund
manager Thomas Steyer, has dumped $33.5 million into Proposition 39.
And that’s just individuals.
Labor unions are
fighting for their political lives and have spent about $32 million while
corporate and Republican interests have ponied up more than $57 million.
And, how about
the $33.5 million from our formerly favorite food producers to oppose
Proposition 37, which would require labeling for all genetically engineered
food products?
Prop 39 will
close what Steyer calls “a major loophole” in state law.
Opponents like
the Chamber of Commerce call it a “tax incentive” that will keep businesses in
California and create jobs, as they say every time they want to roll back a law
or regulation. The “loophole” allows multistate companies to choose to not pay
California taxes in exchange for building alternative energy projects, who into
his little hobby.
Multistate
businesses represent the third largest source of revenue for the state's
General Fund – $9.6 billion in 2010-11, according to the legislative analyst.
These businesses operate in California and in other states or countries at the
same time.
How It’s Supposed to Work:
Currently,
multistate businesses are permitted to choose between two formulas for paying
taxes in California. The first, which is often called the
“three-factor-method,” bases tax liability on a combination of sales, property,
and number of employees a business has in the state.
The other, known
as the single sales factor method, bases tax liability solely on their amount
of sales in the state. Each business chooses between the two options above and
generally chooses the method by which they will be taxed based on which results
in the least taxes.
Under Prop 39,
multi-state companies could only choose only the single sales factor method.
Half of the
revenues raised by requiring the single sales factor, with a maximum of $550
million a year, would go into a newly created fund to support projects that
improve energy efficiency and expand the use of alternative energy.
Deposits into the
Clean Energy Job Creation Fund would continue for five years, ending in 2018.
The legislature
would decide how to use that money, though it would be required to use it on
"cost-effective projects run by agencies with expertise in managing energy
projects," according to the legislative analyst.
The fund could be
used to support:
• Energy efficiency retrofits and
alternative energy projects in public
schools, colleges, universities, and
other public facilities
• Financial and technical assistance
for energy retrofits
• Job training and workforce
development programs
Any projects would have to be
coordinated with the California Public Utilities Commission and the California
Energy Commission, and Prop 39 would create a nine-member oversight board
responsible for annual reviews and audits.
On to Thomas Steyer and Proposition 39.
Founder
& Co-Senior Managing Partner, Farallon Capital Management
Age: 55
Source of
Wealth: hedge funds
Residence:
San Francisco, CA
Country of
Citizenship: United States
Education:
Bachelor of Arts/Science, Yale University, Masters of Business Administration,
Stanford University
Forbes Lists:
Thomas Steyer
spoke at the Democratic National Convention in Charlotte, North Carolina, where
he served as a delegate. He is the primary backer of California ballot
initiative Prop. 39, which aims to close a corporate tax loophole that lets
multistate businesses choose to pay taxes outside of California and use the tax
funds for alternative energy projects. He's contributed $33.5 million to get
the measure passed.
In 2010, Steyer
successfully led the opposition to a California ballot initiative that would
have overturned existing a law that limits greenhouse gas emissions.
He continues to
back the Advanced Energy Economy business organization, which he cofounded. It
is working to help American alternative energy companies succeed. He donated
$10 million in 2012 to its affiliated nonprofit Advanced Energy Economy
Institute.
He and his wife,
Kat Taylor, were among the first to sign the Gates-Buffett Giving Pledge in
2010. The couple gave $25 million to Steyer's alma mater, Yale University, in
September 2011, to establish an energy sciences institute. They also gave $40
million to Stanford University (where Steyer got his MBA) in 2009 to establish
the TomKat Center for Sustainable Energy, and another $7 million in 2010 to
create the Steyer-Taylor Center for Energy Finance and Policy. In 2004, they
created a foundation to start a community bank, One Pacific Coast Bank, and
have so far spent $50 million to fund it.
Current Tax Treatment for Multistate Businesses
A “multistate” business is one that
operates in California, other states, and countries. The majority of
California’s corporate income taxes come from multistate businesses – nearly $10 billion dollars in California last year.
Current law gives these businesses a
choice about which way they calculate how much tax they owe to the state. They can use a formula based on their
sales, payroll, and property in the state, or a formula based solely on their
sales in the state - known as the single sales factor.
Almost all of the multi-state
companies choose the formula that taxes them on their sales, payroll, and
property in the state because they pay lower taxes under that formula than they
would using the single sales factor.
Steyer says this
hurts job creation, “We want to take away the incentive for companies to
fire Californians and move their facilities out of state while selling into the
largest market in the United States."
Prop 39 will:
Require all multistate businesses to
pay state income taxes based on the percentage of their total sales in
California (the single sales factor). For the first five years, half of the increased money coming into the
state would be dedicated to projects that create energy efficiency and clean
energy jobs.
The state's non-partisan legislative
analyst says:
If passed,
Proposition 39 would add possibly $1 billion to the state’s revenue and create
approximately 40,000 construction and clean energy jobs.
Initially, this
extra revenue would fund green energy projects, construction projects, public
schools, and boost the state’s general fund.
Supporters of
Proposition 39 assert that it will close a tax “loophole” that currently
rewards out-of-state companies for taking jobs out of California and, for tax
purposes, treats out-of-state companies the way California-based companies are
treated.
Opponents argue
that Proposition 39 is a tax increase. Beacon Economics, an independent
economic research firm, released a study on Proposition 39 which argues that
the initiative, if passed, will level the tax playing field in California by
limiting tax liability incentives for out-of-state businesses.
Similar laws have
been passed in New Jersey, Illinois, and Texas. New Jersey Republican Governor
Chris Christie said, "moving to a single sales factor removes a barrier to
firms seeking to locate and grow their business and jobs in New Jersey, while
also helping retain companies with headquarters in the state."
California State Assembly Speaker John Perez sponsored similar legislation earlier this year. His proposed Middle Class Scholarship is geared toward
helping students from middle class families with an income of up to $150,000
reduce tuition fees by two-thirds. It would save an estimated 42,000 UC
students approximately $8,169 and 150,000 California State University (CSU)
students $4,000 annually.
The Middle Class Scholarship is composed of
two bills – AB 1501 is the scholarship itself and AB 1500 will provide the
funding for the scholarship by closing a corporate tax loophole (requiring
multi-state corporations to only be permitted to use the single sales factor in
calculating their taxes).
One student said, “Corporations should pay
for college tuition breaks in the form of taxes because they would be helping
to educate future employees and making our state a place for more equal
opportunities."
The State
Assembly passed AB 1501 on May 30, 2012 with a vote of 55-20-5.
On August 16,
2012, the State Senate Appropriations Committee voted to send AB 1501 to the
floor of the Senate with a 5-2 vote.
AB 1500, the
funding portion of the pair of bills, was passed out of the Assembly and to the
Senate on August 13, 2012 on a vote of 54-25-1.
On September 1, 2012, AB 1500 made it to the floor of the
State Senate. However, since the bill had an urgency clause (language in
the bill that states it will take effect immediately upon enactment. A
Floor vote on the urgency clause must precede a vote on the bill),
a two-thirds vote is required for adoption of the clause and for
passage of the bill. The Senate failed to approve the urgency clause vote
by 22 to 15. AB 1500 remains in the Senate and will be considered
when the legislature reconvenes in December.
Prop 39 will
require them to multi-state corporations doing business in California to
calculate their tax liability using the "single sales factor method,"
in which their liability is based solely on their amount of sales in the state.
As usual, the Chamber of Commerce types say multi-state companies might
cut jobs or raise prices if Prop 39 passes.
“Companies that
would be hurt by single sales factor in California include many manufacturers
who have payroll and property here, but they just have so much sales in the
state because we're so huge, that taxing them on the basis of their sales makes
their taxes go sky high."
Isn’t this, or something like this, what they say every time?
Despite support among California
businesses, the Governor has failed to persuade enough GOP lawmakers to change
the law.
That’s no surprise because since the
Chamber calls what part of Prop 39 does is a tax, the Republicans go along
(sort of like Pavlov and his dog).
If it’s a tax, then the vast
majority of Republican elected officials in Sacramento have pledged their souls
(if they have them) and their first borne child to Grover Norquist, who requires
Republicans to sign the oath (I’m told in blood) to not raise taxes ever.
Yet every other large state,
including Texas, requires companies to use the single-sales factor method. As
Steyer recently put it, "There is no California worker, business person or
citizen whom (Proposition 39) doesn't benefit. None."
Republicans vehemently disagreed and
said that changing the corporate tax formula could backfire on the very
students the scholarship program seeks to help.
“I rise in opposition to this bill
because it’s a bad idea,” said Twin Peaks Republican Tim Donnelly with
characteristic bluntness. “We are literally investing in education and there
aren’t going to be any jobs for these kids because we keep driving businesses
out of the state.”
California has
been out of step with the national bipartisan trend on this issue.
Seventeen states, including Texas, New York, and New Jersey, have enacted a
mandatory Single Sales Factor rate. Last month, Pennsylvania’s Republican
Governor Tom Corbett signed his state’s law. Gov. Jerry Brown would like to
have that same opportunity.
The same
coalition of automakers, Chambers of Commerce, and manufacturers that blocked
the last two measures are lobbying against AB 1500 this session. In a memo to
members of the state Assembly two months ago, they wrote that while the goal of
the Scholarship Act is laudable, changing the tax “will further erode
California’s ability to attract and compete with other states for business
investment and hiring.”
Opposition to a
mandatory Single Sales Factor formula isn’t universal among businesses in the
state. A number of large high-tech companies, including Genentech, Qualcomm,
Cisco, and BIOCOM, have announced their support for PĂ©rez’ bills.
Nathan Fletcher,
the Legislature’s only Independent, whose district includes Qualcomm,
admonished Republican members for being more interested in helping giant
out-of-state corporations, like the automakers Chrysler and General Motors,
than in supporting local business and students.
“At the end of
the day, every vote we take up here is about choices and about values,”
Fletcher said to his colleagues, “and the choice before you today is clear:
you’re either going to stand with California employers or with out-of-state
employers; you’re either going to stand with California students or with
out-of-state employers.”
Man, I like this Fletcher guy! I wish he were on the November ballot for
Mayor of San Diego.
The Proposition 39 campaign has said that
if AB 1500 passes, the will “stand down from pushing for Proposition 39.”
While AB 1500 and its companion bill, AB
1501, have passed their first challenge and are now in the Senate, Democrats
are two votes short of the necessary two-thirds needed to pass the Middle Class
Scholarship Act.
We’ll just have to vote “Yes” on 39, hope to pick up a few Democratic
seats in the Senate, and see what happens in the next session of the
legislature, beginning in December.
Proposition 40: Referendum on the State Senate Redistricting Plan
Each state lawmaker represents people who live in a specific district. Every 10
years after the U.S. census, the Citizens Redistricting Commission adjusts the
maps for these districts to make sure each district has about the same number
of people (aka “redistricting”).
On October 27,
2011, the California Supreme Court refused to intervene in new voting districts
drawn by the Citizens Commission, deciding unanimously to reject two challenges
to the boundaries. The high court considered the legal challenges, brought by
Republicans seeking to overturn congressional and state Senate district maps,
in a closed session, and the judges did not comment on their reasons for
rejecting the lawsuits.
A separate group of Republicans, including
former Rep. George Radanovich, filed a lawsuit alleging that the congressional
maps violate the U.S. Constitution and the federal Voting Rights Act by failing
to protect minority rights in some places. You
know Republicans are desperate when they are defending the Voting Rights Act because
it doesn’t protect minorities!
The case, filed in the Central District of
California, "provides irrefutable evidence" that the commission
"intentionally ignored federal law" in drawing the new districts,
according to Radanovich.
The law says that these district maps can
be challenged by a referendum, requiring voters to approve them.
Another group of Republican activists,
calling themselves Fairness and Accountability in Redistricting (FAIR), spent
$2.5-million gather signatures to qualify a statewide initiative for the
November ballot, challenging the State Senate maps drawn by the California
Citizens Redistricting Commission.
The referendum would allow voters the final
word on the Senate maps. Dave Gilliard, a consultant who oversaw the petition
drive for the referendum said the activists believe the state's high court
could act in time for the June elections. He said FAIR's attorneys believe
current redistricting law gives the court the authority to create new maps once
signed petitions for the referendum have been filed.
"We believe we have put in enough
signatures to put the commission's lines on hold and there will be new lines in
June and November," Gilliard said.
In January 2012, the California Supreme
Court ruled that the State Senate redistricting maps generated by the
California Citizens Redistricting Commission pursuant to 2008's Proposition 11
must be used throughout the elections of 2012.
The state Supreme Court upheld the
2012 redistricting plan, which, among other changes, redrew the local state
Senate district to make it more representative for Santa Cruz and north
Monterey counties. It also made the 17th Senate District a safe seat for
Democrats, costing the Republican incumbent any reasonable chance of winning in
2012. The incumbent, Sen. Sam Blakeslee of San Luis Obispo, decided not to run
again and Monterey Democratic Assemblyman Bill Monning is the odds-on favorite
to win in the newly drawn district.
On February 10,
2012, a federal court judge dismissed a lawsuit brought by Republican
plaintiffs seeking to overturn California’s new congressional district maps,
eliminating one of the last remaining challenges to the work of the independent
citizens commission that drew new political lines for state and congressional
offices.
U.S. District Judge Stephen V. Wilson
dismissed the suit brought by former Rep. George Radanovich and four other
Republicans, who alleged the commission had improperly used race as a factor in
creating the new districts. The suit cited three Los Angeles County
districts that were drawn to encourage the election of African American
representatives.
The plaintiffs had turned to federal court
after the California Supreme Court turned down GOP challenges to congressional
and state Senate district maps.
The only remaining challenge to the
commission’s work was the potential referendum on state Senate districts.
Elections officials had until Feb. 24 to
determine whether there were enough valid signatures to put the matter before
voters in November.
However, the state high court has already
ruled that the commission’s new districts will be used in this year’s elections
and would be changed only if voters get a say and reject them.
On
February 24, 2012, the Secretary of State released the
valid signature count totals for a referendum filed by Fairness and Accountability
in Redistricting (FAIR) seeking to prevent the implementation of the Senate
maps adopted by the Citizens Redistricting Commission. The Secretary of State
determined that the proponents had submitted a sufficient number of valid
signatures for the referendum to be deemed qualified and to appear on the
ballot in November.
In January 2012, the Secretary of State
indicated that the referendum did not meet the threshold to qualify by the
random sample method, but would instead require a full count, which requires
the verification of each signature submitted. Exactly 504,760 valid signatures
were needed for the referendum to appear on the ballot in the November primary.
Republicans had collected 711,307 signatures, which were put through the
verification process in the full count.
The full count confirmed 511,457 signatures
were valid. The referendum is now on the November ballot as Proposition 40. The
November election results will determine which maps will be used for future
election cycles.
Proposition 40 is on the November 6,
2012 ballot as a veto referendum. It is an attempt to use California's veto
referendum process to nullify the California State Senate redistricting plan
approved by the California Citizens Redistricting Commission.
Note: A
"yes" vote on this veto referendum is a vote to maintain intact the
work of the California Citizens Redistricting Commission, while a
"no" vote is a vote to overturn the commission's lines. The sponsors
who put this on the ballot are thus its opponents.
Under ordinary circumstances – if there
exist “ordinary circumstances” in this situation – and the referendum passed by
receiving more than 50% of the votes, the Redistricting Commission's Senate
lines would have been deemed ratified by the voters and will be used until the
next redistricting cycle is completed in 2021.
If the referendum failed, the California
Supreme Court will have assumed jurisdiction and appointed Special Masters to
draw new lines that will be used starting in 2014 until the next redistricting
cycle is completed in 2021.
However, when the California Supreme Court unanimously rejected two
Republican challenges to the boundaries in a closed session on October 27, 2011
and did not comment on their reasons for rejecting the lawsuits, it was obvious
the Court would not accept further challengers to invalidate the voting
districts drawn by the Citizens Commission.
Therefore, on
July 12, 2012, Republican lawmakers and activists dropped their campaign.
Nevertheless, it was too late to pull Proposition 40 from the ballot, where it
remains while the Republicans are now telling voters to uphold the Citizens Commission state Senate boundaries by voting “Yes.”
I’ll say something I never thought I would say in my life:
Listen to the Republicans, vote “Yes” on this stupid mess
they created.
End
of Part One – Statewide Ballot Initiatives.
Coming
in a day or two, Presidential and other candidates.
