Yes on 57

I’ve been avoiding Proposition 57 because, without having read the text of the law yet, I assumed it would require cross-referencing with the penal code, and I wanted to set time aside to do that.

I was wrong; it does not require such cross-referencing, because it’s actually very, very simple.

Prop. 57 does three things:

[a] anyone in prison for a nonviolent felony is eligible for parole *consideration* after completing the full term for their primary offense.

[b] The Dept. of Corrections and Rehabilitation (“Corrections”) can award good behavior credits.

[c] When kids between the ages of 14-18 commit crimes, instead of being automatically transferred to adult court if the prosecutor follows the procedure needed to do it, will only be transferred to adult court *if a juvenile court agrees to the transfer* after considering the behavioral patterns and social history of the minor.

Prop. 57 is on the ballot at the behest of our Governor, who put it there as part of an attempt to change criminal procedure in the s tate, partly for the purposes of finding a way to comply with a federal court order to reduce prison overcrowding. There’s a good argument that the proposition violates the California Constitution, which requires that initiative propositions be confined to a single subject; the parole-related provisions were tacked on to the juvenile justice change after the initiative was initially submitted, and they don’t really address the same issue. Still, the California Supreme Court said it didn’t violate the single subject rule, and so it’s on the ballot. 🙂

In order to understand the effects of these changes, it’s helpful to look at what happens now. 🙂

===How do criminal sentences and parole currently work?===

Currently, California has two different sentencing schems: “indeterminate sentencing”, in which convicts are sentenced to a variable-length term with a defined minimum and no defined maximum (eg, “25 years to life”), and “determinate sentencing”, in which people are convicted to a fixed term. Prior to the late 1970s, California *only* had indeterminate sentencing, but the stte adopted a determinate sentencing scheme for most offenses during the late 1970s.

For people sentenced to indeterminate sentences, after the *minimum* term is served, the parole board conducts a hearing and considers whether to let the guy out or not. Some people get out; some people don’t get out. The people who don’t get out have another hearing in a couple of years (the length depends on various things). Some people (notoriously Charles Manson and his friends) go to hearing after hearing after hearing and never get out.

For people sentenced to determinate sentences, there is no parole hearing; they automatically get out when their term ends. Furthermore, many non-violent felons serving determinate sentences are currently released at *half* of their prison sentence due to the implementation of a federal court order requiring California to reduce criminal overcrowding.

Some people are sentenced to multiple consecutive sentences because they commit multiple crimes. Consider, for example, someone who was arrested for possessing heroin with intent to sell, but who also had in his possession an amount of cocaine sufficient for personal use. If convicted of *both* offenses, he would be sentenced to two consecutive sentences: one for the heroin, one for the cocaine. As both would be determinate sentences, he would not be eligible for release until he’d served all of both.

=== What does Prop. 57 do to parole? ===

Under the terms of Prop. 57, nonviolent criminals who are sentenced to multiple consecutive sentences because they have been convicted of multiple crimes will be eligible for parole as soon as they have served the time required for their *primary* offense. So, in the example above, the guy would get out when he w as done serving t he time for possessing heroin with i ntent to sell.

=== What are the arguments for and against this part of the proposition? ====

The primary argument *for* this is: the state is under federal court order to reduce prison overcrowding. We’re *not* going to do that by building new prisons (because there’s no money and insufficient political support), and this is one of the lowest-impact ways we can come up with to reduce prison populations: let nonviolent criminals who are in for a long time out earlier.

The primary arguments *against* this are: this will let dangerous criminals loose on the streets of California, and this *in effect* means the criminal isn’t being punished *at all* for his lesser crimes – by punishing him only for the primary crime, the state is allowing him to get away with the other crimes.

The official argument against claims the proposition will reduce sentences for people convicted of raping an unconscious victim, human sex trafficing, lewd acts against a fourteen year old, and other terrible crimes. This is true, but *only* because *existing law* defines these crimes as nonviolent – the initiative doesn’t define nonviolent, it uses the existing definition under state law. That definition can be changed by the legislature at any time.

=== How do early release credits work today? ===

Under state law, inmate sentences can be reduced by a certain amount (it differs among category of crime) for prison labor, participation in education programs, and good behavior. Some prisoners are not eligible due to the nature of their crime.

=== What does Prop. 57 change? ===

Prop. 57 changes the Constitution to allow good behavior credits (which are currently authorized by statute). This will have the effect of increasing the number of people who are able to get them, as it allows Corrections to determine eligibility by regulation (instead of eligibility being spelled out in statute).

=== What are the arguments for and against this part of the proposition? ===

There are two arguments for: (a) we need to reduce prison overcrowding, and (b) rewarding inmates for good behavior, participating in education and training programs, and working *encourages them to do these things*, which both improves management of the prisons AND increases their rehabilitative effect.

The arguments against are: (a) it will let dangerous criminals out on the street, and (b) by extending eligibility to people convicted of various horrible crimes, it reduces the punishment for those crimes, and that’s unfair to their victims and dangerous to the public.

=== How do juvenile justice transfers currently work? ===

Under current law, children aged between 14 and 18, who are accused of cimmitting crimes after they turned 14, are automatically transferred to adult court if they are accused of committing murder or sex offenses with special circumstances, are automatically transferred if a prosecutor alleges that they have a significant criminal history or if they are accused of particular crimes, or they can be transferred via a hearing in front of a juvenile court judge. In 2015, according to the LAO’s analysis, less than 100 juveniles were transferred to adult court via a judicial hearing, and between 500 and 600 juveniles were sent to adult court total.

=== What does Prop. 57 do? ===

Prop. 57 eliminates *all* automatic transfers to adult court and only allows transfers after a hearing in front of a juvenile court judge.

=== What are the arguments for and against this part of the proposition? ===

The arguments for is that allowing a prosecutor to make the decision on their own doesn’t provide sufficient procedural protection to determine whether a juvenile is competent to be tried as an adult.

The argument *against* is that this will allow vicious children to continue to be prosecuted by the juvenile system, which will coddle them and prevent them from learning the lessons needed to keep them from becoming vicious adult criminals.

—-

For me, the case for the third part is compelling: allowing *prosecutors*, on their own without judicial oversight, to decide that children should be tried as adults is a terrible process. It vests the power to decide someone’s *competence* in the hands of a person whose job it is to *prove their guilt*; it creates an inherent conflict of interest and undermines the integrity of the process.

I’m neutral on the first and second part. I’m not screaming for this reform the way I am screaming for other reforms, *and* I’m not opposed to itt; we really do need to reduce our prison population, and reducing sentences for nonviolent offenders, while providing an incentive for both good behavior and participation in rehabilitative programs seems like it’s a great way to do that.

I’m voting yes.

Yes on 67; No on 65

Time is running out, for which I apologize.

Proposition 67 is the one true referendum on the ballot this year, and Proposition 65 is a strange measure which interacts with it.

—What do I mean when I say Proposition 67 is the one true referendum?—

In California law, there is a distinction between an *initiative* and a *referendum*.

An *initiative* is a new law proposed by the voters. It is placed on the ballot after a member of the community drafts a law, pays a fee to the Attorney General to prepare petitions, and gets enough signatures via those petitions. A ‘yes’ vote on an initiative adopts the new law; a ‘no’ vote keeps the status quo.

A *referendum* is a *voter objection to a law passed by the legislature and signed by the governor*. The legislature passes a law, the governor signs it, and then displeased voters take out a petition to force the law to (a) be suspended until the next election and (b) only go into effect if the voters approve it. A ‘yes’ vote on a referendum *keeps the law as written by the legislature*; a ‘no’ vote *overrules the legislature and returns the law to the way it was before the legislature acted*.

Proposition 67 is the only actual *referendum* on the ballot this year: it’s a law passed by the legislature in 2014 and immediately suspended by voter outrage.

—-What does Prop 67 do?—-

* it prohibits covered grocery stores from providing single-use carryout bags to customers for free, but allows the sale of reusable bags and the sale of recycled paper bags for at least $.10/bag.

* it requires stores to provide recycled paper bags or reusable bags for free to people using a payment card or voucher issued by the supplemental food program for WIC

* it allows stores to give away compostable bags for free, if the local jurisdiction allows it

The policy reasons causing the legislature to vote to this were that single-use bags generate a lot of waste, at least some of which ends up in storm drains and therefore in the ocean; restricting them will reduce waste and pollution.

The policy reasons stoking the referendum were that this is in effect a hidden tax and an inconvenience. The argument in the ballot handbook portrays it as opposition to a giant corporate giveaway (because the evil grocery stores keep the money), but that’s not the reason the referendum was circulated; the referendum was circulated because people object to being forced to pay for grocery bags.

This is a bit bizarre for me, as I live in SF, and before that lived in Palo Alto; much of my time is spent in jurisdictions which already have a variant on this rule, and it’s … fine. So I’m really confused by the opposition.

It’s a regressive tax, to be sure, AND at the same time, it’s a de minimis tax, and you pay it once (buying the reusable bags) and then are done; it strikes me as being a reaosnable way of achieving a cultural behavioral shift – not by banning something, but by taxing it *just enough* to induce the change.

—-What does Prop. 65 do?—-

Prop 65 says that if Prop. 67 passes, or if the state or a local jurisdiction ever pass a rule similar to Prop. 65, the grocery stores are not allowed to keep the money they charge for the bag. (It’s not clear if that just refers to the $.10 charge or if it refers to, say, the entire cost of a reusable bag; I can summon arguments both ways and suspect a court will decide). Instead, it directs the money to the state, where it gets dropped in a fund for environmental protection including drought mitigation, clean drinking water, parks, beach cleanup, and wildlife habitat restoration.

The argument for this is that the fee for grocery bags amounts to a raiding of the public for the benefit of kleptocratic grocery stores, and that it’s better to use the money for environmental preservation purposes. This seems unlikely to me; grocery stores run on razor-thin margins, and they’re hardly kleptocratic profit centers.

The argument against is that it amounts to theft from the grocery stores because bags cost money; but this rings hollow for me because *the stores were giving the bags away for free before* and they’re no more expensive now than they were then.

—-How am I going to vote?—-

I’m voting yes on 67; I think it’s a reasonable way to enact a policy of this sort – a small fee that shifts behavior and has a large positive result.

I’m voting no on 65; I don’t see any reason to confiscate this money from the stores, and I resent the anti-big-grocery rhetoric of the argument for.

No, No, No, Hell No on 60

Proposition 60 is an initiative statute which, broadly speaking, requires performers in adult films to use condoms during filming, and requires producers of adult films to (a) obtain a state license, and (b) pay for performers to get vaccinations, testing, and medical exams. It also imposes a financial liability for violations, and allows *any state resident* to bring suit to enforce the violations. The measure was placed on the ballot by citizen activists, and it is opposed by both the Democratic Party and the Republican Party, as well as by the only adult film performer organization in the state.

——–

Proposition 60 changes the Labor Code in the following ways:

* it requires adult film producers to “maintain engineering controls and work practice controls sufficient to prrotect adult film performers from exposure to blood and any other potentially infectious material-sexually transmitted infections.”

* it requires adult film producers to require their performers to use condoms and condom-safe water-based or silicone-based lubricants

* it requires adult film producers to comply with any other reasonable work practice controls imposed by a newly created regulatory board

* it requires adult film producers to pay for STI prevention vaccinations, tests, and medical follow up for their performers

* it requires adult film producers to comply with HIPAA in regards to their performer’s health data

* it allows performers to sue for violations of the above, either in an individual suit or a class-action suit, and obtain damages of up to $50,000.

* while it does not require condoms to be *visible* in the films, it explicitly allows a jury to assume that if condom’s aren’t visible, they weren’t used (and puts the burden on the film producer to prove that they were).

In addition, it creates a reporting structure:

* within ten days after starting to film, a producer must notify the state (in writing) of (a) the address of the filming, (b) the dates of the filming, (c) the name and contact information of the producer, the custodian of records, and any talent agency who referred performers, and (d) a sworn statement saying the film complies with the rules

* the adult film producer must pay a fee of at least $100

* failure to provide this information on time is punishable by a $1000-$7000 fine

* lying when providing this information is subject to a $70000 fine

And it creates a licensing structure:

* within ten days after starting to film, a producer must apply for a license, with a fee of at least $100

* issuance of the license is a ministerial task which can only be suspended or denied upon a showing that the producer has violated the health and safety rules within the last 12 months

* making an adult film without a license is punishable by a $25/day fine, which increases to $50/day for producers who had previously violated the health and safety rules
And it allows anyone to sue:

“any person who violates any provision … shall be liable … bia a civil action brought by the division or its designee, a civil prosecutor, an adult film performer aggrieved by a violation of Section 6720, or an individual residing in the State of California.”

——

The proponents of the law are behind it for a simple reason: they believe it will protect performers from disease. “Thousands of cases of diseases — which can spread to the larger community — have been documented within the adult film industry in recent years”.

You’d think that performers would be in favor of that, but performer activist organizations aren’t. They, and the organized opposition to the measure, think that it will drive the adult film industry out of the state.

——

I will be voting against this measure. I think it’s well intentioned – requiring condom use and mandatory STD testing and vaccination in the adult film industry is *a good idea* – but this is a terrible vehicle for it.

One of my problems is its scope. It applies to “any perosn that makes, produces, finances, or directs one or more adult films filmed in California and that sells, offers to sell, or causes to be sold such adult film in exchange for [anything of value]” – which is to say, amateur films which are posted on advertising-supported websites probably qualify. This is an amazingly broad sweep; taken literally, a couple which produces a film of themselves having sex and trades it to a friend who has produced his own equivalent tape *is in violation of this law* if they didn’t obtain a license and notify the state within ten days of making the film.

This is insane.

Another problem is the enforcement scope. It allows *any person* who watches an adult film and doesn’t see the use of condoms to sue on behalf of the performers and force the producer to prove that condoms were used.

This is insane.

Another problem is the low liability limit. If a performer contracts HIV because this provision was violated, he can sue for at most $50,000, which is … nothing compared to the cost of his treatment. More galling still, the excessive cost of treating HIV is one of the things *specifically called out* in the argument for the measure … but the measure doesn’t sufficiently cover that case.

—-

Prop. 60 is a terrible law written in a good cause. It allows harassment of adult film producers by any viewer, and it requires producers of amateur sex videos to register with the state.

It deserves to be defeated by the widest possible margin.

Yes on 62

Proposition 62 would repeal the death penalty and replace it with life in prison without parole. It would require that those sentenced to life without parole work while in prison, and increase the percentage of their wages which could be spent on victim restitution.

It absolutely conflicts with another measure on the ballot, Proposition 66 (which streamlines the death penalty process). If both pass, the one which gets more ‘yes’ votes will go into effect. Accordingly, if you are voting in favor of Proposition 66, you should *under no circumstances* vote in favor of Proposition 62.

I know that I cannot be even-handed on this one, so I’m not even going to bother trying,

It is immoral for me to kill a man who does not present an active, current threat to me or the people I love, no matter how angry I am at him, and no matter how much he may have hurt me or those I love in the past.

It is immoral for me and a bunch of my friends to kill a man who does not present an active, current threat to us or the people we love, no matter how angry we are at him, and no matter how much he may have hurt us or those we love in the past.

It is immoral for me and the thirty million residents of the state of California to kill a man who does not present an active, current threat to us or the people we love, no matter how angry we are at him, and no matter how much he may have hurt us or those we love in the past.

For me, the only moral vote on this measure is a ‘Yes’ vote.

Criminals sentenced to live in prison without the possibility of parole do not present an active, current threat to anyone other than their fellow criminals and their jailers.

Thus, the death penalty is profoundly immoral: it is the taking of a life motivated not by the desire to protect from an imminent threat, but rather from the desire to carry out *vengeance*.

I understand that I am in the minority on this issue, and I know that polls say this measure is going to fail. That’s a shame; it’s a moral indictment of the people of my state, and it makes every citizen complicit in a moral crime. But it’s a clear issue: if the moral offense is not clear to you, I do not know how to persuade you.

All I can do is vote Yes, and encourage you to join me.

No on 66

Proposition 66 makes a set of changes to the *government code* and to the *penal code*. Broadly speaking, these changes are intended to streamline the appeals process for someone who has been convicted of a crime and sentenced to death.

Proposition 66 inherently conflicts with another measure on the ballot, Proposition 62, which repeals the death penalty. If both propositions pass, the proposition which gets the larger number of Yes votes will take effect. Accordingly, if you are voting for Proposition 62, you should *under no circumstances* vote for Proposition 66.

—The changes Proposition 66 would make—

* Proposition 66 would explicitly state that *victims of a crime* have a right “to have judgments of death carried out within a reasonable time”, thereby giving victims of crime a recognizable, legal interest in the execution of the person convicted for the crime.

* It would require that all executions be carried out within five years of conviction, and require the state court system to adjust its procedures to make sure this happens

* It would allow the state, the sentenced criminal, or the victims of the crime to sue to enforce the time limit if, for some reason, the appeals process is taking too long. (It’s not clear as a practical matter what the remedy would be when a victim sues to force appeals to move faster).

* It would require that all executions be carried out within 30-60 days of the conclusion of the appeals process

* It would require the Supreme Court to appoint random attorneys to handle appeals for indigent death penalty convicts

* It would change the rules so that any petition for habeas corpus (essentially, an attack on conviction or sentence) be heard *by the court which heard the original case*

* It would require that any habeas petition be brought within one year, unless a court finds that a preponderance of the evidence (whether or not admissible at trial) shows either actual innocence or ineligibility for the death penalty

* It would prohibit a stay of execution for consideration of a habeas petition brought outside the one year, unless a court finds that there is a “substantial claim” of actual innocence o r ineligibility.

* It would require trial courts to resolve habeas petitions within two years of filing

* It would limit issues on appeal to issues raised at trial, except for ineffective assistance of trial claims

* It abolishes special housing for death row inmates and distrubutes them across the general population

* It requires death row inmates to perform prison labor, and directs that 70% of their wages be spent on restitution fines or orders

* It exempts rules and procedures adopted pursuant to Prop. 66 from the Administrative Procedures Act

* It says that *only* the original court can hear claims that the method of execution is unconstitutional

* If a federal court finds a method of execution unconstitutional, it requires that Corrections adopt a new, constitutional method, within 90 days.

* It prohibits any medical licensing board from revoking the license of a doctor who assists the department in carrying out executions

* It makes some hyper-technical changes to the operational rules for the state’s habeas resource center (which provides assistance to indigent criminals).

— There are a bunch of changes there, and mentally, I broadly classify them as follows:

* Some of the changes are directed at streamlining the process and making it run faster (carrying out executions within five years, carrying out executions within 30-60 days of the end of appeals, requiring habeas petitions to be brought within a year and resolved within two years, and requiring speedy adoption of new processes if an execution protocol is deemed unconstitutional).

* Some of the changes are directed at ensuring that only the original trial court is hearing new cases, which presumably both makes things faster (the original trial has the context and already understands the situation and thus doesn’t have to be brought up to speed) and reduces variability in outcomes which might arise as a result of things being heard in different courts

* Some of the changes are directed at making life harder for the death-sentenced, by abolishing death row and requiring the convicts to work

* Some of the changes are directed at increasing victim involvement in the process

* One of the changes cannot be understood without understanding a wide swath of California legal procedure and is included in the measure for reasons I don’t understand.

— Streamlining the process nad making it run faster —

This is the main goal of Proposition 66, and it’s the thing which gets the most discussion in the campaign. *If we are going to streamline the process*, these provisions generally make sense, although one of them is actually impossible to carry out and has a very “Knut commanding the waves to stop” feel about it. (There’s simply no way that a federal court, having ruled the existing execution protocol invalid, will confirm that a new protocol is valid within the ninety day limit set by this proposition – the federal courts don’t work that fast, and the proposition can’t command a federal court to act within a specified period of time. Accordingly, it’s impossible for Corrections to comply with this requirement).

Whether or not you think we should streamline the death penalty really depends on beliefs you bring to the conversation that are not grounded in this proposition per se. If you’re opposed to the death penalty, of course, you should be opposed to streamlining. If you think that criminals have too many rights and are too protected by the state, streamlining makes sense.

For me, on this question, the issue is: can streamlining be carried out in a way that does not decrease the likelihood thatactual innocence will be uncovered? Executing an innocent man, for whatever reason, is a travesty and a stain on the honor of the state; we should go to great lengths to avoid it.

It’s hard to tell. The measure does allow actual claims of innocence to be brought at any time – but by requiring the execution within a short period after the end of appeals and making it harder to get a stay of execution for such claims, it reduces the amount of time for evidence of innocence to be found (which is a real issue in cases that are based on, for example, lying informants). That said, it’s *already* the case that death-sentenced convicts have the best chance to get their claims of innocence heard and analyzed, because there’s a vast army of volunteers interested in helping, and that’s unlikely to change.

The other issue is whether the time limits are realistic. Which is to say: one to two years to hear a case may simply *not be enough time* given the speed at which our system normally operates, and commanding it to operate faster without ensuring that more resources are made available does not seem likely to be successful.

— Requiring only the original trial court to hear new cases —

From what I can tell, these provisions exist under the theory that having the original trial court hear any new cases will result in those cases taking less time because the original trial court is already familiar with the evidence.

But that’s a double-edged sword, because if the claim is *actual innocence*, then the original trial court is way less likely to approach the new evidence with an open mind; the court’s familiarity will incline it to prejudge the new evidence – not through any venality of the court, but through standard human psychology.

— Making life harder on the death-sentenced —

Proposition 66 would abolish death row and send the death-sentenced to the general population. The idea behind this, on some level, is that death row is too *easy* on the death-sentenced.

There may be something to that.

And yet … putting the already death-sentenced in the general population is a *terrible idea*. It’s a terrible idea *for the other inmates* because the death-sentenced have no incentive to behave reasonably in the general population. They’re *already sentenced to die*; what more can the state do to them? What leverage do the wardens have, either carrots or sticks, to motivate good behavior?

It’s a bad idea; it’s guaranteed to lead to problems with prison security.

— Increasing victim involvement in the process —

I don’t understand what the practical effect of these changes is. I mean, say an appeal runs past five years, and the victim’s family sues; what’s the remedy? An order from one court to another court telling it to go faster? How is that enforced?

One answer to this is that the court hearing an appeal could be ordered *to dismiss the appeal* in furtherance of the rights of the victim. But it’s hard to imagine that happening, because that would clearly violate the appellant’s due process rights *under the federal constitution*.

So this set of provisions strike me as being rhetorical sugar whose practical effect is unclear but likely close to nonexistent.

— Stepping outside the Administrative Procedures Act —

The Administrative Procedures Act is a piece of legislation which enforces rules for how state agencies are supposed to operate *procedurally*. It includes rules that have to be followedd when new procedures or regulations are adopted; I do not know the specifics of California procedure law, so I don’t know what the rules are.

Proposition 66 exempts from the APA any regulation or procedure adopted pursuant to Proposition 66.

It’s not clear to me *why*. I assume there are elements of the APA which are perceived as slowing down the process, and so the authors of the initiative want to prevent those parts of the APA from operating, and it’s probably easier to just prvent the entire thing frmo operating than it is to try to piece out which parts to keep and which parts not to.

This strikes me as being a bad idea, both because there’s no good way for anyone voting on it to know what it does *and* because it sets a precedent which will later be used to exempt other things from the APA, too.

— A summary —

There are some things in this measure which, in my mind, should give a strong supporter of the death penalty pause. It moves death-sentenced convicts into the general prison population. It involves victims in the process in a way which is unlikely to have any actual effect but which is going to harm them by increasing their involvement and then disappoiinting them in the outcome. It exempts large parts of the death penalty process from the Administrative Procedures Act, setting a bad precedent.

That *should* be enough, in my opinion, for death penalty supporters to send this measure back and ask for a new one.

I will be voting ‘No’.

Yes on 56

Proposition 56 is a combined constitutional amendment and statute. The statute imposes a new tax on cigarettes and tobacco products, extends the current tobacco tax to cover electronic cigarettes, and directs the money raised from the new tax to cover specific programs; the constitutional amendment exempts the statute from two constitutional provisions (the state’s overall spending cap and the prop 98 guarantee).

—The Constitutional Changes—

* The state Constitution has a cap on spending, passed by the voters as part of the late 1970s tax revolt: the state may not spend more than a certain amount, indexed for inflation and population growth. The last time the voters passed a tobacco tax, they directed the revenue from the tax to specific health-related programs, and they changed the state constitution to exempt the tobacco tax money from the spending cap: the state can spend the amount under the spending cap, *plus* the amount raised by that tobacco tax. Proposition 56 would do the same thing for the tobacco tax revenue it raises.

* The state Constitution requires that, roughly speaking, half of the state’s revenues be spent on schools. Proposition 56 would exempt the new tobacco tax revenue from the school spending requirement, allowing all of its revenue to be spent on health programs.

—The new tax—

Proposition 56 imposes a new $2/pack tax on cigarettes (the existing state tobacco tax is $.87/pack; the federal tax is $1.01/pack), with an equivalent new tax on other tobacco products (the current tax is $1.37, and the new tax would be $2 more).

—The tax extension—

For some reason, the existing tobacco tax does not cover electronic cigarettes or vape pens — probably because they didn’t exist when the law was written, and the la was written in terms of the things which existed at the time.

Proposition 56 extends the *existing* tax to cover electronic cigarettes and vape pens, and of course imposes the new tax on them, as well.

—The spending provisions—

Proposition 56 would direct almost all of its money to health programs, with 5% allocated to administrative costs and an undefined amount directed to replace revenue from the original tax which will be lost if people reduce their tobacco purchases in reaction to the new tax. (This latter provision, while it makes sense economically, makes it hard to tell precisely how much money is going to be sent to which programs.

$48 million would be spent on law enforcement; $40 million on physician training; $30 million on dental disease; and $400,000 on auditing.

82% of the rest would be directed to Medi-cal for general health care services to the poor; that money is in theory allowed only as a *supplement*, not as a *replacement for existing spending*. (To the extent that this is enforceablr, it would seem to lock in Medical spending at at least the current level).

11% of the rest would be directed specifically to tobacco prevention and control programs.

5% of the rest would be directed to medical research into cancer, cardiovascular and lung disease, and other tobacco-related diseases.

2% of the remaining funds would be directed to school programs.

—A word about the official argument against—

The official argument against is a masterwork of cognitive dissonance, in t hat it attempts to simultaneously make the following two arguments:

* Proposition 56 is bad because not all of its money goes to tobacco-related diseases

* Proposition 56 is bad because it cheats schools of their just money.

These views seem difficult to reconcile, at best.

—A word on externalities—

I’m generally opposed to ballot propositions which place particular spending outside the control of the legislature; this strikes me as being a bad idea in that it confines the legislature’s ability to act and makes budgeting much more difficult, and it is problematic because the voters are always looking at *specificic programs* rather than trying to balance *the needs of multiple programs against one another*. I almost always vote against such things.

That said, there is one place where it’s reasonable: when the spending is attached to a tax, and the purpose of the tax is to remedy an externality.

An externality is the side effect of behavior whose cost is not borne by the person engaging in the behavior. The paradigm example of this is water pollution: a tannery which dumps foul liquid in a stream is not bearing the *cost* of its waste disposal, that cost is being borne by the downstream farmers and townies. This is inefficient, and it causes the producer of tannery waste to produce more waste than he would if he had to bear the cost – and makes the people drinking fouled water pay a price which it is not just to ask them to pay.

One of the most economically effective ways to deal with this is via a tax: tax the thing creating the externality, and use the money to pay for helping undo the harm caused by the externality. This forces the creator to internalize the cost and helps protect the innocent from paying the cost.

Smoking produces externalities of this sort: it produces second-hand smoke, and it produces a need for expensive treatment, much of which ends up being subsidized by (or paid for outright), by the state.

So *in principle* a tobacco tax, with the money directed to remedy the harm caused by smoking, is a reasonable thing *even if it ties the hands of the legislature*, as long as the spending lock-in is limited to the income raised by the tax, and as long as the revenue is directed to help remedy the harm caused by the externality.

—Is this tax’s revenue directed to reducing the harm of tobacco smoking?—

This is astonishingly hard to tell.

Some of it clearly is — 11% is directed specifically to tobacco prevention and control, and 5% is directed to medical research into tobacco-related programs. But 82% of the money is directed to Medi-cal in general.

That doesn’t *look like* it’s directed enough to be externality remediation, and that apearance is enough for the authors of the official argument against, who focus much of their argument on this point. But that may be too formalistic; it’s possible that the money will end up being spent largely, or at least predominantly, to address the costs of tobacco consumption.

Medi-cal currently spends on the order of $93 billion *a year*. Proposition 56 is expected to raise between $1 billion and $1.4 billion, and at most 1 billion can be directed to Medi-cal.

So, the question for me is: is 1/93 of Medi-cal’s spending spent on the primary and secondary effects of tobacco consumption?

It seems *overwhelmingly* likely that this is true.

For me, that’s enough. The tax is targeted at an externality-producing activity; the money is allocated in a way which makes it increase the amount of money available for paying for the costs of the externality; and the money which isn’t going to be spent directly on such costs will be spent on things that are delivered to the public the same way that the externality remediation would be.

I can understand, though, that this may not be certain enough for those who need more certainty; this is a place where reasonable people can disagree.

Reasonable disagreement or no, though, I will be voting yes.

No on 59

Proposition 59 is an advisory measure that expresses the sentiment of the public without being binding law.

The measure, if passed, would express the desire of the public for our elected officials to “use all of their constitutional authority” to “overturn Citizens United” and “to allow the full regulation or limitation of campaign contributions and spending” as well as “to ensure that all citizens, regardless of wealth, may express their views to one another” and “to make clear that corporations should not have the same constitutional rights as human beings.”

The official argument in favor of the initiative says that we should vote yes to help get big money out of politics and to correct the Supreme Court’s incorrect ruling in Citizens United. The rebuttal points out that the initiative does nothing because it has no force of law.

The official argument against says that the measureis a big waste of time and taxpayer dollars because (a) it has no legal effect and (b) asks California’s members of Congress to tinker with the first amendment. The rebuttal castigates the “misleading scare tactics” of the opponents and then warns that passing proposition 59 is essential to “PREVENT CORPORATIONS AND WEALTHY SPECIAL INTERESTS FROM BUYING OUR ELECTIONS”, the capitalization of which strongly implies that it’s a scare tactic.

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_Citizens United_ is a Supreme Court decision which held that the first amendment protects the right of corporations and labor unions to spend whatever they want on political campaigns, as long as those campaigns are not coordinated with official candidate campaigns. The abbreviated form of the argument is: the right to free speech and the right to freedom of the press *include* the right to buy advertising and to pay people to speak on your behalf; a limit on independent campaign expenditures is a restriction on the ability to speak, and is unconstitutional.

If you agree *as a policy matter* with the outcome of that decision, then you should vote ‘No’ on Proposition 59, as it’s a clear call for the state’s elected officials to do anything in their power to overturn it.

If, on the other hand, you disagree as a policy matter – whether or not you agree with the interpretation of the first amendment – the initiative looks tempting; the Supreme Court took the policy discussion off the table, and this initiative calls on the state’s elected officials to do what they can to amend the US constitution to put the policy issue back on the table.

That said, there are two strong reasons to *not* vote for this initiative even if you *do* despise _Citizens United_ and its outcome:

(a) it’s an advisory measure with no legal force which does nothing other than bring about political pressure;

(b) taken at face value it asks the elected officials of California to call an Article V constitutional convention, whose exercise of powers cannot be constrained.

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Looking at the two reasons to vote against, in order:

(a) it’s an advisory measure. It has no legal force. The constitution of California does not allow the voters to require its Legislators to vote a certain way, and the Constitution of the United States does not allow the voters of any state to direct federal officeholders in how to carry out their duties as such.

It has *moral* and *persuasive* authority, but probably only on those who were already inclined to behave in accordance with its provisions and who need political cover to do so in districts where they aren’t certain to be re-elected.

California has historically not used the initiative system for this kind of advisory measure; initiatives have always been actual laws or constitutional amendments. If we pass *this* advisory measure, it seems likely that there will be more, and the initiative system will become a method to poll for opinion rather than a way for the people to enact and disapprove of laws.

I think it’s a bad change to the initiative system, and would support an initiative to ban such advisory measures; it’s tempting to vote against this just on those grounds so as to send a clear “do not do this kind of thing” message to the legislature.

But (b) is more important.

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The plain text of the measure calls upon all of California’s elected officials to use “all of their constitutional authority” to overturn Citizens United. This includes calling upon the Legislature to use its authority to call for a Constitutional Convention.

Under Article V of the US Constitution, one of the ways to amend the constitution is for 2/3 of the states to ask Congress to “call a convention for proposing amendments”.

28 states have currently done so. This measure asks the California Legislature to become the 29th. In theory, many of the 28 states are only asking for *a specific amendment*, and so too would California be; but there *is no mechanism to enforce that*.

A constitutional convention, once called, can propose *any* amendment it chooses. Those amendments must be ratified by the states, it’s true, but the last time a constitutional convention was called, it *explicitly changed the rules for ratification* and the new rules went into effect *as soon as the new rules were followed*.

A constitutional convention, in other words, cannot be constrained; it has the power to do anything it wants.

It is, therefore, a very bad idea. It is a potential revolution unconstrained by any existing rules — and, as a general rule, it’s only good to support a revolution if the current situtation is so untenable that ANYTHING would be better, or if you have real certainty that the outcome of the revoluution will be what you want and the revolutionaries will not be led astray.

I am voting no. Even though I dislike the *policy outcomes* of _Citizens United_, I don’t want to risk the potential of an unconstrained constitutional convention.