:Propositions 6 and 9 Reader

Los Angeles Times, “No on Proposition 9,” September 26, 2008.
Pasadena Star News, “Vote ‘no’ on props. 6 and 9,” October 6, 2008.
Press Democrat, “Wrong Way,” September 8, 2008.
Press Enterprise, “No on 9,” September 12, 2008.
Tracy Press, “Proposition 9 has victims as a concern, but it would put too much burden on our prison system if it passes,” September 23, 2008.
San Diego Union Tribune, “No on Prop 9: Measure is poorly drafted and wrongheaded,” September 25, 2008.
Orange County Register, “California Prop. 9 Editorial: Unnecessary tinkering with constitution,” October 2, 2008.
Sacramento Bee, “Proposition 9,” October 9, 2008.
San Francisco Chronicle, “Props. 6 and 9 are budget busters,” October 9, 2008.
Bakersfield Californian, “Ballot-box budgeting: Vote NO on Props 6 and 9,” October 9, 2008.
La Opinion, “Two Measures to Reject,” October 12, 2008.
Fresno Bee, “Vote ‘no’ on Proposition 9, an ill-considered crime victims bill,” October 13, 2008.
Woodland Daily Democrat, “Voters should turn down Props. 5, 6, and 9,” October 14, 2008.
San Jose Mercury News, “Editorial: Proposition 9 would increase prison costs; vote no,” October 14, 2008.
Chico Enterprise-Record, “Flawed measures should be rejected,” October 16, 2008.
Stockton Record, “Proposition 9 – No,” October 16, 2008.
New York Times, “Fiscal Disaster in California,” October 9, 2008.
Contra Costa Times, “Times recommendations on California propositions,” October 19, 2008.
San Gabriel Valley Tribune, “Propositions in Review,” October 19, 2008.
Napa Valley Register, “Vote No On Proposition 9,” October 16, 2008.
Salinas Californian, “Vote no on state Props. 5, 6 and 9,” October 18, 2008.
Monterey County Herald, “Proposition endorsements,” October 17, 2008.
Long Beach Press-Telegram, “No on Proposition 9,” October 4, 2008.
Desert Dispatch, “Victims’ Rights Yes, Amendment No,” October 8, 2008.
The Vacaville Reporter, “Vote No on Prop. 9,” October 22, 2008.
Los Angeles Daily News, “No on Props. 5, 6, and 9.
Santa Cruz Sentinel, “As We See It: Vote No on Props. 6 and 9,” October 15, 2008.
The Modesto Bee, “Prop. 9 is too ambitious,” October 9 2008.

Newspaper endorsements against Proposition 6, here.

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The Prison Law Office has released an excellent summary of Prop. 9. Read it!

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Sen. George Runner often relies upon Prop. 6’s funding of supervision and services for parolees as evidence that his initiative is a “balanced approach” to crime prevention. The funding makes for a good soundbite, but little more than that. A ballot measure that creates 30 new or increased criminal penalties should have to do plenty more to stymie the effects of incarceration on our communities.

First, some perspective: there are nearly 127,000 people currently on parole in the state of California, according to the CDCR annual report. Prop. 6’s $20 million in contracts for workforce preparation and supervision of parolees is equivalent to $157 per parolee, per year. A line item in a 30-page ballot initiative isn’t going to close California’s revolving door, which has seen a majority of inmates return to the CDCR within three years of release. An actual solution requires comprehensive reform of the current parole system (see this discussion of parole realignment for one example of a more rigorous response).

Now, the program itself: the Parolee Reentry Fund awards $20 million annually in government contracts for “parolee mentoring and workforce preparation programs.” The $20 million amounts to 6 percent of Prop. 6’s spending on new programs, or 2 percent of the total program spending. The initiative spends twice as much on new criminal justice bureaucracy as it does on reentry services (see my earlier post for a full analysis of where Prop. 6 spends its money).

Prop. 6 is quick to use catchphrases of the reentry movement, rightly stressing the importance of long-term connections to the workforce and access to services for people returning home from prison. But it provides only the vaguest glimpse of how the money will actually be spent. CDCR, those experts on prisoner rehabilitation, will administer the fund (which increases annually according to a cost of living adjustment) and award contracts to programs with “demonstrated evidence of an effective program model,” as well as “extensive experience” working with government. That’s about the extent of Prop. 6’s guidance to the CDCR. Prop. 6 doesn’t set a bar for “demonstrated evidence” of a successful model, nor does it specify which of the 127,000 people on parole the funds should target. If “demonstrated evidence” means reduced rates of recidivism among participants, then program administrators could very easily “cream” the easiest cases to boost their chances for success, since there appears to be no larger objective to the reentry fund that this kind of behavior would contradict (see the Boston Reentry Initiative for an example of a reentry policy with a specific objective, to reduce the rate of violent recidivism in particular areas of Boston).

Bottom line, while not all of Prop. 6 is evil, even the potentially well-meaning provisions are poorly designed. The reentry fund can’t possibly address the needs of all 127,000 people on parole, so who is it going to target? The offenders with the highest-risk of recidivism, the greatest needs, or simply anyone who wants to sign up? How will risks and needs be assessed? Will programs attempt to target young people (those least likely to respond positively to reentry programs)? Will participation in recipient programs be mandatory or voluntary? Will funds be distributed more or less evenly throughout the state, or will they be focused where the impact of parolees returning home is felt most severely? Must programs report all technical violations to the parole board, as the measure’s language calling for “aggressive supervision” of parolees would imply? It would even be nice to hear Runner give an example of one program already operating in California that he thinks should qualify for the funds.

Many of these are questions that can be taken up by the legislature, Senator Runner would probably say. But if Runner trusts the legislature to figure out the best way to implement Prop. 6, then why won’t he trust them to vote on it?

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The cost of one vehicle theft sentence under Prop. 6 is 16 times the average loss sustained by a victim of vehicle theft.

Prop. 6 will force the state to spend over one hundred thousand dollars to detain people convicted of participating or assisting in a vehicle theft. But the average loss to a victim of vehicle theft is $6,646, according to a report by JFA Associates.

Proposition 6 creates six distinct one-year enhancements for principals or accessories involved in a car theft (see post below for a full list of new penalties). It also limits the court’s authority to grant probation in cases involving joyriding or auto theft if the defendant has 2 or more prior violations.

The average time served currently for vehicle theft is 17 months, a cost to the state of over $60,000 in prison and jail fees. Any of these sentence enhancements will nearly double the time served by principals or accessories involved in vehicle theft. The cost to taxpayers for any of these one-year sentence enhancements is $46,000 per offender, according to the Legislative Analyst.

Vehicle theft is already on the decline without any help from Prop. 6. According to the Attorney General, from 2005 to 2007 (the most recent data available), the rate of vehicle theft in California fell by 16 percent. More historically, the rate of vehicle theft declined by 7.2 percent from 2002 to 2007 and by 43 percent from 1992 to 2007.

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From Vanity Fair:

Henry Nicholas isn’t just another tech-boom billionaire charged with backdating stock options. All the drive, arrogance, and aggression he poured into building microchip-maker Broadcom—one of the major success stories of the Internet Age—morphed into an increasing obsession with sex and drugs, according to federal prosecutors. The author investigates the allegations about Nicholas’s out-of-control world: the parade of prostitutes, the spiking of clients’ drinks with Ecstasy, and the secret lair he built underneath the Orange County mansion he shared with his wife and kids.

Nicholas is the largest donor to both campaigns. Neither campaign has returned his contributions. Read the full story, from Vanity Fair, here.

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Program costs: $964.5 million in spending, protected indefinitely (increases annually with cost of living). Plus $500 million in prison outlay costs.

Where Does the Money Go? $352.5 million (+COLA) to new programs, $612 million (+COLA) to protecting funding levels for selected existing programs.

New Programs: $352.5 million (+COLA)

Proposition 6’s new programs categorically lack clear goals and performance measures. Many are duplicative of already existing, more effective programs. Meanwhile, Prop. 6 requires these new, untested programs be funded indefinitely, with increases for cost of living, whether or not they produce results.

1) Prop. 6’s new programs lack accountability.

None of these programs set specific goals or performance measures. None of the money is specifically targeted toward areas where crime is most severe.

2) A balanced investment? Funding strategy weighs heavily in favor of suppression.

$242.5 million – law enforcement / probation (69% of new spending)
$40 million – criminal justice bureaucracy (info bureau, intervention commission, reward funds) (11% of new spending)
$25 million – jails (7% of new spending)
$20 million – contracts for reentry programs / “aggressive supervision” of parolees (6% of new spending)
$15 million – GPS equipment (4% of new spending)
$10 million – juvenile recreation programs run by law enforcement (3% of new spending)

$117.5 million goes to gang suppression, $115 million to county probation for supervision and facility repair, but just $10 million supports opportunities for juveniles—and those must be programs run by law enforcement. No money goes to evidence-based programs aimed to support youth in desisting from crime.

3) Duplicative spending.

– $117.5 million to a gang suppression strategy that overlaps with—but does not interface with—the more balanced, coordinated anti-gang effort advanced by the Governor’s CalGRIP initiative.
– $27.5 million to its Office of Public Safety Information and Education for victim services and criminal justice info. It is already the duty of the Attorney General’s Office of Victim Services “to provide support, information and assistance to victims at every stage of the criminal process.” It is also the duty of the Attorney General “to collect, analyze, and report statistical data, which provide valid measures of crime and the criminal justice process to government and the citizens of California.”
– $10 million to the “Crimestopper reward” reimbursement fund. This fund is duplicative of the Governor’s power to offer rewards for assisting in a criminal investigation.

Existing Programs: $612 million to put existing programs on autopilot.

In 2008, the nonpartisan Legislative Analyst’s Office (LAO) released the report, “Restructuring Local Assistance for Public Safety,” and made recommendations to eliminate or reduce “General Fund support for programs that have not demonstrated results, do not serve a statewide purpose, could be consolidated, or could be funded from other sources.”

Many of the programs Prop. 6 would fund indefinitely failed the LAO’s standards for smart public safety spending.

Had the proponents of Prop. 6 implemented the LAO’s budget recommendations for these existing programs before funding them indefinitely, they would save taxpayers $205.3 million dollars annually (+COLA for a portion), while improving efficiency and performance.

Instead, Proposition 6 implements none of the LAO’s recommendations in its budgeting for the existing state-level criminal justice programs it chooses to protect forever.

1) $160 million of the $612 million for existing programs (26%) supports programs that were recommended for permanent elimination by the Legislative Analyst’s report.

– Prop. 6 makes permanent an allocation of $125 million (+ COLA) to COPS Program: “We recommend eliminating the COPS program […] We find it difficult to justify using state resources to fund public safety services that lack a specific statewide objective and that have no identifiable results to evaluate […] The program appears to take what is largely a local government responsibility—the police protection—and shift some of the cost to the state, without a strong policy rationale for doing so.” (Legislative Analyst)
Difference between Prop. 6 spending and LAO recommendation: $125 million annually.

– $35 million for Jail Efficiency Fund (local facility subventions): “We recommend that the state eliminate the subventions it provides to counties not to charge booking fees since no statewide criminal justice objectives are being achieved through these subventions. In addition, we recommend that the Legislature change state law to clarify that counties are authorized to charge booking fees up to the actual administrative cost of a booking. Doing so will provide cities with the proper incentives for using county jail space efficiently and to ensure that the costs of bookings are borne where it is most appropriate—at the municipal level.”
Difference: $35 million.

2) $33.5 million (5.4% of spending for existing programs) goes to programs recommended by the LAO for significant funding reductions, as well as changes in how funds are distributed.

– Prop. 6 makes permanent a $4.1 million allocation to Central Valley and Central Coast rural crime prevention programs. LAO recommends “reducing the grant by 25 percent,” consolidating the two programs “into a single rural crime prevention grant,” and tying “future grant allocations […] to both agricultural production and property crime rates.” Proposition 6 attends to none of these recommendations, protecting the funding as-is.
Difference: $1 million.

– $29.4 million to California Multi–Jurisdictional Methamphetamine Enforcement Team (CAL–MMET) program. “Given the duplication of funding, overall reduction of meth production in the United States, and the lack of the required reports on program performance,” the LAO recommends reducing the program’s budget to $7.1 million. “Additionally, we recommend that the program administer grants to counties on a competitive basis so that available funds can go where there continues to be the highest level of meth production.” Proposition 6 does not make this adjustment (nor the adjustment in funding).
Difference: $22.3 million.

3) Prop. 6 gives $326 million (53% of existing program spending) annually to duplicative programs recommended for consolidation by the Legislative Analyst.

– Prop. 6 gives $125 million (+COLA) for Juvenile Probation and Camps Funding program and $201 million to the Juvenile Justice Crime Prevention Act. “We recommend the enactment of state legislation to eliminate the COPS/JJCPA programs and consolidate the JJCPA and the Juvenile Probation and Camps Funding.” LAO would preserve current funding levels, but reduced by 5 percent “to reflect anticipated administrative savings.” “We also recommend that the Legislature adopt budget trailer bill language creating a statutory framework for the consolidated program similar to the existing JJCPA statute,” which has a clearer accountability structure. Proposition 6 follows neither of these recommendations, therefore increasing administrative costs, and weakening accountability.
Potential savings from LAO recommendations: $22 million

TOTAL DIFFERENCE BETWEEN PROP. 6 FUNDING AND LAO RECOMMENDATIONS: $205.3 million (+ COLA for a portion)
This figure accounts for 33 percent of Prop. 6 program spending on existing programs, or 21.2 percent of total program spending, in the first year alone.

Other spending for existing programs ($92.5 million, 15% of spending on existing programs) goes to the Youthful Offender Block Grant. But Prop. 6 changes the way the funds are distributed to disqualify county mental health and drug treatment providers from receiving these funds. All money must now go to county probation. Prop. 6 does not, as juvenile justice experts have recommended, set measurable goals for these funds.

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Full List (Word Document)
of Criminal Law Changes in Prop. 6
(by Sue Burrell of the YLC)

Proposition 6 introduces approximately 30 new crimes or additional penalties to California criminal law.

Contrary to what the proponents suggest, these penalties aren’t targeted toward the most dangerous offenders: the great majority target non-violent offenders, aiders and abettors, and others who were least responsible for the commission of a particular offense.

Of 31 new or enhanced penalties Prop. 6 adds to California criminal law:

• Five punish violent crimes (though only one punishes an individual for physically harming another person)
• Three punish non-violent “process” crimes
• Three punish non-violent drug crimes
• Seven punish non-violent property crimes
• Five punish “gang” crimes (mostly affecting the non-violent)
• Six target accessories, accomplices, aiders and abettors
• And two are penalties reserved for people already in prison.

VIOLENT CRIMES: 5

1. Only ONE punishes an individual for physically harming another person: adding first-degree burglary to list of offenses eligible for 10-20-Life gun law (enhancement for use of a firearm in the commission of a felony).
2. A new felony (2-4 years) for anyone who attempts to dissuade a judge/juror/attorney/peace officer from fulfilling some duty of their station, attempts to dissuade any person from filing/implementing a gang injunction, or attempts to retaliate against someone for fulfilling one of the duties above. The fact that no injury or intimidation occurred is not a defense.
3. Makes discharging a firearm from a vehicle (whether or not it causes harm) an offense punishable by 15 years to life in prison, if gang related. Discharging a firearm and causing bodily injury is already punishable by 15-years-to-life, if gang related.
4. Removes minimum term of 7 years to make extortion or threats to witnesses, judges, juror, prosecutors, public defenders, or peace officers a life sentence without parole.
5. Creates new, additional penalty of 10 years for illegal possession of a firearm by a formerly incarcerated person under certain circumstances.

NON-VIOLENT “PROCESS” CRIMES: 3

6. Creates a crime for violation of civil gang injunction—up to a year in jail for first violation, 90 days to 1 year for second violation of any injunction, and, for a third violation of any injunction, state imprisonment for 1 to 3 years.
7. Creates new misdemeanor (up to a year in county jail) and felony (16 months to 3 years)—depending on prior offense—for ex-offenders convicted of a gang-related offense/enhancement who fail to register all their addresses for five years after release.
8. Creates a new felony (16 months to 3 years in prison) or misdemeanor (up to a year in jail), depending on prior offense, for anyone who willfully removes for disables a GPS device affixed to himself or someone else.

NON-VIOLENT DRUG CRIMES: 3

9. Increases penalty for possession for sale of methamphetamine (now 2 to 4 years of imprisonment).
10. Mandates state prison term for every person who possesses methamphetamine.
11. Increases prison term (3 to 5 years) for every person who imports / sells / furnishes / gives away / offers to transport methamphetamine.

NON-VIOLENT PROPERTY CRIMES: 7

12. Multiple acts of vandalism in a 12-month period may be aggregated for purposes of handing out a harsher sentence (i.e., one year prison term).
13. New enhancement (additional 1 year) for principal or accessory in a car theft, if the purpose is the sale of the vehicle or its parts.
14. New enhancement (additional 1 year) for principal or accessory in a car theft, if the vehicle is later used in the commission of a felony prior to its recovery (regardless of who commits the subsequent felony).
15. New enhancement (additional 1 year) for principal or accessory in a car theft, if intent is to use the vehicle in a felony.
16. New enhancement (additional 1 year) for principal or accessory in a car theft, if the vehicle is involved in an act of evading a police officer prior to its recovery (irrespective of who is in command of the vehicle at the time).
17. New enhancement for principal or accessory in a car theft if the vehicle is involved in a collision prior to its recovery (additional year for each person injured, irrespective of who’s operating the vehicle, and who is at fault).
18. Limits court authority to grant probation in cases involving joyriding or auto theft if the person has 2 or more prior violations

GANG CRIMES: 5

“Gang-related” felonies include violent and non-violent offenses, but Prop. 6’s gang penalties will impact non-violent offenders most severely:

19. A minor, 14 years or older, is presumed unfit for juvenile court—and eligible to be tried in adult court—for any allegedly gang-related felonies. If tried in juvenile court, he or she is eligible for commitment to DJJ. Violent and serious felonies already presume a juvenile unfit for juvenile court. These are also the offenses that qualify a juvenile for commitment to DJJ. This provision, then, will allow young people whose crimes are less serious (drug or property crimes) to be tried in adult court or sent to DJJ.
20. Upper term (4 years) of gang enhancement (2-4 years) for non-serious, non-violent felonies can be applied with no aggravating circumstances. Today, middle term must be applied.
21. Disallows courts from striking any gang enhancement for any reason.
22. An additional, consecutive term of five years applies to anyone who “recruits” a minor under the age of 14 to a gang.
23. Stipulates that for gang-related violations of the 10-20-Life gun laws, other enhancements (like Sec. 186.2 gang enhancements) can also apply—even for someone who never personally used a firearm.

PENALTIES FOR ACCESSORIES, ACCOMPLICES, AIDERS AND ABETTORS: 6

The following penalties specifically and exclusively target the people least responsible for the commission of a crime:

24. Redefines “accessory”: Anyone who makes a false statement relevant to an investigation of a gang-related or violent felony will be treated as an accessory to that felony.
25. Any person found guilty as an accessory to a gang-related felony is subject to one-half the punishment prescribed for the principal in such a felony. An accessory, under Prop 6, is someone who harbors, conceals or aids a principal in a felony, OR someone who makes a materially false statement in the course of an investigation of that felony.
26. Owners face civil penalties and eviction orders for crimes committed on their property, even without their knowledge. Alters nuisance/abatement laws for property used in gang activity: Allows, without proper notice, an eviction or closure order to be entered (not so before) and civil penalties to be assessed against the owner/tenant, even if he has no prior knowledge of the criminal activity.
27. Any person found to have violated California statute against gang recruitment will be treated as a principal to any subsequent felony committed within one year by the person he recruited.
28. 10-20-Life gun law enhancements apply fully to the accomplices of any individual who uses a firearm in the commission of a certain felony.
29. Any person who provides contraband (weapon / cell phone, etc.) used in a gang-related felony (see below) will be deemed a principal and be subject to the same penalties as the inmate (double whatever the offense would typically receive), with or without intent to facilitate a crime.

PENALTIES FOR PEOPLE ALREADY IN PRISON: 2

30. Any person who is convicted of any felony offense punishable by a max term of life is ineligible to receive any conduct credit reduction of his or her term of imprisonment.
31. Doubles the typical penalty prescribed for any inmate who commits a gang-related felony (violent or non-violent) in prison.

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Legal Concerns in Prop 6 and 9 PDF chart

PROP 6

Prop. 6 provision: Adds 30 new penalty increases to state law.
Legal issue: Arbitrary sentencing.
Discussion: Last year, the Little Hoover Commission, an independent state agency, condemned the state’s sentencing system as complex and confusing: “California has created a haphazard jumble of sentencing laws enacted incrementally over three dozen years.” The Governor has specifically called for an end to “arbitrary sentencing” and the launch of an independent sentencing commission to develop an objective risk assessment tool and set sentences accordingly. The same Little Hoover report counts 80 increases in criminal penalties since determinate sentencing was conceived in 1977. Proposition 6, in one fell swoop, will add at least 30 more, according to the Attorney General. The majority of penalty increases target non-violent offenders, or people who are least responsible for the commission of a particular offense. Only one increases the penalties for an individual who inflicts physical harm upon another person.

Prop. 6 provision: Treats juvenile adjudications the same as criminal convictions.
Legal issue: Sixth Amendment right to trial by jury; Fourteenth Amendment right to due process of the law.
Discussion: Amendments to PC 186.22 would include juvenile adjudications in addition to criminal convictions for the purposes of increasing prison sentences.
Last year, the Sixth District Appellate court held in People v. Nguyen that a juvenile’s priors cannot be used as strikes because juveniles are not afforded a jury trial.

Prop. 6 provision: Punishes individuals if property is used for gang activity, even without their knowledge.
Legal issue: Collective punishment.
Discussion: Amendment to PC 186.22. If approved, homeowners, building owners, renters, and others will be held financially liable or even evicted for the acts of others.

Prop. 6 provision: Individuals who provide contraband to an inmate who later uses that item in a felony are subject to same penalties as the inmate.
Legal issue: Violation of 14th amendment due process rights.
Discussion: Amendment to PC 45059(b). Currently, under California law, the State must show intent to commit the charged offense in order to find aiders and abettors culpable as principals to the offense. But this clause does not require proof of intent.

Prop. 6 provision: Anyone who “recruits” another to participate in a gang will be punished as a principal for any subsequent felony the recruited subject commits within a year of the last act of recruitment.
Legal issue: Violation of 14th amendment due process rights. Creates full liability for people who had no intent to facilitate the particular criminal purpose of the perpetrator.
Discussion: This amendment to PC 186.26 would punish individuals for offenses committed by subjects they “recruit” to a gang. California already punishes individuals for the act of recruiting individuals to participate in gang related criminal offenses. Under California’s aiding and abetting laws, the aider/abettor must be shown to have intended the charged offense in order to held liable as a principal. Under this proposed amendment, individuals would be charged for offenses they did not intend to aid in any manner. The state would not be required to prove that these individuals intended or participated in the commission of the crime. This would lead to individuals being held strictly liable for crimes that require a specific intent, such as murder or theft. An individual could already be incarcerated for another crime and be punished for a murder he could not possibly have aided, while the actual perpetrator of the act could go unpunished. Criminal punishments generally require a mens rea and degree of culpability. Holding “recruiters” strictly liable for the acts of individuals to whom they exercise no power or control over violates both procedural and substantive due process.

Prop. 6 provision: Makes it easier to impose a gang injunction upon a loosely defined group.
Legal issue: Violation of 14th amendment due process rights. By allowing injunction to apply to individuals not specifically named in the court injunction, Prop 6 would expose the state to strong court challenges.
Discussion: Stipulates that an injunction can be served to the gang in the name by which the gang is known, and only a person “designated” by the gang or, alternatively, three of its members, have to be notified. It also stiffens the penalties for violating the injunction. “To prevent rulings against gang injunctions in the name of constitutionality,” current practice follows that city attorneys “name individually every gang member in an injunction, as well as the specific practices the injunction prohibits” (ACLU fact-sheet). Gang members would be served under Prop 6 in the same manner as a corporation. But gang membership, unlike a corporate status, is a subjective label. While corporations are able to account for all of their employees, gangs cannot be expected to operate in the same manner. There is no one designated “headquarters” for gangs, nor is there a legitimate roster of gang members. Service of process is required to provide notice to the individual served that a suit has been filed and to afford her or him the opportunity to respond as a matter of right. By allowing injunction to apply to individuals not specifically named in the court injunction, Prop 6 would expose the state to strong court challenges.

Prop. 6 provision: Expands definition of an “Unavailable Witness” to include a declarant who is physically present in the courtroom but refuses to testify despite a court order to do so.
Legal issue: Violates the Sixth Amendment’s Confrontation Clause, or the defendant’s right to confront her witnesses.
Discussion: Proposed amendment to Section 240 of the Evidence Code. In Crawford v. Washington (541 U.S. 36, 2004), the Supreme Court of the United States held that where testimonial evidence was at issue, the Sixth Amendment demands unavailability of the declarant and a prior opportunity for cross examination. This amendment would 1) allow hearsay statements to be entered into evidence without the opportunity to cross-examine the witness, despite the declarant’s physical presence in the courtroom and a court order to testify, and 2) circumvent the courts’ ability to subpoena witnesses to testify.

Prop. 6 provision: Admits hearsay whenever the defendant’s actions “cause” the unavailability of the witness.
Legal issue: Violates the Sixth Amendment’s Confrontation Clause, or the defendant’s right to confront her witnesses.
Discussion: New Evidence Code 1390(a) allows the introduction of hearsay if the statement is offered against someone who engaged or acquiesced in criminal conduct that caused the unavailability of the witness. This provision doesn’t require proof that the defendant’s criminal action was intended to prevent the witness from testifying. Therefore, it patently contradicts the United States Supreme Court in Giles v. California (2008). Scalia wrote for the majority that a hearsay statement from an unavailable witness is only admissible if the accused had specifically worked to keep the witness off the stand.

Prop. 6 provision: Denies bail to individuals who have committed certain crimes (including all allegedly “gang-related” felonies) based solely on their immigration status.
Legal issue: Violates Article VI Supremacy Clause and Eighth Amendment protections against excessive bail.
Discussion: Proposed amendment to PC 667.21 enters the provenance of federal immigration law by punishing individuals with pre-trial detention exclusively because of their citizenship status. The Supreme Court has held that a court may not impose pre-trial conditions that punish criminal defendants for past acts without regard to whether an individual poses a flight risk. It is unreasonable to expect that the sheriff should be able to make a conclusive determination of a person’s undocumented status before bail is set. Most people today are able to seek bail release as soon as charges are filed, pursuant to the county’s bail schedule. Who is labeled a “gang member” is also subjective determination. But guilty or not, those who are assumed to be gang members and assumed to be illegal immigrants will not have the right to bail like every other defendant. Any wrongful determination the sheriff does make is subject to a costly legal challenge. Prop. 6 endorses a legal system based on stereotypes, rather than fair, neutral practices that honestly assess the risk an individual poses to public safety in setting bail.

Prop. 6 provision: Obligates county sheriffs to record the status of every undocumented person charged with a felony.
Legal issue: Violates Article VI Supremacy Clause, Fifth Amendment right against self incrimination.
Discussion: The language of a proposed amendment to PC 667.21 requiring sheriffs to verify legal status of every person they charge with a felony is comparable to a provision advanced by the 1994 California ballot initiative, Proposition 187. It was later declared unconstitutional for overstepping federal immigration law. Prop. 6’s clause doesn’t even require, as Prop. 187 had, that individuals be notified when they are suspected of residing illegally within the US. ICE holds, then, risk being placed on US citizens without their knowledge (as was the case with several individuals at San Quentin recently).

PROP. 9

Prop. 9 provision: Limits rights of parolees with respect to revocation hearings.
Legal issue: Violates 2004 federal court order, Valdivia v. Davis.
Discussion: New Section PC 3044 increases the maximum waiting period before probable cause and revocation hearing, allows for hearsay evidence but denies right to confront witnesses, withdraws the right to legal counsel for all parolees, and stipulates that rights of parolees are limited to the few mentioned in Prop. 9. These provisions challenge parolee due process rights established under a 2004 federal court order, Valdivia v. Davis, and promises a return to the pre-Valdivia parole revocation system found to have violated procedural due process guaranteed by Constitution. Rights eliminated by Prop. 6 include: the right for counsel to present witnesses and evidence; summary of charge presented to parolee within 3 days of hold; Spanish translation of all forms where necessary.

Prop. 9 provision: Eliminates option of responsible release of any inmate (including non-violent inmates) in prison or jail to relieve overcrowding.
Legal issue: Could conflict with pending federal court decision.
Discussion: California prisons operate at almost twice designed capacity. Half of California prison admissions in 2006 were for parole violations, and half of parolees return to prison on technical violations. Twenty California counties already face federally-imposed inmate population caps, and release inmates early. This amendment to Section 28 of the Constitution (3/4 vote to change) is also likely to conflict with three-judge panel ruling on the Plata and Coleman cases this November. The judges will decide whether current prison conditions are unconstitutional and will look at setting a population cap on the system.

Prop. 9 provision: Lengthens standard wait between parole hearings to 15 years.
Legal issue: Undermines California Superior Court order to clear backlog of pending parole cases.
Discussion: Amends section 3041.5 of Penal code to decrease the frequency of parole hearings for people serving indeterminate sentences (approximately one fifth of the entire prison population). While today hearings typically occur annually, Prop. 9 sets strict standards for the board to shorten the denial period to less than 15 years—effectively tripling the sentence of some inmates. In February, a California Superior Court judge admonished the Board of Parole Hearings for failing to hear thousands of eligible parole cases. The judge ordered the court to clear the backlog by June 2009. Prop. 9 will enable the board to hear even fewer cases with impunity.

Prop. 9 provision: Alters procedures for parole hearings.
Legal issue: Compromises California Supreme Court ruling on the parole process (People v. Lawrence).
Discussion: Amends PC 3041.5 to expand the number of people that victims may bring to the hearing: any family members, plus two adults who need not have any relationship to the victim. All are entitled to testify. Where today victim statements must be limited to 15 minutes and speak exclusively to the impact of the crime on the victim, under Prop. 9, victims and their guests are entitled to speak, uninterrupted, on a range of topics they may have little knowledge of. Neither the prisoner nor the prisoner’s attorney is entitled to ask questions of the victim or otherwise challenge their testimony. These changes, which add little to a fair determination of the inmate’s present fitness for release, go against the spirit of the California Supreme Court’s ruling in Lawrence (August 2008) that decisions to grant parole should be based on whether the inmate continues to pose a danger to public safety and should consider the evidence of the inmate’s rehabilitation.

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