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Ronald Reagan Presidential Library
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Collection: Blackwell, Morton: Files
Folder Title: Americans for the Voter Initiative
Box: 2
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The Washington Post
OUTLOOK
Editorials
/
Columnists
B
THE WASHINGTON POST
Sunday, September 19, 1982
B5
INSIGHT
Pro Bono Judges to Unclog Courts
Draft lawyers to render justice in the public interest
By Edward A. Dent
one to three cases. The American Bar
This mismatch makes absolutely
I
T'S LITTLE WONDER that our
Association Journal reports that 600
no sense, especially when one consid-
clogged court system has been re-
volunteers have served so far on 200
ers the magnitude of the problems
ceiving considerable attention of late,
panels.
produced by the judge shortage.
most recently from Supreme Court
In the eight months, the temporary
In criminal cases, it is the estab-
justices.
judges have disposed of 312 cases.
lished practice of prosecutors, sanc-
The obvious consequences of over-
Some 40 of these have been appealed
tioned by judges, to accept plea bar-
loaded courts are intolerable case
further to the state supreme court,
gaining or reduced charges and sen-
delays or assembly-line justice (where
but only one appeal has been granted
tences as a means of clearing jammed
justice prevails at all), unnecessary
- an indication of the quality of the
dockets. Courts have freed persons
costs and anguish for plaintiffs, de-
decisions by the temporary judges.
indicted for crimes because their con-
fendants and witnesses, more crimi-
Such programs certainly have to be
stitutional right to a timely trial was
nals on the streets, and growing fear
developed with care. Pro bono judges,
being violated. Witnesses are often
and cynicism among the citizenry.
for example, should come from the
lost or their cooperation compro-
It's past time, therefore, to take a
ranks of more experienced and re-
mised when they refuse to tolerate
simple step to relieve jammed courts:
spected attorneys, perhaps with at
further inconveniences.
Appoint experienced attorneys to
least 10 years' experience in the
In many jurisdictions, civil actions
serve, without fee, as temporary
criminal or civil area.
take between one and two years be-
judges.
Provisions might be made to have
fore they are heard. In Maryland, for
example, civil law cases take an aver-
age of 435 days from filing to disposi-
Although there are a number of reasons
tion; criminal cases take an average
of 155 days. In the District of Colum-
for today's clogged courts, the chief one is
bia, the average civil case takes 365
that we simply do not have enough judges.
days from calendar assignment to
"
trial.
Court-ordered continuances, as a
result of crowded dockets, often re-
How can this be done? Easily.
them serve in other counties or juris-
quire all parties and witnesses to
Lawyers are already appointed to
dictions to avoid conflicts of interest,
spend hours and days, on two or
provide free counsel to poor defend-
and they should be barred from hear-
three occasions, sitting around the
ants in criminal cases. Many law
ing any case in which they had deal-
court - only to have their cases re-
firms also volunteer to do pro bono
ings or were acquainted with the par-
scheduled. Although attorneys may
work, donating attorneys' time for
ties. These and other safeguards
not concede the point, many are not
civil and criminal cases. There is no
should present no great obstacles.
upset by these delays, since they re-
good reason why the legal profession
main on the clock. Their fees con-
cannot supply pro bono judges as
tinue to mount.
well until criminal and civil cases are
Although there are a number of
Designed and implemented care-
reduced to reasonable levels.
reasons for today's clogged courts,
fully, a voluntary judgeship program
Indeed, this is already being tried
the chief one is that we simply do not
not only could relieve court backlogs,
in one state - Oklahoma, at the ap-
have enough judges. A jurisdiction
but it could provide aspiring perma-
peals court level - and with consid-
such as the state of Virginia, for ex-
nent judges with valuable hands-on
erable success. The program there
was begun some eight months ago by
ample, is dispensing justice with just
experience and otherwise benefit the
one general district court judge for
short-term judges.
Oklahoma supreme court chief jus-
every 54,145 residents. (Court admin-
In Oklahoma Marvin Emerson, the
tice Pat Irwin, and the state legisla-
istrators agree that providing suffi-
former state court administrator who
ture recently extended it for another
cient judges would also force im-
is now executive director of the Okla-
year.
proved efficiency in their depart-
homa Bar Association, says, "Law-
Under that system, temporary ap-
ment, another major roadblock to
yers are generally pleased with the
peals judges are selected by the state
justice.)
program." He reports that "a popular
supreme court. The chief justice then
At the same time, we have an
response among the pro bono judges
appoints these attorneys to tempo-
abundant supply of lawyers. There
has been: "By golly, I learned more
rary courts, each of which handles
are more than 450,000 attorneys in
about appellate procedure and writ-
the United States - one for every
ing briefs than I ever did."
Edward Dent, a political con-
500 Americans. In New York City
Most important, though, such pro-
sultant, is an adviser to the
alone, one of every 200 residents is a
grams could make a major contribu-
judicial reform project of the
lawyer; Washington and its suburbs
tion to restoring confidence in Amer-
Free Congress Foundation.
are inundated with the breed.
ican justice.
NATIONAL ADVISORY BOARD OF
THE AMERICANS FOR THE NATIONAL VOTER INITIATIVE AMENDMENT
Mr. William Harrington
Mr. Robert Krieble
Seattle, WA
Chairman
Hon. Mark Hatfield
Loctite Corp.
United States Senator (OR)
Hon. Jerry Solomon
Hon. Dennis Deconcini
United States Congressman (NY)
United States Senotor (AZ)
Hon. Ken Kramer
Dr. Henry G. Manne
United States Congressman (CO)
Director, Law & Economic Center
University of Miami
Hon. Jack Kemp
United States Congressman (NY)
Hon. Trent Lott
United States Congressman (MI)
Mr. Randal Cornell Teague
Boston, MA
Mr. J. Alan MacKay
Boston, MA
Dr. Arthur B. Laffer
Dept. of Finance & Business Economics
University of Southern California
Mr. Marvin Liebman
New York, NY
Hon. Jesse Helms
United States Senator (NC)
Hon. John D. Duncan
United States Congressman (TN)
Mr. Jeffrey Bell
Trenton, NJ
Dr. Roger A. Freeman
Senior Fellow Emeritus
Hoover Institution
Hon. Strom Thurmond
United States Senator (SC)
Mrs. Barbara A. Keating
Lorchmont, NY
Hon. Larry Pressler
United States Senator (SD)
Mr. Jeffrey Hart
New York, NY
Mr. Jude Wanniski
President, Polyconomic, Inc.
Morristown, NJ
Mr. James V. Lacy
National Chairman
Young Americans for Freedom
Freemont, CA
Dr. Thomas R. Ireland
Associate Professor of Economics
Edward A. Dent
University of Missouri
Director
St. Louis, MO
For information write to:
Mr. Lee Edwards
Americans for the National
Washington, DC
Voter Initiotive Amendment
Mr. Jim Roberts
3115 N Street, N.W.
Washington, DC
Washington, D.C. 20007
Mar 8
Conservative Initiative Possibilities
3:30
Next Meeting: Tuesday, March 8, 3:30 p.m. at Free Congress
Topics for discussion:
I. Crime/Justice
A. Death Penalty
B. Popular Recall of Judges
C. pro-gun
D. repeal of insanity defense -- guilty but insane
E. Victims restitution
F. "Crimestoppers" program
G. Drug paraphernalia
H. Bail Reform
L. Mandatory Sentencing
II. Expansion of I&R process itself (goal for states where only ballot measure
mechanism is through legislative referral)
III. Fiscal
A. Taxes
1. property tax slashes
2. tax/spending limitations
3. flat tax
B. Balanced Budget (call for constitutional convention
C. Spending Freeze
D. Sunset Laws
IV. Defense/Foreign Policy
A. Foreign Aid to certain countries
B. High Frontier/Zero Option
C. Peace Through Strength
V. Social Justice Issues
A. Infanticide
B. busing
C. tuition tax credits
D. school prayer (silent prayer/equal access?)
1983 Ballot initiatives already in the works include Ohio initiative which would
raise drinking age.
For 1984, taxes and the environment are once again hot themes. Oregon and Florida
will almost certainly have Prop 13 "clone" tax slashing proposals. The
environmentalists are gearing up around toxic waste issues and on utility
issues.
Action items for March 8 meeting:
1. Discussion of specific states and the issues which would "fly" there
2. We will examine sample ballot language on some initiatives.
3. Discussion of potential for qualifying proposals through direct mail.
We need you at the next meeting
CITIZEN'S RIGHT TO
VOTE ON ISSUES
Questions
and Answers
About National
Voter Initiative
Americans for the Voter Initiative
Americans for the National
Voter Initiative Amendment
3115 N Street, N.W.
Washington, D.C. 20007
AVI
How will the Voter Initiative
Is the Voter Initiative consistent with
Won't the process produce some bad legis-
Amendment work?
the principles as set down by the Founding
lation with too many issues voted on, emotion-
To place an issue on the national ballot, citizens would
Fathers?
al issues, or ill-conceived laws?
have to collect signatures of registered voters equal to 3%
Yes. There is nothing in the initiative process that
Results at the state level show that issues which do
of the last vote for President, approximately 2½ million
contradicts the spirit of the Constitution. In the days of
make it to the ballot will have to be of substantial public
signatures on a petition. (Spread in at least 10 states). If
our Founding Fathers, it took news four days to travel the
importance. About 80% of state initiative drives never
they completed this petition drive within 18 months, their
13 states, and much of the electorate was either
reach the ballot, and nearly 2/3 of those that do are
issue would be placed on the next national election ballot,
uneducated, uninformed, or both. Representative
defeated. It is also a misconception that California's
at the same time members of Congress are elected. A
democracy was the only logical choice.
ballot is crowded by initiative votes. In fact, only about 2
majority "yes" vote in the election would make the
Today America has seen the advent of mass education
initiatives per year, on average, have appeared on the
measure law.
and communication.
ballot in the last 10 years, whereas an average of ten per
Are there any limitations on initiative
While the people may still be unequipped to make day-
year have appeared on the ballot because the legislature
use?
to-day decisions of government, they are as qualified to
itself placed them there. Nationwide, less than 1 measure
Yes, a few. Constitutional amendments, calling up the
pass upon individual laws as upon the individual men
per initiative state, per year, has appeared on the ballot.
who make them.
militia, and declarations of war could not be addressed by
initiative. Any laws passed by public vote would still be
As well, the Founding Fathers could not have foreseen
Is the initiative safeguarded against ma-
the substantial shift in the balance of power nor the legis-
nipulation by special interest groups?
subject to review by the court system. And Congress
lative paralysis created by a proliferation of lobbyists,
First, it should be noted that special interest groups
could amend or veto initiative laws by a 2/3 Roll Call vote
interest groups and campaign contributors, to a point,
already have excellent access to normal legislative
the first two years after passage, and by a majority vote
where principle and the good of the country is too often
channels, through full-time lobbyists and through
thereafter. The initiative has therefore been designed to fit
submerged by political expediency.
campaign contributions.
within our system of checks and balances.
Our American system of democracy, after all, has
Within our legislative process special interests find it
Are the requirements reasonable?
performed well because of its built-in checks and
far easier to lobby (focus) on a particular Congressman or
Yes. They are in accordance with initiative procedures
balances. There is no reason that the people shouldn't
Senator and secure their cooperation often for many
at the state level which have worked smoothly.
have a check on Congress as well.
reasons other than the merits of the issue. On the other
California, the most populous state, requires 300,000
Finally, the initiative is an actualization of the existing
hand, these groups can't lobby 200 million plus
signatures for an initiative, and that state averages about
First Amendment right to petition the Government for
Americans. With an initiative, special interests are then
two citizen-initiatives per election. The 2½ million
redress of grievances.
forced to take their case to the people and make a
signature requirement nationally would be a difficult but
persuasive case based on the merits of an issue. And
attainable test for important national issues.
Might this process threaten our
historically the decisions of Americans are based on good
republican representative (deliberative)
common sense.
Where is Voter Initiative now used?
form of government?
Will Voter Initiative increase voter
The Constitution of 23 states and the District of
In the 23 states that use the process, action by legis-
participation?
Columbia presently authorize an initiative process. Since
latures still accounts for 99.5% of all laws passed. Less
Yes. State initiatives bring people out to vote who are
South Dakota became the first state to adopt initiative in
than 1/2 of 1% of all measures passed, come by initiative.
interested in issues. In fact, over 700,000 more votes were
1898, some 1200 issues over 80 years have been voted on
Yet this is a very important 1/2 of 1 %, prodding
cast by Californians on Proposition 13 (the tax-cut
in state initiatives.
unresponsive legislatures and providing an important
measure) than all the votes cast for all the candidates for
safety valve for the people.
Governor combined.
What issues might appear on a national
As well, federal initiatives would be resorted to only
A poll by Cambridge Survey Research Corporation
ballot?
after several attempts at Congressional action. A lengthy
showed 74% of respondents indicating that they'd be
National issues will probably be those which have been
legislative history would precede any initiative effort, and
more likely to go to vote if there were issues as well as
stalled in Congress for some time those which, though a
to be successful, an initiative would have to have the
candidates on the national election ballot.
majority of voters favor, have been ignored or
support of opinion leaders, interest groups and experts,
In the November 1978 elections, voter turnout was 21%
sidestepped.
and legislative leaders.
higher in initiative states with measures on the ballot than
in non-initiative states. Also, voter turnout in Florida (the
latest initiative state) doubled in 1978 (the first year
initiative measures appeared on the ballot) to 39% from
18% in 1974 (previously the lowest voter turnout of any
state.)
Can the process be administered
nationally? At a fair cost?
A recent study by the Congressional Budget Office
reported that it would cost between 1 to 2 million dollars
annually to administer the Voter Initiative Amendment.
That works out to about a penny per American per year,
certainly a fair administrative cost.
State elections officials testified before a Senate
subcommittee to indicate that the same administrative
procedures used for state initiatives could be used for
federal initiatives, and that the process could be managed
smoothly.
Who supports the Voter Initiative
Amendment?
A recent Gallop Poll showed Americans 57% to 21% in
favor - well over 2 to 1. Every political preference and
geographic area showed overwhelming support for the
Amendment. An advisory referendum held in Los
Angeles in June, 1978, showed that County strongly in
favor of the concept with over a million voters endorsing
it. Support in the Congress for this measure has been on a
bipartisan basis.
How can I help the Voter Initiative
movement?
Show your support by writing, calling, or visiting your
Congressman and Senators. Contribute to Americans for
the Voter Initiative (AVI), which is working in the
nation's capitol, for the right of initiative nationally and
in the remaining states yet to gain the process.
It is far easier for the people to make wise decisions on
issues than on the shifting promises and personalities of
individuals.
Copyright Americans for the Voter Initiative, 1979
= states with right of initiative
A proposition duly placed on the ballot by petition
can't change it's mind after the polls are closed.
the
Americana for AVI Voter Initiativa
AMERICANS FOR THE VOTER INITIATIVE
Americans for the National
Voter Initiative Amendment
3115 N Street, N.W.
Washington, DC 20007
(202) 333-4846
A POLITICAL STRATEGY FOR PRESIDENT REAGAN AND THE REPUBLICAN PARTY:
-A CALL FOR A NATIONAL VOTER INITIATIVE PROCESS-
Political Impact
There are strong economic and social reasons to support the
adoption of a national voter initiative process, but let's for
a moment forget these rationales because there is another reason
equally as important for Republicans, namely, political. If
the Republican Party (in a moment of political shrewdness)
champions the adoption of a. National Voter Initiative, in one fell
swoop they will succeed in stripping the Democratic Party of its
claim to legitimacy, namely, being the party of the people.
It is well known that Tip O'Neil and Peter Rodino don't like
the National Voter Initiative, nor do most of our Democratic
friends in the House and Senate. The AFL-CIO and public employees
unions loathe the concept. In fact, most of the Democratic
support organizations, from the DNC, to Brookings, to Common
Cause, to Nader's groups, are unfriendly to the idea. And with
good reason. They have correctly assessed that the process will
do serious damage to their programs and to their philosophy. In
other words, they (the Democrats) really don't believe in democracy.
They know that on too many issues they really don't stand for what
common sense Americans want. And they don't want the people to
have the opportunity to disagree with them on policy.
- 2 -
Further, a call by President Reagan would place the Democrats
squarely upon the horns of a dilemma. If they oppose the measure,
their hypocrisy (opposing the right of the people to vote on
issues) would be plain for all to see. If they agree to pass the
measure for fear of the political consequences they will give the
President the vehicle he needs in the future to end run the Con-
gress by going directly to the people.
Moreover. this call will go the extra mile to demonstrate that
the President really cares about the voice of the people and will
do much to counteract the rich Californian (Imperial Presidency)
image the press likes to paint.
The National Voter Initiative provides adequate safeguards
(checks) to guard against frivolous or extreme measures being
adopted. A petition drive must succeed in at least 10 to 15 states
as well as nationally. In one version, its popular vote majority
must be confirmed by an automatic electoral vote majority as well.
Congress may amend or veto any measure passed by a 2/3 vote during
the first two years after passage and by a simple majority there-
after. And the federal judiciary may of course rule on the
Constitutionality of any measure passed. So the process is quite
compatible with our system of checks and balances.
It should further be noted that a proposed National Voter Initiative
process would properly exclude votes on matters of foreign policy
or national defense, since the people cannot be privy to secret
data developed by the State Department, CIA, and NSA, date nec-
essary to make an intelligent decision.
- 3 -
In summation, the process is an excellent addition to our
system of government and the political opportunity for Republicans
to seize the initiative and become the permanent majority party
has never been better. The opportunity may not come again. It
is an offer no politically astute Republican should refuse.
THE ECONOMIC/SOCIAL RATIONALE: AN OVERVIEW
Why Should Republicans Be Solidly Behind a
National Voter Initiative?
1. A study of the use of all statewide initiatives in the United
States through 1976 (over 80 years) showed that the people had
decided by better than 4 to 1 to reject initiatives providing for
regulatory boards, bureaus, and measures--a record directly oppo-
site to that of Congress.
2. The same study (through 1976) showed that the people (through
initiatives) rejected by better than 3 to 1 (5 to 1 since 1955)
statewide initiatives which either taxed, funded or spent their
money--again a pattern totally contrary to that of Congress.
The reasons for these ballot results are very simple. The people
must pay the bill for these (levies) taxes or administrative bodies,
and there are no political rewards involved when they vote. As well,
for obvious reasons the people are quite reluctant to pass excessive
regulatory or environmental measures which might hurt jobs or the
economy. Moreover, the people do not wish to foreclose upon their
option to participate in the free enterprise system as entrepreneurs.
3. California, a state which would have the ninth largest economy
in the world if it were a nation, has used the initiative for over 80
years without any serious setbacks to its business climate.
As acmatter of fact, a strong case can be made to show that gov-
- 4 -
ernmental controls and taxation prevelant in other states have
been inhibited due to the initiative process.
4. The climate for business in the western states which are:
predominantly initiative states is considerably more favorable
than is the climate in non-initiative states, notably the north-
east and north central United States. Those states unchecked
by initiative or referendum have adopted heavy social welfare,
taxing, and business regulation policies (New York, New Jersey,
et cetera).
5. Switzerland, the only nation in the world with a National
Voter Initiative, has had notable success in preserving a pro-
business, anti big government climate. Switzerland was featured
in a 1978 Fortune magazine for its unusually high employment, low
inflation, and high productivity, insured and bolstered, according
*
to Fortune, by the national referendum-initiative process.
SWISS INITIATIVE EXPERIENCE: (Fortune magazine--12/18/78)
"Say Willy Linder, Economic Editor of the Neue Zurcher Zeitung,
'The Swiss remains WHICH unselfish and sensible enough to vote at times
in favor of issues^against his or her self-interest. Yet in the
long run, these attitudes have contrinuted to Switzterland's
economic and political stability. During the past three years,
for example, the Swiss, by margins generally exceeding 3 to 1, have
decided in referendums not to cut the work week from forty-four
to forty hours, not to levy special taxes on the rich and high
salary earners, not tc grant Swiss workers a say in the management
of Swiss industries, not to reduce the qualifying age for admission
to Switzerland's generous old-age pensions, not to allow the cen-
tral government to raise funds to counter domestic economic down-
trends, and finally not to allow the central government to run
deficite. Instead the Swiss voted to raise taxes on themselves, so
that the federal government could operate on a pay as you go basis. "
During the past three years, the inflation rate has been 1% in 1976
and 1977 and 0.5% in 1978. Unemployment is at 0.3% (1978).
- 5 -
6. Occasionally in the United States an initiative which inhibits
business passes, but the overall record of the process (in the 23
states) reference business shines in comparison with that of Congress.
7. Over the last ten years, culminating in the June 8, 1982 elec-
tions, Californians by initiative and in spite of legislative, judi-
cial, and executive opposition have passed some of the most sweeping
and farreaching measures aimed at fighting crime through judicial
reform, including: mandatory five year prison sentences for crimes
of violence committed with a firearm, reinstatement of the death
*
penalty, elimination of plea bargaining for crimes of violence, re-
stricting bail for offenders involved in crimes of violence where
the public safety cannot be assured, requiring financial restitution--
regardless of sentence--by criminals to victims, mandating double
penalties for repeat offenders, restriction of the insanity plea,
authorization of bond measures for the construction of new prisons,
and many others. The last six of these measures passed 6 June 1982
closed virtually all revolving door loopholes for criminals. Cali-
fornia, because of its initiative process, is far ahead of other
states and the federal government in enacting reform measures to
fight crime.
An additional full discussion of the National Voter Initiative
contained in an article published in a 17 October 1981 issue of
Human Events newspaper is available upon request. I hope you will
agree that the combined political, economic, and social rationale
for the adoption of the National Voter Initiative is compelling.
Sincerely,
Elward Deat
EDWARD A. DENT
NATIONAL VOTER INITIATIVE AMENDMENT
March, 1979
I have had people ask me the questions: what is wrong
with the system of elected representatives? Why does it need
improving with the initiative? If the representatives don't do
the job (what the people want) won't then the people vote them
out and get someone else? And therefore won't those in office
perform well, by representing the best interests and will of
their constituents? Well that's how the system is supposed to
work, but in practice too often it just doesn't work that way.
Why? Because unfortunately in too many cases the po-
litical interests of Congressmen and Senators (officeholders) is
totally at odds with their constituents' interest on issues. It
is a political fact of life, that Congressmen and Senators are
highly concerned with being reelected. In order to do this
they must satisfy the wishes of the best organized and monied
interest groups. And the wishes of these factions are often
totally inconsistent with the wishes of the general population.
As well it is a natural inclination of a legislator to wish to
expand (not contract) his power base. And again he does this by
satisfying the wishes of the special groups; and by expanding his
bureaucratic oversight or domain. His decisions therefore far
too frequently tend to reflect his best political interest (and
not the best interests of his constituents or of the nation.
Therefore, political expediency triumphs over principle.
Further, with the politics of personality, citizens
are just not magician enough to translate issues into candidates.
Politicians are very adept at either fuzzing (blurring) the is-
sues or at forgetting their promises (changing their minds).
Hence, the initiative slogan, "A proposition duly placed on the
ballot by petition cannot change its mind after the polls are
closed", sums up the frustrations of the people.
Finally, within our legislative process special inter-
ests find it far easier to lobby (focus) on a particular Con-
gressman or Senator and secure their cooperation often for many
reasons other than the merits of the issue. On the other hand
these groups can't lobby 200 million plus Americans. With an
initiative, special interests are then forced to make a persuasive
case based on the merits of an issue. And historically the
decisions of Americans are based on good common sense, and not
extravagent intellectual expeditions into fantasy land. Both leg-
islator and voter breathe a little easier as some of the pressures
(on legislators) and frustrations (of voters) are removed and the
direct lines of communication are strengthened. This is why the
additional voice of initiative process is so critically important
to the future of our democratic republic.
Edward Sip lant (Chip) Dent, Director
Americans for the National
Voter Initiative Amendment
3115 N Street, N.W.
Washington, D. C. 20036
(202) 333-4846
AMERICANS FOR THE VOTER INITIATIVE
Americans for the National
Voter Initiative Amendment
3115 N Street, N.W.
Washington, DC 20007
(202)333-4846
TO: MORTON Blucknell
1/2/83
From: FEDWARD Chap DENT
Dear Motor,
I Thought You might
find the enclosed California Vota
information Pamphlet - Reference June Criminal
Justue Statute of interest. Note the Pro
CON Arguments. Every Registered Vita gets one
of these.
I Believe strong backing in
this Pamplet of the Criminal Justice initiative
continted surficiantly To His November vatory.
CON Ballot Pampsletta be distutated To ALL
Many IN titure States require the Pro
Registered Voters. Thanks For Your interest
someily
Chip
CRIME MAND
SWARLES
Cris CRIM. INC.
CALIFORNIA BALLOT PAMPHLET
Primary Election
June 8, 1982
OF
GREAT THE SEAL:UREKA THE MASTATE STATE OF
CALIFORNIA
Compiled by MARCH FONG EU Secretary of State
Analyses by WILLIAM G. HAMM Legislative Analyst
8
Criminal Justice-Initiative Statutes and
Constitutional Amendment
Official Title and Summary Prepared by the Attorney General
CRIMINAL JUSTICE. INITIATIVE STATUTES AND CONSTITUTIONAL AMENDMENT. Amends Constitution
and enacts several statutes concerning procedural treatment, sentencing, release, and other matters for accused and
convicted persons. Includes provisions regarding restitution to victims from persons convicted of crimes, right to safe
schools, exclusion of rélevant evidence, bail, use of prior felony convictions for impeachment purposes or sentence
enhancement, abolishing defense of diminished capacity, use of evidence regarding mental disorder, proof of insanity,
notification and appearance of victims at sentencing and parole hearings, restricting plea bargaining, Youth Authority
commitments, and other matters. Summary of Legislative Analyst's estimate of net state and local government fiscal
impact: As the fiscal effect would depend on many factors that cannot be predicted, the net fiscal effect of this measure
cannot be determined with any degree of certainty. However, approval of the measure would result in major state
and local costs. The measure could: increase local administration costs; increase state administrative costs; increase
claims against the state and local governments relating to enforcement of the right to safe schools; increase school
security costs to provide safe schools; increase the cost of operating county jails by increasing the jail populations;
increase court costs; and increase the cost of operating the state's prison system by increasing the prison population
(estimated to be about $47 million increased annual prison operating costs and $280 million prison construction costs
based on various assumptions).
Analysis by the Legislative Analyst
Background:
Safe Schools. The Constitution currently provides
The California criminal justice system is governed by
that all people have the inalienable right of "pursuing
the State Constitution, by statutes enacted by the Legis-
and obtaining safety, happiness, and privacy." In addi-
lature and the people, and by court rulings.
tion, statutory law prohibits various acts upon school
Under the criminal justice system, persons convicted
grounds which disturb the peace of students or staff, or
of misdemeanors may be fined or sentenced to a county
which disrupt the peaceful conduct of school activities.
jail term, or both. Those convicted of felonies may be
This measure would add a section to the State Constitu-
fined in some cases, sentenced to state prison, or (if
tion declaring that students and staff of public elemen-
they were under 21 years of age at the time they were.
tary and secondary schools have the "inalienable right
apprehended) committed to the Youth Authority, or
to attend campuses which are safe, secure, and peace-
both fined and imprisoned. For some crimes, a person
ful.'
may receive "probation" in lieu of a prison sentence or
Evidence. Under current law, certain evidence is
a fine.
not permitted to be presented in a criminal trial or
hearing. For example, evidence obtained through un-
Proposal:
lawful eavesdropping or wiretapping, or through un-
This initiative proposes many changes in the State
lawful searches of persons or property, cannot be used
Constitution and statutory law that would alter criminal
in court. This measure generally would allow most rele-
justice procedures and punishments and constitutional
vant evidence to be presented in criminal cases, subject
rights. The major changes are summarized below.
to such exceptions as the Legislature may in the future
Restitution. Under existing law, victims of crime are
enact by a two-thirds vote. The measure could not af-
not automatically entitled to receive "restitution" from
fect federal restrictions on the use of evidence.
the person convicted of the crime. (Restitution would
Bail. Under the State Constitution and statutory
involve, for example, replacement of stolen or damaged
law, the courts generally must release on bail all persons
property, or reimbursement for costs that the victim
accused of committing a crime, while they await trial.
incurred as a result of the crime.) In some cases, howev-
The courts may deny bail only for those who are ac-
er, the courts release a convicted person on probation,
cused of felonies punishable by death if the court deter-
on the condition that restitution be provided to the
mines that the proof of guilt is evident or the presump-
victim or victims.
tion of guilt is great.
This measure would grant crime victims who suffer
In fixing the amount of bail, courts are required by
losses a constitutional right to receive restitution. Ex-
statute to consider the seriousness of the offense with
cept in unusual cases, convicted persons would be re-
which the person is charged, the defendant's previous
quired to make restitution to all of their victims who
criminal record and the probability that the defendant
suffer losses. The extent to which restitution would be
will appear at the trial or hearings of the case. The State
made would depend on how many convicted persons
Constitution prohibits courts from setting "excessive"
have or acquire sufficient assets to make restitution.
bail.
The Legislature would be responsible for adopting
The courts also may allow those accused of commit-
laws to implement this section of the measure.
Continued on page 54
32
Text of Proposed Law
This initiative measure is submitted to the people in accordance
bail, 2 hearing may be held before the magistrate or judge, and the
with the provisions of Article II, Section 8 of the Constitution.
prosecuting attorney shall be given notice and reasonable opportu-
This initiative measure expressly repeals and adds existing provi-
nity to be heard on the matter.
sions of the Constitution, and adds provisions to the Penal Code and
When & judge or magistrate grants or denies bail or release on a
the Welfare and Institutions Code; therefore, provisions proposed to
person's own recognizance, the reasons for that decision shall be
i be deleted are printed in strikcout type and new provisions proposed
stated in the record and included in the court's minutes.
to be added are printed in italic type to indicate that they are new.
(f) Use of Prior Convictions. Any prior felony conviction of any
person in any criminal proceeding, whether adult or juvenile, shall
PROPOSED LAW
subsequently be used without limitation for purposes of impeach-
ment or enhancement of sentence in any criminal proceeding. When
SEC. 1. This amendment shall be known as "The Victims' Bill of
a prior felony conviction is an element of any felony offense, it shall
Rights".
be proven to the trier of fact in open court.
SEC. 2. Section 12 of Article I of the Constitution is repealed.
(g) As used in this article, the term "serious felony" is any crime
See: 10. A person shall be released on bail by sufficient sureties,
defined in Penal Code, Section 11927(c).
except for capital erimes when the facts are evident or the presump/
SEC. 4. Diminished Capacity; Insanity. Section 25 is added to
tion great. Excessive bail may net be required.
the Penal Code, to read:
A person may be released on his or her own recognizance in the
25. (a) The defense of diminished capacity is hereby abolished.
court's discretion.
In 8 criminal action, as well as any juvenile court proceeding, evi-
SEC. 3. Section 28 is added to Article I of the Constitution, to
dence concerning an accused person's intoxication, trauma, mental
read:
illness, disease, or defect shall not be admissible to show or negate
SEC. 28. (a) The People of the State of California find and de-
capacity to form the particular purpose, intent, motive, malice afore-
clare that the enactment of comprehensive provisions and laws ensur-
thought, knowledge, or other mental state required for the commis-
ing a bill of rights for victims of crime, including safeguards in the
sion of the crime charged.
criminal justice system to fully protect those rights, is a matter of
(b) In any criminal proceeding, including any juvenile court pro-
grave statewide concern.
ceeding, in which a plea of not guilty by reason of insanity is entered,
The rights of victims pervade the criminal justice system, encom-
this defense shall be found by the trier of fact only when the accused
passing not only the right to restitution from the wrongdoers for
person proves by a preponderance of the evidence that he or she was
financial losses suffered as & result of criminal acts, but also the more
incapable of knowing or understanding the nature and quality of his
basic expectation that persons who commit felonious acts causing
or her act and of distinguishing right from wrong at the time of the
injury to innocent victims will be appropriately detained in custody,
commission of the offense.
tried by the courts, and sufficiently punished so that the public safety
(c) Notwithstanding the foregoing, evidence of diminished capaci-
is protected and encouraged as a goal of highest importance.
ty or of a mental disorder may be considered by the court only at the
Such public safety extends to public primary, elementary, junior
time of sentencing or other disposition or commitment.
high, and senior high school campuses, where students and staff have
(d) The provisions of this section shall not be amended by the
the right to be safe and secure in their persons.
Legislature except by statute passed in each house by rollcall vote
To accomplish these goals, broad reforms in the procedural treat-
entered in the journal, two-thirds of the membership concurring, or
ment of accused persons and the disposition and sentencing of con-
by 2 statute that becomes effective only when approved by the elec-
victed persons are necessary and proper as deterrents to criminal
tors.
behavior and to serious disruption of people's lives.
SEC. 5. Habitual Criminals. Section 667 is added to the Penal
(b) Restitution. It is the unequivocal intention of the People of
Code, to read:
the State of California that all persons who suffer losses as a result of
667. (a) Any person convicted of a serious felony who previously
criminal activity shall have the right to restitution from the persons
has been convicted of a serious felony in this state or of any offense
convicted of the crimes for losses they suffer.
committed in another jurisdiction which includes all of the elements
Restitution shall be ordered from the convicted persons in every
of any serious feleny, shall receive, in addition to the sentence im-
case, regardless of the sentence or disposition imposed, in which a
posed by the court for the present offense, a five-year enhancement
crime victim suffers a loss, unless compelling and extraordinary rea-
for each such prior conviction on charges brought and tried separate-
sons exist to the contrary. The Legislature shall adopt provisions to
ly. The terms of the present offense and each enhancment shall run
implement this section during the calendar year following adoption
consecutively.
of this section.
(b) This section shall not be applied when the punishment im-
(c) Right to Safe Schools. All students and staff of public primary,
posed under other provisions of law would result in a longer term of
elementary, junior high and senior high schools have the inalienable
imprisonment. There is no requirement of prior incarceration or
right to attend campuses which are safe, secure and peaceful.
commitment for this section to apply.
(d) Right to Truth-in-Evidence. Except as provided by statute
(c) The Legislature may increase the length of the enhancement
hereafter enacted by a two-thirds vote of the membership in each
of sentence provided in this section by a statute passed by majority
house of the Legislature, relevant evidence shall not be excluded in-
vote of each house thereof.
any criminal proceeding, including pretrial and post conviction mo-
(d) As used in this section "serious felony" means a serious felony
tions and hearings, or in any trial or hearing of a juvenile for a criminal
listed in subdivision (c) of Section 1192.7.
offense, whether heard in juvenile or adult court. Nothing in this
(e) The provisions of this section shall not be amended by the
section shall affect any existing statutory rule of evidence relating to
Legislature except by statute passed in each house by rollcall vote
privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103.
entered in the journal, two-thirds of the membership concurring, or
Nothing in this section shall affect any existing statutory or constitu-
by a statute that becomes effective only when approved by the elec-
tional right of the press.
tors.
(e) Public Safety Bail. A person may be released on bail by suffi-
SEC. 6. Victim's Statements; Public Safety Determination.
cient sureties, except for capital crimes when the facts are evident or
(a) Section 1191.1 is added to the Penal Code, to read:
the presimption great. Excessive bail may not be required. In setting,
1191.1 The victim of any crime, or the next of kin of the victim if
reducing or denying bail, the judge or magistrate shall take into
the victim has died, has the right to attend all sentencing proceedings
consideration the protection of the public, the seriousness of the of
under this chapter and shall be given adequate notice by the probe-
fense charged, the previous criminal record of the defendant, and the
tion officer of all sentencing proceedings concerning the person who
probability of his or her appearing at the trial or hearing of the case.
committed the crime.
Public safety shall be the primary consideration.
The victim or next of kin has the right to appear, personally or by
A person may be released on his or her own recognizance in the
counsel, at the sentencing proceeding and to reasonably express his
court's discretion, subject to the same factors considered in setting
or her views concerning the crime, the person responsible, and the
bail. However, no person charged with the commission of any serious
need for restitution. The court in imposing sentence shall consider
felony shall be released on his or her own recognizance.
Before any person arrested for a serious felony may be released on
Continued on page 55
33
Criminal Justice-Initiative Statutes and
8
Constitutional Amendment
Arguments in Favor of Proposition 8
It is time for the people to take decisive action against
While there are more people going to state prison than
violent crime. For too long our courts and the professional
there were three years ago, only 5.5 percent of those persons
politicians in Sacramento have demonstrated more concern
arrested for felonies are sent to state prison. Of those convict-
with the rights of criminals than with the rights of innocent
ed of felonies, one-third go to state prison and the remaining
victims. This trend must be reversed. By voting "yes" on the
two-thirds are back in the community in a relatively short
Victims' Bill of Rights you will restore balance to the rules
period of time.
governing the use of evidence against criminals, you will limit
THERE IS ABSOLUTELY NO QUESTION THAT THE
the ability of violent criminals to hide behind the insanity
PASSAGE OF THIS PROPOSITION WILL RESULT IN
defense, and you will give us a tool to stop extremely danger-
MORE CRIMINAL CONVICTIONS, MORE CRIMINALS
ous offenders from being released on bail to commit more
BEING SENTENCED TO STATE PRISON, AND MORE
violent crimes. Your action is as vital and necessary today as
PROTECTION FOR THE LAW-ABIDING CITIZENRY.
it was in 1978 when I urged Californians to take property taxes
IF YOU FAVOR INCREASED PUBLIC SAFETY, VOTE
into their own hands and pass Proposition 13. If you believe
YES ON PROPOSITION 8.
as I do that the first responsibility of our criminal justice sys-
tem is to protect the innocent, then I urge you to vote "yes"
GEORGE DEUKMEJIAN
on Proposition 8.
Attorney General
MIKE CURB
Lieutenant Governor
Why is it that the Legislature doesn't start getting serious
about a problem until we, the people, go out and qualify an
initiative?
Crime has increased to an absolutely intolerable level.
While criminals murder, rape, rob and steal, victims must
Four years ago it was Proposition 13, which I coauthored, to
install new locks, bolts, bars and alarm systems in their homes
cut skyrocketing property taxes.
and businesses. Many buy tear gas and guns for self-protec-
A year later we had to go. to the initiative process to place
tion. FREE PEOPLE SHOULD NOT HAVE TO LIVE IN
a lid on government spending. That effort, the Gann Spend-
ing Limitation Initiative, was carried with a landslide 75 per-
FEAR.
cent of the vote.
Yet, higher courts of this state have created additional
Today it is the forgotten victims of violent crime that the
rights for the criminally accused and placed more restrictions
on law enforcement officers. This proposition will overcome
Legislature has so callously ignored. Again, it is up to the
some of the adverse decisions by our higher courts.
people to bring about reasonable and meaningful reform.
THIS MEASURE CREATES RIGHTS FOR THE VICTIMS
Your "YES" vote on Proposition 8 will restore victims'
OF VIOLENT CRIMES. It enacts new laws that those of us
rights and help bring violent crime under control.
in law enforcement have sought from the Legislature without
PAUL GANN
success.
Proponent, Victims' Bill of Rights
Rebuttal to Argument in Favor of Proposition 8
WHY DONT THE POLITICIANS SUPPORTING
Send mentally disordered sex offenders to prison.
PROPOSITION 8 TELL YOU WHAT IT REALLY DOES?
Eliminate the diminished capacity defense.
Look closely at their arguments. They are simply political
Provide life sentences for habitual criminals.
slogans and anticrime propaganda.
Guarantee victim input.
Every responsible citizen opposes crime, but we should also
Place controls on plea bargaining.
be very HESITANT to make RADICAL changes in our Con-
Restrict bail for violent felons (Proposition 4).
stitution.
Proposition 8 will undermine these new laws by imposing
Yet Proposition 8 does just that
it needlessly reduces
its confusing language on top of clear, well-thought-out re-
your personal liberties
and clearly harms true efforts to
forms.
fight crime.
Proposition 8 is the kind of abuse of the initiative process by
CONSIDER THESE EFFECTS OF PROPOSITION 8:
political candidates which should be condemned. If you care
Takes away everyone's right to bail. (Compare Proposi-
about your privacy
and especially if you care about ef-
tion 4, which targets only violent felons.)
fective, responsible law enforcement
VOTE NO ON
Allows strip searches of minor traffic offenders.
PROPOSITION 8.
Condones the use of wiretapping and seizure of your
telephone and credit records without a warrant.
RICHARD L GILBERT
Permits spying on you in a public restroom.
District Attorney, Yolo County
Either Proposition 8 takes away your rights, or it is uncon-
STANLEY M. RODEN
stitutional
in which case valid criminal convictions will
District Attorney, Santa Barbara County
be thrown out.
TERRY GOGGIN
The other reason they say nothing specific is that MUCH
Member of the Assembly, 66th District
OF PROPOSITION 8 IS ALREADY LAW. These laws:
Chairman, Committee on Criminal Justice
34
Arguments printed on this page are the opinions of the authors and have not been checked for accuracy by any official agency
Criminal Justice-Initiative Statutes and
Constitutional Amendment
8
Argument Against Proposition 8
You're afraid of crime-and you have the right to be.
REQUIRES MILLIONS OF DOLLARS IN NEW COURT
If Proposition 8 would end crime, we would be the first to
PROCEDURES-BUT NO MONEY TO PAY FOR THEM
urge you to vote for it.
Look at the cost of Proposition 8 at the top of this measure.
But Proposition 8 is a hoax
there is no other way to
Why is it so expensive?
describe it.
A major share is for extra court hearings and elaborate new
Some. ambitious politicians may think this ill-conceived
red tape in every criminal case-most of which are mis-
measure helps them. It will certainly help keep an army of
demeanors. This will require more courts, judges, clerks, and
appellate lawyers fully employed
probation officers.
But it will not reduce crime, help victims, or get dangerous
Proposition 8 does not provide one cent to pay for these
criminals off the streets.
things.
As professionals, charged with the responsibility of control-
COURTS IN CHARGE OF PUBLIC SCHOOLS
ling crime and prosecuting criminals
we ask YOU to
Nobody knows what the so-called "safe schools" section
PLEASE VOTE NO on PROPOSITION 8.
means. The likely result of this provision is constant court
Proposition 8 is so badly written it mangles nearly every
battles over compliance. This will no doubt lead to judges
aspect of the criminal justice system it touches.
running some of our schools. It also could give children the
constitutional right to refuse to attend school.
READ the PROBLEMS it will cause:
VICTIM RESTITUTION-A MEANINGLESS PROMISE
UNCONSTITUTIONAL INITIATIVE TAKES
What good is a right to restitution when so many victims are
CONVICTED KILLERS OFF DEATH ROW
harmed by criminals who can't pay? (Ever been hit by an
Even some of Proposition 8's supporters agree it may be
uninsured motorist?) Besides, victims already have the right
unconstitutional. But unconstitutional laws cause sentences to
to collect from criminals who can pay.
be overturned. Thirty convicted killers were recently taken
PROPOSITION 8-A POLITICAL PLOY
off death row because of one unconstitutional line in the 1978
As professionals, we know our criminal justice system needs
Death Penalty Initiative.
carefully written, tough, constitutional laws and procedures.
Proposition 8 is none of these. It makes it harder to convict
CONVICTING PEOPLE LIKE THE "FREEWAY
criminals, will lead to endless appeals, and will create chaos
KILLER" NEARLY IMPOSSIBLE
in the legal system.
Proposition 8 seeks to stop plea bargaining. Its wording,
It may be good politics, but it is bad law.
however, would take away law enforcement's ability to nego-
PLEASE, VOTE NO ON PROPOSITION 8.
tiate with criminals to get them to testify against each other
RICHARD L GILBERT
This is how the "Freeway Killer" was convicted. It is how
District Attorney, Yolo County
law enforcement fights organized crime and gang violence.
STANLEY M. RODEN
FREES DEFENSE LAWYERS TO SMEAR POLICE
District Attorney, Santa Barbara County
WHO TESTIFY IN COURT
TERRY GOGGIN
Under current law, a defense lawyer cannot attack the
Member of the Assembly, 66th District
character of a police witness. If Proposition 8 passes he could.
Chairman, Committee on Criminal Justice
Rebuttal to Argument Against Proposition 8
LAW ENFORCEMENT SUPPORTS PROPOSITION 8
THE PEOPLE SUPPORT PROPOSITION 8
Proposition 8 has been endorsed by more than 250 police
Throughout California, hundreds of thousands of your fel-
chiefs, sheriffs and district attorneys. It has the support of
low citizens carried and signed petitions to place this vital
more than 30,000 rank-and-file police officers.
initiative on the ballot. Many of these people have lost family
Senior Assistant Attorney General George Nicholson, a
members or are themselves victims of crime.
chief architect of the Victims' Bill of Rights and a former
murder prosecutor, has called Proposition 8 "the most effec-
But they are not only victims of crime, they are victims of
tive anticrime program ever proposed to help the forgotten
our criminal justice system-the liberal reformers, lenient
victims of crime."
judges and behavior modification do-gooders who release
hardened criminals again and again to victimize the innocent.
ANTICRIME LEGISLATIVE LEADERS
SUPPORT PROPOSITION 8
It's time to restore justice to the system.
Proposition 8 coauthor Assemblywoman Carol Hallett says,
VOTE YES FOR VICTIMS' RIGHTS.
"A generation of victims have been ignored by our Legisla-
VOTE YES ON PROPOSITION 8
ture, thanks to the Assembly Criminal Justice Committee.
Proposition 8 takes the handcuffs off the police and puts them
PAUL GANN
on the criminals, where they belong."
Proponent, Victims' Bill of Rights
Arguments printed on this page are the opinions of the authors and have not been checked for accuracy by any official agency
35
donee (person receiving the gift). That is, a separate
quarterly with the state a gift tax return reporting the
gift tax computation is made for the gifts to each donee,
gift or gifts made.
rather than making one computation based on the total
value of the gifts from a single donor (the person giving
5. Payment of Tax
the gift) to all donees. The specific exemptions and
Both the donor and the donee of a gift are liable for
rates of tax are the same as under the Inheritance Tax
the gift tax, but the donor has primary responsibility for
Law.
the tax.
The tax becomes delinquent on the last day allowed
2. Valuation
for filing a return. Any delinquent gift tax accrues inter-
For purposes of the Gift Tax Law, the property which
est at the rate of 12 percent per annum until the tax,
is the subject of the gift is valued at its market value on
plus interest, is paid in full.
the date of gift. Unlike the Inheritance Tax Law (see
The Gift Tax Law does not contain provisions for
Section 4), the Gift Tax Law does not contain à provi-
installment payments, nor does it allow for an adjusted
sion for the special use value of real property.
rate of interest for late payment of the tax.
6. Penalties
3. Exclusions
If a gift tax return is not filed when due, it is subject
Gifts made to the spouse of the donor during the
to a penalty equal to 5 percent of the tax owed. Addi-
donor's lifetime are excluded from the gift tax. The Gift
tional penalties are imposed in cases involving such
Tax Law also excludes gifts made to government agen-
matters as fraud or willful failure to file a return.
cies and charitable organizations and gifts of intangible
personal property belonging to a donor who resided in
7. Interest on Refunds
a territory or state of the United States, other than Cali-
In the case of overpayment of the gift tax due, inter-
fornia, at the date of gift. The Gift Tax Law does not
est is allowed on the refund of the excess payment. If
provide an exclusion for a gift of insurance, nor does it
the overpayment is due to an error or mistake on the
provide an exclusion for gifts of an interest in a public
part of the taxpayer, the interest on the refund is com-
pension or retirement plan.
puted at a specified rate, not to exceed 7 percent per
The Gift Tax Law does provide a $3,000 annual exclu-
annum. If the overpayment does not reflect an error or
sion for gifts to each donee. That is, in each year a donor
mistake on the part of the taxpayer, interest on the
may make gifts of up to $3,000 to each donee without
refund is computed at the rate of 12 percent per an-
incurring any gift tax.
num. Interest is allowed from the date on which the
payment of the tax would have become delinquent, if
4. Gift Tax Returns and Determination of the Tax
not paid, or the date of actual payment, whichever is
Under the Gift Tax Law, the donor is required to file
later.
Proposition 8-Analysis-Continued from page 32
deny bail or (b) release an accused person without bail.
ting a crime to be released without bail upon their writ-
Prior Convictions. The measure would amend the
ten promise to appear in court when required. The
State Constitution to require that information about
failure to appear in court as promised can result in
prior felony convictions be used without limitation to
additional criminal charges being filed against the ac-
discredit the testimony of a witness, including that of a
cused.
defendant. Under current law, such information may
Court decisions have held that the purpose of bail is
be used only under limited circumstances.
to assure that the defendant will appear in court to
Longer Prison Terms. Under existing law, a prison
stand trial, rather than to protect the public's safety.
sentence can be increased from what it otherwise
This measure would amend the State Constitution to
would be by from one to ten years, depending on the
give the courts discretion in deciding whether to grant
crime, if the convicted person has served prior prison
bail. It would, however, continue the prohibition on bail
terms, and a life sentence can be given to certain repeat
in felony cases punishable by death when the proof of
offenders. Convictions resulting in probation or com-
guilt is evident or the presumption of guilt is great.
mitment to the Youth Authority generally are not con-
In addition, the measure would add to the State Con-
sidered for the purpose of increasing sentences, and
stitution a provision requiring the courts-in fixing, re-
there are certain limitations on the overall length of
ducing, or denying bail or permitting release without
sentences.
bail-to consider the same factors that they now are
This measure includes two provisions that would in-
required by statute to consider in fixing the amount of
crease prison sentences for persons convicted of speci-
bail. It would also make protection of the public's safety
fied felonies. First, upon a second or subsequent convic-
the primary consideration in bail determinations. More-
tion for one of these felonies, the defendant could
over, the measure would prohibit the courts from
receive, on top of his or her sentence, an additional
releasing without bail persons charged with certain
five-year prison term for each such prior conviction,
felonies.
regardless of the sentence imposed for the prior convic-
Finally, the measure would require the court to state
tion. This provision would not apply in cases where
for the record its reasons for deciding to (a) grant or
other provisions of law would result in even longer pris-
54
on terms. Second, any prior felony conviction could be
Fiscal Effect:
used without limitation in calculating longer prison
The net fiscal effect of this measure cannot be deter-
terms.
mined with any degree of certainty. This is because the
Defenses of Diminished Capacity and Insanity. The
fiscal effect would depend on many factors that cannot
measure would prohibit the use of evidence concerning
be predicted. Specifically, it would depend on:
a defendant's intoxication, trauma, mental illness, dis-
how various provisions are implemented by the
ease, or defect for the purpose of proving or contesting
Legislature, local governments, and school districts,
whether a defendant had a certain state of mind in
how the rights established by the measure are en-
connection with the commission of a crime. Legislation
forced by the courts,
enacted in 1981 significantly limited use of this type of
how many persons are incarcerated in state prison
evidence.
or detained in county jails for longer periods of
This measure would provide that in order to be found
time,
not guilty by reason of insanity a defendant must prove
how the various provisions affect criminal behavior
that he or she (1) was incapable of knowing or under-
(that is, to what extent the measure has a deterrent
standing the nature and quality of his or her actions and
effect), and
(2) was incapable of distinguishing right from wrong at
how the criminal justice system reacts to the meas-
the time of the crime. These provisions could increase
ure.
the difficulty of proving that a person is not guilty by
We conclude, however, that approval of the measure
reason of insanity.
would result in major state and local costs. This is be-
If this measure is approved, evidence of diminished
cause the measure, taken as a whole, could:
mental capacity or a mental disorder could be consid-
increase local administration costs (for example,
ered at the time of sentencing.
there would be a cost to implement the restitution
Victim Statements. Under existing law, statements
procedures and to notify victims of sentencing
of victims or next of kin are requested for various re-
hearings),
ports which are submitted to the court. In many cases,
increase state administrative costs (for example,
parole boards are not required to notify victims or next
there would be a cost to notify victims of parole
of kin about hearings.
hearings),
This measure would require that the victims of any
increase claims against the state and local govern-
crimes, or the next of kin of the victims if the victims
ments relating to enforcement of the right to safe
have died, be notified of (1) the sentencing hearing and
schools,
(2) any parole hearing (if they so request) involving
increase school security costs to provide safe
persons sentenced to state prison or the Youth Author-
schools,
ity. During the hearings, the victim, next of kin, or his
increase the cost of operating county jails by in-
or her attorney would have the right to make state-
creasing the jail populations (for example, more
ments to the court or hearing board. In addition, this
persons accused of crimes could be denied bail in
measure would require the court or hearing board to
order to assure public safety and more persons
state whether the convicted person would pose a threat
could be detained in jail while awaiting trial due to
to public safety if he or she were released on probation
the elimination of plea bargaining),
or parole.
increase court costs (for example, costs could in-
Plea Bargaining. The measure would place restric-
crease due to more extensive bail hearings and the
tions on plea bargaining in cases involving specified
elimination of plea bargaining), and
felonies and offenses of driving while under the influ-
increase the cost of operating the state's prison sys-
ence of an intoxicating substance. "Plea bargaining" is
tem by increasing the prison population (for exam-
a term used to describe situations in which the defend-
ple, by increasing terms for certain repeat offend-
ant agrees to plead guilty in exchange for a reduced
ers). Based on varíous assumptions, the
charge or sentence.
Department of Corrections estimates that the
provisions that would result in longer prison terms
Exclusion of Certain Persons from Sentencing to the
for repeat offenders would lengthen the terms of at
Youth Authority. Under current law, persons who
least 1,200 persons each year. The department
commit certain sex crimes at the age of 18 years or older
states that this estimate may be low for several rea-
and some other youthful offenders are not sent to the
sons. In addition, the measure's impact on convic-
Youth Authority. This measure would prohibit sending
tion and sentencing trends and patterns cannot be
to the Youth Authority persons who were 18 years of
predicted. As a result of these uncertainties, we can-
age or older at the time they committed murder, rape,
not estimate how many persons would serve longer
or other specified felonies. As a result, they would be
prison terms if this measure is approved. If, howev-
sentenced to state prison or local jails, or receive proba-
er, 1,200 persons per year were to receive the new
tion.
sentences instead of the sentences provided under
Mentally Disordered Sex Offenders. This measure
current law, annual state prison operating costs
contains a provision which would have changed the law
would increase by about $47 million (in 1982-83
concerning the treatment of certain sex offenders.
prices) by the mid-1990s. This cost estimate assumes
However, legislation enacted in 1981 achieved the same
that the state's prison population would be about
purpose. Consequently, this provision has no effect.
3,600 higher than under existing law. In addition,
55
the state might need to spend up to $280 million (in
security) required for the additional inmates would
1982 prices) to construct facilities to house these
match current housing patterns. To the extent that
additional prisoners. The construction cost estimate
some of the additional prisoners could be housed by
assumes that existing standards for prisons would be
crowding existing facilities, both the estimated op-
followed when the new facilities were constructed,
erating and construction costs could be reduced.
and that the custody levels (for example, maximum
Proposition 8-Text-Continued from page 33
fendant agrees to plead guilty or nolo contendere, in exchange for any
promises, commitments, concessions, assurances, or consideration by
the statements of victims and next of kin made pursuant to this sec-
the prosecuting attorney or judge relating to any charge against the
tion and shall state on the record its conclusion concerning whether
defendant or to the sentencing of the defendant.
the person would pose a threat to public safety if granted probation.
(c) As used in this section "serious felony" means any of the follow-
The provisions of this section shall not be amended by the Legisla-
ing:
ture except by statute passed in each house by rollcall vote entered
(1) Murder or voluntary manslaughter; (2) mayhem; (3) rape; (4)
in the journal, two-thirds of the membership concurring, or by a
sodomy by force, violence, duress, menace, or threat of great bodily
statute that becomes effective only when approved by the electors.
harm; (5) oral copulation by force, violence, duress, menace, or threat
(b) Section 3043 is added to the Penal Code, to read:
of great bodily harm; (6) lewd acts on a child under the age of 14
3043. Upon request, notice of any hearing to review or consider
years; (7) any felony punishable by death or imprisonment in the
the parole eligibility or the setting of a parole date for any prisoner
state prison for life; (8) any other felony in which the defendant
in a state prison shall be sent by the Board of Prison Terms at least
inflicts great bodily injury on any person, other than an accomplice,
30 days before the hearing to any victim of a crime committed by the
or any felony in which the defendant uses a firearm; (9) attempted
prisoner, or to the next of kin of the victim if the victim has died. The
murder; (10) assault with intent to commit rape or robbery; (11)
requesting party shall keep the board apprised of his or her current
assault with a deadly weapon or instrument on a peace officer; (12)
mailing address.
assault by a life prisoner on a noninmate; (13) assault with a deadly
The victim or next of kin has the right to appear, personally or by
weapon by an inmate; (14) arson; (15) exploding a destructive device
counsel, at the hearing and to adequately and reasonably express his
or any explosive with intent to injure; (16) exploding a destructive
or her views concerning the crime and the person responsible. The
device or any explosive causing great bodily injury; (17) exploding a
board, in deciding whether to release the person on parole, shall
destructive device or any explosive with intent to murder; (18) bur-
consider the statements of victims and next of kin made pursuant to
glary of a residence; (19) robbery; (20) kidnapping; (21) taking of a
this section and shall include in its report a statement of whether the
hostage by an inmate of a state prison; (22) attempt to commit a
person would pose a threat to public safety if released on parole.
felony punishable by death or imprisonment in the state prison for
The provisions of this section shall not be amended by the Legisla-
life; (23) any felony in which the defendant personally used a danger-
ture except by statute passed in each house by rollcall vote entered
ous or deadly weapon; (24) selling, furnishing, administering or pro-
in the journal, two-thirds of the membership concurring, or by a
viding heroin, cocaine, or phencyclidine (PCP) to a minor; (25) any
statute that becomes effective only when approved by the electors.
attempt to commit a crime listed in this subdivision other than an
(c) Section 1767 is added to the Welfare and Institutions Code, to
assault.
read:
(d) The provisions of this section shall not be amended by the
1767. Upon request, written notice of any hearing to consider the
Legislature except by statute passed in each house by rollcall vote
release on parole of any person under the control of the Youth Au-
entered in the journal, two-thirds of the membership concurring, or
thority for the commission of & crime or committed to the authority
by & statute that becomes effective only when approved by the elec-
as a person described in Section 602 shall be sent by the Youthful
tors.
Offender Parole Board at least 30 days before the hearing to any
SEC. 8. Sentencing. Section 1732.5 is added to the Welfare and
victim of a crime committed by the person, or to the next of kin of
Institutions Code, to read:
the victim if the victim has died. The requesting party shall keep the
1732.5 Notwithstanding any other provision of law, no person con-
board apprised of his or her current mailing address.
victed of murder, rape or any other serious felony, as defined in
The victim or next of kin has the right to appear, personally or by
Section 1192.7 of the Penal Code, committed when he or she was 18
counsel, at the hearing and to adequately and reasonably express his
or her views concerning the crime and the person responsible. The
years of age or older shall be committed to Youth Authority.
board, in deciding whether to release the person on parole, shall
The provisions of this section shall not be amended by the Legisla-
consider the statements of victims and next of kin made pursuant to
ture except by statute passed in each house by rollcall vote entered
this section and shall include in its report a statement of whether the
in the journal, two-thirds of the membership concurring, or by a
person would pose a threat to public safety if released on parole. The
statute that becomes effective only when approved by the electors.
provisions of this section shall not be amended by the Legislature
SEC. 9. Mentally Disordered Sex Offenders. Section 6331 is add-
except by statute passed in each house by rollcall vote entered in the
ed to the Welfare and Institutions Code, to read:
journal, two-thirds of the membership concurring, or by a statute that
6331. This article shall become inoperative the day after the elec-
becomes effective only when approved by the electors.
tion at which the electors adopt this section, except that the article
SEC. 7. Limitation of Plea Bargaining. Section 1192.7 is added
shall continue to apply in all respects to those already committed
to the Penal Code, to read:
under its provisions.
1192.7 (a) Plea bargaining in any case in which the indictment or
The provisions of this section shall not be amended by the Legisla-
information charges any serious felony or any offense of driving while
ture except by statute passed in each house by rollcall vote entered
under the influence of alcohol, drugs, narcotics, or any other intox-
in the journal, two-thirds of the membership concurring, or by a
icating substance, or any combination thereof, is prohibited, unless
statute that becomes effective only when approved by the electors.
there is insufficient evidence to prove the people's case, or testimony
SEC. 10. If any section, party, clause, or phrase of this measure or
of a material witness cannot be obtained, or a reduction or dismissal
the application thereof to any person or circumstances is held invalid,
would not result in a substantial change in sentence.
such invalidity shall not affect other provisions or applications of the
(b) As used in this section "plea bargaining" means any bargain-
measure which can be given effect without the invalid provision or
ing, negotiation, or discussion between a criminal defendant, or his or
application, and to this end the provisions of this measure are severa-
her counsel, and a prosecuting attorney or judge, whereby the de-
ble.
56