Arnold Stumps for McCain and Reisig Opposes Prop 5

At the risk of trying to tie some otherwise disparate pieces of information together into a single blog entry, I will start by arguing that I find it curious the decisions made both by Jeff Reisig in the manner in which he chose to attack Proposition 5 in the Davis Enterprise and the fact that McCain would have decided to use California's Governor for stump help, not in California of course, but in the perhaps pivotal battleground of Ohio.

Let us start with the local angle first. It is no surprise that Jeff Reisig would oppose Proposition 5, just about all of law enforcement and prosecutors have. I know it's not a perfect law but the situation with non-violent drug offenders in prisons is fundamentally unsustainable and the dam will break. And when it does, prosecutors and law enforcement will likely wind up with a far more reactionary and broader law. This would have been a chance to let some of the air out from the pressure building on the system.

This is from the bi-partisan Little Hoover Commission report on California's prisons:

"California’s correctional system is in a tailspin that threatens public safety and raises the risk of fiscal disaster. The failing correctional system is the largest and most immediate crisis facing policy-makers. For decades, governors and lawmakers fearful of appearing soft on crime have failed to muster the political will to address the looming crisis. And now their time has run out."

The real interesting point of focus is that Jeff Reisig, the Yolo County District Attorney, sent the same letter to Davis as he did to Woodland. Why would he do that?

Tying in another loose thread here, the Davis Enterprise reported yesterday an interesting little factoid on local fundraising and the Presidential Election.

Barack Obama has raised $353,258 from Yolo County residents compared with $113,950 for McCain.

The city of Davis raised 85 percent of that--$298,672--compared to just $37,531 for McCain. That's an 8 to 1 advantage.

One other little tidbit is that Woodland raised more than half of McCain's countywide total.

Neither of these facts are particularly surprising. But they do suggest that maybe the good DA might want to re-think sending the same letter to Enterprise as he did to the Daily Democrat.

He writes:

"The first thing voters should know is that the proponents of this so-called 'Non-Violent Offender Rehabilitation Act' include billionaire George Soros and the New York-based Drug Policy Alliance..."

Ah the George Soros boogie man. Now, Mr. Reisig, that might work in say Woodland, but my guess is that most of Davis does not view George Soros as nearly the anti-Christ that the right wingers up in Woodland do. I am not saying everyone is in line with George Soros, but I am guessing to most Davisites, he is not a pariah and to many, they are appreciative of his efforts to remove President Bush in the 2004 election.

The lesson here is target your message. Someone is going to point out to me that he said a lot more than just that in his letter, but see, his decision to attack George Soros distracted me from his ultimate message. That just proves my point.

But for good measure, our district attorney gives us another little strawman argument:

"Prop. 5 is not limited to simple drug possession offenses. Virtually any criminal who claims to have a drug problem would be permitted a 'get-out-of-jail-free' card. "

This is of course completely untrue. The only people eligible for Proposition 5 diversion are for those who are ONLY charged with non-violent drug possession offenses. The law specifically defines “non-violent drug possession offense” as “the unlawful, personal use, possession for personal use, or transportation for personal use or being under the influence of any controlled substance…”

So it appears that District Attorney Reisig was inaccurate on this charge which is a pretty standard distortion thrown out by the law enforcement agencies against this proposition. And he certainly should have used better discretion than to submit the same letter to both the Enterprise and the Daily Democrat, given the differences in the likely responses. But at least I'll give him this: he did appear to write the letter himself, unlike our Sheriff with regards to the pro-Proposition 6 letter.

Arnold Stumps for McCain

That leads me to the Governor of California's appearance in Ohio for John McCain foundering campaign.

And this is more of a mixed view. As commentators point out, the Governor inspired larger than usual crowds for a McCain rally. He clearly excited the crowds in ways that John McCain is just not capable of doing.

But Arnold is a double-edged sword. In California, Arnold has an approval rating not much better than President Bush's nationally. Last month it registered at just 35%. And he is coming off a very bloody period with the budget showdown.

The question is really whether Barack Obama really needs to make an issue of all of this. It may just be that Obama will go about his business knowing that McCain is running out of time and Arnold's appearance will do very little for him.

But there is more. First of all, Arnold decided to poke fun at the physique of Obama.

Then he launched into the tax issue.

As the Sacramento Bee reports:

During his speech, the governor recognized the awkward position of having to tailor his speech to McCain's anti-tax message while having proposed raising taxes this week in his own state to offset an estimated $10 billion revenue shortfall.

"Now just because you want to raise a tax certainly doesn't make you a socialist because in California I have proposed a temporary sales tax increase to address our massive deficit," he said. "But Sen. Obama wants to raise the taxes because of ideology. He wants to raise all kinds of taxes. He wants to raise the taxes on capital gains and dividends."

The phrase "flimsy excuse" comes to mind. For Arnold tax increases are okay because they deal with the deficit, for Obama they are not because it is part of his ideology, rather than looking to fix the tax and revenue system that was put out of whack by Bush's tax policies from the early 90s that led to huge growths in deficits.

Not to mention, McCain's message gets stepped on because he has argued that the last thing we need is a tax increase during these economic times, and yet that is exactly now what Arnold is proposing--and a sales tax puts the burden on the middle class while Obama's proposal shifts the burden to those who can most afford to pay a bit more.

It all seems like mental gymnastics to me and it would be easy enough for Obama to make a big deal out of it, but he probably will not, because he does not need to.

We are now just a few days away from finally ending this never ending campaign. It seems like we have been at this non-stop for two years. Oh, that is because we have.

---David M. Greenwald reporting

Vanguard Ballot Initiative Recommendations

While the Vanguard does not endorse candidates, we do make recommendations on issues. Many of these you can of course glean simply by reading the articles on this site. But since I have had a number of calls and emails over the last wee asking how I would vote and a number of issues, I thought I would put this in one place.

I also attach a sheet at the bottom with a link to the Courage Campaign who have compiled a list of 10 progressive organizations and how they are voting. Although other than on Prop 11 there are no disputes on which way to vote, some groups do not recommend on some of the propositions.

I will start with the local measures and then deal with the statewide issues.

DAVIS BALLOT MEASURES

MEASURE N: CHARTER CITY: NO. This measure would determine whether or not Davis would have a charter city enacted. In theory, I would be supportive of such a concept, but I think this charter is too broad. It would allow too much power to future city councils. I would like to see this charter get voted down and a committee formed to draft a new one that is much more specific.

MEASURE W: DJUSD PARCEL TAX: YES. For $120 per parcel voters of the city of Davis can ensure that core programs and teachers remain in tact. We are talking about elementary science, music, some HS athletic programs, as well as keeping class size down. If this does not pass, the district faces a $2.4 million deficit which means that teachers and programs get cut.

STATEWIDE BALLOT

PROP 1A: HIGH SPEED RAIL: YES. This would begin construction of a train that connects San Francisco to Los Angeles via San Jose and Fresno. This is a project I have been wanting for at least 15 years. Create a fast and convenient alternative transportation system to get people out of their cars. This is the most important project that we can fund this year.

PROP 2: STOP ANIMAL CRUELTY: YES. Goes without saying humane treatment for farm animals. We're not talking a lot--enough space for animals to beable to move around, stand up and sit down. This seems like a no brainer to me and the arguments against about costs and competitiveness do not make a whole lot of sense.

PROP 3: CHILDREN'S HOSPITAL BONDS: YES. I see no reason not to expand children's hospital facilities around the state.

PROP 4: PARENTAL CONSENT FOR ABORTION: NO. Proponents argue that this will get teens to talk their parents about sex. I do not believe that you mandate parent-teen communications. I think it places teens at risk who fear the response of their parents more than they fear other things. It is just not a good idea. One thing I never see in these proposals is how big a problem this actually is. If it is a problem, I think there are other approaches that would be more effective and starting well before pregnancy and abortion issues arise.

PROP 5: NONVIOLENT OFFENDER REHABILITATION: YES. I am a strong proponet of alternative forms of punishment. I think we put way too much emphasis on incarceration and our prisons are being overwhelmed with non-violent sex offenders. The program has the possibility of saving the state between $1 billion and $2.5 billion per year.

PROP 6: SAFE NEIGHBORHOODS ACT: NO. This basically does the opposite of Prop 5--it extends and expands mandatory sentencing and it also takes money from the rest of the state's beleagured budget and puts it into more prisons and correction spending. This may be the worst initiative on the ballot in my opinion and that includes 4 and 8.

PROP 7: RENEWABLE POWER STANDARD: NO. This bill may be well intentioned putting more resources to solar and wind projects by mandating that we get 50% of our power from renwable sources by 2025. The problem is that opponents believe that the measure is poorly written and would cause more harm than good. When the opponents include Sierra Club and Conservation league, then I tend to believe that statement.

PROP 8: ELIMINATES SAME-SEX MARRIAGE: NO. I believe that consenting adults should have the right to marry the person that they love regardless of gender. To me this is a no-brainer and almost every argument against it is based on fear. For those who suggest that same-sex marriage is a threat to traditional marriage, look at the divorce rate, it seems that marriage is under fire much more by people who do not respect marriage rather than people who desperately want to wed.

PROP 9: Victims' Rights and Protection Act of 2008: NO. Some of these provisions are not bad including notification and participation of victims in criminal justice proceedings. However, opponents argue that these are already in law. They also believe that these provisions would end up costing the taxpayer hundreds of millions. I am not nearly as opposed to this one as the Prop 6, but it does not seem the type of reform we really need.

Prop 10: California Alternative Fuels Act: NO. This is another one of those bills that look good until you realize who is supporting it and what it would actually do. One the plus side: The funding it provides will allow the generation of electricity from renewable sources, and provide consumer rebates for the purchase or lease of "clean alternative fuel vehicles". Th bill is sponsored by Boone Pickens, many have derided Pickens and Clean Energy Fuels for sponsoring this initiative because it may set up the company and Pickens for a financial windfall. Again, League of Conservation Voters and Sierra Club support it. This would take $10 billion out of the state's general fund over 30 years. The proposition was initiated by one person/interest group and as such lacks the vetting that would have come had it gained input from a wider variety of sources.

PROP 11: REDISTRICTING: NO. This sets up an appointed bipartisan commission to handle state redistricting. We already have a bipartisan commission that handles redistricting, it's called the state legislature, they are elected by the voters in California. From what I have seen, voting reforms generally create more harm than good. The system we have now has been in place for over 100 years.

PROP 12: VETERANS' HOMES BOND: YES. Basically renews a home loan program for veterans that dates back to 1922. The bond must be periodically renewed--this would be the 12th renewal. Enables veterans of current wars to get affordable loans and the bonds are repaid by the veterans themselves. Do not see a downside to this one.



---David M. Greenwald reporting

Responding to Judge Rosenberg on Proposition 5: We Need to Fix the Drug Court System

Anyone who has been in Judge Rosenberg's court has professed an admiration for his inherent fairness as a Judge. I have spoken with a number of people who believe he is sincere, fair, and listens to both sides and they feel that they get a good and fair hearing from him regardless of the outcome of his case. I want to emphasize this, because in other matters, I have to question to his judgment.

I start by examining his Op-Ed that he co-wrote with Judge Janet Gaard, a judge in the Yolo Superior Court. Her current assignment is to preside over all drug courts, Prop. 36 courts, juvenile drug courts and domestic violence court. How appropriate is it for sitting judges to weigh in on electoral politics? That is difficult to assess.

For their part they defend their decision to weigh into proposition politics by arguing that "when ballot measures directly impact the administration of justice, judges can, and do, voice their opinions." I am not so sure that defense is a valid. Nevertheless, this is not an article that focuses on a personal decision to weigh-in on this vital issue, but rather their position which seems cynical and to some degree self-serving.

I will start by saying this is far from a perfect measure and I think Judge Rosenberg and Judge Gaard have some valid criticisms of it. However, from my standpoint, they missed key benefits of the law. The bottom line here, the current system is broken, prisons and courts are overwhelmed by a large number of non-violent drug cases that clog the court system and fill our prisons. Drug use and abuse is a serious problem in this society, the question is whether the best means to treat it is to incarcerate otherwise non-dangerous individuals or to provide treatment for them.

What this bill does is not just talk about treatment for drug defendants, but it actually provides a funding source for it. The fact of the matter is that regardless of the proposal, prosecutors do not support treatment over incarceration. So while this is not a perfect bill by any means, it is the best law we could get and it is far better than the current system.

I will begin this by laying out what the law does. It is striking that most of the Judges objections are based on by-products of the measure rather than the major tenets. Again, I think some of these are valid points, but they do not consider in their op-ed the major benefits of the program. (And to be fair, I have much more space to flesh out these arguments than they do).

The major objection that the courts have is that this law would limit the courts' authority. In this case, it would limit the courts’ authority to incarcerate those who commit certain drug-related offenses, break drug treatment rules or violate parole; and shorten parole for certain nonviolent offenders. To which I say, darn. I simply do not believe the current system has the benefits that they apparently believe it does.

But do not take my word for it. Much of what follows is from the non-partisan, impartial analysis of the League of Women Voters. According to the League of Women Voters' analysis:

"Proposition 5, the Nonviolent Offender Rehabilitation Act, would make major changes to state law governing the sentencing, parole, and rehabilitation of nonviolent drug offenders. There would be a strong emphasis on providing rehabilitation and counseling services for nonviolent drug offenders both in sentencing and upon parole. In addition, administrative and organizational changes would be made to the California Department of Corrections and Rehabilitation (CDCR) to centralize accountability and governance."

The proposition would do five basic and major things:

1. Expand drug treatment diversion programs for criminal offenders,
2. Modify parole supervision procedures and expand parole rehabilitation programs,
3. Allow inmates to earn additional time off their prison sentences for participation and performance in rehabilitation programs,
4. Reduce certain penalties for marijuana possession, and
5. Make miscellaneous changes to laws relating to state administration of rehabilitation services.

Here's what supporters argue:

• State prisons are badly overcrowded, with many proposals to build even more prisons rather than try to reduce the number of prisoners. This proposition safely reduces prison overcrowding.
• Judges retain the discretion to divert nonviolent offenders into treatment and demand accountability during treatment.
• Rehabilitation or treatment to reduce recidivism of inmates would pay for itself by reducing costs of incarceration.
• These programs create treatment options for people with drug problems with early intervention programs and accountability.
• Since 85 to 90 percent of inmates are returned to society, there must be programs to prepare them to become more productive citizens upon their return.
• Proposition 36 has graduated 84,000 people and saved almost $2 billion since 2000. We need to build on this type of successful approach.
• This measure creates an efficient, centralized system of data collection and independent oversight mechanisms for drug treatment and rehabilitation programs

Here's what opponents argue:

• Proponents want the public to believe this is about keeping “nonviolent offenders” out of prison, but according to L.A. County District Attorney Steve Cooley, “No first-time offender arrested in California solely for drug possession goes to prison—ever.”
• The measure limits the courts’ authority to incarcerate offenders who violate probation or parole, and shortens parole for most drug offenses.
• Proposition 5 weakens drug rehabilitation programs by allowing defendants to continue using drugs while in rehab.
• These changes in the law could provide, in effect, a “get-out-of-jail-free” card, letting defendants charged with crimes to effectively escape criminal prosecution and be returned to our neighborhoods.
• This measure creates numerous divisions, boards, commissions, and reporting requirements regarding drug treatment and rehabilitation.
• Because it is really a constitutional amendment rather than a statutory change, a petition has been filed with the state Supreme Court to block this initiative.

Now that we have discussed the basics on the law, let us look at the Judge's points.

The Judge lists seven major defects, I am going to look at a few of them.

"This is an initiative written by an advocacy group. It is very long, encompassing 36 single-spaced pages in a relatively small font. It makes intricate and detailed amendments to a significant number of existing statutes and executive policies. We doubt that 5 percent of the voters of California will have read the entire text of this new law before they vote on it. Is this a good way to make state law?"

I think this is a fair point that probably extends to all complex laws written by the proposition system. The problem with this point is that this law would never have been drafted by prosecutors who would want to retain authority and most seem to favor incarceration for non-violent drug offenses. So if you want reform you have to do it in initiative form. It seems unlikely that this law will pass and it would never get through the legislative system as too many powerful law enforcement interests would block it and not enough powerful interests support it.

The most important point the judge makes is both increased workloads on the courts and increase cost.

"Prop. 5 imposes dramatically increased workloads on courts and judges without providing any increase in the number of judges or needed funding."

"The estimated cost of Prop. 5 is $1 billion annually and none of this funding may be used for drug testing."

Let us look at the costs first and then discuss I think two good objections by Judge Rosenberg and Judge Gaard.

According to the league of Women Voters, the costs is indeed $1 billion.

"Total state operating costs could potentially exceed $1 billion annually."

However, what the judge does not mention is the potential cost saving which could exceed $3.5 billion--$1 billion for reduced prison and parole operating costs and a $2.5 billion for capital outlay savings.

"Most of those savings would be attributable to savings over time in prison and parole costs resulting from the following: (1) diversion of offenders from prisons to treatment programs, (2) exclusion of some parole violators from state prison, (3) reduction in prison time due to expansion in credits, and (4) reduction in time of parole supervision for certain drug and nonviolent offenders.

State Capital Outlay Savings: There could be net savings on state capital outlay costs exceeding $2.5 billion, resulting from lower prison construction costs due to a reduction in the inmate population. Those savings may be partially offset by costs for increased prison rehabilitation programs.

County Operations Costs and Funding: Increases in county costs for new drug treatment diversion programs and juvenile programs would probably be in line with increased state funding. There may be unknown increases and reductions in county operating costs and revenue.

Summary: In summary, increased state costs could exceed $1 billion for the expansion of drug treatment and rehabilitation programs. Savings to the state could exceed $1 billion due to reduced prison and parole operating costs. Capital outlay savings for prison facilities could exceed $2.5 billion."

Here's the draw to this bill for me: we spend a lot of money each year to lock up non-violent drug offenders. That includes an incarceration cost and it also includes the costs of building more and more prisons. Just look at the re-entry facility proposal in Yolo County. What if we didn't have to build these facilities because we did not incarcerate all of these non-violent drug offenders?

The Judge objects to this law based I think on two key things--lack of funding for new judges and also lack of funding for drug testing, with the cost savings here, they could easily remedy those problems. Those problems could be fixed by simple legislation.

The Judge then argues:

"Drug courts as we know them - which tend to focus on first-time offenders - would be virtually destroyed. Prop. 5 would require courts to take into their drug court system offenders who have suffered up to five convictions of any offense within a 30-month period. Effectively, the target population of drug courts will become the most incorrigible and difficult-to-treat offenders at the expense of new or first-time offenders."

I have two different responses to this criticism. First is that this initiative would double the funding for adult drug courts statewide. Currently that funding is at $24 million and it would go up to $45 million.

Here's the non-partisan analysis by the League of Women Voters on this:

"Proposition 5 would establish a three-track drug treatment diversion program, expanding and largely replacing the three existing drug treatment and diversion programs.

• Track I. Offenders charged with nonviolent drug possession offenses, with no prior violent or serious offenses, could enter into a deferred entry of judgment arrangement with the court that does not require probation supervision. Similar to Penal Code Section 1000, an offender who completes the assigned drug treatment program and stays out of trouble would have the charges against him/her dismissed. Also, rather than the offender paying for the cost of the treatment program, the state funds these programs.
  
  
• Track II. A modified form of Proposition 36, this track would generally divert offenders convicted of a nonviolent drug possession offense to treatment and probation for up to a year (with a maximum of 24 months if extensions are granted). Offenders cannot participate if convicted of a violent or serious felony during the prior five years. Offenders with five or more offenses in the prior 30 months are not eligible.
  
  
• Track III. This is similar to existing state-funded drug court programs for adult felons. This track generally provides treatment and probation supervision in lieu of incarceration in prison or jail for up to 18 months (with a maximum of 24 if extensions are granted). In general, judges would be provided discretion as to which offenders would be admitted.

Offenders who fail in Track I may be shifted to Track II; Track II failures may be shifted to Track III."

What this would do would be to expand the types of offenders eligible for diversion and provide to the funding to them to go to drug treatment. It would also give the drug court judges considerable discretion as to who can go through these programs.

Judge Rosenberg and Judge Gaard are arguing that this would destroy the drug court system, but that seems like a very cynical view. They essentially argue that the system will fail.

On the other hand, the current system is broken--people are going to jail for non-violent drug offenses and that is clogging up other portions of the system and exploding the budget of the corrections system. Meanwhile the recidivism rate is extremely high and we are not doing a thing to treat the problem, we are only throwing them into storage. That doesn't seem to make a lot of sense.

"Addicted defendants will be permitted five violations of probation or treatment failures based on drug use and judges will be unable to meaningfully intervene until the sixth violation."

Perhaps five is too high. I can accept that. But let's look further.

What does that mean to intervene? Does he mean, to incarcerate? Is there any evidence that incarceration does anything to prevent future drug violations? Is there any evidence that incarceration leads people to stop doing drugs.

The Judges tip their hands with the next objection:

"The proposition dramatically restricts a judge's ability to impose some jail time as a sanction in drug court. Judges who operate drug courts have found that the ability to impose a brief stint in jail - even the possibility of that imposition - can have dramatically positive effects in convincing drug-addicted defendants that it is better to stay in the treatment program and stay clean rather than risk the wrath of the judge. This proposition removes that tool from judges."

Of course, the Judges present no evidence by which to back up that assertion. The statistics show otherwise.

"We believe in drug courts and the real possibility that drug courts can help people escape addictions and turn their lives around. We believe that Proposition 5, while well-intentioned, does far more harm than it provides benefits. We have serious concerns that drug addicts who run afoul of the criminal justice system will not be well-served by this proposition. "

And I simply disagree. The best way to help people escape addictions is to provide them with treatment. This creates a funding mechanism for treatment that is likely revenue neutral for the statement if not a net cost savings once all factors are taken into account.

Judge Rosenberg and Judge Gaard act like the current system is working. The problem is that they offer no evidence that it is working. This is far from a perfect bill. Some of their objections can be fixed with subsequent legislation, the rest are simply a matter of opinion that they have not offered tangible evidence to support. Does anyone believe that drug courts work? Does anyone believe that they help people avoid drug addiction? Is there any evidence concrete to support that assertion?

This seems like a cynical view that this treatment system is doomed for failure before it begins, that court system works, and that this new system would take away key powers from judges to impose punishment. Perhaps modifications in this law would help, but taken as a whole it is a huge step up from the current system that is clearly, despite protests to the contrary, broken.

---Doug Paul Davis reporting