Many Californians don’t know that our state Constitution requires that any voter initiative have a single subject: “An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.” You wouldn’t know this from looking at our convoluted, confusing, oft-misleading propositions because, as my colleague Mike Gilbert explains here, the rule is very difficult to enforce.
Prop. 20 is an example of a voter initiative that quite possibly violates the single subject rule. It bundles together four different issues under the general “tough on crime” umbrella. While I find at least two of them deeply objectionable on the merits and have serious problems with the remaining two, what really irks me is the marketing: law-and-order supporting folks are being lobbied to vote for things which are, frankly, untethered from reality, simply because they are ideologically bundled with other stuff that belongs on that side of the political map. My message to everyone, from ardent law-and-order people to rabid abolitionists: Vote no on this stupid package.
The first item in the package is the introduction of two new theft crimes. Background: In 2014, California voters approved prop. 47, which changed the designation of several theft-related offenses from felonies to misdemeanors. This is how we’ve been able to achieve the Plata-mandated prison reduction with no increases in crime rates. Prop. 20 proponents would have you think this is a bad thing, and to remedy our apparent shortage of theft crimes, you’d now have two new wobblers: “serial theft” and “organized retail theft.” “Serial theft” would be shoplifting or petty theft for someone with two prior theft convictions (because apparently we’re hurting for habitual offender enhancements, too.) “Organized retail theft” would be shoplifting or petty theft in concert with other people two or more times within six months. Both of those crimes will be punishable either as felonies or as misdemeanors. Theft, and various theft-like offenses, are still crimes in California, as they’ve always been, and the $250 limit placed by Prop. 20 is way lower than inflation would allow for (just to give you an idea, in 2014 we raised the minimum amount for grand theft to $950.)
The second issue is another effort to fix something that isn’t broken–Prop. 57, which California voters approved in 2016. Under Prop. 57, people convicted of nonviolent offenses with “enhancements”—special provisions that add years to their basic sentences, for example, because of prior convictions—come up before the parole board at the end of their basic sentence, and the parole board may recommend their release after considering their criminal history and behavior in prison. Proposition 20 would change the designation of some offenses from “nonviolent” to “violent”, to make some people ineligible to come up before the parole board, and would create a waiting period of two years before people denied parole under prop. 57 can come up before the Board again. It would also add restrictions to parole board considerations. I’m going to humbly suggest that parole in California is something I actually know a little bit about and tell you that this is absolute nonsense. Getting out on parole in CA is extremely difficult, parole hearings are Kafkaesque, and the last thing we need is pile more difficulties in the path of people who pose low reoffending risk. To appeal to people for whom the word “victim” is a talisman for righteousness, they threw in the need to consult with victims, but guess what: victims are ALREADY NOTIFIED of Prop. 57 hearings, and if they want to get involved, they get registered with the state. This proposition would drag into the punitive rhetoric net even victims who are not registered with the state. For what purpose, if these folks themselves are not interested in participating?
The third part of Prop. 20 would expand our DNA collection practices. Currently, California collects a DNA sample from people arrested or charged with felonies. If Prop 20 passes, DNA samples will be collected from people who are under arrest for certain misdemeanors. Many people have qualms about expanding DNA databases, on account of the mistakes that can happen. I suspect that, in the aftermath of the successful DNA-based prosecution and conviction of the Golden State Killer, this is not going to be super persuasive; I also submit to you that DNA databases have the potential to clear and exonerate, not only to convict, and I would therefore be willing to entertain pros and cons of this part of Prop. 20 if it came to us on its own, without the other issues. As it is, it’s not worth the price and expense of reversing two highly beneficial initiatives that reduced incarceration without risk to public safety, so I’m still firmly on the “no” side.
Finally, Prop. 20 also involves various changes to community supervision of people released from prison or jail. Currently, people released from jail, or from prison for nonviolent or nonserious crimes, are supervised in their counties. If Prop. 20 passes, probation officers will be required to ask a judge to change the terms of supervision if the person under supervision violates them for a third time. In addition, the proposition requires state parole and county probation departments to exchange more information about the people they supervise. In community supervision matters, it’s all about the details, and these are technical issues that are unsuitable for resolution via a yes/no political referendum.
The complicated structure of Prop. 20 makes it difficult to estimate the expense involved in its implementation. Because the proposition overall would lead to more and longer incarceration—more severe crimes, less opportunity for parole—there would be cost increases associated with it. The only silver lining here, and this tells you something, is that a sane court will find that the two first aspects are unconstitutional and strike them down, which will mitigate the expense of incarceration (but require litigation.) In other words, if it ain’t broke, don’t fix it. Vote No on 20.