Convictions : California

Yet Another California Primary

Diane Marie Amann — Mon, 02 Jun 2008 23:41:00 GMT

While much of the country trains its eyes on South Dakota and Montana tomorrow, California voters also will go to the polls.

According to my 23-page "Official Voter Information Guide" and my 40-page "Sample Ballot and Voter Information Pamphlet," I'm to choose candidates for four partisan offices (ranging from Congress to county committee) and two nonpartisan offices (judge and county supervisor). Then I'm to ponder two competing state ballot propositions (Ban eminent domain? Or not?), and one county ballot measure (Taxes, anyone?). Missing, for the first quadrennial year in memory, is a choice among candidates for president. It's thus as good a time as any to ask whether moving the presidential primary up to Feb. 5 was a good idea.

For the GOP, it might've been a smart political move. Sen. John McCain trounced his competitors in California that day, and he clinched the nomination not long afterward. The Democrats are another story. Sen. Hillary Clinton won by eight points, but victory in California did not deliver her the nomination. What's more, in the interim four months, Californians changed their mind: Were the election held now, polling indicates, Sen. Barack Obama would carry California by 13 points. For Democrats at least, California's primary once again seems not to matter.

But forget politics for a moment. It cost at least $51 million to hold that early, extra primary. How many California taxpayers do you suppose would say it was worth the expense?

Yes, Marty ...

Diane Marie Amann — Fri, 16 May 2008 16:30:00 GMT

... there is a Republican core to yesterday's California marriage decision. Not only were three of the four justices in the majority Republican appointees, but they were appointed by either George Deukmejian or Pete Wilson, GOP governors not known for liberal tendencies. (The sole appointee of Gov. Arnold Schwarzenegger was among the three justices, all Republicans, in dissent.)

It should also be noted that all seven have stood election since their appointments. Voters reconfirmed all of them, by margins of 69 percent or higher. That this court voted as it did knowing it must seek ballot approval now and again is nothing to sniff at—this is the same electorate that in 1986 recalled the state chief justice and two associate justices, following a campaign waged by Deukmejian.

Though it is tempting to suggest that the Grand, Old Party is returning to a tradition of privacy vis-à-vis the state—let's not forget that Republican appointees represented five of the seven U.S. Supreme Court Justices in the majority in Roe v. Wade (1973)—it may be premature to make such a claim. Perhaps the ruling says more about "living constitutionalism." Might it be that changes in popular attitudes toward marriage equality helped to embolden four California justices to enforce a rule that seemed to them compelled by proper interpretation of the applicable law, California's Constitution?

Breaking News From California

Dahlia Lithwick — Thu, 15 May 2008 17:24:00 GMT

The California Supreme Court has just announced its decision in the gay-marriage cases, finding that the state marriage laws that "exclude same-sex couples from access to the designation of marriage" are unconstitutional. Opinion is here.

Anticipating Today's Same-Sex Marriage Decision in California

Marty Lederman — Thu, 15 May 2008 15:01:00 GMT

At 10:00 today Pacific time (that's 1:00 Eastern), the California Supreme Court will issue its long-awaited same-sex-marriage decision. (Briefs and oral argument here.) The question presented is this:

Does California's statutory ban on marriage between two persons of the same sex violate the California Constitution by denying equal protection of the laws on the basis of sexual orientation or sex, by infringing on the fundamental right to marry, or by denying the right to privacy and freedom of expression?

My understanding is that the issue presented in the California case is analogous to, if not on all fours with, that of the Massachusetts Supreme Judicial Court's landmark Goodridge decision—namely, whether the state constitution should be construed to require California to provide not only equal tangible rights, benefits, and responsibilities to same-sex couples (which the state law already does), but also to accord such couples the status of state-sanctioned marriage, as such. (For what it's worth, in post-Goodridge litigation in Massachusetts, professor Tribe and I filed a brief on behalf of co-blogger Kenji Yoshino and 89 other Con-law and legal history scholars, which explained, in part (see Pages 18-29), why the Massachusetts SJC that such formal "marriage" status was of constitutional significance, above and beyond equality in the state's provision of rights and privileges.)

After listening to the oral argument in the California case, Dale Carpenter predicted that the same-sex marriage proponents would lose. Perhaps more importantly, Dale, a strong prononent of same-sex marriage rights (who will not be available today to respond to the Cal Supreme Court opinions), argued that such a loss would be a "blessing in disguise for the gay-marriage movement as a whole":

On the one hand, a pro-SSM ruling from the California high court would lead to a state-wide voter initiative to amend the state constitution to ban not only gay marriage but legislatively created civil unions as well. Nobody knows how that vote would turn out, but I would not be confident of a victory for gay marriage. That has always been a serious risk of this California litigation.

Beyond California, a ruling for the SSM litigants would increase the perceived risk to legislatures in other states that if they extend domestic partnerships or civil unions to gay couples courts will use that progress as a reason to force the states to go all the way to marriage. This might make them less likely to experiment with statutes that grant some rights and protections to gay families.

On the other hand, a ruling that leaves the issue to the state legislature (which has twice voted to recognize gay marriage) and the governor (who has twice vetoed gay-marriage legislation, deferring the issue to this litigation) will mean that this issue will be resolved democratically. Either this governor or a future one will eventually sign a gay-marriage bill which, as I understand California law, means that the voters of the state will have another go at the issue. (In 2000, they voted to define marriage as the union of a man and a woman in state statute.) In that event, the issue will be presented to them in the best possible light: with the state legislature and the state governor solidly behind the change—not simply the sympathy the state's high
court.

Perhaps Carpenter's take on the case would be a good jumping-off point for any Convictions posts after the California court issues its decision in a couple of hours. For myself, although I can imagine Dale might be correct in the second paragraph above that pro-SSM decisions might deter some legislatures from enacting beneficial anti-discrimination laws, I'm not so sure about his first argument: After all, the decision in Goodridge did not result in a successful amendment to the Massachusetts Constitution "to ban not only gay marriage but legislatively created civil unions as well." (On the other hand, the politics and mechanisms of constitutional amendment in California might be very different from those in Massachusetts, in a way that makes this litigation much riskier.)

Two Strikes and You're Violent?

Phillip Carter — Sat, 22 Mar 2008 14:50:00 GMT

Columbia business professor Ray Fisman has a fascinating column in Slate on the economics of California's "three strikes" law -- a subject near to my heart because I wrote my undergraduate thesis on it. Researchers at RAND have done some work on the costs, benefits and efficacy of the law, but Fisman writes that a new study by the National Bureau of Economic Research contains some disturbing findings:

. . . [The study] finds that three-strikes laws like California's, while discouraging criminals from doing things like smoking pot or shoplifting, may push those who do continue in a life of crime to commit more violent offenses. The study's author, Radha Iyengar, argues that this is because under such laws, felons with a pair of strikes against them have little to lose (and often much to gain) by committing serious crimes rather than minor offenses.

Why would stiffer penalties increase violent crime? To understand this seeming paradox, you first need to understand the nature of California's three-strikes law. Not just any offense gets you a first strike. It must be a so-called "record-aggravating" offense, which includes violent crimes like assault and rape as well as serious nonviolent crimes such as burglary or drug sales to minors. But after strike one, strikes two and three can come from any felony, including minor offenses like possession of marijuana or even stealing golf clubs or videotapes. A third strike carries with it a mandatory sentence of at least 25 years in prison.

Now, put yourself in the shoes of a two-strike criminal. The prospect of 25 years behind bars for a third offense is likely to give even a hardened criminal pause before he or she crosses the street against the lights. So we'd expect two-strike felons to commit fewer crimes. But suppose you've already decided to break the law—maybe you need to make a quick buck. Are you going to lift a few golf clubs from the local pro shop? Or are you going to hold up a bank? The potential haul from a bank robbery is obviously much greater, and the penalty is the same: Bank robbery will get you decades in the slammer, but if it's your third offense, so will shoplifting.

Even if you don't quite have the chutzpah to pull off a bank job, you still might end up committing a more violent crime if you're in a 0-2 hole. Let's say you opt for the golf club caper, but as you're making your getaway, you're cornered by a store security guard. Do you surrender quietly or pull out a gun? If strike three is looming, it's all the same to you whether you end up on trial for shoplifting or armed assault, so why not try to shoot your way out of an arrest?

The Supreme Court upheld California's three strikes law a few years ago. And in the aggregate, the law has helped reduce crime by putting away a lot of criminals (albeit at staggering cost for the state of California). But I don't think that's the end of the discussion. It's one thing to ask whether a law is Constitutional; it's quite another to ask whether the law is effective, or a prudent public policy. I'm curious about what my Convictions colleagues think. Do sentencing laws like "three strikes" work? Or are there better, cheaper, more effective alternatives? And if the law's unintended consequence has been to make 2nd strike criminals more violent, what can we do about it?