Boomerang Proposition : The So-Called Speedy Trial Initiative Would Backfire on California

The presence of Proposition 115 on the June ballot raises two disturbing questions: Has political exploitation of the public’s justifiable anxiety over crime created a climate in which rational discussion of the criminal justice system is impossible? Has manipulation of the initiative process transformed that great reform from an instrument of direct democracy into a tool of misrule?

Unfortunately, in this case the answer to both questions is yes. And, for that reason, Californians confront the possibility that their courts will be severely burdened and that many important individual liberties will be put at risk, including perhaps the right of women to obtain safe, legal abortions.

Despite its title--the Crime Victims Justice Reform Act--Proposition 115 is not the product of a grass-roots movement, nor even of one of our several victims’ support groups. It actually was drafted in the early 1980s by a group of career prosecutors, whose most far-reaching proposals for changes in the criminal justice system had been rejected by the California Legislature. In effect, the prosecutors resolved to obtain by politics what they could not gain through legislative deliberation. The result was a measure they called The Speedy Trial Initiative, which failed to qualify for the ballot.

There the matter languished until Republican gubernatorial candidate Pete Wilson decided to make Proposition 115 the tactical centerpiece of his campaign. In essence, Wilson purchased the right to call the measure his own by giving its proponents the money they needed to hire enough professional signature-gatherers to put the initiative on the ballot. The advantages of this approach are clear: Not only do candidates gain identification with a popular issue--in this case crime fighting--but they also give their supporters a way to circumvent the legal limits on campaign contributions. The amount an individual may contribute to a candidate is strictly limited; there is no restriction on contributions to initiatives.

The major donors to Proposition 115 are not victims of crime, but 13 insurance companies, two of which have contributed more than $100,000 each. Why? Perhaps because they suspect that passage will trigger a dramatic increase in the number of felony trials each year, thereby impeding California’s ability to handle civil litigation, even at its current plodding pace. Weary plaintiffs will have an extra incentive to settle their claims against insurance companies; firms will earn millions in interest on the delayed settlements.

The changes Proposition 115 proposes to make would eliminate the state Constitution as an independent source of rights for individuals accused of crimes. The federal courts would become the arbiters of such questions. The California Constitution also would be amended to create rights for the prosecution that do not exist in the federal system--among them the right to obtain discovery of the accused person’s proposed defense. The death penalty would be dramatically expanded, judges rather than lawyers would select juries and attorneys appointed to represent the poor would be compelled to prepare their cases more rapidly than lawyers retained by wealthy clients.

Proponents of the initiative say the measure will ensure swifter punishment of criminals by conforming this state’s criminal justice system to that of federal courts. But as legal scholar Gerald F. Uelmen has pointed out, “California currently disposes of 10 times as many felony cases per year as the federal courts, with only 1 1/2 times as many judges. In federal courts, only 75% of felony cases are disposed of by a guilty plea. In California, the rate is 95%.”

The most contentious issue raised by this initiative is the question of whether eliminating defendants’ right to protection under our constitution’s explicit right to privacy--and replacing it with federal standards based on the U.S. Constitution’s implied right to privacy--opens the door to a re-criminalization of abortion. Opponents of the measure say that if the Supreme Court overturns Roe vs. Wade, there no longer would be a constitutional obstacle to passage of restrictive abortion laws. Proponents deny this, saying that, whatever the literal language of their proposal, they never intended that it apply to abortion.

Who’s right? An analysis prepared by the joint staff of the state Senate Committee on the Judiciary and the Assembly Public Safety Committee put it this way: “It is impossible to state, with any certainty, how the California Supreme Court will rule as to this issue, if Roe vs. Wade is overturned. It can be concluded, however, that the right to an abortion in California is more secure now than it would be if the proposed initiative were enacted. For if the initiative is enacted, there will be a new provision in our (state) Constitution which arguably could be used to restrict or overturn a woman’s right to an abortion.”

Even if Proposition 115 were otherwise worthy, that is too great a risk to run.