10/29/04

LC041029

Val Zavala>> Tonight on this special edition of Life and Times --

Bob Stern>> A lot of times they're confused into voting no, but California voters are pretty good about sifting through all this information, sifting through all these ads, and coming out with a rational decision.

Val>> Are you ready to make a rational decision? Tonight we help end the confusion by sifting through the pros and cons of four of the most complex propositions on the ballot.

It's all coming up next on this special election edition of Life and Times.

Life and Times is made possible through the generous support of the L.K. Whittier Foundation dedicated to improving the quality of life by supporting innovative endeavors in the fields of medicine, health, science and education.

And by a generous grant from Jim and Anne Rothenberg.

Val>> Welcome to this Life and Times election special. We've compiled all the reports on the important propositions and brought them together for you in one program. You might want to have your sample ballot handy. The first proposition we're going to look at deals with Indian casinos and whether more of the profits from those casinos should go to the state. To complicate the issue, there are two competing propositions and a governor who's against both of them. Toni Guinyard takes a closer look at Propositions 68 and 70.

Toni Guinyard>> Lady Luck has found a home in California on Native-American land, reservations across the state where tribes operate a total of fifty-three casinos. Tribal gaming is big business with a huge economic impact.

David Lent>> Most of the tribal members are working in the casino.

Toni Guinyard>> David Lent is a member of the Paiute tribe in Bishop, California. He is also a supporter of Proposition 70, one of two initiatives on the November 2 ballot that would impact tribal gaming.

David Lent>> Tribes have been more or less on the bottom for the last hundred or hundred and fifty years. We were pushed into places that we really didn't want to be and we ended up making a life there and we survived there. Now that we have this opportunity and that we've created what we've created, everybody wants a piece of the pie.

Toni Guinyard>> Everybody, meaning racetracks and card clubs, non-tribal gaming establishments that are pushing for a stake in the lucrative world of slots. California tribes have a monopoly on slot machine play, but voters can change that.

I. Nelson Rose>> I was hired a couple of months ago as a legal consultant for Proposition 68.

Toni Guinyard>> Whittier Law School Professor, I. Nelson Rose, is an expert in gaming law. We asked him to decipher the two Indian gaming related initiatives. First, Proposition 68. If passed, it would force tribes to pay twenty-five percent of slot machine revenue to the state. If even one tribe refuses, slot machines will be permitted at racetracks and card clubs.

The other initiative, Proposition 70, would require tribes to pay a percentage of their net gaming income into a state fund. The amount would be equal to the corporate tax rate. In exchange for this so-called fair share payment, tribes would be able to have an unlimited number of slot machines and offer Vegas-styled games like Roulette and Craps.

I. Nelson Rose>> During the recall election more than a year ago, the tribes were depicted as some sort of evil special interest. That, plus other factors, created kind of a backlash that said, look, the tribes are making so much money and they're not paying their fair share. That's the big expression.

Toni Guinyard>> It's an expression and opinion expressed by then gubernatorial candidate, Arnold Schwarzenegger. Many analysts believe it helped him win the governor's seat. Now the fair share issue has surfaced again and voters are being asked to make some big money decisions.

I. Nelson Rose>> The card clubs and racetracks looked around and they've been hit very hard by Indian casinos and they said, okay, we will put together an initiative that says the tribes have to pay twenty-five percent of their gross gaming revenue to the state or they lose their monopoly. In which case, eleven card clubs and five racetracks will get thirty thousand slot machines.

Toni Guinyard>> Those racetracks and card clubs would then pay thirty-three percent of net slot revenues to the state. Supporters spent roughly twenty-eight million dollars to promote and back the measure and then the unexpected. Less than one month before the election, they dropped funding of the campaign.

Ted Green>> It's a step in the right direction, but we're not going to declare a victory until eight p.m. on November 2.

Toni Guinyard>> Ted Green is the statewide coalition director of No on Prop 68. While he welcomes the change in opposition, his coalition will continue campaigning against what he calls the deceptive gambling propositions.

Brandon Stevenson>> "My name is Brandon Stevenson. I'm with the No on Proposition 68 campaign."

Ted Green>> Proposition 68 would put 5,700 slot machines at Hollywood Park, nearly twice the size of the largest casino on the Las Vegas strip.

Toni Guinyard>> How do you address critics who say this is about nothing but greed?

James Fisfis>> Well, we would ask in the original sense whether or not the greed is on the part of the politicians who couldn't balance their own books and now who are trying to balance their books on the backs of Indian tribes.

Toni Guinyard>> James Fisfis is spokesman for the other gaming measure on the ballot, Proposition 70.

James Fisfis>> What's at stake is not the growth of gaming in California. Everyone is agreed that gaming is going to grow. What's at stake is how much and to what extent tribes are going to pay for that growth in gaming and whether they will all pay or just a few will pay.

Toni Guinyard>> In exchange for paying the tax on slot revenue, under Proposition 70, tribes would get to expand their casinos and renegotiate their deals called compacts with the state. The deals Governor Gray Davis negotiated in 1999 permitted each tribe to have two casinos and two thousand slot machines. Those compacts cover a twenty-year period. That will change if Proposition 70 passes.

I. Nelson Rose>> Proposition 70 says it's not twenty years, it's ninety-nine years. It's not a limit of two thousand slot machines. It's unlimited slot machines and unlimited table games.

Toni Guinyard>> And it's not acceptable to California Governor Arnold Schwarzenegger.

Arnold Schwarzenegger>> "It will give the tribes a ninety-nine year monopoly and unlimited amount of slot machines. Talk about a sweetheart deal."

Toni Guinyard>> Over the summer, the governor exercised his right to renegotiate agreements with five tribes. Those tribes will pay a much bigger piece of the slot revenue pie to the state in exchange for operating an unlimited number of slot machines. Governor Schwarzenegger believes Propositions 68 and 70 would halt the progress he's made.

I. Nelson Rose>> He made deals where the tribes are paying fifteen percent. This one only purports to give the state 8.8 percent.

Toni Guinyard>> In the end, California voters will have the final say in defining the term "fair share" as it's applied to Native-American tribes and Las Vegas-style gambling. Toni Guinyard for Life and Times.

Val>> The next proposition we'll look at is a familiar and popular law, the Three Strikes Law. It transformed crime and punishment in California, but after ten years, critics say that Three Strikes is too severe and needs to be changed. That's what Proposition 66 is all about. Stephanie O'Neill Noe looks at how the Three Strikes Law came about and the pros and cons of reforming it.

Stephanie O'Neill Noe>> It all started four hundred miles north of Los Angeles in the quaint and close-knit town of Petaluma eleven years ago. It was then that the kidnapping of twelve year old Polly Klaas from her bedroom horrified a nation. An emotionally draining two month search led to the discovery of her body. The killer, Richard Allen Davis, a repeat offender. Davis's arrest galvanized California citizens behind a new get-tough measure called Three Strikes and You're Out. Mike Reynolds authored the voter initiative after his own daughter, Kimber, was murdered in a Fresno robbery by another repeat offender. Three Strikes was signed into law by Governor Pete Wilson in 1994.

Mike Reynolds>> "This is the toughest, hardest crime bill not only California has ever proposed, but the entire country has ever seen."

Stephanie O'Neill Noe>> And eight months later, seventy-two percent of California voters approved the Three Strikes initiative. But soon, people accused of shoplifting or drug use were being put in prison for twenty-five years to life. These cases shocked Californians and brought about a new effort for reform, Proposition 66. If passed, the measure would no longer allow harsh prison sentences for nonviolent felonies. Only the most serious would trigger a strike. Ramona Ripston is Executive Director of the American Civil Liberties Union in Southern California.

Ramona Ripston>> What it means is that, in order to get twenty-five years to life, you have to commit a violent or a serious felony. If you do commit a violent or a serious felony, you go to prison for the rest of your life.

Stephanie O'Neill Noe>> But Los Angeles County District Attorney, Steve Cooley, says long sentences for nonviolent offenses are rarely meted out in Los Angeles County.

Steve Cooley>> The Three Strikes Law, as is now being implemented in California and particularly here in Los Angeles County, works very, very well. We generally in almost all cases do not seek twenty-five to life if the new offense is not violent and not serious.

Laurie Levinson>> Perhaps some District Attorneys will not abuse their discretion and we have District Attorneys like Steve Cooley who have been much better about using their discretion when it comes to the Three Strikes Law, but that's just one county here in California.

Stephanie O'Neill Noe>> Loyola Law School Professor, Laurie Levinson, is a former Federal Prosecutor.

Laurie Levinson>> What about all the other counties? There are District Attorneys who never drop the third strike, who basically feel that their message is that I'm going to enforce the law all the way.

Stephanie O'Neill Noe>> According to the California Department of Corrections, two-thirds of its inmates serving second and third strike sentences were convicted on nonviolent felonies, such as petty theft and drug use. Highly publicized instances of defendants getting the harshest prison penalties for stealing pizza, shampoo or videotapes has eroded the support for Three Strikes. Sue Reems is among the disenchanted.

Sue Reems>> In 1994, I voted for this law. I thought it was going to be for murderers, rapists, kidnappers. I never thought it would affect my son.

Stephanie O'Neill Noe>> Reems's son, Shane, is now in prison serving a twenty-five year to life sentence for being a lookout on a twenty dollar drug deal. His prior two strikes were stealing from a neighbor's house and his parents home to support his drug habit. Reems says she unwittingly set her son up for the harsh Three Strikes sentencing by convincing him to turn himself in, so he did, and then came the bad news.

Sue Reems>> He told me. He said they're going to file three strikes on me and I couldn't believe that. I mean, that wasn't violent. Watching a drug sale? How could you, you know, give somebody a twenty-five year to life sentence for watching a drug sale? How do you give him a sentence like that when that's a sentence for a murderer? Even rape doesn't hold a sentence that long. Kidnapping. How do you give him that kind of a sentence when he hasn't ever hurt anybody?

Stephanie O'Neill Noe>> California prisons now house about 35,000 so-called second strikers and about 7,000 third strike prisoners. Proposition 66 would readjust the sentences of inmates serving beefed-up time for nonviolent felonies.

Steve Cooley>> You're basically wiping out the Three Strikes Law and you're going to have to recalculate sentences and people are going to be released. We estimate 16,000 to 18,000 here in Los Angeles County. That scares me.

Laurie Levinson>> You're not going to be letting loose all sorts of dangerous felons on the streets of California because the truth is that much of Three Strikes Law will remain the same. If somebody has a third strike and it is a serious or violent felony, something like a robbery or an assault or a murder or rape, something like that, they're still going behind bars for the rest of their lives.

Stephanie O'Neill Noe>> Brian Gurwitz is with the No on 66 campaign. He's concerned that Proposition 66 would exempt certain dangerous crimes from three strikes.

Brian Gurwitz>> For example, residential burglary. If somebody burglarizes your home, even if they've been convicted of three counts of child molestation in the past, that's not a strike unless somebody happens to be in the residence at the time. Killing somebody in the course of drunk driving? That's not a strike either, the proponents say, because you didn't intend to inflict the injuries.

Stephanie O'Neill Noe>> Proponents of Proposition 66 point out that the measure increases prison time for sex offenses against children. What's more, they say, it will relieve prison overcrowding and save cash-strapped California money, up to several hundred million dollars, according to state estimates.

Laurie Levinson>> What it's designed to do is take care of what has been the most obvious problem of Three Strikes and that problem is to use those valuable resources, those jail cells, for criminals who frankly don't particularly belong there. They may be shoplifters, they may be drug addicts, but why are we using those spaces for them when there are frankly so many murderers and rapists that we could fill those cells with?

Stephanie O'Neill Noe>> California voters will have the final say in November on whether to amend Three Strikes. Recent polls suggest that, so far, nearly seven in ten voters will support Proposition 66. I'm Stephanie O'Neill Noe for Life and Times.

Kcet.org is the place to look for the very latest on Life and Times. You'll find previews of upcoming stories, transcripts and audio of past episodes and links to some of our most interesting features. Just go to kcet.org and click on "Life and Times".

Val>> Some measures on the ballot are pretty hard to decipher. In fact, a law degree would be helpful when it comes to trying to figure out Proposition 64. It deals with certain kinds of lawsuits and who should be allowed to file them. David Okarski takes a look at both sides of Proposition 64.

David Okarski>> The giant cigarette pack that Proposition 64 opponents put in front of Barney's Beanery is a symbol.

Jamie Court>> Tobacco companies have given a lot of money to the proponent of the initiative in past years.

David Okarski>> Consumer advocate, Jamie Court, and his group, ElectionWatchdog.org, say Proposition 64 is bad for your health.

Jamie Court>> The reason we're here today at Barney's, though, is the spokesperson for the campaign is the owner of Barney's and they're trying to sell this campaign as that it's all about helping a restaurant owner sell an honest cup of chili without getting bothered by lawyers.

David Okarski>> The law Proposition 64 would change is Chapter 17200 of the California Business Code, also called the Unfair Competition Act. It's been on the books since 1933. If Proposition 64 passes, people like you and me would have to show we'd actually been hurt before we could sue a business for unfair practices and we'd have to meet all the requirements for a class action lawsuit. Public interest groups would have to clear the same hurdle. Jamie Court says public interest groups would no longer be able to use the Unfair Competition Act to sue big businesses to bring about positive social change.

Jamie Court>> That law was used to stop Joe Camel from advertising to children and, if Proposition 64 succeeds, those types of cases won't succeed.

David Okarski>> Barney's owner is away this day, but Maryann Maloney of Citizens Against Lawsuit Abuse says the same law that stopped Joe Camel allows unscrupulous attorneys to shake down small businesses for money.

Maryann Maloney>> Some of those examples could be an auto body repair shop, for example, where a government agency, so that they could use a permit to operate, but since it was not a license, it was a technical violation and they were sued and they were sent a letter that you pay me $5,000, $10,000, $20,000 now or we're going to litigate. Well, a small business can't do that. They can't call up some high-powered attorney.

Jamie Court>> There has been lawsuit abuse. For instance, by a law firm called the Trevor Law Firm which sent letters that they could never back up with a court case and demanded from this unsuspecting business owner a settlement and they got them.

David Okarski>> The Proposition 64 campaign to protect small businesses has the blessing of Governor Schwarzenegger and, according to the Secretary of State's Cal-Access website, the financial support of California car dealers, automobile manufactures, Intel, Microsoft, Blue Cross-Blue Shield. The list of big corporate contributors goes on to the tune of more than eight million dollars. Are they that interested in protecting small businesses?

Maryann Maloney>> Absolutely, because it is the small businesses that are the fuel of California's economy. We are the ones that create the jobs at the local level.

David Okarski>> At the same time, in early October, the No on 64 camp reported only $646,000 in contributions and, yes, it came mostly from lawyers.

Jamie Court>> Lawyers are contributing because they want to help the public interest groups stop an attack on the law, but the response has been under-whelming.

Maryann Maloney>> It just makes one small change to a very important law that will continue to protect California consumers. However, by changing the one sentence that says an attorney must show that there is a victim, that there is actual harm, that there is actual damage, will now protect our businesses from being a target from these types of lawsuits.

Jamie Court>> The only thing anyone could ever sue over is when they've been injured and lost some money. Everything else goes out the door or government prosecutors have to bring those cases. And the Attorney General opposes Proposition 64 because he says government prosecutors are over-burdened and can't bring those cases.

David Okarski>> Nevertheless, Proposition 64 supporters say the frivolous lawsuits and small business shakedowns have to stop.

Maryann Maloney>> It was initially set out to protect consumers from unscrupulous businesses, but what's happened over time is now we must protect our businesses from unscrupulous attorneys.

Jamie Court>> Trevor Law Firm lost their law license. The solution to this problem of lawyers sending letters that they can't back up in court is to go after the lawyers, not the good laws. There is a whole host of laws in the state from civil rights laws to environmental laws that are enforced with the Unfair Competition Act and, if Proposition 64 succeeds, public interest groups can't stop the polluters, the cheaters, the privacy violators.

Maryann Maloney>> They are never sued under Chapter 17200. They are sued under a specific type of law and it is not Chapter 17200.

David Okarski>> Which side to believe? That depends on who you trust. David Okarski for Life and Times.

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Val>> We look next at Proposition 69 which takes us into the world of DNA and databanks. Proposition 69 would expand the databanks to include DNA samples from criminals and even suspects. Critics say it goes too far, but supporters say that it's an important crime-fighting tool. Stephanie O'Neill Noe looks at both sides of Proposition 69.

Stephanie O'Neill Noe>> Inside DNA's microscopic strands are the genetic secrets of who you are. Your DNA code reveals physical and mental traits and predispositions toward diseases. DNA is also some of the strongest evidence to date linking an individual to a crime. It was DNA that led to the conviction in August of Mark Wayne Rathbun, the notorious Belmont Shores rapist who attacked more than a dozen women from 1997 to 2002.

Steve Cooley>> He was a convicted felon. If 69 had been the law, his DNA would have been profiled. He would have been in the database. One woman would have been raped. He would have been identified and arrested and twelve women would not have been raped.

Stephanie O'Neill Noe>> Los Angeles District Attorney, Steve Cooley, is among those in law enforcement supporting Proposition 69. The measure on the November ballot would greatly expand California's existing criminal DNA databank. Right now, California authorities draw a DNA sample from every person convicted of a serious felony such as rape and murder. You have a database right now?

Steve Cooley>> We do.

Stephanie O'Neill Noe>> And why isn't that database good enough?

Steve Cooley>> That database is restricted to a small number of violent and serious offenses. It doesn't cover the full panoply of all felons convicted.

Stephanie O'Neill Noe>> Proposition 69 calls for expanding California's DNA collection to include anyone convicted of any felony. Then in 2009, the measure would go even further, requiring DNA samples from every adult arrested for any felony.

Karl Manheim>> We might as well just take the DNA of everybody in California and just put that on the internet and make it publicly accessible because that's what Proposition 69 is going to do.

Stephanie O'Neill Noe>> Constitutional Law Professor, Karl Manheim, is the Director of the Program for Law and Technology at Loyola Law School. He says Proposition 69 casts an over-broad net. What privacy issues are you concerned about?

Karl Manheim>> Once my DNA is on file, it can be used by insurance companies to deny me coverage for high-risk illnesses. It can be used by employers who don't want to employ people who have a propensity for certain illnesses and diseases. It can be used for a lot of pernicious reasons that have nothing to do with law enforcement.

Steve Cooley>> There's been no abuse of our DNA database or anyone else's database in the other states where it exists, which is almost all of them, so that's a false claim and it's something that should be disregarded out of hand.

Stephanie O'Neill Noe>> Right now, all DNA samples are handled by several government agencies which analyze them, store them, then share them with state and federal authorities. But critics warn that Proposition 69 requires privately-run labs handle backlog samples. This, Manheim fears, leaves open the possibility of a breach, intentional or otherwise.

Karl Manheim>> The analysis is done by private for-profit groups, testing agencies, and there's no sanction on them if they were to misuse or to mishandle your information. Remember, we're not talking about physical samples. We're talking about digits. We're talking about computer data, which is really easy to duplicate, to transfer, to disseminate, cross the internet, and to lose.

Stephanie O'Neill Noe>> Bruce Harrington, a retired lawyer and businessman from Newport Beach, is a key supporter of Proposition 69.

Bruce Harrington>> My brother and his wife were murdered in August of 1980 in a home break-in, sexual assault and murder, that at the time baffled everybody.

Stephanie O'Neill Noe>> Keith and Patty Harrington were twenty-four year old newlyweds married for only three months. It wasn't until the year 2000, twenty years after the attack, that DNA evidence linked the couple's murder to a suspect who is still at large, a serial killer known as the Original Nightstalker.

Bruce Harrington>> We have tested against all DNA databases throughout the United States and no matches. But not every state has a robust all-felon database. Thirty-four do, but California is one of the few that does not have an all-felon database.

Stephanie O'Neill Noe>> Foes of the measure, however, believe that expanding the DNA database to include nonviolent and white collar felonies makes no sense.

Karl Manheim>> If you write a bad check, you're in the DNA database. Now how are they going to use your DNA to solve the crime of a bad check? I mean, it's not the type of crime where blood samples or other types of biological samples are left at the crime scene.

Lee Baca>> The guy that writes the check could get into a bank robbery.

Stephanie O'Neill Noe>> Los Angeles County Sheriff, Lee Baca.

Lee Baca>> And I think it's simple that, if you're going to commit a crime, you need to know you're taking a big risk.

Stephanie O'Neill Noe>> But civil libertarians are deeply concerned about collecting DNA samples from people who have never been convicted of a crime and who may be falsely arrested. They point out that annually fifty thousand California arrests result in no criminal charges. Opponents also warn that political protesters such as those marching at national conventions and even striking workers on picket lines can be arrested for such felonies as failure to disburse. And whether the charges stick or not, Proposition 69 would require their DNA go into the databank alongside those of murderers and rapists.

Ramona Ripston>> We're beginning to talk about innocent people. That's what we're concerned about.

Stephanie O'Neill Noe>> Ramona Ripston is Executive Director of the ACLU in Southern California. She worries that the measure doesn't require the government to expunge the DNA information of innocent or exonerated people. The burden instead is left to the individual.

Ramona Ripston>> You get all this information together, you take it to a judge, and if a judge says, no, I'm not going to take it out, it cannot be appealed. That judge has the final decision.

Stephanie O'Neill Noe>> Bruce Harrington, meanwhile, says Keith and Patty's deaths would be somewhat avenged for him and his family with the passage of Proposition 69.

Bruce Harrington>> The big satisfaction will come if, through passage of the initiative, the crime ultimately will be solved. That would really be very, very, very satisfying.

Stephanie O'Neill Noe>> I'm Stephanie O'Neill Noe for Life and Times.

Val>> Thanks for joining us for this Life and Times election special. Join us on Monday when we will bring you reports on more propositions that you will be voting on. I'm Val Zavala. For everyone at Life and Times, thanks for watching.

Life and Times was made possible through the generous support of the L.K. Whittier Foundation dedicated to improving the quality of life by supporting innovative endeavors in the fields of medicine, health, science and education.

And by a generous grant from Jim and Anne Rothenberg.

Val>> Next time on Life and Times --

Proposition 71 would provide state funding for stem cell research. It may be good medicine, but is it good business?

>> How are we going to pay up to two hundred million dollars a year out of the general fund when our emergency rooms are closing, when our trauma centers are closing?

Val>> That's next time on Life and Times.