CONSTITUTIONAL CRISIS COMING OVER PRISONS?

CALIFORNIA FOCUS
FOR RELEASE: FRIDAY, MAY 31, 2013, OR THEREAFTER

BY THOMAS D. ELIAS

“CONSTITUTIONAL CRISIS COMING OVER PRISONS?”

          Rarely since the Civil War have state officials anywhere in America been as close to openly defying federal authority as Gov. Jerry Brown and the Legislature are today.

          Brown averted a constitutional crisis in mid-May, when he acceded to the demand of a three-judge federal court panel and submitted a plan to reduce the state prison population by 10,000 convicts on top of the approximately 24,000 already cut by the ongoing realignment program.

          That program sees many non-violent, supposedly non-serious offenders who previously would have gone to state prisons staying in county jails or getting released under supervision earlier than they previously could have been.

          Some sheriffs already complain local probation officers are overworked and their jails underfunded despite the state’s sending money their way to pay for additional county caseloads.

          But realignment and its unprecedented slashing of well over 10 percent of the prison population isn’t enough for the judges, whose previous orders have been upheld by the U.S. Supreme Court. They insist prison health care is still substandard, despite Brown’s claim that California’s system is “one of the best in the nation.”

          The new plan Brown submitted under duress would move 1,600 inmates from state prisons to leased cells in county jails with extra space. It would send more people to private prisons, where about 8,000 California convicts sit today. And about 1,250 inmates with serious or violent convictions would move to firefighting camps now housing lesser offenders.

          It would still fall 2,570 inmates short of the court-demanded cuts.

          Brown will appeal the court order, but if it’s eventually upheld, his plan will require action by the Legislature for both funding and the authority to make moves like granting “medical paroles” to about 400 elderly or disabled inmates.

          Brown appointees call his partial plan “ugly,” admitting it might pose risks to public safety and suggesting it might cause state courts to release inmates from local jails. It’s still far short of what the federal judges demand. This could eventually cause the governor and some of his top aides to be held in contempt of court.

Meanwhile, former Republican Lt. Gov. Abel Maldonado now makes the possible public safety danger the main early theme of his campaign for the GOP nomination to challenge Brown’s reelection next year.

          Both Democratic and Republican legislative leaders also express reluctance to go along with the court order.

          Democratic state Senate President Darrell Steinberg of Sacramento said he supports Brown’s appeal, as did Assembly Republican leader Connie Conway of Tulare, who told a reporter government “must do everything within (our) power to prevent the release of dangerous felons.”

          Maldonado started his campaign by announcing an initiative petition drive to overturn the entire realignment program Brown began because of the initial court order. Maldonado says he would satisfy federal courts by reopening shuttered prisons, building new ones and begging for more time. “The court said reduce, not release,” he said in an interview. But the judges have refused extensions before and most of Maldonado’s program would take years.

          There was a threat that Brown could be held in contempt if he did not file a plan this month, but no court order demands anything of the Legislature, except via the fact the governor cannot do all he reluctantly proposes without a legislative OK. This may leave lawmakers safe, no matter how they eventually vote.

          But Brown could find himself in a situation somewhat like former Alabama Gov. George Wallace, who stood in the door of an auditorium at the University of Alabama in a symbolic attempt to keep it lily white. Brown won’t stand in a prison gate, blocking convict releases. Unlike Wallace or predecessor Arnold Schwarzenegger, he’s not a grandstander; he created no photo-ops during this spring’s wildfires. But he could precipitate a crisis by failing to act if the Supreme Court backs the judges’ current order.

          What might happen if Brown became the first governor of this century held in contempt for defying a court order? Would he be arrested by federal marshals? Might his Highway Patrol bodyguards clash with federalized National Guard troops? Not likely. It’s also improbable President Obama would confront a Democratic governor who maintains he’s protecting public safety.

          But an unresolved standoff could undermine the authority of federal judges everywhere, which Brown the former state attorney general would not want.

          This makes it most likely that even if the Supreme Court backs the judges now jousting with Brown, some compromise will emerge before there’s a true constitutional crisis. But all bets are off if Maldonado’s initiative should make the 2014 ballot and pass.

          

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      Email Thomas Elias at tdelias@aol.com. His book, "The Burzynski Breakthrough: The Most Promising Cancer Treatment and the Government’s Campaign to Squelch It," is now available in a soft cover fourth edition. For more Elias columns, visit www.californiafocus.net

HOW MUCH SHOULD NON-DOCTORS DO?

CALIFORNIA FOCUS
FOR RELEASE: TUESDAY, MAY 28, 2013, OR THEREAFTER

BY THOMAS D. ELIAS

     “HOW MUCH SHOULD NON-DOCTORS DO?”

          One thing is certain as California heads for a new health insurance era under the Affordable Health Care Act, better known as Obamacare:

          Almost all parts of the state will need more medical professionals to serve the additional 2 million to 4 million newly-insured Californians. Should they, could they, mostly be physicians, or should other health care professionals like pharmacists, optometrists and nurse practitioners do some things now in the exclusive realm of MDs?

          An optometrist – Democratic state Sen. Ed Hernandez of West Covina – leads the effort to let non-doctors do more.

          Would that be good or bad? Try this real-life situation: You need care for distorted vision in one eye. You go first to the local optometrist, someone who now mostly does things like eye exams (sometimes without dilation) and fitting of contact lenses.

          You don’t know it, but a bleed in a small capillary atop the retina is causing the problem. It takes an advanced scan using a dye to determine this for sure and not even all MD ophthalmologists are equipped to perform that in their own offices.

          Will more people with this problem lose vision while seeking care from someone not fully equipped to deal with the situation? Or, since optometrists are easier to find than MD ophthalmologists, will more people get treatment faster by going to them first and then being sent to an MD? Also, since optometrists are fully capable of diagnosing eye problems stemming from diabetes, high blood pressure and strokes, should they be allowed to prescribe drugs for those conditions?

You could ask similar questions about other symptoms and problems from early indications of cancer to ear infections, now often diagnosed by nurse practitioners.

          Hernandez wants to let the state’s 16,000 licensed nurse practitioners (more highly trained than registered nurses) set up their own shops, not always supervised by MDs. But he says most would still be under the aegis of doctors via today's array of health care networks. No doubt this could make care more accessible, but might it cause sophisticated diagnoses to be missed? There’s that question again: Does increased access for hundreds of thousands outweigh potential risks?

          “Pharmacists are the most underused of all health professionals, considering their years of education and training,” Hernandez says. He would let them prescribe birth control pills and other types of medication, including vaccines. Would they know enough about patient medical histories to avoid errors? Would they, for instance, know which organ transplant recipients can receive vaccinations and what types? Pharmacists often give drug-related advice today, generally on over-the-counter products or after patients show up with a doctor’s scrip. Hernandez believes the majority could handle much more.

          He notes that only about one-third of medical school graduates go into family practice as primary, first-contact doctors. The rest become specialists. “I think we should let specialists handle the complex cases,” he said, noting that many doctors already have nurse practitioners performing routine tasks in their offices.

Behind this discussion lies that certainty of a coming doctor shortage. The California Medical Association (CMA) would like to see more medical schools added to University of California campuses, and that’s the long-term solution. But it would take years, and there would be more years for students to finish their studies and subsequent internships, residencies and fellowships.

          Plus, there has been no great upsurge of documented medical errors in states that have expanded the scope of nurse practitioners’ work. Of course, delayed diagnoses and treatments don’t show up as errors.

          Most doctors strongly oppose giving expanded privileges to any other health care professionals, even if Hernandez insists that no one would do anything they can’t do now. (For example, many pharmacies now give flu shots and the vast majority of patients with vision problems see optometrists first, anyway.)

          The CMA is adamant that non-doctors performing clinical services have direct supervision and the ability to consult a physician quickly for problems beyond their ken. But even MDs have long forwarded difficult cases to specialists.

          The bottom line is that something has to be done to make more professionals available to more patients, and do it in a way that fits the tight financial guidelines of Obamacare.

          Some officials suggest giving incentives for doctors to bring more other professionals into their offices, combining ophthalmology with optometry, for example. Or using more nurse practitioners in internal medicine practices.

          One thing for sure: Change is coming to health care because it’s coming to both health care pricing and health insurance. There’s already a battle to determine its shape.

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     Email Thomas Elias at tdelias@aol.com. His book, "The Burzynski Breakthrough: The Most Promising Cancer Treatment and the Government’s Campaign to Squelch It," is now available in a soft cover fourth edition. For more Elias columns, go to www.californiafocus.net

MARSY’S LAW: A PROPOSITION WORKING WELL

CALIFORNIA FOCUS
FOR RELEASE: FRIDAY, MAY 24, 2013 OR THEREAFTER

BY THOMAS D. ELIAS
          “MARSY’S LAW: A PROPOSITION WORKING WELL”

          On a sunny California day in 1983, a woman loading bags into her car trunk in a supermarket parking lot was suddenly confronted by a gunman who forced her into the car, tied her up and drove her away.

          Minutes later, in another parking lot, he blocked another car’s attempted exit from a space and, with help from an accomplice, kidnapped one of the two women in it. He then drove both his victims to a remote canyon, where he and the accomplice and one other man repeatedly raped the women before stealing their purses and leaving them behind.

          The gunman, Michael Vicks, was convicted of these and other crimes and sentenced to life in prison thanks to laws that provide enhanced sentencing in cases involving guns.

          Imagine, now, that you are one of those rape victims and encounter Vicks – who you believed was behind bars for good – in a random encounter in a store.

          That sort of thing happened to another woman, Marcella Leach, whose daughter Marsalee (Marsy) Nicholas, was stalked and murdered by an ex-boyfriend, coincidentally also in 1983. Only a week after that killing, Leach entered a grocery store after visiting her daughter’s fresh grave and was stunned to be confronted by the accused killer, freed on bail without any notice to the victim’s family.

          A desire to minimize those sorts of encounters was behind the 2008 Proposition 9, also called Marsy’s Law and the Victims’ Bill of Rights Act, sponsored primarily by Marsalee’s brother Henry, now an electronics multimillionaire.

It requires that victims and their relatives be notified of every bail or parole hearing involving persons accused of harming them.

          Prior to this law, also, inmates found unsuitable for parole by the state Board of Parole Hearings had the right to a new hearing within five years if convicted of murder , or within two years in lesser crimes. That’s one reason the likes of Charles Manson and his followers have come up for parole consideration repeatedly in recent years.

          Michael Vicks (no relation to the similarly-named Philadelphia Eagles quarterback) was convicted long before Marsy’s Law passed, so it was somewhat reasonable to expect that after he was denied parole in 2009 because of the “horrific” nature of his crimes, he would get another hearing two years later. He did not, because of Marsy’s Law, and he sued.

          Vicks claimed that to subject him to the provisions of Marsy’s Law violates the Constitution’s prohibition on ex post facto laws, those that apply to events which occurred before the law passed.

          Now the state Supreme Court has ruled his claim utterly without merit. Marsy’s Law, wrote Chief Justice Tani Cantil-Sakauye is not ex post facto because it does not increase the punishment for his crime. “In light of the circumstances of his kidnapping offenses,” said Cantil-Sakauye, “such as the movement of the victims, the sexual assaults and the use of a firearm, it appears…that he would be required to remain incarcerated even if he were found suitable for parole.”

          So Marsy’s Law now applies not just for crime victims from late 2008 and beyond, but also for those whose lives were blighted many years earlier.

          What’s more, the law ensures that Vicks’ victims will always know about it long in advance when he gets a parole hearing or there is any other legal proceeding in his case. They are also guaranteed the right to be heard at any parole hearing in his case.

          As for more recent victims, they will always be informed of bail hearings, trials or sentencing hearings in their cases. Any parole and probation decisions must also take into account victims’ safety and preferences.

          Which means there should be no more encounters like the one Marcella Leach endured. For this is one law that appears to be working exactly as the voters intended when they passed it. And maybe even a little better than expected, now that the springtime Vicks decision is in.

         

          -30-

Email Thomas Elias at tdelias@aol.com. His book, "The Burzynski Breakthrough: The Most Promising Cancer Treatment and the Government’s Campaign to Squelch It," is now available in a soft cover fourth edition. For more Elias columns, visit www.californiafocus.net

TOLL ROADS, LANES SOUND WARNING NOTE FOR HSR

CALIFORNIA FOCUS

FOR RELEASE: TUESDAY, MAY 21, 2013, OR THEREAFTER
 

BY THOMAS D. ELIAS

          “TOLL ROADS, LANES SOUND WARNING NOTE FOR HSR”

          Gov. Jerry Brown, construction labor unions and some others are determined to proceed with California’s nascent bullet train, with the first tracks scheduled to be laid later this year between Madera and the south end of Fresno in the San Joaquin Valley.

          Brown, in fact, has used his appointive powers to ease the path of high speed rail, which he last rode on his weeklong April jaunt to China. Example: the key question asked of all applicants for an open seat as a Madera County supervisor was about support for the project. And just about the first thing his appointee did on assuming office was cast the deciding vote to take that county out of a lawsuit opposing the planned bullet train route. The suit ended with a settlement shortly afterward.

          Then the winning bid to build that 28-mile opening segment and its combination of high viaducts and deep, wide trenches, came in at just under $1 billion, as much as half a billion dollars less than expected. So maybe the cost estimates of $68 billion-plus for the entire Los Angeles to San Francisco route are a tad high. (That’s before cost overruns, of course, and the Center for Investigative Reporting found the lead partner in the low-bidding consortium, Tutor Perini of Los Angeles, had overruns totaling $765 million – 40 percent – above its initial bids on several other recent projects.)

          At nearly the same time, the nonpartisan federal Government Accountability Office reported that the High Speed Rail Authority’s estimates of revenue and ridership are probably spot on.

          Many have called those numbers overly optimistic, with a study from the libertarian Reason Foundation, out a few days after the GAO effort, predicting the bullet train will lose between $124 million and $373 million per year if and when it’s finished, with ridership as much as 77 percent less than expected. That report was co-authored by Joseph Vranich, who runs an Irvine-based business that formerly called itself “the Business Relocation Coach” and is now known as Spectrum Location Solutions.

          Vranich regularly denigrates most things California as he helps businesses depart, so the Reason report’s pessimistic claims can be taken with a grain of salt.

          Meanwhile, the toll roads and toll freeway lanes operating in portions of Southern California give a far more solid warning to backers of high speed rail.

          The Transportation Corridor Authority roads in Orange County (Highways 73 and 241), for example, have cost taxpayers who must pay to use them more than $1.7 billion in subsidies and state-funded maintenance since construction on them began in the 1980s. Lower than expected use of the roads also pushed back the expected date of paying off all construction bonds – at which time these routes are to become normal freeways – from 2035 to 2042.

          Toll lanes that started operating late last year along the Highway 110 Harbor Freeway in Los Angeles County also began with lower use than expected. That’s leading to one good thing: Traffic in the northbound high occupancy lanes (where tolls run as high as $15.40 for a single-occupant vehicle to drive the entire 11-mile stretch) has averaged 10 mph faster than before during high-traffic periods. But traffic in the remaining free lanes slowed by about 8 mph in the most congested segment of that road.

          The warning for HSR is that traffic volume declined by about half on some segments when that lane started charging tolls.

          So both toll efforts that have existed more than a couple of months see usage well below expectations, although officials say the Harbor Freeway toll traffic has begun to rise.

          Why is that a warning for the bullet train? Because fares are now projected at or slightly above the level of airline prices for the same Los Angeles-San Francisco run. A car carrying more than one person between the same points will have a far lower per capita expense. And the experience of toll roads and lanes indicates that when prices to use a transportation option rise too far above parallel – if slower and less pleasurable – options, the cost factor can drive usage down.

          So even though the initial bid looks good on its surface and even though the GAO says everything is hunky-dory, there’s still plentiful cause for skepticism about the economics of high speed rail.

     -30-
     Email Thomas Elias at tdelias@aol.com. His book, "The Burzynski Breakthrough: The Most Promising Cancer Treatment and the Government’s Campaign to Squelch It," is now available in a soft cover fourth edition. For more Elias columns, go to www.californiafocus.net