California retail theft measure is headed for the ballot box. Here’s what we know so far

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One of the tangible effects of a retail theft California November ballot measure that, among other changes to a previously passed proposition, aims to increase penalties, is that it most likely will result in an increase in county jail populations across the state and incarceration costs.

The new measure, among other things, would give prosecutors the ability to charge certain offenses as a felony instead of a misdemeanor. The initiative is another attempt to alter Proposition 47, which was approved by voters in 2014. That measure reduced some theft and drug crimes to misdemeanors and set a loss of $950 threshold for shoplifting.

“County jail population could go up, but to what extent it is really difficult to say,” said Magnus Lofstrom, the policy director and senior fellow at the non-partisan Public Policy Institute of California. He said the results would depend on arrests, charges and sentencing.

Viral videos of smash-and-grab scenes have spotlighted the problem of retail theft crimes, whether they document a problem supported by data or create a perception of its severity.

“Recent trends in retail theft and robbery vary across the state and by type of offense – but the data indicate a rise in shoplifting, especially in the Bay Area, and a broader rise in commercial burglary among urban counties,” Lofstrom said in testimony in December before the inaugural hearing of the Assembly Select Committee on Retail Theft. “These patterns plausibly contribute to differences in how retailers and residents perceive the problem of retail theft and robberies.”

The data, Lofstrom noted, does not extend beyond December 2022 and is limited to incidents reported to law enforcement.

“Retail theft is likely underreported, especially low-value theft,” he said. “Furthermore, agencies may vary in how they report and categorize an offense. Lastly, the data do not allow specific identification of so-called smash-and-grab incidents, or retail theft that is organized.”

Loftstrom said that a statewide overview of approximately the last decade shows shoplifting remained 8% below pre-pandemic levels, despite a 29% jump in 2022 over 2019. “However, both commercial burglary and robbery have been ticking up, by 16% and 13% in 2022, compared to 2019,” Lofstrom testified.

Newsom’s stance

As negotiations continue between proponents of the ballot measure, lawmakers and Gov. Gavin Newsom’s administration, a raft of retail theft legislation to tighten penalties for the crimes is simultaneously winding its way to the governor’s desk.

Democratic lawmakers are racing to get the bills onto Newsom’s desk ahead of a June 27 ballot qualification deadline. The bills are similar to many elements of the initiative and toughen laws related to retail crimes.

Proponents of the ballot measure and the Republicans are frustrated with the amendments – dubbed “poison pills” – that would void them should the measure succeed at the ballot box in November.

The governor has spoken about his opposition to changing Proposition 47. In January, Newsom unveiled a legislative framework that called for creating new classes of crime targeting “professional” retail thieves and going after people who break into vehicles.

And, last month, he called for new legislation “expanding criminal penalties to hold criminals accountable and bolstering police and prosecutor tools to combat theft and take down suspects who profit from smash and grabs, retail theft, and car burglaries.”

“Everyone I know is rushing to reform Prop. 47 to raise the ($950) threshold (to charge offenses as a felony),” Newsom said during his January budget proposal.

“That’s not the fundamental issue,” he said. “The issue is other issues that are not 47 related … the nature of retail theft has changed, it’s not the onesies, twosies. Yes, that’s an issue, I don’t deny that and that’s why we put up hundreds of millions of dollars but it’s also become deeply organized. And that’s what we need to go after.”

The state’s current $950 threshold is the 10th toughest in theU.S., Newsom pointed out. Texas’s threshold, for instance, stands at $2,500.

“The organized (retail theft) folks blow through the $2,500,” the governor said. “That’s where we need to capture new laws and a new framework and also address the issue of auto burglary.”

Newsom acknowledged that Prop. 47 was not perfect.

“Again, not to say everything about 47 is hunky-dory and perfect and we want to help fix some of the ambiguities there but we can do it without reforming or going back to voters (on) 47 itself,” he said. said.

With several moving parts – the ongoing negotiations between proponents, the administration and lawmakers and the series of bills targeting retail theft being finalized – what changes materialize on the ground for Californians remains to be seen.

Proponents of measure optimistic

Yolo County District Attorney Jeff Reisig, who is a part of the coalition of district attorneys and retailers in Californians for Safer Communities, believes voters will approve the measure in November.

The previous attempt to reform Proposition 47 in 2020 via Proposition 20 fell short because the latter was what he called “more of a shotgun approach” and tried to do too much.

Proposition 20 failed with nearly 62% of voters opposed and 38% in favor.

“This initiative is in a totally different ballpark,” Reisig said.

The new initiative, he said, has three pillars.

First, using “a carrot and stick” approach with a “treatment mandated felony” for third drug offenses, violators will have a choice of electing to go into treatment or face up to three years in county jail.

Second, prosecutors will have the discretion to charge a third petty offense as a felony (the judge could still knock it down to a misdemeanor). The threshold of $950 does not change but the initiative would allow the value of previous thefts to be aggregated to reach the mark.

“The county jails will definitely see an increase for these felons doing repeated crimes,” Reisig said. But he said communities will see less retail theft and more drug treatment for offenders.

Currently, “nobody is serving any jail time and the thieves know it,” he said.

The third pillar is focused on fentanyl dealers, he said, bringing them in line with the other drug dealers with sentencing enhancements when armed with a firearm.

“We’re extremely confident this (initiative) is going to win,” Reisig said.

Incarceration costs

California Secretary of State Shirley N. Weber announced last week that the new initiative that allows felony charges and increases sentences for certain drug and theft crimes was eligible for the November ballot, noting that the measure, in part:

▪ Allows possession of certain drugs, including fentanyl, and for thefts under $950 with two prior drug or two prior theft convictions, to be charged as felonies.

▪ Increases sentences for other specified drug and theft crimes.

The increase in sentences “may reduce savings that currently fund mental health and drug treatment programs, K-12 schools, and crime victims; any remaining savings may be used for new felony treatment program,” the initiative summary states.

The summary of fiscal impact on state and local governments included for the measure by the Legislative Analyst’s Office and Department of Finance noted that costs to the state and local criminal justice systems would rise.

Its summary said increased state criminal justice system costs could potentially be in the “hundreds of millions of dollars annually, primarily due to an increase in the state prison population.” It noted some of those costs could be offset by “reductions in state spending on local mental health and substance use services, truancy and dropout prevention, and victim services due to requirements in current law.”

Taxpayers have saved nearly $1 billion since 2014 “by not incarcerating people for low level crimes that Prop. 47 covers,” said Matt Sotorosen, the president of the California Public Defenders Association.

That money has been earmarked for community-based programs.

The new initiative, he said, would “dismantle” Proposition 47, adding that no data shows incarceration deters crime. He pointed to a National Institute of Justice’s “Five things about Deterrence,” which concludes, among other things, that the fear of getting caught is stronger than the punishment.

A different political climate?

The measure comes in a very different political climate and during an election year in which appearing soft on crime can be problematic for politicians.

“We are in a very different political moment than we were in 2020,” said Chesa Boudin, executive director of the Criminal Law & Justice Center at the University of California, Berkeley, School of Law. That’s when Prop. 20 failed.

“Whether or not it’s such a different moment that it would result in a different outcome than 2020, I don’t want to speculate,” he said.

Boudin, the progressive former San Francisco district attorney, was recalled in 2022.

“In 2020 George Floyd was murdered and there was a massive movement for police accountability and criminal justice reform,” said Boudin. “(Now there is more focus) on punishment and enhancing law enforcement capabilities and much less on law enforcement accountability or racial justice.”

Boudin said in this election year retail theft “is a very common talking point.”

Crime clearance rates

Even though data show a spike in shoplifting from 2019 to 2022, it still remains below pre-pandemic levels.

Lofstrom said the effects of the new initiative will depend on the responses in the criminal justice system.

“None of this will have an impact unless there’s an arrest,” he said. And, he said, “clearance rates” matter because they represent how many of all incidents reported to law enforcement have led to arrests.

About 16% of incidents reported to law enforcement before Proposition 47 led to arrests; after the proposition became law the percentage dropped to 10%, Lofstrom said. Then came the pandemic, leading to further decline in arrests, down to 7%.

And, he noted, arrests and jail bookings and the jail populations decreased since Proposition 47 and again during the pandemic.

“And then what I am saying is that if you look at the changes in commercial theft or shoplifting, those increases happened in the last couple of years,” he said.

The county jail population would likely go up if the new initiative is approved. Should the prison population also rise, it would decrease prison system savings, Lofstrom said.

One aspect of Proposition 47 called for savings from prison expenditures to be redirected to programming, including allocations for behavioral health issues.

Unless withdrawn by proponents of the initiative by June 27, it will be certified by the Secretary of State to be on the ballot.

“The question is: What is the likelihood of someone committing these offenses being apprehended and whether this would have a desired effect of decreasing retail theft?” Lofstrom said.