Prop 47 ushered in an increase in property crime statewide because many theft offenses were made inconsequential misdemeanors that carried little likelihood of incarceration. Last month the Public Policy Institute of California conceded that Prop 47 was responsible for an increase in larceny rates statewide. That increase, they reported, was 9% higher than that of similar states. In 2017 there were only 34,800 arrests statewide for petty theft. That is the lowest number of arrests in the 15 years of arrest data available online from the California Department of Justice.

These facts compel commentary on the most recent editorial by the Los Angeles Times, which provided advice on how the criminal justice system should address misdemeanors. The Times Editorial Board claims that “police stopped arresting almost anyone suspected of committing a misdemeanor because for so many years … pretty much every crime . . . could be charged as a felony.” So according to the Times, police were not arresting people for misdemeanors because the crimes they were committing were felonies? 

The Times Editorial Board also seems to be unaware of some basic law. California law requires a citizen’s arrest for petty theft, because a peace officer can only arrest a misdemeanor theft suspect if the officer actuallywitnesses the theft (an infrequent occurrence). But frustrated residents of California have little reason to go through the effort of placing thieves under citizen’s arrest when they know nothing will happen to the thief.

The Times suggestions of “supervised probation, drug treatment or, if necessary, jail time” as the solutions displayed a precious naiveté regarding the actual workings of the criminal justice system. The reality is that being sentenced to custody for a misdemeanor theft offense is the criminal justice equivalent of being hit by lightning. First quarter statistics from the Los Angeles County jail system, the largest in the country, vividly illustrate this fact. Out of an average daily population of 16,649 inmates in this period, a minuscule 114 were serving a sentence for a property crime. Further, in Los Angeles County, inmates sentenced to 180 days or less in the county jail were immediately released from custody after being processed from the court. Inmates sentenced to more than 180 days served 10% of their sentence, meaning a one-year sentence resulted in 36 actual days in custody.

The reason these criminals serve little or no time is that the jails are overcrowded. Thanks to AB 109, county jails are filled with inmates who would previously have served their time in state prison. In the year before AB109, the county jail system held an average of 15,014 inmates. After enactment of AB 109, that number ballooned to over 18,000. In 2017, an average of 3,058 jail inmates were serving time pursuant to AB 109, with an additional 935 inmates in custody for AB 109 parole violations. In short, AB 109 inmates took up nearly 25% of jail beds in the first quarter of 2018.

Probation only works if a defendant consents to placement on probation; savvy theft defendants are well aware that they can refuse probation and instead accept up to a one-year sentence, which means no jail time if 180 days or less is imposed and barely over a month of custody if a full year is imposed.

Similarly, the idea of compelling misdemeanor defendants to enroll in drug treatment is equally specious. Drug courts work when the system has both a carrot and a stick to incentivize addicts to enter and remain in programs. The removal of any significant penalty explains why drug courts around the state came to an end with the passage of Prop 47. As City Attorney Mike Feuer commented, when the “consequence of conviction is no jail time” there is no incentive for an addict to enter rehab. “Almost no one has gotten anything close to meaningful drug rehabilitation,” said Feuer. “The system is broken at every level.”

The real solution for repeat theft offenders is to punish subsequent offenses as felonies, with real-time in jail as a potential consequence. That is what is proposed by the “Reducing Crime and Keeping California Safe Act” which will be on the 2020 ballot. Naturally, the Times Editorial Board is opposed. Repeat thieves know their chances of getting arrested for any particular theft is extremely low, with the “clearance rate” (defined as arrested and/or charged with the crime) in 2017 at 10.9% for larceny/theft crimes. Real custody time is a deterrent to crime, and those not deterred will not be stealing from businesses and residents during the time they are incarcerated.