By David M. Greenwald
Executive Editor
If you are a hammer, everything looks like a nail. That is how some prosecutors and increasingly some political leaders are looking at Prop. 47.
In fairness, Yolo County DA Jeff Reisig has been hammering Prop, 47 for years, longer than most. His latest effort with former Sacramento DA Anne Marie-Schubert appearing in the Sacramento Bee this week is just the latest installment.
While pushing for more punitive solutions for crime, they first attempt to distance themselves from the “tough on crime” era, writing, “As young prosecutors, we lived through the ‘tough on crime’ era where our justice system punished people for their misdeeds but often ignored the need for rehabilitation. Over time, we learned that incarceration without rehabilitation is a recipe for failed outcomes.”
They then go on to cite three problems with Prop. 47—examples of why “it has become increasingly clear that it is not working.”
Each of these arguments, I will argue, is fundamentally flawed—in large part because they take such a narrow focus on the problem and potential solutions.
For instance, they note an “explosion in homelessness.”
This is not the first time Reisig has made this argument and connected it to Prop. 47.
“We must acknowledge that the growing drug addiction crisis is connected to the surge in homelessness,” they write and then connect this to the “decimation” of drug courts under Prop. 47, where they claim “judges can no longer compel people into mandatory treatment.”
They continue, “The human toll is clear: Overdose death rates, particularly from fentanyl, are killing our family members. Last year, more than 800 people died from drug overdoses in San Francisco.”
There are all sorts of problems with these arguments.
The most glaring is that Reisig and others continue to talk about homelessness in California without talking about the housing crisis. Most experts on homelessness have placed the lack of affordability in housing at the top of the list, making people already vulnerable more susceptible to losing their housing altogether.
Another problem is that, while Reisig has gone to great measures to implement transparency and claims to be data driven, he has never hired the kind of analysts needed to make actual quantitative analyses of crime trends.
While there are legitimate concerns, for example, about fentanyl, the fentanyl crisis is not limited to California.
One report found that drug overdose deaths jumped 50 percent in the US from 2019 to 2022.
“At 322 drug overdose deaths per million residents in 2021, the U.S. is an outlier. The U.S. rate was 22 percent higher than Scotland, which had the next-highest rate in our analysis (264 deaths per million),” they report. “Overdose deaths from all drug types are much higher in the U.S. than most other high-income countries and have increased rapidly since 2019.”
So if the problem is nationwide and Prop. 47 is only in effect in California, Prop. 47 is probably not the primary driver of California drug problems.
This report recommends harm reduction approaches—approaches that Reisig and others like him have generally opposed.
“Overdose deaths from all drug types are much higher in the U.S. than most other high-income countries and have increased rapidly since 2019,” they write.
In short, Reisig and Schubert are thinking like prosecutors. Whereas the data, from around the world, suggests treating drug use as a health problem.
For example—naloxone access.
“Overdose deaths from all drug types are much higher in the U.S. than most other high-income countries and have increased rapidly since 2019,” the study continues.
And yet, Reisig and Schubert write, “Fentanyl dealers have been emboldened to ‘peddle their poison’ to our communities without fear of consequences.”
San Francisco under Brooke Jenkins has attempted to take a more punitive approach, causing critics to argue that they have reignited the failed war on drugs. The war on drugs failed for a reason—you can’t arrest your way out of the problem and what the experience in Europe shows, in so doing, we are ignoring more effective ways to combat drugs.
But drugs aren’t the only flawed argument put out here.
Reisig and Schubert continue: “Since Proposition 47, theft has exploded. Whether driven by addiction or pure greed, it is everywhere. One need only see viral videos or spend time in a local store to witness the brazenness of thieves. In 2023, Los Angeles had an 81% spike in reported shoplifting.”
They continue: “Proposition 47’s failure to hold repeat thieves to higher accountability has contributed to store closures across the state. Too often, these store closures, particularly those providing essential services, disproportionately impact communities of color. “
Their solution is “stronger penalties,” arguing that “we must hold repeat thieves accountable and deter future conduct.”
But again, this is a flawed analysis for many reasons.
First of all, they act as though they can’t charge brazen organized retail theft as a felony.
That’s false for so many reasons. Look at press releases across the state. Under existing laws, people are being charged with felonies. Anything organized can garner felony conspiracy charges. Many of the more brazen crimes aren’t simple shoplifting, they are robbery. And in most cases, the amount far exceeds the felony threshold.
Second, the problem of retail theft is national, not just California. This is a national trend and thus not driven by the specifics of Prop. 47.
Third, they are ignoring the impact of COVID in 2020. There is evidence that COVID disrupted the country in 2020 and there is also evidence that crime rates are starting to drop again.
For example, this month the LA Times reported, “In the latest sign that violent crime in Los Angeles is receding from a surge during the COVID-19 pandemic, LAPD officials on Wednesday released statistics showing double-digit percentage declines in both homicides and nonfatal shootings in 2023.”
Reisig and Schubert argue: “One need only see viral videos or spend time in a local store to witness the brazenness of thieves.”
But actually that’s part of the problem. The videos emphasize a single incident and, as the LA Police Chief noted, “he understood how some residents may be left feeling on edge by crimes including smash-and-grab thefts, which have been the focus of TV newscasts and social media posts showing people carrying stolen merchandise as they stream out of high-end stores.”
But these videos and newscast may be creating a false perception and, instead of attempting to assuage concern, Reisig and others are using this to create fear to fan their agenda of rolling back criminal justice reform.
They aren’t the only ones. In December, the National Retail Federation “retracted” claims about “organized shoplifting.” The NY Times reported, “The National Retail Federation had said that nearly half of the industry’s $94.5 billion in missing merchandise in 2021 was the result of organized theft. It was likely closer to 5 percent, experts say.”
We talked with Los Angeles DA George Gascón about this, and he noted, “I think that there is a tremendous disconnect between what people feel about crime and where crime really is. And that has been the case for generations, by the way.”
The challenge he has, is: “It’s hard to convince people with just data.”
He said, “My opponents understand that. They’re playing to that.”
But crime is in fact down.
“Not only is the Mayor talking about crime being down, but if you look at the LAPD website, the sheriff’s website, you look around the county, the departments that do report on crime regularly, and the crime numbers are down.”
He said that “we’ve had big reductions in violent crime this year. We started really mid 2022 to see crime started to come down. We still have an issue with car theft and organized retail theft, which are really national problems. They’re not local problems only.”
Gascón said, “Recently it was published by the New York Times and the LA Times this weekend more recently, how the numbers that retailer associations are given are actually grossly inaccurate and substantially less. And so the industry also has to step up and be honest with the public and sort of call it for what it is.”
The retail crime story has been distorted along a number of lines to blame not only progressive prosecutors like Chesa Boudin in San Francisco, but also now George Gascón in Los Angeles.
It has also been used to attack Prop. 47.
Sacramento Sheriff Jim Cooper, for instance, noted, “We’ve talked countless times over the past several years to try and work together to fix the issue of retail theft caused by Prop. 47.”
But once again, the data there is far from clear. Not only is retail theft a national problem that has at the same time been distorted and exaggerated, California’s laws actually remain among the toughest in the country.
Gascón explained that “the threshold in California is still lower than the majority actually of a lot of the red states.”
He noted for instance, Texas has a $2000 threshold, whereas California’s is $950, a lower limit than 38 other states.
He said that the same thing is happening in Texas, where people say that shoplifters are trying just to not reach the $2000 limit.
“It’s just inaccurate,” he said. “Thieves are not counting.”
But he added, “The other part is that we actually have legislation that was passed in 2019 that allows the police and prosecutors to prosecute for a felony when you have people that are engaged in the same conduct over a period of time, and the aggregate dollar amount of multiple theft exceeds the $950, which seems to be the complaint of people say, well, they’ll come up to the $950 and then they’ll go somewhere else. “
At the end of the day, Reisig and Schubert and others are trying to roll back the clock on Prop. 47—the problem is that the data do not support those efforts.
This is an impressive data driven article—.thank you Vanguard. I would love if someone submitted data driven rebuttal.
Fear can be real, but it can be over excited and used as political tool..
And retribution and framing uncivil/self harm behavior as morality (homelessness drug use) is failed understanding of what it means to be- and to help- our fellow humans.
Talk about a doom loop.
“Retailers Locked Up Their Products—and Broke Shopping in America
CVS, Target and other chains have barricaded everything from toiletries to cleaning supplies. It’s backfired in almost every way.
It’s not that product doesn’t get smuggled out the front door, EY’s Fagan says. Shoplifting happens, and some of what’s stolen does get resold, a phenomenon that long predates more recent agita about organized retail theft. The problem is that product goes out the back door too, or doesn’t make it through the door in the first place. Videos of Supermarket Sweep-style deodorant robberies might be popular online, but experts generally regard less visible types of theft and loss as just as much of a threat, if not more.
A recent police raid on a warehouse outside Los Angeles turned up millions of dollars in stolen merchandise that law enforcement said they suspected was headed for resale, but they alleged that it had all been stolen in transit, not from retail sales floors. This has always been the preferred operational method of large, sophisticated theft rings (See: Goodfellas and The Sopranos), because stealing from tractor trailers or warehouses yields large quantities of brand-new goods that are packaged for efficient transport, storage and resale. In fact, according to the cargo security firm CargoNet, this type of theft has recently soared—in the first quarter of 2024, 46% more incidents were reported than in the same period in 2023.
The practice of locking up products is near-universally reviled among consumers. “Congrats, you have created a store that is literally impossible to shop at,” Brooklyn resident MJ Knefel posted on X, formerly known as Twitter, in June, after finding that all the buttons used to call employees to secured display cases at the local Walgreens had suddenly disappeared, even though the cases remained locked.
You don’t have to try and fail to buy deodorant or toothpaste too many times before you simply stop trying to buy those things in person. When foot traffic declines, so do sales on all kinds of things, including those not behind plexiglass. “I worry that’s going to have a long-lasting effect,” says EY’s Fagan. For a lot of shoppers, those locked shelves become another reason to avoid in-person shopping and hand their business over to Amazon.
But retailers have already backed themselves too far into a corner for them to admit defeat. Retrofitting so many stores with lockup systems is time-consuming and expensive. Stores have sunk too much effort and money into safeguarding their shelves to fling them open now. Maybe next they’ll mess around with high-tech gadgetry, like RFID tags or facial recognition software. But perhaps a better solution is also the most obvious one: staffing up. It’s workers who make stores pleasant, orderly, convenient places to shop, and attracting more of them and keeping them around would probably require retailers to also raise wages and improve working conditions. To make these stores work again, retailers are going to have to find some way not to treat everyone as if they’re the next thief. ”
https://news.bloomberglaw.com/white-collar-and-criminal-law/retailers-locked-up-their-products-and-broke-shopping-in-america