Tough-on-crime policies

Retail theft drives possible return to tough-on-crime policies in California

Voters could get another chance to consider penalties for property and drug crimes.

By JEREMY B. WHITE

California could be on the verge of a rightward correction in criminal-justice policy.

The state was a leader in rewriting laws to move away from harsh sentences, prolonged incarceration and overcrowded prisons in the name of racial justice. Some of its largest counties replaced traditional-minded district attorneys with those who wanted to imprison fewer people for less time.

But a new panic about the inability of law enforcement to control property crime might undermine those changes. The number of Californians identifying violence as a significant problem rose by 20 points in just three years, while the share who thought their local police were doing an excellent job fighting it fell by a similar amount, according to a respected statewide poll. Democratic politicians increasingly see that concern as a liability for their party.

Next year voters could have the chance to reconsider one of criminal-justice advocates’ biggest accomplishments: a 2014 ballot initiative that downgraded drug and property crimes from felonies to misdemeanors. Law enforcement officials are once again leading the push in this deep blue state to restore the penalties despite voters decisively rejecting a similar ballot measure in 2020.

Now those same law-enforcement officials are finding interest from potential new allies. Walmart has funneled $500,000 to the ballot initiative and a legislative leader has launched a committee that will examine retail crime and possibly ask voters to amend the law.

“This isn’t an abstraction anymore. This is something people see and experience,” said Daniel Conway of the California Grocers Association, which represents major companies like Costco and Safeway and is again calling for tougher laws after backing the unsuccessful 2020 measure. “People see folks pushing shopping carts out. They see people taking things, or they see security guards in front of their local grocery store.”

The pattern is not isolated to California. Progressive district attorneys like Manhattan’s Alvin Bragg and Philadelphia’s Larry Krasner have faced state legislative action meant to curb their efforts to rethink criminal justice with lighter sentences and more police accountability, and Republicans have harnessed voter anxiety about public safety to pummel Democrats.

A return to tougher laws would mark a departure from California’s recent trajectory. After layering on stringent sentencing enhancements in the 1990s that swelled prisons, Democratic officials have spent years pushing in the opposite direction — with voters’ assent.

In 2014, they passed Proposition 47, which slashed the penalties for theft and drug possession. They defended that law in 2020 — after a summer of racial reckoning following George Floyd’s murder in Minneapolis — by rejecting Proposition 20, which would have returned some tougher penalties. That same fall, Prop 47 architect George Gascón carried the reform banner to victory as Los Angeles District Attorney, taking charge of the state’s largest prosecutorial office.

But those dynamics have shifted markedly in the last few years, as alarms from retailers about brazen repeat thefts — and viral videos documenting them — have fueled concerns about a lack of consequences, even as data paint a more nuanced picture.

Property crimes rose in California in 2022 but were down compared to most of the prior decade, according to statewide data. An analysis by the nonprofit Council on Criminal Justice found shoplifting was down across much of the country but up substantially in Los Angeles, while San Francisco’s rate dropped between 2022 and 2023.

Anxiety about public safety powered the recall of reformist San Francisco District Attorney Chesa Boudin last year and is fueling another district attorney recall drive in Oakland. Gascón faces a tough re-election bid as opponents link him to Prop 47.

Democratic lawmakers increasingly want to show they are making progress on crime. Gov. Gavin Newsom recently touted $267 million in grants to help local law enforcement tackle retail crime. San Francisco Mayor London Breed is touting a get-tough approach as she seeks re-election. And while legislative Democrats have repeatedly rebuffed bills to crack down on theft or amend Prop 47, newly installed Assembly Speaker Robert Rivas has signaled a focus on retail theft by launching a dedicated committee that is expected to recommend legislation in the coming weeks.

The new committee’s chair, Rick Zbur (D-Los Angeles), said in an interview that he expected the panel to consider changes like allowing prosecutors to aggregate separate crimes to bring a stronger sentence. Any law that substantively alters the Proposition 47 sentencing changes would have to go back to voters for approval.

“We’re not committing to something that would necessarily mean the Legislature putting something before the voters,” Zbur said, “but that’s not off the table, either.” Such a legislative referral would require a two-thirds vote of the Assembly — a test of Democratic unity amid the changing dynamics around the issue.

Supporters of the broader movement argue claims about a crime surge have been deliberately overblown, pointing to the National Retail Federation’s recent retraction of a well-publicized claim that organized crime had accounted for half of stores’ annual losses. They argue that law-enforcement groups are hoping to distract from their failure to win convictions, and that a return to harsher property crime and drug penalties will not solve problems with deeper roots in poverty and underinvestment.

“For us to focus on sentencing, that is not sufficient to really address the ways in which these systems have been broken for generations,” said Lenore Anderson, who leads the organization Alliance for Safety and Justice and chaired the Proposition 47 campaign. “This is not a pendulum. This is a paradigm shift.”

Whether it comes to pass might not be up to Democratic politicians who dominate Sacramento, however, as prosecutors are already working to circumvent lawmakers and take the issue directly to voters. The California District Attorneys Association is pursuing a ballot initiative that would bolster the penalties for repeat retail theft while making it easier to charge fentanyl dealers with homicides — among the ideas that have faltered in the Legislature.

“We are convinced that California’s at a tipping point with these issues and the public overwhelmingly supports accountability for people who steal repeatedly and increased treatment for people who suffer from mental health and substance abuse issues,” said Greg Totten, CEO of the California District Attorneys Association. “We have every confidence we’re going to be on the ballot in November.”

Advocates for tightening the law say they do not want a return to mass incarceration, arguing the possibility of felony charges can be used to funnel offenders into drug treatment, an option people are more likely to reject without the threat of harsher penalties.

“The goal is not to incarcerate unless it’s absolutely necessary,” Yolo County Chief Deputy District Attorney Jonathan Raven — whose Davis-anchored boss, District Attorney Jeff Reisig, has fended off multiple challenges from the left — office said during a recent hearing, but “to get criminally involved individuals help we often need to incentivize them to engage” and “Proposition 47 took away some of these tools we had in the tool belt.”

But the ballot push has been riven by infighting as groups affected by retail crime spar over whether the best path to change is through the Legislature — which has consistently rejected changes to Prop 47 — or by going around lawmakers and taking it directly to voters, which would leave less room for negotiation and force a costly ballot campaign.

While the California Retailers Association supports the district attorneys’ measure, the organization has not contributed any money. The association is deferring to member companies even as Walmart — which has pledged in recent years to work with law enforcement “on the best way to engage with the Walmart community” — funneled $500,000 toward qualification.

A company spokesman said the initiative represented “a balanced approach, providing the tools needed to hold those individuals responsible for repeated organized retail crimes accountable.”

Sacramento Sheriff Jim Cooper, who championed the 2020 ballot initiative and functioned as law enforcement’s principal Democratic ally when he served in the Assembly, has excoriated stores for not cooperating with law enforcement and publicly rebuked the retailers’ organization for not spending money on the ballot initiative.

“They know the voters want something done,” Cooper said. “The retailers have got to do something. They’ve got to have skin in the game, and so far they’ve had zero skin.”

California Retailers Association President Rachel Michelin said in an interview that she had encouraged individual companies to consider supporting the initiative. But even as her organization launched a committee dedicated to advancing the measure, Michelin projected confidence about working with the governor and Legislature on a fix, including by crafting a separate initiative and moving it to the ballot.

“I know there’s a lot of individuals who say the Legislature’s not going to do anything, you can’t get anything through the Legislature,” Michelin said. “I am cautiously optimistic.”

Similarly, Conway of the California Grocers Association — which contributed heavily to the failed 2020 initiative, along with individual grocery chains — said he saw “a lot of merit” to the prosecutors’ ballot initiative but believed “there’s a path through the Legislature to get to the ballot” given the growing attention to the issue.

Newsom has so far resisted calls to have voters reconsider Prop 47, which he endorsed, and he has not taken a position on the potential 2024 initiative. A Newsom spokesperson said in a statement that the governor “will continue to build on a public safety strategy that works,” including legislation to “further crack down and prevent” retail crime and auto burglaries in particular.

Efforts to crack down on retail theft have grown entangled in a drive to contain California’s fentanyl crisis. As with bills to address Prop 47, legislation to penalize fentanyl dealers — including by making it easier to charge them with homicide — has stalled in Sacramento despite moderate Democrats’ support.

The prosecutors’ ballot initiative would allow for that charging enhancement and would also up drug charges to help compel people into treatment. That could make for a tougher sell: Michelin said the decision to tackle both drug and property crimes had confused her members, and a key Democratic lawmaker warned against conflating the two.

“I think it elevates the issue,” Senate Public Safety Committee Chair Aisha Wahab (D-Hayward) said of the ballot threat, but “at the end of the day, retail theft and fentanyl are not issues that can be joined together. Two separate issues.”

But Democrats are increasingly warning about the political consequences of inaction. State Sen. Tom Umberg (D-Santa Ana), who carried the stalled fentanyl homicide bill, warned the Legislature could be outflanked by a ballot initiative, as with a 1994 measure that supercharged incarceration by creating a “three strikes” sentencing system imposing life sentences for repeat offenders.

“The Legislature basically nibbled around the edges and didn’t enact anything of great substance and the initiative became law. I think with respect to fentanyl and retail theft there’s the same sort of attitude among the body politic,” Umberg said. “If the Legislature doesn’t deal with an issue of consequence to voters, the voters may enact an initiative that goes too far.”