Proposition 47 lottery: When will your crime victim number be called?

[Marc Debbaudt]

This past week I engaged in a radio debate on Which Way, L.A. with San Francisco District Attorney George Gascon over the effect that Proposition 47 has had on the crime rate in California. Prop. 47, as you now know, is a law that was deliberately mistitled The Safe Neighborhoods and Schools Act – like putting the label “Health Product” on a bottle of arsenic.  Mr. Gascon was introduced as a District Attorney opposing my view, but the audience was not told that he, in fact, was one of the two sponsors of the disastrous initiative.

By reducing drug possession and theft crimes from felonies to misdemeanors, Mr. Gascon’s initiative made the streets of California less safe. In short, Prop. 47 set loose drug addicts, who characteristically commit thefts to support their habits, with their addictions untreated. Not surprisingly, theft crimes have skyrocketed.

Predictably, Mr. Gascon spun furiously in an attempt to deny the link between the increased crime rate and his reckless social agenda. Mr. Gascon actually argued that it was “a huge leap” to connect the increase of crime with the passage of Prop. 47.  He would have us believe that the crime surge is due to a new class of criminals that suddenly sprung up from the ether and invaded this state –  not the ones who were released as a result of Prop 47.

As I pointed out in my Los Angeles Times Op-ed and during my appearance on Which Way, LA,  law enforcement professionals – including the California District Attorneys Association – predicted that reducing felonies to misdemeanors would result in increased crime. One critical and fundamental flaw with Prop. 47 is that repeat offenders do not get any enhanced punishment – or, for that matter, treatment. Moreover, without the threat of incarceration, those addicted to drugs who steal to support their habits have no incentive to enter into drug treatment programs.

Possess and possess – even date rape drugs – and it is still a misdemeanor.  Steal and steal and it remains a misdemeanor.  Keep stealing, but keep it under $950 per victim, and you get a misdemeanor. Why does Mr. Gascon believe that if you steal $949 worth of goods for the fourth time it should still be a misdemeanor? How does this protect the public? I believe a survey of prosecutors and even police officers would reveal that most, if not all, do not think all first-time drug possessors should be charged with felonies.  But what prosecutors want is the discretion to punish appropriately those who continually violate the law.

Mr. Gascon actually argued that crime has gone up “in other parts of the country that don’t have Prop 47.” The inference is that there is some other national cause to the increase in crime in California, as though there is any relevant link between what is happening in other states and what is happening in post-Prop. 47 California.  He then weakly demanded we all await a study to tell him what we already know is obviously true.

Maybe it is only in San Francisco that one believes there’s an inexplicable coincidence that a law minimizing the consequences of theft would result in more theft.  Unfortunately, those people would have to ignore what has happened to San Francisco itself, where Mr. Gascon implemented his version of Proposition 47 in the years before the initiative.   Having decided to stop aggressively prosecuting property crimes and drug offenses, San Francisco crime rates rose significantly.  The city saw a 20 percent leap in property and violent crime between 2012 and 2013 while the rest of the state’s big cities as a whole saw a reduction in crime rates.

How could a responsible District Attorney, knowing his experiment had failed, want to export that failure to the rest of California? He must surely know that San Francisco now suffers one of the highest property crime rates in the State of California. A property crime comparison per 1,000 residents shows the odds of being a victim are 1 in 17 in San Francisco, compared to 1 in 38 in the rest of the state.  Good luck if you own a car in San Francisco; car burglaries jumped a staggering 47 percent in the first half of 2015, and San Francisco police officials cited Proposition 47 as a culprit. Rank and file San Francisco police officers told the local newspaper that “they don’t go after as many criminals as they used to because they feel the District Attorney’s Office will only slap them on the wrist instead of charging them with serious crimes.”

It is not just the victimization that Prop. 47 has unleashed on California residents and businesses that makes it a miserable failure. It is also that the intended goal of changing the behavior of drug addicts and thieves has not been advanced because incarceration was removed as an incentive to entering, and following through on, drug treatment programs.  As an extensive Washington Post article found, drug court and treatment programs around the state have disappeared as misdemeanor defendants increasingly refuse to enter the programs. They are choosing instead to serve their short jail sentences and be released, with no probation conditions or consequences for failed compliance hanging over their head.

That’s because there often are no real consequences for misdemeanor theft offenses. So former felons who are now misdemeanor defendants don’t show up for court to face their charges.  Unlike those facing felony charges, misdemeanor defendants are rarely held in custody pre-trial. As a result, failure to appear in court to face misdemeanor theft charges is common.  Yolo County District Attorney Jeff Reisig called it the “revolving door on these low-level arrests,” where defendants are charged, never show up for court, and get arrested after committing yet another crime.

And even if a defendant shows up, there is little consequence for a misdemeanor conviction. Gascon argued during our debate that the potential one-year sentence that these offenders face for drug possession or theft is a significant amount of time.  That argument ignores the real world, where misdemeanor defendants actually face little to no jail time.

With Prop. 47, California residents and businesses now literally pay the price for a great adventure in reckless social engineering. People pay out of their own pockets when they become theft victims. Even if they are insured it is likely they pay a deductible. And if they report the loss, they risk a rise in premiums.  Because of Prop.47, the true cost of crime has been transferred from the criminal to the victim.  Society as a whole pays to investigate, prosecute and incarcerate thieves, and to fund the judicial system with courtroom time, judges, prosecutors, public defenders, clerks, bailiffs, court reporters and jurors. The residents and visitors to our great state bear the financial brunt of thefts that will likely not be solved, or if solved, not punished.

And there’s my major gripe. All of Mr. Gascon’s financial arguments about the costs of incarceration never address the costs to society and to the victims in releasing these criminals. The victims are forgotten. Their actual losses and the emotional trauma they experience are ignored. All of Prop.47’s compassion goes to the offenders. Mr. Gascon asserts that we are “addicted to incarceration.” Sadly, that is the only addiction that appears to trouble him. The addiction to drugs that leads to theft does not bother him at all.  He calls drug addiction a health problem, but it is the only health problem that has as a key component the repeat victimization of innocent people.

While I understand there is room for compassion, my position is simple. Compassion should start with the victims. Compassion should insist on public safety first. If that makes me, in Gascon’s terms, “a tough law and order aggressive prosecutor,” I happily accept that label.  Mr. Gascon seems to believe that punishment and accountability are bad words, and that rehabilitation, which focuses only on the defendant, should be the goal of the criminal justice system. It is a sad day in California when an elected District Attorney, whose primary obligation is the safety of the community, sees residents and businesses as acceptable collateral damage in achieving his vision of a lopsided social utopia, tilted to benefit thieves and addicts.

Mr. Gascon essentially played a game with Californians. He convinced voters to roll back-alley dice in the Prop. 47 crime lottery. When your number comes up, it is because you are a crime victim or you are paying the costs of the crimes – sacrificed for a horribly misguided quest to avoid any significant penalties for drug addicts who steal from others to support their habits.

Marc Debbaudt is President of the Association of  Deputy District Attorneys . He can be contacted at mdebbaudt@laadda.com. The view and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of ADDA which represents nearly 1,000 Los Angeles deputy district attorneys.

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