No, Prop 47 didn't de-criminalize misdemeanors

By The Times Editorial Board

July 18, 2018 4:05 AM PT

Not every letter to the editor gets published. One that didn’t make the cut earlier this year came from an elected official from a mid-size Southern California city who complained that thefts from homes and cars were on the rise because of recent changes to sentencing laws. Burglars now know, the writer said, that they simply cannot get arrested for stealing anything worth less than $950. The most police can do is give them a ticket.

It’s a widespread belief, but it’s not even remotely accurate. Entering a home (or a room, a tent, a locked car or any building) with the intention to steal remains a felony, even if the thief doesn’t end up taking anything, or even if what he has his eye on is worth less than $950. The suspect can (and should) be arrested, booked and brought before a judge. Proposition 47 didn’t change any of that.

But suppose it did. Suppose the letter writer was correct and the proposition had reduced burglary from a felony to a misdemeanor. Who said that no one suspected of misdemeanors should be arrested or prosecuted? Certainly not the voters.

The idea behind Proposition 47, which passed by a wide margin in 2014, was to reduce certain non-violent, non-serious felonies to misdemeanors in order to ensure that the resources of the criminal justice system are more wisely allocated, and that prison and jail beds are reserved for the offenders who are the greatest risks to cause harm if they are left at liberty.

That means serious and violent felons, to be sure. But it also means serial petty offenders — drug addicts who keep stealing to support their habits, for example, and who as a result undermine the safety and security of whole neighborhoods. Although those crimes are now misdemeanors, they are still crimes, and the offenders still can be prosecuted and punished.

Long ago, police stopped arresting almost anyone suspected of committing a misdemeanor because for so many years in California, pretty much every crime of any consequence could be charged as a felony. That’s one reason state prisons became so overcrowded. Now that the laws have changed, police and prosecutors must catch up. Voters made clear that they didn’t want drug possession or petty theft to be felonies punishable by a year or more behind bars, but it doesn’t follow that they didn’t want such acts to be treated as crimes at all.

California can keep the criminal justice reform momentum moving forward by shifting the focus from excessive or unbalanced sentencing — a problem that now has largely been addressed in state law — to improvements in the way police, prosecutors and judges put those laws into effect.

The object should be diversion from the criminal justice system where appropriate, but otherwise, intervention: Get the serial petty offender in front of a judge with power to order supervised probation, drug treatment or, if necessary, jail time. At each point of the process — at the time of arrest, of booking, of initial appearance before the judge — decisions about whether to release the misdemeanor offender, and on what conditions, ought to be based on risk. How likely is it that the defendant, released and unsupervised, will cause harm or flee?

California law generally requires judges to release misdemeanor defendants on their own recognizance, but it also makes exceptions for those deemed to be high risks to reoffend or to fail to show up for future court appearances. If judges believe current law does not give them enough authority to exercise their discretion, then lawmakers should take note: Some statutory adjustment may be in order. The same is true for police decisions on the street. City attorneys should be in a position to advise police that they may arrest suspected misdemeanor offenders, and that the charges can stick.

An initiative to scrap much of Proposition 47 and other criminal justice reform measures failed to make this November’s ballot but has qualified for the 2020 election. It asks voters to, among other things, turn some misdemeanors into felonies all over again.

That would be an unnecessary step backward. Many offenders whose real need is for health services — drug or mental health treatment, for example — can be diverted from the criminal justice system even before arrest. Many others can be charged and dealt with without going to jail. For others still, jail for up to a year remains the correct response. The criminal justice system’s goal now ought to be ensuring that the right people are directed toward the right dispositions. Misdemeanors are less-serious crimes that carry less-serious punishments. But they are still crimes and should still carry consequences.

This piece is the second in a series on criminal justice reform in California.

Previously:

1. California doesn’t need to roll back its criminal justice reforms to do a better job fighting crime

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