Many people have blamed 2014’s voter-approved Proposition 47, the grossly misleading and misnamed “Safe Neighborhoods and Schools Act,” as the cause for the alarmingly rapid increase in smash-and-grab burglaries. But that would not be entirely accurate. While Proposition 47 has certainly played a major role in creating this crime spree, it is not the only actor. A number of criminal justice “reforms” have been enacted in the past 10 years that are players in this unfolding tragedy.
In 2011, California faced a prison overcrowding crisis. There were not enough prisons to hold the approximately 143,000 inmates it housed. Many prisons were so full that they more than doubled their maximum occupancy. With no money available to build more prisons and a two-year mandate handed down by the U.S. Supreme Court to reduce the prison population to 110,000, something needed to be done. So, the legislature enacted Penal Code section 1170(h), which created the concept of the “felony jail.”
A felony crime was defined as one where a subject could be punished by either a determinate or indeterminate period of years in state prison. A misdemeanor crime was defined as one where the subject could not be punished by any more than one year in a local jail. Thus, when someone was convicted of a felony, many times they would be sentenced to state prison because the state was in the best position to house and monitor inmates serving multiple-year sentences. However, when a subject was convicted of a misdemeanor, he would serve his sentence in a local county-run jail. Because those convicted of misdemeanors were jailed typically for days or only a few months, local governments were in the best position to house and monitor those subjects.
Penal Code section 1170(h) changed all of this. It allowed judges to either suspend or split a defendant’s prison sentence if convicted of a “low-level” felony. More importantly, it now allowed for prison sentences to be served in local jails. Many of these now-reclassified felonies included theft crimes and second-degree (or commercial) burglaries. A commercial burglary was committed when a criminal entered a business with the intent to steal. It did not matter how valuable the items were that the criminal intended to steal.
While many in the criminal justice community opposed this new Penal Code section, they did so quietly because of the prison overcrowding crisis and the fact defendants would still be appropriately punished. Penal Code section 1170(h) was a means to an end.
Almost immediately, Penal Code section 1170(h) had a burdensome effect on local jails. Now expected to house both convicted felons and misdemeanor assailants, local jails saw their populations skyrocket. Many counties did not have the manpower or the financial means to handle such a large influx of inmates. Something had to give. Thus, those convicted of misdemeanors suddenly were sentenced to drastically reduced custody time, if any at all. It was the only way the local jails could safely manage their custodial populations.
In 2014, California voters, having been misled by their political leaders, voted in favor of Proposition 47 because they believed it would make neighborhoods and schools safer. It did not. Instead, it reduced a vast number of crimes to misdemeanors. Most theft crimes were included. It also raised the threshold dollar amount for determining when to charge a theft crime as a misdemeanor or a felony from $400 to $950. It was now very difficult to prosecute criminals for felonious petty theft because so many of these crimes would never come close to that new dollar amount.
Proposition 47 also eliminated the ability for prosecutors to charge felonies when individuals were convicted of more than three theft-related crimes. Criminals could be convicted of an infinite number of theft crimes, and they never would be charged with a felony. Lastly, commercial burglary convictions were now misdemeanors unless the criminal entered the business with the intent to steal when the business was closed. This is important. Now almost all commercial burglaries could only be charged as misdemeanors no matter how much merchandise the criminal took and no matter how much it was worth.
It didn’t take long for criminals to figure this out. It got worse.
Many times, a convicted criminal, in lieu of an extended period of time in jail, would receive a lesser jail sentence in exchange for agreeing to be supervised while out of custody for a specified period of time, usually 36 months. This period of supervision was called probation. If a criminal violated the rules associated with his probation, he would have to do extra time in jail, and in some situations, ultimately prison. In 2020, California legislators decided that criminals were spending too much time on probation. The problem? Most criminals couldn’t follow the rules, so they were being sent back to jail over and over again.
How did the legislature solve this problem? They came up with Assembly Bill 1950, which significantly lowered the maximum probationary period. Now, for misdemeanors, the maximum probationary period was 12 months. For felonies, it was 24 months. So, in essence, criminals were rewarded for not following the rules!
In March 2021, the California Supreme Court then decided that the cash bail system was unfair to poor people, and they practically eliminated it even though a large majority of Californians wanted to keep it in place. I wrote about this in last month’s column “Cash Bail ‘Reforms’ Put Violent Criminals Back on Streets.” This has resulted in numerous criminals around California being arrested for theft crimes, then being released without needing to post bail because theft crimes were not considered to be dangerous to public safety. These people often commit more theft crimes, sometimes the same day they were released from custody.
All of these “reforms” have set a tone. Criminals no longer need to fear repercussions because the California Legislature is not interested in holding them accountable. A criminal gets arrested for a theft crime and is released from custody within minutes of his arrest. Theft crimes are now misdemeanors except under very extreme circumstances. Because of Penal Code section 1170(h) and its effect on local jails, those convicted are sentenced to a limited amount of jail time, if any. Their probationary period is typically only one year.
Criminals no longer need to fear repercussions because the California Legislature is not interested in holding them accountable.
Is it any wonder smash-and-grab burglaries are so rampant now? In light of these criminal justice reforms, my only question is, what took so long for the criminals to catch on?
In a recent interview, Attorney General Rob Bonta refused to blame Proposition 47 for the increase in these burglaries. He blamed websites and tech companies because criminals often used social media platforms to hatch their plans and then sell the goods online. Blaming the internet for the dramatic rise in smash-and-grab burglaries is like blaming the business owners for selling things worth stealing. Governor Gavin Newsom just unveiled a new $300 million plan to combat the onslaught of smash-and-grab burglaries. Unfortunately, reversing many of these so-called criminal justice “reforms” was not included as part of his master plan. His proposal is akin to putting a band-aid on a wound that needed a whole lot of stitches.
There may be hope. On January 5, 2022, California legislators introduced legislation that would either partially or completely eliminate Proposition 47. Neither Governor Newsom nor Attorney General Bonta commented on this proposed legislation. Eliminating Proposition 47 would be a nice start, but to truly serve public safety, many of these so-called “reforms” must be reexamined and likely eliminated as well. It is time for Californians to remind their political leaders that public safety should be their focus, not catering to criminals.
John Barrick has worked as a prosecutor in the Ventura County District Attorney’s office for more than 17 years and has prosecuted some of the most violent crimes committed in the county. He currently serves in the Major Crimes-Homicide Unit and is a 2022 candidate for District Attorney.