Eye on the Courts: Scare Tactics and Prop. 47

Most campaign claims have an element of truth surrounded by a world of gray and ambiguity. That is the case of Prop. 47 – a well-intentioned proposal that would end felony incarceration for a host of drug charges and other minor and non-violent theft.

For the most part, that is a good thing. It reduces over-incarceration for largely petty and non-violent offenses. But there are concerns, particularly the elimination of Penal Code section 487(d)(2) which mandates an automatic felony for the theft of a handgun. While technically true that the proposed Penal Code section 490.2 would require all thefts valued at less than $950 to be a misdemeanor, there are gray areas that make that unlikely.

This weekend, when a friend of mine, whom I respect, had bought into that line of thinking, I realized it was necessary to lay out a few things that mitigate some of the bigger concerns.

The argument by the opposition goes like this: “Prop. 47 would eliminate automatic felony prosecution for stealing a gun. Under current law, stealing a gun is a felony, period. Prop. 47 would redefine grand theft in such a way that theft of a firearm could only be considered a felony if the value of the gun is greater than $950. Almost all handguns (which are the most stolen kind of firearm) retail for well below $950. People don’t steal guns just so they can add to their gun collection. They steal guns to commit another crime. People stealing guns are protected under Proposition 47.”

But this is a very narrow reading of the law.

The most obvious point is that if the person who steals the gun is a felon to begin with, then possession of a handgun is a felony.

Also, if the crime is committed using force or fear, as will often be the case, the crime becomes robbery rather than simple theft. Robbery, as we have seen it charged, can be much more subtle than one thinks.

If the person is a gang member, there are laws that prevent gang members from obtaining guns.

Under Prop. 47, possessing a stolen concealed gun also remains a felony.

Finally, the most serious gun law in the nation still is in effect, and that is Penal Code section 12022.53 which enhances a felony where the use of a gun is involved. You get an additional 10 years in prison just for “using” a gun in the commission of a crime – not firing, which adds 20 years, but bringing it along. And if you kill or seriously injure someone using a gun, the additional sentence is 25 years to life.

These years are in addition to or consecutive to the sentence for the underlying felony conviction.

Bottom line, on the handgun theft issue, there may be a few cases where none of the conditions for charging a felony does not apply, but not many. Almost any skilled prosecutor is going to be able to get a felony for a person who steals a handgun.

One of our readers wrote, “I am going to vote NO on this since I’m NOT happy that the guy that steals my gun, my bike, my laptop (or anything else I own worth under $1K) will be treated the same as a Holmes Jr. High kid who took a pack of gum from Nugget.”

We covered the gun issue, but the bike issue and the laptop issue do not change that much. Under the current law, grand theft is defined as a theft where the property taken is valued at more than $950. However, aside from gun and cars (the latter of which are rarely going to be worth less than $950 anyway), the offense of grand theft is a wobbler.

That means that most often the person who steals your laptop or bike (unless they are expensive bikes or laptops), under the current law, is going to be charged with a misdemeanor. Even grand theft right now is a wobbler.  Therefore, Prop. 47 really isn’t going to change the law.

The biggest change is that possession of meth, heroin and cocaine, even for personal use, are currently felonies. Under Prop. 47, those would change to misdemeanors. Now, the opposition argues that changing the theft to misdemeanors limits the incentive for rehabilitation. “This initiative will sound the death knell for Drug Courts, as there is no incentive to do an 18 month to two year intensive treatment program when the maximum consequences for a drug conviction is a six month misdemeanor term in county jail.”

I’m not sure I buy into that. There are lots of reasons to want to get clean other than facing prison, but yes, that may be the incentive that some need. On the other hand, I’m far from convinced that Drug Court is that effective overall, and I’m not really sure what we gain from incarcerating people for drug offenses.

Moreover, the opponents fail to understand several things – first, one in 10 Americans has been arrested for some type of drug possession. While incarceration for drugs does not seem effective in most cases for getting the individual to stop, incarceration does lead to more serious types of crimes.

Second, we have the issue raised in the mass incarceration and the New Jim Crow argument – when people get arrested for drug possession, they become felons. They become ineligible for public housing and other public assistance. Most jobs require felons to check the “box” which often acts as a screening device for employment. Felony status disenfranchises the individual.

The result is that we have a large population that is effectively reduced to second-class status and ends up in the cycle of poverty. There is a critical link, that the opposition is missing, between drug policies, unequal enforcement and the poverty-crime cycle.

The argument of Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, is this: “In the era of colorblindness, it is no longer socially permissible to use race, explicitly, as a justification for discrimination, exclusion, and social contempt. So we don’t. Rather than rely on race, we use our criminal justice system to label people of color ‘criminals’ and then engage in all the practices we supposedly left behind.”

Once an individual enters the criminal justice, she argues, “the old forms of discrimination – employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service – are suddenly legal. As a criminal, you have scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow.”

The implications of this are stunning in their impact.

“African Americans comprise 14 percent of regular drug users but are 37 percent of those arrested for drug offenses,” according to the Human Rights Watch. “From 1980 to 2007 about one in three of the 25.4 million adults arrested for drugs was African American.”

Blacks get harsher punishments than whites, even controlling for repeat offenses and nature of crimes.

“The U.S. Sentencing Commission stated that in the federal system black offenders receive sentences that are 10 percent longer than white offenders for the same crimes. The Sentencing Project reports that African Americans are 21 percent more likely to receive mandatory-minimum sentences than white defendants and are 20 percent more likely to be sentenced to prison.”

Once in the system, getting out is tough.  Convicted felons cannot vote, are ineligible for public housing and an array of public assistance benefits, and, of course, having to check the “felon box” is a huge barrier to attaining jobs.

Studies have shown: “Evidence shows that spending time in prison affects wage trajectories with a disproportionate impact on black men and women. The results show no evidence of racial divergence in wages prior to incarceration; however, following release from prison, wages grow at a 21 percent slower rate for black former inmates compared to white ex-convicts. A number of states have bans on people with certain convictions working in domestic health-service industries such as nursing, child care, and home health care – areas in which many poor women and women of color are disproportionately concentrated.”

Given that, the argument about Drug Court falls flat on its face.

So yes, if you are concerned that a few people who steal handguns might slip through with misdemeanor convictions, then vote against Prop 47. But based on our analysis, the chances of that happening in the real world would be slim – they would have to catch the individual who has no felony record at home with the stolen weapon properly stored and no other illegal items. The chances of that seem rather remote.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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49 Comments

  1. WTF

    Proposition 47 has the potential to lead to increased gun violence.  An aspiring felon can now break into a store that sells handguns and steal one or two handguns with some ammunition so long as the value (retail or whole sale?) is below $950 can only be charged with misdemeanor theft and burglary.  Prop 47 changes the burglary in this scenario from a charge where the DA has the discretion to charge either a felony or misdemeanor to only a misdemeanor.  The gun theft under this scenario would be a felony under current law but under Prop 47 it can only be charged as a misdemeanor.  Due to jail overcrowding we currently have felons serving “local prison” sentences on ankle monitors.  There is no room at the jail for incarceration of misdemeanor sentences.  This individual could repeat this conduct secure in the knowledge that he could never be charged with a felony or serve a jail sentence so long as the value of the guns stolen remains below $950.  This is dangerous and bad policy.

    1. David Greenwald

      But in order for it to only be a misdemeanor, he would have to have no felony record, he would have to not have committed other crimes with the weapon, and he would have not have the weapon caught on his person. Is that scenario possible? Maybe, but is it likely? Not really.

      Interesting side point: “Proposition 47 would create a new crime category of “shoplifting,” describing theft from a commercial property under $950, which can currently be charged as second-degree burglary. The initiative does not affect residential burglary.”

      That means a firearm stolen from someone home is still a felony because it would be first degree burglary. That leads me to another point – how easy is it to break into a store that sells firearms and steal one?

      1. WTF

        None of the facts you site would change the theft and burglary charge to a felony when the gun is stolen from a commercial property in my scenario.  A felon could be charged with felon in possession which is a different offense.  Any felony committed afterwards would again not change the original theft and burglary charges to felonies.   In a society where gun violence appears to be on the rise we should not be passing legislation that reduces the penalty for gun theft.  A person who cannot legally obtain a handgun can break into the Big 5 in Davis to steal a handgun secure in the knowledge that the only charges they will face are misdemeanors with no real incarceration time.

        My example did not include a residential burglary.  In that scenario the theft of the gun would still  be a misdemeanor.

        Another interesting side point is that there is no limit on the number of thefts and commercial burglaries that can be committed before the theft can be raised to felony level under Prop 47.  Currently it takes three prior theft convictions with a jail sentence to elevate a subsequent theft to a felony.  Prop 47 does away with the ability to address repeat offenders.   I believe that we already have an increase in theft in Davis due to AB 109.  Prop 47 will have a similar effect.

        1. David Greenwald

          “A felon could be charged with felon in possession which is a different offense. ”

          Yes and no. It’s a different charge for the same offense, which means functionally it makes no difference in the way that charging and sentencing is handled.

  2. Barack Palin

    Most campaigns claims have an element of truth surrounded by a world of gray and ambiguity.

    Yes, I agree, like the yes on Prop 47 campaign slogan that wants to make the claim that letting felons out of jail is somehow going to make for Safe Neighborhoods and Schools.

    1. David Greenwald

      “The only people who would be released are those serving sentences for personal use drug possession or for thefts of less than $950. No one serving time for any other crime will be released under Prop. 47. An inmate seeking early release would also need to apply for it, and a judge could block release if it would pose an unreasonable risk of danger to public safety. Prop. 47 would not apply to anyone with a record of certain violent crimes or sex crimes or who is required to register as a sex offender.”

      The “safe neighborhoods and schools” comes from the repurposing of millions of dollars currently used to house people in custody on non-violent and drug offenses for education and additional law enforcement. Yes, it’s a political argument.

      1. Tia Will

        it’s a political argument.”

        Being “political” does not make it without merit. The question that is being addressed here is that of relative benefit. Do we as a society really get the most benefit from our dollars from the incarceration of those who are not truly a threat to society ? Or would we be seeing more benefit from using those tax dollars for other purposes ? At approximately $60,000 per year per individual ( assuming their evaluation determines them not a danger to society) would be much better spent elsewhere.

         

        1. South of Davis

          Tia wrote:

          > Do we as a society really get the most benefit from our dollars from

          > the incarceration of those who are not truly a threat to society ? 

          No, politically powerful prison guards union just wants as many people in jail so even more of them can make top 1% money with overtime and selling stuff to the prisoners.

          I’m all for letting ALL the drug users out of jail but I don’t want the guys that steal my stuff like my (worth ~$300) mountain bike to get a slap on the wrist as a “petty” theft.

          I also don’t want the gang members training the young kids in the gang (who don’t have a criminal record yet) to break in to homes looking for guns (that are not in Liberty safes bolted to the foundation).

      2. Barack Palin

        This Prop will cause more felons on the streets and create more future criminals because they’ll know that they can  steal and use drugs without the threat of a stiff penalty.

        1. Davis Progressive

          i don’t think that’s true.  i think one of the most underrated factors is how much an early felony pushes people down the path of a life of crime and forestalling that felony status for as long as possible might allow for other possibilities.

  3. Biddlin

    While well intended, I find the prop too broadly worded and knowing how prosecutors love to play “Let’s Make a Deal,” you know they’d make good use that “wobbler” gun charge.

    ;>)/

  4. sisterhood

    “Moreover, the opponents fail to understand several things – one, one in 10 Americans has been arrested for some type of drug possession. While incarceration for drugs does not seem effective in most cases for getting the individual to stop, incarceration does lead to more serious type of crimes.”

    There appears to be prescription drug abuse in county and in prison, also. I wonder what the stats are re: abuse of rx drugs by inmates who don’t even have an rx for the meds.

    Anyone out there have stats on rx drug abuse by imates?

    Thanks for an interesting article, David.

    1. WTF

      The problem is that Prop 47 is not limited to drug offenses.  It will most likely result in an increase in crime and there is no guarantee that our schools will see on dollar more.

      1. hpierce

        Ah… is that it, that any savings are not “earmarked” for schools?  If all savings were earmarked for schools, would you feel better about the proposal?

        1. Barack Palin

          “Most likely result” is strictly your opinion. It’s not based on any kind of study or empirical evidence.

          As is the Safe Neighborhoods and Schools lie that this proposition is trying to bamboozle the public with.  I think someone feeling that letting tens of thousands of felons out of jail and lessoning the penalties for theft and drug use will lead to more crime is making a valid assumption.

          1. David Greenwald

            How is it a lie if the bill repurposes money towards those ends? I understand you may not agree with doing it that way or that you don’t believe it will work, but that does not make it a lie.

    2. South of Davis

      sisterhood wrote:

      > one, one in 10 Americans has been arrested for some type of drug possession.

      This seems a little high, do you have a source?  I’m sure that one in ten “in the hood” have been arrested, but I don’t think that over 6,000 people in Davis (or 30 MILLION people in america) have been arrested for drug possession…

      > I wonder what the stats are re: abuse of rx drugs by inmates
      > who don’t even have an rx for the meds.

      The amount of drugs in California prisons will blow your mind many (but not all) prison guards make over $100K a year (on top of their $100K+ union pay) bringing drugs in to prisons.

      A friend is a contractor that does work in California prisons has told me that there are so many drugs in the prisons that the “good behavior” guys sent to help them almost always ask his laborers if they want to “buy” drugs (at good prices).

      1. David Greenwald

        “The estimated arrest rate for the United States in 2012 was 3,888.2 arrests per 100,000 inhabitants.”

        That works out to 4 in 100. That’s of course overall, but you factor it out over someone’s lifetime and 1 in 10 seems very plausible.

        1. South of Davis

          David wrote:

          > 1 in 10 seems very plausible.

          It would only be “plausible” if we didn’t have any repeat offenders.  If you talk to the cops in any town a small group of repeat  offenders are most of the arrests year after year.  The cops don’t arrest 3,888 NEW people every year.

          1. David Greenwald

            In 2011, seven million were under some form of custodial control, that’s more than two percent, so yes, still plausible

        2. Barack Palin

          I was wondering about that imo jacked up number of 1 in 10 also.  I did some google searches to no avail, any numbers I did find didn’t take into account repeat offenders.  I mean David you said one in ten have been arrested, not something like in your opinion as many as 1 in 10.

          1. Matt Williams

            Barack and SoD, back in the early 1990s I had the pleasure of the friendship with Peter, one of the members of the Dallas Crime Commission. At the time the aggregate crime statistics for Dallas were skyrocketing and as a result fear of crime was escalating. In our many conversations on the subject Peter shared with me the sliced and diced statistics on the crime history and crime trends. What jumped out from those sliced and diced statistics was the demographic segmentation. For the vast majority of the geographic segments of Dallas, per capita crime had barely increased, if at all. When you further segmented the geographic segments into demographic segments both where crime was rising and upon whom the crime was being visited was very apparent. For Peter and me, white males living north of Downtown Dallas, our per capita crime rate had actually decreased while the citywide crime rate escalated. Our white female spouses experienced neither an increase nor decrease per capita during that same period.

            I share this story, because looking at the 1 in 10 statistic, I don’t lose sight of the fact that Davis is a whole lot like Peter and me and our spouses were in Dallas … only a small segment of a very large pie.

        3. Barack Palin

          Matt?  Show us the proof that 1 in 10 has been arrested for some type of drug offense.  I really did look, couldn’t find anything that backed up those stats.  Your little story is nice but it proves nothing.

          1. David Greenwald

            The seven million figure I cited above is the number in custody or under some form of control in a given year. Given that that’s over 2% of the population and a single year, I fail to understand your skepticism about the 1 in 10.

          2. Matt Williams

            Barack, a substantial portion of arrests never appear in the record because the arrest doesn’t contain enough information to make the arrest stick. I knew hundreds of students at Cornell who were arrested for various offenses and not one of them has an arrest record as a result of the subsequent processing of those arrests. Arrests are an incredibly problematic statistic to either track or substantiate.

        4. South of Davis

          Matt wrote:

          > I don’t lose sight of the fact that Davis is a whole lot like

          > Peter and me and our spouses were in Dallas … only a

          > small segment of a very large pie.

          Remember for 10 years I worked tutoring poor kids in Hunters Point (and met a lot of other poor kids through the First Tee program).  While I’m sure that more than one in 10 active gang members have been arrested for drug possession the number is not even close to the one in ten for the overall residents of Hunters Point, much less Davis or Atherton.  Out of the 1,000+ people I’m connected to on Facebook and LinkedIn 90%+ have “used” illegal drugs, but I know two people who were “arrested” for drug possession (they were doing lines on a BMW rear view mirror before a concert at the Greek Theater in the early 80’s when a cop walked by)…

          I took a look on line and can’t find ANYTHING that says that (even close) to one in ten Americans have been arrested for “drug possession” (it looks like less than 10% of Americans have been arrested for ALL CRIMES COMBINED)…

          1. Matt Williams

            Why do you make the broad sweeping unilateral claim that Obamacare is not working … because you care about the issue.

          1. David Greenwald

            “According to a 2008 survey of states, there were 92.3 million people with criminal records on file with states, including those individuals fingerprinted for serious misdemeanors and felony arrests. U.S. Bureau of Justice Statistics, Survey of State Criminal History Information Systems, 2008 (Oct. 2009), at Table 1. In some states, misdemeanor arrests for less serious crimes do not require fingerprinting, thus this figure is likely an undercount of people with criminal records. To account for individuals who may have records in multiple states and other factors, and to arrive at a conservative national estimate, the 92.3 million figure was reduced by 30 percent (64.6 million). Thus, as a percentage of the U.S. population over the age of 18 (232,458,335 in 2009 according to the U.S. Census Bureau, Population Division, available at http://www.census.gov/popest/), an estimated 27.8 percent of the U.S. adult population has a criminal record on file with states. This estimate is consistent with a Department of Justice finding that about ’30 percent of the Nation’s adult population’ has a state rap sheet. U.S. Dept. of Justice Office of the Attorney General, The Attorney General’s Report on Criminal History Background Checks – See more at: http://www.drugwarfacts.org/cms/Crime#sthash.KopjcBMa.dpuf

        5. Barack Palin

          David, looking at the link you posted, Drugwarfacts, if their numbers are correct then I can fully believe that the 1 in 10 drug offense number is possible.  I would’ve never believed that 20% of the people in this country has a state rap sheet.  You talk about a country that’s going down the shitter, that’s us.  It’s disgusting.

        6. South of Davis

          David:

          I think all drugs should be legal (maybe not meth) so I am not some tough on crime right winger, but to buy the 1 in 10 number you need to ignore that there is a small group of people get arrested a lot (like the homeless guy I read about on SF Gate a while back with over 80 arrests in 10 years).  Take a look at the link below most people don’t even make it a year without getting arrested after they are released from jail:

          http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/ARB_FY_0607_Recidivism_Report_(11-23-11).pdf

    3. WesC

      “There appears to be prescription drug abuse in county and in prison, also. I wonder what the stats are re: abuse of rx drugs by inmates who don’t even have an rx for the meds.”

      In prisons and jails all drugs that have abuse potential (or are high cost medications) are administered as “DOT” which stands for “Direct Observation Therapy”.   This includes almost any pain medication stronger than a tylenol or a motrin, all psych medications, and anything else that might be particularly expensive.  This means that if the inmate is prescribed 2 Vicodin tablets 3 times per day  they will have to report to the clinic 3 times per day where a nurse will put 2 Vicodins in a pill cup and watch the inmate swallow them, followed by watching them swallow a glass of water.  That being said, the system is not foolproof, and an addict is usually pretty highly motivated to try and find creative ways to game the system.  Prescription drug abuse definitely occurs in prisons and jails for the simple reason that no system is 100% foolproof, but probably not to the degree most people imagine.

  5. Frankly

    The backers of this bill screwed up by not just focusing on releasing the non-violent drug possession inmates and reducing drug possession sentencing.  They got greedy attempting to give thieves a pass too.  That will not fly with law abiding people… most that have had their cars and homes broken into and ransacked, and things stolen from their yards.

    There is a clear line of delineation that, for some reason, some social justice people cannot understand.  Making a decision to harm yourself with drugs is on one side of the line.  Making a decision to harm others by stealing is on the other side.

    This bill will fail because reducing sentencing and punishment for thieves condones thievery… and voters understand that this change crosses the line… even if they agree with releasing non-violent drug users.

     

    1. David Greenwald

      In a way I agree, they should have tackled the issues separately. However, in Yolo County, I think one of the biggest abuses of discretion that I have seen has been with regards to petty thefts and shoplifting using repeat offenses and second degree burglary to turn otherwise very minor crimes into lengthy felony sentences. The guy who stole the $3.99 cheese got eight years.

      1. Frankly

        So stop stealing $3,99 cheese since it is not your cheese and someone else has to pay for your theft.

        Stealing is wrong and it harms others.  That is a line that is crossed.  You might make the case that it is only a very small fractional step over the line, but it is over the line nonetheless.

        In this town why not just ask a local bleeding heart type to buy you some cheese?

         

        1. Davis Progressive

          don’t think there’s any question that stealing is wrong, the question is how best to handle it.  ironically most of the cases you guys are citing are charged as misdemeanors now.

        2. Tia Will

          Stealing is wrong and it harms others.”

          Agreed. So why not make the penalty suit the crime? Rather than jailing these people, why not have them compensate the victim at some predetermined rate above the cost of the item taken or damaged to make up for their loss and inconvenience. I would far rather have my money back ( or work in kind to compensate ) than have the thief jailed at a cost of thousands more annually of all of our money.

  6. Clem Kadiddlehopper

     
    I have an idea regarding prop 47. If you’ve ever walked the streets of either SF or LA at night, you will undoubtedly have found an experience with the homeless similar to that of a zombie movie, except instead of chanting “brains” they’re chanting “vote prop 47”. So, once the war on drugs has been ended, the county jail could be converted to compulsory overnight housing: if you do not have a permanent address, and are found unconscious in a public location (either due to sleep or whatever), you get a free bus ride to the county jail for a good night’s sleep. The same buses could take you back to the city you were picked up in the morning prior if you so desire, or you can stick around for 3 hots and a cot (maybe some job counseling and medical care), grab a later bus, whatever. The only county jobs lost would be guard-related. All the administrative, catering, medical, and transport jobs would be retained. Some homeless people have a slightly better life (many of them are too proud/stupid/mentally ill to ask for help but if forced, they’d accept it); just think Davis would have an overall better quality of life for all involved.
     

  7. Frankly

    After legalizing pot, Colorado has been attracting homeless by the bus-load.

    Maybe passing prop 47 will take some pressure off Colorado since a large percentage of the homeless migrating there are from California.

    But then maybe the first Colorado winter to cause most of them to scurry back regardless if prop 47 passes or does not pass.

    I would prefer no homeless and no chronic drug users infest our communities.  But I welcome them if they are the alternative to thieves.

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