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