Insight: Three threats to CA'n safety, and how Prop 36 endeavors to conquer them
Antonio Tempesta: Hercules and Cerberus: Hercules grasps the collar of Cerberus, two demons appear at left, from the series 'The Labors of Hercules', 1608. Image in Public Domain
Greg Totten, CEO of CA District Attorney's Association, spells out three of California's biggest crises that Proposition 36 seeks to ameliorate (via tougher crime legislation and mandated treatment protocols): retail theft, fentanyl, and homelessness. Totten's in-depth analysis of these problems, as well as Prop 36's proposed tweaks to Prop 47, reads below. From a chat with California Insider.
Greg Totten: Proposition 36 has really got three pillars to it. The first pillar is addressing the retail theft issue. As the Public Policy Institute of California reported just a few weeks ago, retail theft in California went up 29% in 2022 and then 39%—a whopping 39%—in 2023.
[Host] Siyamak Khorrami: On top of what went up in 2022?
GT: Correct. So it's been exploding: theft problem, cargo theft problem, porch piracy, fuel theft—and part of the reason we're having those problems is because in 2014, Proposition 47 was approved by the voters. That took all major theft defenses in and out of the retail space and converted them to misdemeanors. And so there are very little consequences. So under Proposition 47, an individual can steal from a business every day for 30 days; and as long as they steal less than $950, each one of those is treated as a misdemeanor. And so unfortunately, many of the more serious offenders who don't recognize personal consequences, they've stepped up their criminal conduct and are preying upon small business and large retailers alike. It's estimated in California that in 2022, retailers lost nearly $9 billion due to theft.
And so what our initiative [Prop 36] does in that area, in that retail theft area, is it changes the law so that the first offense remains a misdemeanor; the second offense remains a misdemeanor; but on the third offense, it becomes a felony in the discretion of the court, so there can be felony consequences for those individuals who repeatedly prey upon retailers in that way.
Now, there are some other things. We also deal with smash and grabs. You've probably seen video, for example, in the Nordstrom store in Topanga Canyon in Los Angeles County, a group of offenders in the space of about 90 seconds stole more than $300,000 worth of high-end bags. So we have another provision in the retail theft area that deals with those smash and grabs, so that if someone steals $50,000 or more, their penalty is enhanced. Or if they act in collaboration with other individuals, their penalty can be enhanced.
Then, in another area: fentanyl. … We have over 100,000 overdose deaths annually. CDC estimates that about 70% of those deaths are related to fentanyl because fentanyl is a cheap synthetic drug that is being manufactured. It's very inexpensive to produce. And it's being added to many other drugs. I can tell you, in four decades as a prosecutor, it is the single most lethal drug I've ever seen. An ounce of fentanyl can kill 14,000 people, so it is exceedingly dangerous. And our legislature, just like in the retail theft space, they've had 10 years to deal with it, and they've done nothing; same is true in the fentanyl area. We've run repeated bills that have all been defeated in committee. And so what our initiative does is if you're a trafficker of fentanyl or other hard drugs and you're armed with a firearm, or you sell large quantities, your sentence can be enhanced. We also have a provision called Alexandra's Law that takes that fentanyl trafficker and warns them: if they sell again and someone dies, they can be prosecuted for homicide up to and including murder. So that's the second major pillar of the initiative.
And then the third pillar is dealing with this crisis of homelessness. You know, it's a humanitarian crisis. We see people living in terrible circumstances, utter squalor; and here in California, our homelessness rate since 2014 has gone up by 51%. Meanwhile, the rest of the nation has gone down in many parts. And across the nation, it's only gone up about 11%. So California has a serious homelessness problem. It is related to Proposition 47. Proposition 47 took all hard drugs—things like cocaine, methamphetamine, heroin, fentanyl—and made them misdemeanors, so those individuals are cited. 75% of them never even make it to court.
SK: If they're using or if they're selling?
GT: If they're possessing, if they're possessing those drugs. So there's literally very di minimis consequences for those individuals. And one thing we know about our homeless population is 80% of those who are chronically homeless, meaning homeless for a long period of time, suffer from serious substance abuse issues and serious mental health issues. We can't incentivize those people into treatment under existing law because everything's a misdemeanor. So what happens when those individuals show up in court? A judge will offer them a treatment program, but their choice is between going into a 12-month or an 18-month treatment program and being back on the street that afternoon and continuing to use drugs, and they almost always choose the latter course.
Prior to Proposition 47, we had very robust drug courts, very robust treatment programs, and we were literally impacting people's lives in a positive way. When I was District Attorney in Ventura County, I attended drug court graduations and heard these stories of people who have been hopelessly addicted, and then once they got into the drug court program, were able to turn their lives around; reunify with their family; and become productive, law-abiding citizens.
What our initiative [Prop 36] does is, the first offense—the first possession of hard drugs—again, is a misdemeanor under Proposition 47, as is the second offense. But on the third offense, they become eligible for what's called a treatment-mandated felony. And the goal there is to have the felony consequence as a means of incentivizing them to take treatment. So they can face felony jail; they can face a felony conviction. In my experience as a prosecutor, many people, when they come to that realization that they could face serious time, they're willing to go into treatment. Tom Wolf, who is a very outspoken former addict in San Francisco, says until he realized that he was looking at a lengthy jail sentence, he was unwilling to change his drug use practices. And it was that threat of a consequence that motivated him to change his behavior.
That's what we're trying to do here. It's very much a focus on addiction and helping people who are addicts. It's trying to address the humanitarian crisis.
So those are the three principal pillars of the initiative, and the initiative at its core is an amendment of Proposition 47.
(2:07–10:04)
Watch the whole thing here.
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