Prop. 36 taps into California voter anger over crime. But is it a terrible idea? | Opinion 

Hardly a week goes by when we don’t hear about a blatantly outrageous retail theft committed by smash-and-grabbers or solitary shoplifters who pull items off store shelves, not even bothering to conceal their crimes.

Far more tragic are the reports of fentanyl deaths, especially of innocent people like the 18-month-old San Jose toddler who died recently after consuming the drug, which had allegedly been carelessly left lying around the family home.

The public is fed up, and rightfully so.

Opinion

As voters, we want to do whatever we can to prevent such crimes, but Proposition 36 on the November ballot is not the answer. We understand that Prop. 36 is overwhelmingly popular with frustrated California voters. We agree that Gov. Gavin Newsom and legislative Democrats dithered too long to address voter concerns about fentanyl abuse and retail theft and their failures to lead and listen only fed support for Prop. 36.

We know it would have been easy and popular to endorse Prop. 36. We oppose Prop. 36 because we think it is a bad idea driven by anger over reason.

Prop. 36 duplicates laws already on the books and is likely to lead to overcrowded jails and prisons, costing taxpayers untold millions of dollars that could go to treatment programs aimed at helping offenders.

The measure promises to alleviate three major problems - homelessness, drug addiction and theft - by closing loopholes in Proposition 47. That’s the 2014 voter initiative that reduced some low-level drug offenses and property crimes from felonies to misdemeanors.

Among other goals, Prop. 47 sought to reduce the population in California’s badly overcrowded prisons. It worked. Within two years, the state’s jail and prison population decreased by 13,000 and saved California more than $800 million, according to the Public Policy Institute of California.

If Prop. 36 passes, it will undo what Prop. 47 has achieved.

The nonpartisan Legislative Analyst’s Office estimates the increase in the state’s criminal justice costs would likely range from “several tens of millions of dollars to the low hundreds of millions of dollars each year.”

Another version of 3 strikes?

Prop. 36 amounts to another swing of the pendulum that would put more Californians behind bars for nonviolent offenses.

Defendants with two or more prior theft-related misdemeanors could be charged with a felony the third time around, no matter the value of the stolen property. Opponents of the measure say stealing a candy bar could lead to a felony charge for a repeat offender.

Supporters say that’s not going to happen.

“No one will go to prison for ‘stealing a candy bar’, and judges are given discretion to assess the severity of crimes for sentencing,” their rebuttal argument states.

Fair enough. Judges have discretion and we hope no prosecutor would charge someone with a felony for stealing a candy bar, a pack of gum or a slice of pizza. But what about a couple of $70 video games or a $200 pair of jeans? Where will the line be drawn?

Will this turn into a another “three-strikes” situation that packs California jails and prisons to the breaking point?

Scarcity of drug treatment programs

Under Prop. 36, repeat hard drug offenders could be charged with a new class of crime — the treatment-mandated felony — that would give them the option of entering treatment programs or going to prison. (Fentanyl would be added to the list of hard drugs, which already includes heroin, cocaine and methamphetamine.)

Treatment is not a new idea. Programs like drug court already exist within our judicial system that offer offenders treatment as an alternative to jail. We don’t need Prop. 36 to make that happen.

What we do need are more drug treatment programs, because what we have now is totally inadequate; 22 counties have no residential drug treatment facilities at all.

Yet Prop. 36 supporters gloss over this. They shrug off the lack of programs, and mention that Prop. 1, the $6 billion bond measure voters approved in March, could finance drug treatment facilities. That’s an awfully broad assumption, since the bond is primarily earmarked for treatment beds and supportive housing for people with mental illness.

According to the text of Prop. 36, drug offenders will be provided other assistance as well:

“Along with hard drug and mental health treatment, offenders charged with a treatment-mandated felony would be offered shelter, job training, and other services designed to break the cycle of addiction and homelessness,” it says.

That’s a big promise, yet the measure includes no funding mechanism for any of this.

Without adequate support, drug offenders will likely be unable to complete treatment, which means they could be sent to prison for up to three years.

Instead of coming up with new ways to lock up drug users, we should focus on making treatment programs available in every California community, along with transitional housing and wraparound services. Then let the courts use the sentencing tools they already have to deal with offenders as they see fit.

New anti-theft laws already allow for harsher punishments

To be sure, thefts by mobs of people storming department stores deserve more than a slap on the wrist.

But we don’t need Prop. 36 to address these crimes, because many already fit the definition of serious felonies — such as grand theft or robbery — and current laws allow for harsh punishment.

For example, eight of the people convicted in connection with an infamous series of smash-and-grab robberies that occurred last summer at high-end stores in Southern California were sentenced to prison terms ranging from one to 10 years. A ninth is awaiting sentencing.

As for the “loopholes” in Prop. 47, those are being addressed. A package of 13 anti-theft bills recently signed into law will primarily target organized retail thieves, rather than those who steal for personal use.

Here are examples of what those new laws accomplish:

Assembly Bill 1802 allows law enforcement to combine retail thefts to reach the $950 threshold. (If the value of stolen property is less than $950, the offense is handled as a misdemeanor.) Two or more offenses committed within a 12-month period can be combined to result in a felony charge, punishable by up to one year in jail.

Assembly Bill 3209 allows court officials — including attorneys representing business owners — to file for restraining orders against repeat shoplifters. Violation of the orders can be charged as a misdemeanor.

Senate Bill 1144 prohibits online, third-party sellers from selling stolen merchandise and requires the online marketplace (such as Amazon or Etsy) to notify law enforcement if third-party sellers are offering stolen goods for sale.

Other laws provide for stiffer sentencing for thieves who damage or set fire to businesses; allow theft-related crimes from multiple counties to be combined; make it easier to prosecute car burglaries; and extends funding for the CHP Retail Crime Tax Force

Lawmakers were too slow to act

The Legislature and governor should have moved on these bills far more quickly and without all the political gamesmanship. That may have been enough to satisfy the California District Attorneys Association, the California Police Chiefs Association, the California Retailers Association and other backers of Prop. 36.

But that ship has sailed. Now that the bills have finally been signed, we should give them a chance to work rather than adopting another set of regulations that duplicates laws already now on the books.

While Prop. 36 enjoys wide public support, it will have unintended consequences that will create problems for California, rather than solving them.

It is a reactive response to public outrage, rather than a proactive measure that can actually deliver on its promises.

Vote no on Proposition 36.

This editorial represents the views of the editorial boards at The Sacramento Bee, Fresno Bee, Modesto Bee, Merced Sun-Star and The Tribune in San Luis Obispo.