Proposition 47's Impact on California's Criminal Justice System

For the last decade, most Democrats have staunchly defended one of the state’s biggest criminal justice reform measures: Proposition 47.

But in recent months, more and more state leaders are pushing some sort of overhaul of the 2014 ballot measure.

It’s a major shift from a decade ago when voters approved the initiative to lower many drug possession and property crimes from felonies to misdemeanors.

The state was in the middle of reversing tough-on-crime laws, trading them for a slew of criminal justice reforms that were spurred by a U.S. Supreme Court order to thin out the state’s overcrowded prisons.

But today’s growing concerns over property crime and public safety have put a target on Proposition 47, even though state data show no significant increase in reported shoplifting or overall theft in California since the measure passed.

What has changed over the past decade is the likelihood that police will arrest someone for stealing. According to state data obtained by KQED, about 15% of theft cases resulted in an arrest in 2013, the year before Proposition 47 passed. In 2022, that number had dropped to 6.6%.

That means in more than 90% of reported cases of theft, no one is ever arrested.

Voters and Democratic lawmakers have repeatedly spurned efforts to reverse reforms like Proposition 47, despite vocal and unrelenting attacks of the measure by conservative prosecutors and police officials over the past decade.

But now there’s a growing sense in the state, even on the left, that property crimes have spiraled out of control: Big retailers are locking up merchandise or shuttering stores altogether. Videos of mobs of thieves ransacking luxury goods have gone viral. And even Democrats who support Proposition 47 are saying that something needs to give.

“Retail theft has changed,” Gov. Gavin Newsom said last month, shortly after he released the outlines of a plan to tackle property crime in California — one that would not touch Proposition 47. “It’s become deeply organized. And that’s what we need to go after. And that’s a whole different thing.”

Newsom, who supported Proposition 47 from its inception, remains bullish on the measure’s benefits. But as 2024 begins, there’s at least one proposed ballot measure that, if put before voters in November, would roll back portions of the law — and just last week, the mayors of two large liberal cities, San Francisco and San Jose, threw their weight behind the initiative. And there are at least a dozen proposals in the state Legislature to tweak or overturn the law — proposals that would also have to be approved by voters.

The state Assembly has even convened a special committee to examine retail theft and come up with proposed solutions.

But how, or whether, Proposition 47 has actually changed criminal behavior is harder to quantify.

This investigation, based on dozens of interviews and conversations with law enforcement leaders, criminal justice experts, retailers and others, as well as reviews of state and local data, lent credence to some criticisms of Proposition 47 but undercut others. And it revealed some potential policy changes that could help blunt the negative impacts.

Among our findings:

• The Numbers: Shoplifting numbers reported to law enforcement have not risen since Proposition 47, but the rate of arrests has fallen significantly. And there is evidence that many retailers do not report all thefts to police.
• Police and Retailer Response: Police and retailers have become less aggressive at engaging and arresting low-level shoplifters in recent years.
• Misplaced Blame: Proposition 47 is often blamed for crimes that are well outside its purview, such as organized retail theft rings and flash mobs targeting luxury goods stores.
• Felony Threshold: There’s no evidence in California or elsewhere that increasing that dollar threshold for felony shoplifting has led to more theft.
• Repeat Offenders: It remains incredibly difficult for prosecutors to aggregate charges and charge repeat shoplifters with felonies.
• Drug Courts: Participation in some diversion programs, particularly drug courts, has dropped over the past decade.
• Positive Outcomes: The ballot measure has saved the state more than $800 million by keeping people out of jails and prisons, savings that have been funneled into reentry programs with incredibly high success rates.

The Promise

The theory behind Proposition 47 was that expensive jail and prison beds should be reserved for people who pose a threat of violence and are not an appropriate place for drug addicts and minor thieves. It was crafted so that the state would have to reinvest the cost savings from fewer people in jails and prisons into treatment programs.

The ballot measure came before voters on the heels of the 2011 Supreme Court order to reduce the state’s prison populations and was passed as California’s violent crime rate hit a 50-year low. The vote wasn’t even close: the measure passed with nearly 60% support, by more than 1.3 million votes.

“Part of the thinking behind Proposition 47 was, can we have a more judicious definition of what’s considered a felony and reserve that category for more serious crimes?” said Lenore Anderson, one of the ballot measure’s architects.

“People should be held accountable. This is not permitted activity. This is a crime. The question is, what level of crime is it?”

Proposition  47 was one of several criminal justice reforms approved by lawmakers and voters between 2011 and 2016. Among Proposition  47’s signature — and most controversial — policy changes is it lowered simple possession of illegal drugs from a felony to a misdemeanor and raised the felony threshold for theft from $400 to $950.

“That’s essentially what we’re talking about: … theft of items under $950,” said Anderson, who is co-founder and president of the national reform group Alliance for Safety and Justice, which grew out of Proposition 47’s sponsor, Californians for Safety and Justice.

Anderson argues that voters’ wishes have been repeatedly made clear. In addition to passing Proposition 47 in 2014, as well as ballot measures in 2012 and 2016 that made some prison sentences shorter, Californians resoundingly rejected an attempt to roll back portions of Proposition 47 in 2020.

“The folks that we see cycling in and out of the justice system that we don’t want to have cycling in our justice system, oftentimes there’s underlying addiction issues. There’s extreme economic desperation, there’s extreme instability,” Anderson said. “Whatever the problem is, voters are clear. That’s not who we’re targeting with these precious justice system resources. Let’s put those folks on a pathway to treatment and healing and get them to stop cycling in and out through a different approach.”

But whether Proposition 47 has succeeded is a matter of intense debate, and many law enforcement critics have attacked the measure from the beginning.

The Numbers

Calls for reform of Proposition 47 are predicated on the assumption that retail theft has gone up in recent years. But in California, reported incidents of shoplifting have actually fallen, according to data collected by the California Department of Justice: From around 97,000 in 2014, when Proposition 47 was approved, to about 82,000 in 2022.

Retailers don’t report a huge increase nationally, either: the 2022 Retail Security Survey, conducted by the National Retail Federation, shows a “shrink” rate of about 1.4% of inventory, which is in line with the survey’s five-year average. (Shrink refers to all inventory losses, including internal and external theft and fraud and paperwork errors.)

The industry group’s report blames organized retail crime as the primary driver of external theft — and said, perhaps most troublingly, that 8 out of 10 retailers report an increase in violence and aggression associated with organized retail incidents.

That’s a problem, particularly for frontline retail workers. But Proposition 47 supporters — including Los Angeles District Attorney George Gascón — say it’s not the fault of the ballot measure. He said these types of organized crime rings are committing felony offenses well beyond the purview of the ballot measure, including robbery, conspiracy and sometimes assault.

Gascón campaigned on behalf of Proposition 47 when he was San Francisco’s top prosecutor. He said his office is currently prosecuting dozens of cases related to organized retail crimes that include robbery, conspiracy and other felony charges.

“I think it’s important, first of all, just to sort of separate organized retail theft from Prop. 47, because Prop. 47 doesn’t apply to organized retail theft — they are robberies, they are burglaries, they are conspiracies,” he said. “The reality is that we have a problem. And the problem is primarily driven by organized retail theft. And it has to be addressed.”

However, some policymakers dispute the accuracy of the reported shoplifting figures and say that many shoplifting incidents are not reported at all. Santa Monica Assemblymember Rick Chavez Zbur, who chairs the Assembly’s special committee on retail theft, said numerous retailers have told him they don’t bother to report thefts to police. San Francisco Police Chief Bill Scott said some businesses have created their own thresholds — say, only if it’s over $50 — for reporting theft.

Rachel Michelin, president and CEO of the California Retailers Association, agreed that shoplifting is underreported. She said many store managers feel pressure not to draw negative attention to their business and also know that police agencies have other, more serious priorities to handle.

But Proposition 47 supporters note that businesses and police still can report thefts of any amount under the ballot measure — they are just choosing not to.

Police and Retailer Response

What is clear: Police are less likely to arrest someone for stealing than they were a decade ago. And retailers also appear less willing to apprehend shoplifters than they were in the past.

In general, arrest rates for all crimes in California have fallen over the past decade, but none as sharply as shoplifting. For example, 41% of violent crimes resulted in an arrest in 2022, down from more than 45% in 2013, the year before Proposition 47 passed. But just 6.6% of reported theft incidents resulted in an arrest in 2022, down from 15% in 2013.

UC Irvine criminologist Charis Kubrin said it’s both problematic if retailers are not reporting crimes and if police aren’t arresting suspects when they are reported — but that there’s nothing in Proposition 47 preventing police from arresting shoplifters.

Kubrin, who conducted the first study of Proposition 47’s impacts on crime, said low clearance rates usually indicate “a breakdown between police and the community.”

“So there’s nothing about Prop. 47 that says when you’re allowed to make an arrest or not make an arrest,” she said. “People can still be arrested and should still be arrested, but they are now being charged with misdemeanors, which require jail time of less than a year.”

That may technically be true, Yolo County District Attorney Jeff Reisig said. Misdemeanors are punishable by up to a year in jail and a $1,000 fine. But he said most people get off with little or no jail time.

“The reality in California (is that) misdemeanors do not result in any actionable consequence or deterrence. Now, we can argue back and forth on whether that’s right or wrong. And I’m just telling you, that’s how it is,” he said.

Reisig’s frustration at the lack of consequences for misdemeanors is a common complaint among Proposition 47 skeptics.

But even if police are willing to engage someone accused of simple shoplifting, they may not have the resources to respond. The number of sworn police officers has fallen in California in recent years, posing tough choices for police agencies.

“Their job is to respond to the calls by priority. And the top calls are, you know, murder, rape, robbery, child molest,” Reisig said. “They’re not responding to a misdemeanor retail theft.”

By nearly all accounts, police and retailers have become less aggressive at engaging and arresting low-level shoplifters in recent years. Michelin, of the California Retailers Association, said there’s a fear of blowback, particularly since so much is now caught on camera.

“The retailers, they’re trying to do what they can, but, you know, if they go too far. they’re the ones that are going to get sued,” she said.

It’s an issue that’s caused friction between law enforcement officials and some large companies. In November, Sacramento County Sheriff Jim Cooper took to X, formerly Twitter, to go after Target security officials for preventing his officers from apprehending suspected shoplifters in the store.

San Francisco Police Chief Scott agreed that many retailers are choosing to take a “hands-off approach” and that police officers have also felt the pressure to be less aggressive in the wake of the 2020 killing of George Floyd by Minneapolis police and the subsequent racial justice protests.

But he insisted that it’s in everyone’s best interest to report theft and respond to it within the law.

“Otherwise we become apathetic, and I think that fuels some of this brazenness…when there’s apathy and no accountability,” he said.

Scott’s intuition is in line with what criminologists have concluded after decades of studying criminal behavior, said Jake Horowitz, who directs research on safety and justice at the Pew Charitable Trusts.

“We know from research that it’s the likelihood of getting captured, not the severity of the sanction that deters behavior,” he said.

In other words, years of data show it’s the threat of being arrested — not whether someone is being arrested for a felony or misdemeanor — that discourages people from breaking the law.

“People don’t say, you know, I can do five years, but, if I get caught for this, I just can’t do 10. They don’t want to get caught at all,” said California Attorney General Rob Bonta, who added that “there’s no such thing as a misdemeanor being allowed. It is specifically, criminally prohibited in our law.”

Bonta said he backs one tweak to state law to clarify that a police officer can arrest someone for stealing, even if they did not witness the theft. That change is being proposed by Gov. Newsom.

Misplaced Blame

Proposition  47 is often blamed for visible, upsetting crimes that are well outside its purview, such as organized retail theft rings and flash mobs targeting luxury goods stores.

For example, last August, Reisig, the Yolo County DA, posted a video on X of a group ransacking a Nordstrom in the San Fernando Valley. His caption read:

“This retail theft mob happened at a Nordstrom in California today. Because of broken state laws, these crimes are considered “non-serious” and “non-violent” and nobody will go to state prison, even if caught and convicted. State laws need to be fixed and YES, many people need to go to prison for this type of crime. #California #Crime #RetailTheft #FixProp47

Reisig linked the incident to Proposition 47, despite the fact that police said the group of 20–50 people engaged in behavior that would clearly constitute a felony: Pepper spraying a security guard and stealing more than $60,000 in merchandise.

In an interview, Reisig defended the post, saying that Proposition 47 has created a narrative that there are no consequences for stealing.

“The problem with Prop. 47, and this is why I always mention it, is that what it has created is such a knowing lack of consequence for theft that it has created a culture of lawlessness regarding retail theft,” he said. “And that’s why you have seen this proliferation of these smash and grabs and brazen thefts.”

Some prosecutors say they are regularly going after these types of crimes. San Mateo prosecutor Steve Wagstaffe said he’s currently pursuing grand theft charges against a group of women who stole $68,000 worth of high-end sunglasses.

And in Los Angeles, District Attorney Gascón said he’s currently prosecuting more than 100 organized retail theft cases as felonies — including at least one suspect from the San Fernando Valley Nordstrom incident.

There’s also agreement that these problems — of organized retail theft and smash-and-grab incidents — are national in scope and driven in part by the lucrative nature of selling stolen goods on the internet.

“It is a growing problem, we’re seeing it increase not just here in California but across the country,” Rachel Michelin of the California Retailers Association said.

She said California has been a leader in tackling the issue since 2018, when former Gov. Jerry Brown signed a law creating state task forces to investigate and prosecute organized rings and that Gov. Gavin Newsom has continued to invest around $85 million a year into law enforcement grants and other investigative support.

Charis Kubrin, the UC Irvine criminologist, said the most visible property crimes — “smash and grab” robberies by large groups of people — seem to have more to do with criminal trends brought on by the pandemic than any policy.

“Prop. 47 was passed in 2014. Smash and grabs became a thing, I would say, starting around December of 2020,” she said. “In that lag was everything from the pandemic to economic instability, to challenging police-community relations, to political divisiveness.”

State leaders do agree with Reisig that more can be done to crack down on professional theft rings. Newsom is asking state lawmakers to strengthen several laws this year to make it easier to prosecute people who steal things to resell them and increase penalties for large-scale retailers of stolen property.

Felony Threshold

One of the most common attacks on Proposition 47 is over its provision that raised the felony threshold for theft from $400 to $950, meaning that in order for prosecutors to charge a felony, the value of stolen goods would have to exceed $950.

But there’s no evidence in California or elsewhere that increasing that dollar threshold for felony shoplifting has led to more theft, according to Pew’s Jake Horowitz, who has conducted research on the issue.

His research looked at 30 states that raised their felony threshold between 2000 and 2012 and found no evidence that it resulted in increased property crime. In fact, theft rates continued to decline after the change. In general, he said, there’s no correlation between property crime rates and the felony threshold.

Horowitz noted that there are wide variations in felony thresholds across the nation: In Texas, you have to steal $2,500 or more worth of goods to be prosecuted for a felony; in New Jersey, anything over $200 is a felony. And, he said that if states don’t raise the dollar threshold, their statutes automatically become more punitive because inflation erodes the value of a dollar.

This is a defense of Proposition 47 Gov. Newsom has leaned into: He showed a chart at a recent news conference noting that at least nine other states have higher thresholds than California.

“So it sounds like California’s a little tougher than Texas,” he mused.

Repeat Offenders

Another common complaint from both law enforcement and retailers is that Proposition 47 has made it difficult to charge repeat thieves with felonies — even if they are stealing again and again from the same stores.

Supporters note that state law does allow prosecutors to charge someone with grand theft for separate incidents if “the acts are motivated by one intention, one general impulse, and one plan.” That power was already allowed by court decisions but was also passed through legislation in 2022.

And it has been used before. Among those cases: In 2021, a “serial” thief was charged with 8 counts of felony grand theft in San Francisco in connection with 120 alleged shoplifting incidents.

But Reisig said prosecutors aren’t using the statute because it’s virtually impossible to prove that multiple thefts are committed with the same intent and for the same purpose. And, he said, it also requires all of the thefts be reported to police, and for police to follow up with a report.

Los Angeles District Attorney George Gascón disagreed, saying it is possible to aggregate charges, but acknowledged that it does take more work.

“They have got to make the first arrest. If they don’t make the first arrest it is very hard to make a case for the aggregation,” he said.

Gascón also noted that it’s already possible under state law to charge people who are stealing in order to resell as part of an organized retail theft ring with a felony.

Still, Assemblyman Rick Zbur and others believe that a simple change to the law could make aggregating charges far easier for law enforcement.

Zbur said this is an area he’d like to see lawmakers tackle; it’s also one of the proposed reforms Gov. Newsom is asking the Legislature to undertake. In Newsom’s case, he is asking for legislation clarifying that law enforcement can combine the value of multiple thefts to charge grand theft, even if there are different victims involved.

Drug Courts

Prosecutors critical of Proposition 47 have complained since its implementation that the measure has resulted in a steep drop in participation in collaborative courts, also known as diversion programs. These programs generally offer someone charged with a crime the opportunity to have the charges dropped or reduced if they complete some sort of treatment program.

Prior to Proposition 47, said Wagstaffe, the top prosecutor in San Mateo County, many people arrested for theft would be facing felony charges that could carry jail or prison time — giving them an incentive to participate in drug courts as an alternative to being incarcerated and having a felony conviction on their record.

“My observation over the decades is that [very few] drug addicts can reach within themselves and say, ‘it’s time,’” Wagstaffe said. “There needs to be something that pushes them toward it.” Wagstaffe believes that Proposition 47 took away the court’s leverage, “because judges were not going to fill up our jails with misdemeanors.”

California doesn’t collect statewide data on participation in drug courts, but KQED obtained data from more than a dozen counties and found that nearly all of them had seen a drop in participation.

In Wagstaffe’s county, for example, 42 defendants participated in drug court in 2016; in 2023, that number was 12. And overall, the numbers plummeted from thousands of participants a year to a few hundred, based on data from the counties that responded to our request.

Wagstaffe doesn’t believe that it makes sense to fill jails with misdemeanor defendants, but he said there’s little incentive for someone in the throes of addiction to agree to drug treatment and probation oversight for a year if they could just plead guilty and spend a few days in jail.

But some people on the frontlines of addiction treatment argue that these sorts of coerced programs don’t ultimately work long-term to keep people clean. Lanelle Laws is a licensed therapist in Los Angeles whose work at a Watts nonprofit is funded by Proposition 47 savings.

Laws said most drug court programs require participants to “quit cold turkey.”

“That doesn’t always work for everyone,” she said. “They will go back to prison because they can’t sustain themselves.”

Laws said her experience as an incarcerated person has shaped the way she approaches people struggling with addiction.

“I’ve seen what happens behind the walls. And there is a better way to approach people. There’s a better way to handle things.”

But Yolo County District Attorney Jeff Reisig said he doesn’t believe everyone is capable of finding their way to treatment without some sort of stick hanging over their head. Reisig cited his personal, not just professional experience.

“I have (a) family member who has been living on the streets literally since 2015, who’s addicted to heroin, who uses heroin and fentanyl every single day,” Reisig said.

That family member has repeatedly refused to get help, and Reisig said he steals every day to feed his habit.

“My own family member is the poster child for the failure of Prop. 47 that not only decriminalized hard drugs but essentially decriminalized many forms of theft,” he said. “I’m not saying that we need to go back to a system where everybody goes to prison for drugs, but this isn’t working with Prop. 47 because there’s no stick anymore.”

Positive Outcomes

Criticisms of Proposition 47 often ignore its most tangible benefit: The money saved by incarcerating fewer people has been invested into reentry programs with very high success rates.

The ballot measure has saved the state more than $800 million by keeping people out of jails and prisons — $113 million this fiscal year alone. Those figures are calculated every year by the state Department of Finance and included in the state budget.

The money has been handed out to counties and cities, who then award grants to nonprofits that run reentry programs.

The difference in outcomes between those who participate in Proposition 47 programs and the overall population released from prison is staggering. According to the most recent state data available, about 44% of people who left prison in California returned with a new conviction in three years.

That recidivism rate was only about 8% for people who completed a Proposition 47 reentry program.

David Barclay is one of those success stories. He was released from prison in 2021, after 18 years. Barclay, who’s now 46, said that until this latest release, he had spent basically every year of his life since age 14 behind bars.

Now, he’s a peer navigator and life coach at the Anti-Recidivism Coalition in Los Angeles. His position is funded through the L.A. mayor’s office’s Proposition 47 program, called Project Impact. Dressed in a three-piece pinstripe suit and an L.A. Dodgers hat, he said people now mistake him for a lawyer.

“It’s a beautiful thing because people see me, they don’t — I don’t look like I’ve been incarcerated,” he said.

Project Impact reentry programs are based on the concept of wrap-around services, so someone like Barclay and the people he’s now coaching not only receive help getting job training but also mental and behavioral therapy, legal assistance, and access to healthcare.

“It’s been a journey, but I can say with support,” Barclay said, “having somebody I can communicate with on a daily basis, really help me navigate through life challenges, you know, kept me away from unhealthy relationships, helped me just stay focused on my goals,” he said.

In addition to this job, Barclay is working on a bachelor’s degree in social work.

“Now that I’m able to give back to others, that’s just the ultimate blessing.”

Charis Kubrin, the UC Irvine criminologist, said stories like Barclay’s show the flaws in California’s previous overreliance on incarceration.

“What we know from the research on incarceration and crime is there are diminishing returns at some point. The added incarceration rates do not add subsequent crime declines,” she said.