The Impossible Dream of Prop 36

How many times have you heard some version of this? (The “Carolla” in this case is, of course, Adam Carolla, a noxious former “comedian” who relaunched into the more profitable cultural grievance space):

A lot, I bet. It’s become practically an article of faith that stealing anything under $950 is now legal in California. This is, of course, false, but the propogation of this lie led to Proposition 36 on this year’s ballot. What is that and how did we get here and why is it not going to make much of a difference?

(The true part of Carolla’s quote is that cops will not bother showing up, but that has nothing to do with current law. I’ll get into that more below.)

Brief explainer on California criminal law to follow (my qualifications are that I’m a lawyer who used to do criminal defense). There are infractions, which are like speeding tickets and involve no jail time; misdemeanors, like shoplifting, battery, and the like, and can carry up to a year in county jail; and felonies like murder, mayhem (yes, that’s an actual crime - it’s when someone “deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip”), rape, that kind of stuff, which you can go to state prison for.

Prior to 2010, all thefts of property less than $400 were misdemeanors. In 2010 the Legislature made theft of property up to $950 chargeable as a misdemeanor or a felony to account for inflation.

Then in 2014 voters approved Proposition 47, which made most theft crimes under $950 misdemeanors ONLY, meaning they could no longer be charged as felonies. It also changed possession of small amounts of heroin and coke from a felony to a misdemeanor. THIS is the change to the law that doom loopers blame for essentially legalizing shoplifting. I would like to point out that IT DID NOT LEGALIZE SHOPLIFTING, or even legalize shoplifting under $950. It just made it a misdemeanor only. Shoplifting remained, and remains, punishable by up to six months in jail and a fine of up to $1,000. (Pen. Code § 490.5, subd. (a).)

So if you can still go to jail for it, what’s going on? I will tell you that when I was a young public defender many, many years ago, I handled petty theft cases not infrequently when I was just starting out, and people did get arrested and booked into jail for it. I have no idea if that still happens, especially in a big city like San Francisco, but it is clear that the police are not arresting shoplifters as a matter of course.

I don’t need to tell you about the relentless drumbeat of stories documenting shoplifting in San Francisco, but I hit up the Chronicle archives to get a feel. For the years 2000 and 2001, there were 41 stoies in the Chron that used the word “shoplifting,” and three of those were comparing using Napster to steal music to shoplifting. For the years 2020 and 2021, there were 84, just about double, and they were almost uniformly this style:

You know this story, you’ve read it hundreds of times. And any functional adult knows that the issue of shoplifting has become paramount in the public consciousness, even if it has been found that retailers made the whole shoplifting plague up.

Into this fray rides Proposition 36, on the ballot this November. Contrary to what seems to be popular belief, Prop 36 does NOT automatically make theft of less than $950 a felony; it makes it a felony if you have two or more prior convictions for certain theft offenses, or if you steal with other people. First or even second offense shoplifting under $950 is still a misdemeanor. (It would also change how some low-level drug possession stuff is handled, but let’s stick to theft.)

To hear supporters talk, Prop 36 is an angel from heaven that will clean up the streets and make Union Square look like it’s 1956 again. What will it actually do? My guess is “nothing.” The people who actually have to make the arrests and process the shoplifters are the San Francisco Police Department, and they, uhhh, do not solve a ton of crimes.

Here’s larceny, which is a fancy word for “theft,” from 2023:

You can make any laws you want, but if there isn’t an SFPD officer there to arrest a guy and cite him or take him to jail, it doesn’t do a fucking thing. Whether it’s his first time or third time. I’ve seen shoplifting, but I’ve never seen a guy arrested and taken to jail for it, and I doubt you’re gonna start seeing it now.

Because you know what? THEY COULD BE DOING THIS RIGHT NOW! If they wanted, SFPD could put a guy undercover at the hardest-hit Walgreens and make misdemeanor arrests all day long. When they try out this not-secret tactic, it works!

This was just a few days ago:

They didn’t even need Prop 36! They did this on their own! So what is Prop 36 actually going to accomplish? It’ll make some people feel like they did something. But without serious change at the SFPD, I doubt you’ll even notice it happened.

That’s the only prop I think I can handle doing a deep dive on, because it’s been bugging me ever since Prop 47. The real way to get rid of shoplifting is UBI and treatment on demand, but y’all ain’t ready for that conversation.