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California Campaign Seeks to Fix Prop 47 by Making Serial Theft a Felony

Suggestive of their ability to fight back against a wave of shoplifting decriminalization efforts, the broader retail and loss prevention communities will likely be keeping an eye on a new state ballot initiative campaign in California.

The effort aims to modify Proposition 47, which passed in 2014 and raised the felony-shoplifting threshold in the state to $950. If successful, the new measure would make repeat offenders eligible for felony prosecution after a third theft valued at $250 or more.

Aaron Moreno

“Since 2014, we’ve seen a significant increase in both incidents and in the value of cases as it became known that no matter how many time you’re caught—so long as you stay under $950—you’ll just get a citation to show up in court,” said Aaron Moreno, senior director for government relations at the California Grocers Association, a member of the California Public Safety Partnership, which is sponsoring the ballot measure.

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Presently, the partnership is raising money for advertising to generate awareness of the ballot initiative. To get on the November 2018 ballot, the campaign will need to collect nearly 360,000 valid signatures by the end of April.

Among other provisions, Prop 47 reduced certain drug possession felonies to misdemeanors and was passed, in part, to alleviate stress on California’s overcrowded jails. Moreno says that the current effort seeks to address problematic elements of Prop 47 rather than to undo it or subvert the will of voters.

“This effort is not to overturn Prop 47, because that was passed by voters and there have been parts of it that have been good for the state,” he said. “But as is often the case when you use the initiative process, there are some unintended consequences that result—issues that don’t get fleshed the way they do when issues go through the traditional legislative process.”

Prop 47 Frustrations

Prior to Prop 47, a person who entered a store with the intent to steal something could be found guilty of commercial burglary and could be charged as a misdemeanor or a felony at the prosecutor’s discretion. After Prop 47, those who enter a store during regular business hours with the intent to steal merchandise or property where the value does not exceed $950 are only guilty of “shoplifting,” a misdemeanor offense. At a press conference announcing the initiative Oct. 30, state assemblyman Jim Cooper (D-Elk Grove) said some criminals are committing serial thefts and keeping each one to $949 or less to avoid punishment.

In a 2016 survey by the National Retail Federation, several loss prevention practitioners expressed related frustrations. “We are a victim of Proposition 47. We now use trespass as the only means of dealing with repeat criminals at our stores,” wrote one. “Shoplifters are more confrontational with our LP officers. Even if we do catch them, it’s just a slap on the wrist,” wrote another California LP executive.

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A Potential Fix

After an effort to amend the law this summer hit a roadblock, a coalition including police officers and prosecutors formed to put forth a new state initiative. If the new initiative passes, an individual’s first two thefts would be treated the way they are under current law—as a misdemeanor if the value of the theft is under $950. However, if an individual is caught a third time for theft—at a value of over $250—he or she could be charged with a felony.

The fix was aimed to be a compromise between adhering to the initial goals of Prop 47 to reduce the number of non-violent prisoners, while providing recourse to hold serial offenders more accountable, according to Moreno. “If all you’re ever going to get is a misdemeanor citation and you’re an enterprising criminal, you’re going to see shoplifting as low risk and high reward.” The new initiative aims to recalibrate that perception, Moreno suggested.

In addition to changes to make serial theft a felony, the proposed initiative would add 15 crimes to the list of violent crimes for which early release is not an option. These include child abuse, rape of an unconscious person, trafficking a child for sex, domestic violence, and assault with a deadly weapon.

In addition, DNA collection for certain crimes would be permissible, including from drug offenses that were reduced to misdemeanors under Prop 47. The measure also mandates a parole revocation hearing for anyone violating the terms of parole three times.

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The prospects of the new proposition initiative are unclear. Police and prosecutors have been vocal in criticizing Prop 47, including placing blame on it for recent increases in crime across California. Prop 47 passed with 59 percent of the vote, however, and a more recent survey by the Los Angeles Times suggests that it remains popular with the public. Some state lawmakers also routinely tout the millions the state has saved by reducing the state’s jail population.

Success of the new initiative will likely hinge on the campaign’s ability to raise awareness among the public that the new ballot initiative will correct Prop 47’s problems and fill its holes and not subvert its more popular provisions.

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