Prop 36 would reinstitute the possibility of increased penalties for repeat drug and theft offenders.
Customers shopping for a simple bottle of shampoo at Superior Grocers stores in Southern California may now need to track down an employee to unlock it.
Same thing with coffee. And baby formula. And lotion. And laundry pods. And medicine.
The Hispanic grocery chain installed a see-through metal mesh to protect its liquor products after too many thieves smashed the glass cabinets, said Richard Wardwell, the company’s chief executive.
With rising shoplifting rates and several high-profile smash-and-grab cases in recent years, Superior Grocers is among the California retail outlets that have taken to locking up everyday products to deter thieves. It also has instituted other security measures and invested more in security guards, which leads to higher costs for customers, Wardwell said.
Wardwell pins much of the blame on Proposition 47, a 2014 ballot initiative that reclassified six felony drug and theft crimes under $950 as misdemeanors, which he and others believe emboldened criminals by removing the threat of real penalties.
That is why Wardwell is backing Proposition 36, a new ballot initiative aimed at rolling back the worst parts of Prop 47. The ballot proposition would reinstitute the possibility of increased penalties for repeat drug and theft offenses, while also offering a pathway to treatment for offenders suffering from addiction and other mental-health struggles.
Governor Gavin Newsom and his far-left allies have gone to great lengths in their failed efforts to keep Prop 36 off the November ballot, claiming that the initiative is part of a racist war on the poor and a right-wing attempt to return the blue state to an era of mass incarceration. Wardwell disagrees with that assessment.
“We don’t want to put more people in prison,” he said. “We want them to stop stealing.”
Jeff Reisig, the district attorney in deep-blue Yolo County, near Sacramento, and one of the leaders behind Prop 36, told National Review that Prop 47 “took away the sticks” that prosecutors like him previously used to get drug and theft offenders to accept the carrots — treatment — they need to become functioning members of society. He said Prop 36 is a “carefully crafted” corrective “to address the flaws of 47.”
Recent polling shows that a majority of California voters support Prop 36, which has divided Democrats in the state — embattled San Francisco mayor London Breed and the Democratic mayors of San Jose and Santa Monica back the measure. But the initiative also has led to some rifts in the state’s business community. The influential California Retailers Association may pull its backing for Prop 36 after the legislature recently passed a bipartisan package of anti-theft bills it helped author.
Rachel Michelin, the association’s president, told National Review that the bills will put important new tools into the toolboxes of retailers, police, and prosecutors to go after serial shoplifters “while not going back to the mass incarceration that we had before.”
Reisig said the bills are “mostly junk” that will do little to curb drug abuse and theft. Notably, he said, they do not include increased penalties for repeat offenders.
That’s because increased penalties aren’t allowed under Prop 47, said Matt Ross, a spokesman for Californians Against Retail and Residential Theft, or CARRT, a coalition of business owners and crime victims that backs Prop 36. It’s a problem that can be fixed only with another ballot initiative.
“The legislature does not have the ability to change Proposition 47. The governor does not have the ability to change Proposition 47,” Ross said. “The legislature can’t fix this problem.”
‘They’re Not Going to Arrest Me’
Fraser Ross has found an effective tool to combat the shoplifters who target Kitson, his Los Angeles lifestyle shop and boutique: shame.
Ross has been experiencing a rise in thefts from his store for years, but it accelerated during the Covid-19 pandemic, he said. Because of Prop 47, the police are reluctant to arrest shoplifters, he said, and even if they did, the county’s far-left district attorney, George Gascón — one of the primary authors of Prop 47 — is unlikely to prosecute them.
“In L.A., we’re on our own,” said Ross, adding that most of the shoplifters who target his store are not down and out. “The rich started stealing, because, well, what are they going to do? It’s under $950. You call the police, they’re not going to arrest me. You might get a misdemeanor; you’re not going to get a mug shot.”
Taking matters into his own hands, Ross started putting security-camera images of thieves on his Instagram page and asks his followers to help identify them. Once he’s ID’d the shoplifters, he tags them and calls them out publicly. He recently started posting pictures of thieves in his store window, what he calls a “wall of shame.”
Ross said his shaming efforts have been “very, very effective” at deterring thieves. “Everyone in L.A. talks about it,” he said. But he, too, believes California needs to roll back Prop 47 and reinstitute harsher criminal penalties for repeat offenders.
Prop 47, deceptively dubbed by its progressive supporters as the Safe Neighborhoods and Schools Act, was passed by about 60 percent of the vote in 2014. Its aim was to drastically lower the state’s ballooning prison population by reducing penalties for the use of most illegal drugs, as well as shoplifting, receiving stolen property, and writing bad checks when the value of the property is under the felony threshold of $950.
Crime rates almost immediately increased. In L.A., property crimes rose about 11 percent the first year, while violent crime, including assaults and robberies, jumped more than 20 percent. Then-mayor Eric Garcetti told the Los Angeles Times the rising crime was likely linked to Prop 47.
Things spun further out of control in the wake of the pandemic.
Mobs of criminals smashed up and looted Nordstrom stores. Shoplifters were caught on camera brazenly shoveling merchandise into bags and leaving convenience stores without paying. Understanding that the police were unlikely to do anything, many retailers simply stopped calling them. Still, reported shoplifting incidents in 2023 were 28 percent higher than in 2019, according to the Public Policy Institute of California.
At the same time, sprawling homeless camps and open drug use proliferated.
While retailers were closing, fentanyl was exploding, and more hard-drug users were dying in fetid homeless camps, Prop 47 supporters were patting themselves on the back for successfully keeping thousands of thieves and drug offenders out of prison.
“Many people were dumped onto the streets,” said Reisig, a political independent, adding that “it’s a farce for them to say it’s been successful. I mean, look at California.”
Tara Riceberg, the owner of a Beverly Hills gift shop, agreed that under Prop 47 there is a perception among many that there are no penalties for drug and theft crimes. She recalled a well-dressed woman who asked her for a discount on a $165 large-format fashion book. Riceberg told the woman that she doesn’t do discounts on her products
“And she got really mad and came at me, and said, ‘You’re lucky I even offered to pay. I could have just taken the book,’” Riceberg recalled. “It wasn’t even about the finances, but the entitlement, because I wasn’t giving her what she wanted.”
The woman didn’t steal the book. Instead, she stormed out of the store, Riceberg said, “and then she gave me a one-star Yelp review for being hostile.”
Pushing Treatment, Threatening Jail
Reisig said the concept for Prop 36 originated in the summer of 2022 in conversations between district attorneys and California law-enforcement and business leaders. He said the effort and their growing coalition has been “bipartisan from Day One.”
Many Republicans wanted tougher penalties, Reisig said. He had to remind them it was California.
“The opposition is trying to paint it as some GOP, MAGA thing. Nothing could be farther from the truth,” Reisig said.
Also known as the Homelessness, Drug Addiction, and Theft Reduction Act, Prop 36 is aimed at rolling back Prop 47’s negative unintended consequences around drug and theft offenses. Under Prop 36, thieves and shoplifters with two prior convictions could be charged with a felony, regardless of the value of the stolen property. Prosecutors and judges would have discretion on whether to charge and sentence offenders with a felony.
There would also be enhanced penalties for “smash and grabs” committed by large groups.
On the drug side, offenders with two previous offenses could be charged with a new “treatment-mandated felony,” where they would have the option of completing drug or mental-health treatment in lieu of jail time.
Prop 36 also adds or reinstates penalties for trafficking fentanyl, possessing fentanyl while armed with a loaded gun, and trafficking in drugs that kill or seriously injure a user.
Ross, with CARRT, said the possibility of stepped-up penalties for serial thieves and shoplifters is critical. Currently, for multiple offenders, “I’m still being treated with my first offense the same as I’m being treated with my 100th offense. And that, to us, seems ridiculous,” he said. “Why wouldn’t you want to say we have a more stringent penalty for someone who’s committed multiple offenses?”
U.S. representative Kevin Kiley, a Republican from Rocklin, Calif., said he believes the impact of Prop 36 on drug abuse and homelessness is “going to be huge.”
“The homeless problem is very much connected to the drug problem,” he said. “You have a huge portion of the homeless population that has some sort of substance-abuse issue. Right now, the prevailing approach for the state has been to just sort of let that continue, to allow people to wither away and suffer in encampments that degrade the quality of life for everyone.”
Sacramento Shenanigans
To get on the ballot, the coalition behind Prop 36 needed to gather the valid signatures of more than 540,000 California voters. They collected about 900,000 using both professional signature gatherers and a massive volunteer effort, Reisig said.
The coalition has raised more than $11 million, with the top contributors including Walmart, Target, and Home Depot. They’ve far surpassed the fundraising of their opponents, including Newsom, his legislative allies, various social-justice groups, the American Civil Liberties Union, and the Service Employees International Union.
Newsom has been particularly outspoken against Prop 36, declaring recently that “it’s about mass incarceration, not mass treatment.” The initiative doesn’t include additional funding for treatment or court costs, he’s said, so “any of you that are fiscally conservative should be screaming from the rooftops.”
The governor has gone to great lengths to keep voters from weighing in on Prop 36.
“The governor and lawmakers were trying to kill it,” Reisig said. “Many of the business interests and entities that we were approaching to support us just flat out said they were contacted by the governor’s office and urged to stay out of it.”
Michelin, with the retailers’ association, credits Newsom for distributing over $267 million in local law-enforcement grants last year to combat organized retail crime. Facing the threat of Prop 36 getting on the ballot and passing, Democratic leaders agreed to work with her association on a package of anti-theft bills this year.
The provisions include: allowing authorities to aggregate the value of stolen property from different victims in different counties to reach the $950 felony threshold, allowing police to make shoplifting arrests based on probable cause, permitting the consolidation of theft charges in different counties into a single trial, allowing courts to issue “retail theft restraining orders,” and making the state’s regional property crimes task force permanent.
Newsom called the package of bills “the most significant legislation to address property crime in modern California history,” adding that, unlike Prop 36, “this goes to the heart of the issue, and it does it in a thoughtful and judicious way.”
However, at one point before the bills passed, he and his allies attempted to insert poison-pill triggers that would have killed this “most significant legislation” if Prop 36 passed. Kiley said the goal was to provide a predicate for the attorney general to write a summary for Prop 36 “to make it look like Prop 36 was an anti-public-safety initiative.”
When that didn’t work, Newsom tried at the last minute to add a competing, watered-down reform initiative to the ballot. He said his initiative would be a “balanced approach [that] cracks down on crime and protects our communities — without reverting to ineffective and costly policies of the past.” But that effort failed, too.
“What he tried to do was absolutely unbelievable,” Kiley said. “I thought I’d seen it all, the shenanigans you get in Sacramento. But I’d never seen anything like this.”
Prison for Stealing a Toothbrush?
The members of Michelin’s board will be deciding in the coming days if they will continue to officially support Prop 36, despite their legislative wins. It’s quite possible they won’t.
“I think for us, yeah, we got what we wanted,” she said of the anti-theft bills.
“There’s still more to do. There’s still more things we’re going to be working on,” she added. “I’m still going to hold their feet to the fire. I’m still going to hold the governor’s feet to the fire, and the attorney general. And trust me, there were people that I had to work with on this package, a year ago, ‘Rachel, we don’t need to do anything, we don’t need to do this.’ And now they’re changing their tune and working with me on it.”
Michelin worries that California will get into a cycle of initiative after initiative, one side versus the other, back and forth, on retail theft. And she said legislating through initiatives typically ends up with unintended consequences, as Prop 47 showed.
With Prop 36, she worries that low-level thieves could be sent to prison after a fourth offense. “You could go to prison for stealing a $10 toothbrush,” she said.
While a fourth theft offense could technically result in prison time, Reisig said there are protections built into the initiative to prevent Michelin’s toothbrush scenario, including the discretion of the prosecutors and judges.
“The opposition keeps using that example, like, ‘Oh, somebody steals a candy bar or a Coke, and they’re going to get charged with a felony.’ That’s ridiculous,” he said. “No DA is going to do that. There’s no reason to believe that a judge would send somebody to prison for that, given the discretion that is built into the initiative.”
Reisig also argues that the anti-theft bills passed by lawmakers don’t really do much. “These are not helpful tools,” he said. “The devil’s in the details, right?”
He argues that the existing organized-theft provisions that one of the bills makes permanent are burdensome and rarely used by prosecutors. Other provisions in the bills are redundant and overlap with existing laws, he said.
And the aggregation provision allowing authorities to combine thefts to reach a grand theft charge is likely incompatible with Prop 47 and will almost surely be challenged in court.
“I wish it worked. I do. I mean, I wish it was something I could say it’s going to be a great tool. It’s not,” Reisig said. “You can’t overcome Prop 47 and the case law that tied our hands related to Prop 47 on aggregation without going back to the ballot.”
The bills passed by lawmakers don’t include possible felony charges for repeat offenders, which Reisig called “the bull’s-eye” and “the nucleus of any meaningful fix to the retail-theft crisis in California.”
“They know it,” he added. “The reason they didn’t do it is because they would have to go back to the ballot.”
Prop 36 supporters say they’re confident heading into November. They’ve got broad support from a variety of interest groups and voters across the political spectrum. But they’re not counting out a wild card.
“We can’t underestimate the opposition and the George Soros factor,” Reisig said of the far-left financier known for backing soft-on-crime reforms, including the failed drug-decriminalization experiment in Oregon. “If George Soros decides at the last minute to drop millions of dollars on the race, that could have a profound impact on the results.”
Because of that, Reisig insists Prop 36 backers are “sprinting to the finish line.”
“And we’re not going to stop,” he said, “until we’re across.”