For the last decade, California’s Proposition 47 has epitomized an era of reforms that force the criminal-justice system to “go easy” on low-level offending. The law, passed in 2014, prohibits prosecutors from bringing felony charges for theft, larceny, forgery, and check-fraud under $950, and for most illegal personal drug possession. Prosecutors already had the ability to charge these crimes as misdemeanors, of course, but under Prop. 47, they have to.
The law’s proponents wrongly assumed that providing social services for defendants could offset the reduced deterrent effect of criminal punishment, preventing any rise in crime. In the years that followed, the same narrative gained momentum nationwide. In 2016, Chicago prosecutor Kim Foxx raised the felony threshold for stolen property from $300 to $1,000. In 2019, New York State made hundreds of offenses entirely ineligible for bail-setting, regardless of a defendant’s dangerousness or propensity to reoffend.
Now lawmakers are gingerly walking back these policies. Last year, Illinois passed the INFORM Act, making it a felony to steal at least $300 in merchandise with the intent of reselling. And New York amended its bail law in 2020 so that if a defendant with an open case involving harm to a person or property is charged with another such crime, he becomes eligible for bail.
California faces a similar reckoning. In November, state voters will determine the fate of Proposition 36, a measure that would, among other things, once again make crimes of theft under $950 punishable as felonies for defendants with at least two prior theft-related convictions. It’s a step in the right direction, but like Illinois and New York’s reforms, Prop. 36 doesn’t go far enough: prosecutors and judges need full discretion in charging and sentencing to discourage criminal behavior. And further, the new law would remove existing court discretion by requiring some drug offenders to be offered social services in lieu of a jail or prison sentence.
New statistics from Riverside County, one of California’s largest, make this clear. As I outline in a new Manhattan Institute report, county data illustrate how Prop. 47 undermined public safety in the Golden State.
In Riverside, felonies appeared to fall by an inspiring 30 percent in the year after Prop. 47’s passage. But prosecutorial data suggest that many crimes were simply reclassified as misdemeanors, which rose. Likewise, while the average number of cases per felon fell by almost a third in the year after Prop. 47, the number of cases per misdemeanant rose by nearly half.
The county’s offenders, less concerned about serious sentences, committed more crimes while their original cases were still open; within two years, the number of these “trailing referrals” increased 5 percent. Since prosecutors were unable to impose stiffer penalties, many Riverside criminals also stopped showing up for court. The probability that a judge would need to issue a warrant for a defendant who flaked out on his court appearance increased by 56 percent between 2014 and 2023.
The lack of deterrence also contributed to the growing length of time that offenders ignored their open warrants. The number of cases out on warrant for a month rose 63 percent; for three months, 80 percent; and a year, 150 percent. Perhaps most telling, there was a 200 percent increase in warrants for which the defendant never appeared.
These changes in defendant behavior, driven by reduced deterrence, have snowballing effects, creating a less efficient criminal-justice system. There is such a backlog of cases that the average case length in Riverside is now 300 days compared with 160 days before Prop. 47. These delays, in turn, give offenders more time to reoffend; today, Riverside defendants, on average, will accrue four or more new cases while their first is ongoing.
Overburdened prosecutors, desperate to reach plea agreements, have dismissed dramatically more charges just to close defendants’ cases. In Riverside, defendants averaged 1.5 cases dismissed in conjunction with a plea agreement before Prop. 47; the average rose to nearly four cases dismissed after the law’s passage—a startling 166 percent increase, which confirms offenders’ sense that they will face no consequences for breaking the law.
Prop. 36 would chip away at the system’s lenience by, for example, attaching felony consequences after a third offense. But the proposal’s modest reforms likely will not be enough to undo the compounding damage done by Prop. 47, which, in Riverside County, led more drug and theft offenders to become chronic offenders. The share of drug offenders committing three or more drug offenses increased by 10 percent within a year of Prop. 47’s passage. Similarly, the share of theft offenders who were chronic offenders increased by around 6 percent. One in five of these criminals are both chronic-drug and chronic-theft offenders. Lenience is fueling a vicious cycle: drug abuse spurs shoplifting, and shoplifters steal to support drug addictions.
The situation is so bad that California’s state auditor recently reported that the number of individuals convicted four or more times rose 12 percent following Prop. 47. And, in Riverside and San Bernardino, theft convictions among those who re-offended four or more times increased by 14 percent. The auditor’s report noted that law enforcement agencies “asserted that reduced sentences are driving the increase in individuals committing multiple offenses in general and multiple theft offenses in particular.”
Proposition 36 contains some beneficial half-measures to increase criminal-justice consequences, but it simultaneously removes some court discretion for defendants with drug addiction. A more complete reversal of Prop. 47 would allow California to deter offending and would give prosecutors a fuller range of options for each case in connecting addicts to supervision and treatment.
California could aim for half-steps like those taken by Illinois and New York. But until they get a more comprehensive measure—or can push their legislators and governor to amend Prop. 47 substantially—crime will continue to pay in the Golden State.
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