How California Got Convinced to Lock More People Up

California voters chose harsher sentencing, the continuation of forced labor in prisons, and tough-on-crime prosecutors this week in overwhelming numbers.

Proposition 36, a bill that upgrades a raft of petty theft and drug crimes from misdemeanors to felonies, was approved by 70 percent of voters in the initial counts. It is designed to incarcerate thousands more people by reversing a ballot measure passed 10 years ago, Prop 47, which downgraded theft and drug crimes from felonies to misdemeanors in response to massive prison overcrowding.

On the same ballot, voters rejected a prison reform measure that would have made slave labor illegal in state prisons. Meanwhile, in Los Angeles County, reformist District Attorney George Gascon lost his reelection bid to a former federal prosecutor, who ran on a tough-on-crime campaign. And in Alameda County, voters decided to recall another reform-minded district attorney, Pamela Price, after two years on the job.

News outlets, experts and elected officials have been quick to frame the election day results on crime as a clear sign that California voters want to undo the criminal justice reforms of the past decade.

The pendulum of public opinion has swung back," wrote the San Francisco Chronicle. Dan Schnur, a former Republican strategist told the Los Angeles Times that voters are notorious course correcters" who are always adjusting their last decisions to try to make them a little bit better." California Attorney General Rob Bonta told Politico that he was concerned about effects of mass incarceration from the bill, which he refused to publicly oppose, but said he wasn't surprised about its passage. Criminal justice swings back and forth, and four years ago was a huge time of interest in reform," he said.

Advocates and organizers in criminal justice reform reject the idea that voters are shifting to the right. They instead point to the well-funded, corporate-backed campaign behind Prop 36 that distorted facts, and the complicity of media outlets eager to paint a picture of an unsafe California and echo the fearmongering that became central to Donald Trump's successful presidential campaign. And on the defensive side,some say Democrats and criminal justice organizations themselves failed to mount an opposition campaign until months before election day.

It's easy to tell people to blame that on the wrong people for the wrong reasons."

All of this was avoidable," said Lex Steppling, an organizer with Los Angeles Community Action Network, who has been a part of previous successful campaigns against state crime bills and opposed Prop 36. I don't want anybody acting like this is just an organic social phenomenon, it's not. People feel insecure because they're one paycheck away from having to leave their house, people feel insecure because goods and cost of living has doubled - that is a lack of safety, right? And it's easy to tell people to blame that on the wrong people for the wrong reasons."

Jody Armour, a law professor at the University of Southern California, said he was also concerned by the cyclical and pendulum" analogies being applied to Californians.

It makes it seem like it's inevitable, that things are going to go this way and that things are going to go back the other way - no, there is a fierce pitched battle," Armour said. This idea that things just happen, it papers over the real pitched battle, the struggle, the political contest going on that makes change happen."

Copaganda

Police and prison guard groups have tried to roll back Prop 47 multiple times since its passage in 2014, but none have been as well-funded as this year's Prop 36. Retail giants Walmart, Target, and Home Depot poured more than $6 million into the campaign, while In-N-Out and 7-Eleven each chipped in $500,000. Along with major donations from pro-business PACs and the state prison guards union, the campaign racked up nearly $17 million, dwarfing the opposition.

The opposition raised about $6 million, leaning heavily on major donations from wealthy Democrats such as Patty Quillin, wife of Netflix executive chair Reed Hastings, and oil heiress Stacy Schusterman.

For months, the Prop 36 campaign ran ads presenting the bill as a way to address the fentanyl crisis and make both businesses and consumers safer by putting people committing low-level property crimes behind bars.

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After a spike during the initial years of the pandemic, property crimes have again begun to decline across California, continuing a decadeslong trend, which sees rates at about half of what they used to be in the 1990s, according to Department of Justice figures. But that hasn't stopped media outlets from keeping broadcasts of smash-and-grab" incidents as mainstays of evening news cycles, often recycling the same footage.

One recording in particular came to stand in for crime and chaos writ large. During the holiday shopping season in 2021, police in Concord, a suburban city just outside of San Francisco, released grainy surveillance footage showing a group of people in hoodies and masks hacking at glass casings of a Kay Jewelers with hammers and crowbars. That same day, television news outlets across the Bay Area and nationally on CNN and NBC News broadcast the police video of the so-called smash-and-grab robbery.

The Yes on 36 campaign seized on the endless news coverage and used the broadcasts, including footage of the 2021 Concord incident, in TV ads and on the campaign's website.

You see it almost everyday, smash-and-grab criminals cause stores to raise prices, lock up items and close their doors," said Sacramento County Sheriff Jim Cooper in a TV ad urging voters to vote yes on the proposition while the Concord footage played over eerie music. The ad also features former Los Angeles Mayor Antonio Villaraigosa, who said voters have to do more to solve California's crime problem."

Crime is historically low right now - that's the big story here that everyone has forgotten."

This paints a deeply misleading picture of reality, according to criminal justice experts. You can create the image of out of control crime, if you get enough media attention on specific incidents - the smash-and-grab, the kids going into the stores and knocking windows out and snatching the jewelry, that kind of stuff, it plays in the nightly news," said Daniel Macallair, executive director of Center on Juvenile and Criminal Justice and a San Francisco State University lecturer. But it doesn't represent a bigger trend. Crime is historically low right now - that's the big story here that everyone has forgotten - and unfortunately factual information, statistics doesn't make for good media."

Studies have shown a connection between crime news consumption and concern for safety, even while the prevalence of crime trends downward. And in July, Macallair's center released a report showing crime rates falling in the period after California began to reform and reduce prison populations.

USC's Armour agreed and said media organizations need to do a better job at holding institutions accountable in their coverage as watchdogs and providing context when it comes to crime. But often what I'm hearing in crime reporting isn't that, but just stenography for the police," Armour said. Just kind of matter-of-factly reiterating whatever they say, or giving them the lion's share of credibility even though they're repeatedly found to be using disinformation."

The Trump Effect

Fear and crime were not just common themes in California, but also across the country. President-elect Donald Trump ran yet another campaign that vilified immigrants as dangerous criminals who needed to be locked up and deported. Kamala Harris also presented a carceral vision of the border - committing to bolster the Biden administration's asylum restrictions, pursue felony charges for those who cross the border without documentation, and continue building the border wall that Trump used as a rallying cry during his path to presidency in 2016.

Claudia Pena, a longtime community organizer and lecturer at the University of California, Los Angeles law school, said such rhetoric during the presidential campaign, specifically from Republicans, had an influence on the way people saw crime locally, including in blue California.

So much of their argument was based on fearmongering and ensuring people are scared of each other, really targeting vulnerable groups," she said. And they did that by overemphasizing, manipulating and exaggerating certain trends that began during the pandemic. I think because they were so successful at doing that on a national scale all over television, all over these podcasts, it did have an effect in California."

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Pena attributed the passage of Prop 36 and failure of the measure prohibiting forced prison labor, in part, to Trump's rhetoric of fear but also said she doesn't think Californians are swinging the opposite direction from 2020, calling the bills an aberration." She noted that Prop 36 was marketed as a middle of the road" and balanced" bill that was less extreme than crime bills of the 1990s. Prop 36 also received support from Democratic lawmakers such as Tom Umberg and James Ramos, and liberal local leaders, including San Francisco Mayor London Breed, San Diego Mayor Todd Gloria, and LA County Board Supervisor Kathryn Barger. And I think more than anything, I think more people were just scared," she said.

We all need to do a better job of continuing to have these conversations so that people who make up the state of California have the right information, to weigh in properly and not be misled and manipulated emotionally to make decisions out of fear," Pena said. I believe that when the people of California have enough information and proper access to the right data and stories that are true, the people of California come around."

Too Little Too Late

As soon as the previous effort to roll back Prop 47 was announced in 2020, a coalition of criminal justice reform groups organized to push back against it. From the American Civil Liberties Union to the Chan Zuckerberg Foundation, which gave more than $1 million to the opposition, the coalition led the messaging and education campaigns across the state on the ballot measure, Prop 20, from day one. Democratic lawmakers campaigned against Prop 20 as well, including Gov. Gavin Newsom. Voters went on to reject the measure with 60 percent voting no.

This year, after backers of Prop 36 submitted more than 900,000 signatures to get the measure on the ballot, the same opposition coalition was slow to form. Rather than running a campaign to get voters to oppose the measure, many of the same groups and elected officials who helped lead Prop 20 opposition four years earlier instead attempted to find a solution within the state legislature - a common tactic in California politics.

In April, state lawmakers introduced a slate of bills, titled #SmartSolutions, which were aimed at addressing the concerns raised by Prop 36 backers, such as public safety, retail store theft, and fentanyl addiction. The slate was largely designed as a response to and an effort to deflate the momentum built by the Yes on Prop 36 campaign, and had the support of major criminal justice reform groups like the Anti-Recidivism Coalition, Ella Baker Center for Human Rights, Initiate Justice, Smart Justice California, and the Vera Institute of Justice.

But the #SmartSolutions package was also designed to satisfy Newsom's own crime directive, issued in January, which called on lawmakers to crack down on property crimes. Steppling wondered if the directive was a play by Newsom, who has aspirations for higher office, to appear tougher on crime amid Republican attacks that California was in decline.

Newsom said he opposed Prop 36, but unlike in 2020, he didn't actively campaign against it. As Democratic lawmakers battled over how to respond to Prop 36, the #SmartSolutions slate was effectively killed when several of its bills were absorbed into a separate Newsom-backed slate that increased punishment for property crimes. Newsom signed the slate of crime bills in August inside of a Home Depot store, one of the major backers of Prop 36.

The No on Prop 36" coalition eventually formed in the late summer, but by then, support for the measure had grown. By October, polls showed that victory for the prop was likely.

For organizers like Steppling, who coordinated opposition to Prop 36 before the coalition had formed, the delay and mixed priorities among lawmakers and organizers proved frustrating.

When we're given time and space to fight for what's right, we usually win, especially at the ballots - instead we lost four to five months of organizing time," Steppling said. You then empower a whole discourse that says, Oh, both the Republicans and Democrats agree that Prop 47 needs to be undone, they just disagree on how.' Why would you create that media climate, rather than saying, Prop 47 has not caused any problems and it should be the floor and not the ceiling.'"

It wasn't simply social phenomenon - there has to be a real reckoning in a place like California with how the work is done," he added.

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Armour recalled a similar moment of compromise, shortly after Joe Biden was elected president in 2020. After a summer of mass organizing after the police murder of George Floyd that materialized into a host of local and statewide wins for reform, Biden's election gave many liberals a false sense of security, he said.

He comes in, takes a lot of that energy and uses his bully pulpit to say to those same liberals, Fund the police,' and Nothing is going to fundamentally change,' and so it isn't surprising that we got from there to here," Armour said. He criticized Democratic leaders in California for not sustaining the energy of 2020 and opposing Prop 36 more readily.

Macallair, who has been helping oppose tough-on-crime measures for the past 40 years, said such legislative solutions to aggressive crime bills is an old strategy that rarely works. He recalled the failed efforts to oppose the three strikes" law in 1994 by introducing a nearly identical bill in the legislature.

You try to head it off and hope the people who are backing the initiative are going to back off and it doesn't work that way, because there's a political strategy behind it that usually goes beyond just the essence of the initiative, the language of the initiative," Macallair said. So passing legislation to placate the backers of the initiative, I've never seen that work."

We're Not in The '90s

With the passage of Prop 36, prosecutors in California will be able to charge people who get caught stealing items worth $950 or less with felonies, which can lead to prison sentences of up to three years. The law also empowers prosecutors to enhance sentences for certain theft or property damage felonies by up to three years. Such sentences, under the new law, must be carried out in state prisons, rather than county jails, which will likely further isolate individuals from their families and communities. The law does allow for certain people charged with drug possession crimes to get mental health or drug treatment. If they complete the treatment, the charges would be dismissed. But for those who don't finish the program, they may serve up to three years in prison.

The new law is expected to incarcerate at least several thousands more people in both county jails and state prisons, according to the state's Legislative Analyst's Office, increasing prison costs by $10-100 million. Since its peak in 2006, when California incarcerated more than 173,000 people, the nation's highest, the prison population dropped to around 95,000 people, due to prison reforms and the pandemic. Prop 47 had reduced prison populations by the thousands and saved the state money, which largely went to drug treatment services. That same money will likely be used to imprison more people under Prop 36.

Even so, Macallair said the law is not as punitive as 1994's three strikes law, which locked up an additional 40,000 people within its first five years. He also pointed to several wins in recent years, such as the closure of the state's youth prisons, the last of which shut down in 2023. And Armour pointed to the California Racial Justice Act passed in 2020, which remains in place. The law allows defendants to argue for throwing out a case, vacating a sentence, or receiving a reduced sentence if police, prosecutors, judges, jurors, or expert witnesses showed racist bias in the course of a case, whether explicit or implicit, such as making a racist comment. Armour has acted as an expert witness in four cases since the law was enacted.

I don't think that we're anywhere near the '90s either in like crime and policy and attitude and conversations people are having in the streets," Pena said, recalling conversations with Californians in the late '90s with people who celebrated three-strikes policies. And I rarely hear that anymore, and I don't think that we're going to go back there, in part because crime rates will continue to trend down as they already are."

The way to create safety is for people to have access to opportunities to live a life of thriving."

Since the boom of mass incarceration in the '90s, a growing body of evidence has shown that locking people up for longer periods and threatening them with harsher punishments has no effect on whether someone will commit a crime. And Pena believes that crime rates have been trending down not because of any policies that incarcerate, but due to increased access to necessary goods and services and care opportunities in California.

When people think about crime and incarceration and other forms of punishment, what they really want is safety," she said. We want our communities to be safe, we want our streets to be safe. We want people to be able to walk from school or from work and be OK. People want to be able to have confidence that their home and their property is OK. And that's universal. The way to create safety is for people to have access to opportunities to live a life of thriving: having access to jobs, having access to housing, having access to health care services. All of these things are what causes drops in crime rates."

The post How California Got Convinced to Lock More People Up appeared first on The Intercept.