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(1) Another Scott Watch. Note: I am not a California resident.
How's about this essay and comments on ACX?
The Case Against California Proposition 36
Scott publishes a guest essay by Clara Collier who argues against California's Proposition 36. Prop 36 modifies California's Prop 47 which increased the value required in crimes such as shoplifting and theft ($950) before qualifying as a felony charge. Readers of this forum should be familiar with the basic story arc here. Prop 47 passed, 2018-2022 came, more compassionate district attorneys were elected, less thieves kept in prison, and policing was softened. Now it is common in the big CA metropolises for stores lock up items like toothpaste to deal with an increase in opportunistic and organized retail theft.
Offenders repeatedly arrested with hard drugs (now including fentanyl) will face felony charges if Prop 36 passes. It allows judges to send presumed dealers or suspects with large quantities of drugs to prison instead of county jail. It carves out some exceptions for mandated or opt-in treatment-- which Clara Collier thinks is useless, because CA doesn't have enough in-patient beds anyway. Collier also shares there's not enough room in prison and identifies Prop 47 as a response to an overcrowded prison population. The money saved from not putting people in jail is spent on various treatment and rehabilitation programs.
No real comment on the efficacy of treatment programs that California mandates through Prop 47. It sounds like they're probably not very effective.
The comment section on this article is lively for ACX. Lots of finger pointing and blame to go around.
As Collier says, California can lock people up for longer, but there's a hard limit for how many prisoners can be housed. I would think this answer would be obvious: build more prisons. Personally, I still think there's a place for work camps and chain gangs for offenders less likely to run off. Probably more personnel heavy, but less structural overhead to build a camp out and dig a well out in the wilderness. Maybe this is an impractical romanticized idea, or it is considered cruel and unusual these days.
There's an additional argument between people pointing out that an increase in prison time doesn't matter if prosecutors don't prosecute. Which became more common since 2018 in liberal cities and was supercharged in 2020. The other side, including Clara, points fingers at police for being lazy good-for-nothings (my words, not hers) that don't do their job right. For me, it is obvious that police who don't expect the criminals they arrest to be punished are less inclined to arrest people. I would expect this to be the conclusion of rationalists who are interested in incentive structures, but I guess there's enough compounding problems, and policing unpopular enough, it can be quietly asserted that cops are bad, or swept under the carpet.
I do agree that following through with prosecution and "clearing" cases matters more than whether something is a felony or misdemeanor. The value in making it a felony is that it should encourage prosecutors and police to go after cases. It is a signal from the people saying, lock these people up actually and felony convictions hold more weight in law enforcement and DA offices. "I have X felony arrests or X felony convictions" is a metric most police and prosecutors will point at as a record, unless your police and prosecutors consider more arrests/convictions as a bad thing. It can be a bad metric for performance that leads to unnecessary prosecutions and pleas, but maybe it's still better than this alternative.
If I were a California resident, and my city left me dissatisfied, I would probably vote for Prop 36 just to send a signal to officials. Deal with this problem. That's pretty much it. I wouldn't care about how ineffective prison is, or impossible it is to jail more people. I'd start with this, then ask for more. The alternative, which Collier advocates, is more of the same. Which, as a dissatisfied resident, would not appeal to me. Then, I'd probably vote for DA's that do stuff like convict criminals and a state leadership that builds more prisons when they're full instead of releasing criminals.
(2) Among the comments was posted this piece by City Journal earlier this year. I had missed this whole story, it is more interesting than the ACX post, and it probably deserves its own post. Maybe you guys already did that.
The The California Racial Justice Act of 2020 is starting to bear fruit for convicts in the California penal system.
The RJA allows convicts that can show racial disparities in sentencing and various other flavors of racial bias. Including one example in the article of a policeman who, claiming that he did not see the race of an individual driver in a car before he pulled it over, where it was argued this could be true-- but still racially biased because of "unconscious" implicit bias.
I'm open to the idea City Journal is being uncharitable and misrepresentative here, but it seems like California's legal system faces a number of crises. Which, given the statistics of crime and prosecution, is what I would call this trend. Ok, I'm out of steam.
I work with a few former prosecutors, and this topic has come up a number of times. It's easy to look at the number of dismissals and non-prosecutions of shoplifting and conclude that the prosecutors are being wishy-washy, but the realities of the situation often leave them with no real alternative. Consider the following case: A store clerk observes a thief stealing an item and calls the police. The suspect is arrested, and a body search uncovers the item. There is video of the suspect stealing the item. This is the perfect case, a slam-dunk to convict right?
In theory, yes; the evidence is incontrovertible. But think about what's actually required for a conviction:
The only witness who has a reasonable chance of actually testifying at trial is the cop, but unless he also happened to be there when the item was stolen, his testimony is useless on its own. A clerk making ten bucks an hour is unlikely to spend her day off testifying in court, and her employer is unlikely to pay her to not work. And unless the clerk is also the manager or has some familiarity with the CCTV system, they're going to need a manager to testify if they want to use the video, and good luck with a manager taking the day off to testify. With small convenience stores, there may be one guy running the whole place who would have to close for the day if he were required to be in court. The prosecutor's best bet in these cases is to confront the defendant with the evidence, offer a deal, and if they take it they take it and if they don't, drop the charges. Of course, defense attorneys know this as well, and they know why prosecutors do this, so they can be fairly confident that even if the charges aren't dropped that their client won't be convicted anyway, and the prosecutors aren't stupid so they can just skip the first step and dismiss the case before they waste any time on it, unless the victim is adamant about prosecution. Some are, but when a store proprietor finds out how much it's going to cost him to prosecute over a few hundred dollars in merchandise he usually decides it isn't worth it. Keep in mind that in most of these cases the merchandise is actually recovered, so there isn't even much of a tangible loss. Paying two employees a day's wages to testify is an expensive way of proving an abstract point.
Now combine this with the fact that DA's offices are chronically short-staffed and have high turnover rates. Some people love it, but most people burn out pretty quickly. You make less money for more work. They don't exactly have the manpower to take on every single theft case that gets reported. It's similar to the solution you give of building more prisons — it's easy to say "hire more DAs", it's quite another to actually be willing to pay for it. We're dealing with this situation right now in Allegheny County. County Executive Sara Innamorato is the exact kind of single, progressive, tattooed, DSA-supporting lefty that J.D. Vance hates. The county is currently facing a budget crisis, and she wants to increase property taxes to cover the deficit and give a small bump to the DA's office budget. County Council has describes her plan (which would increase property taxes by $182 for the average homeowner) as dead on arrival, and she's basically thrown down the gauntlet and told them that if they had any better ideas she'd consider them.
If tax increases are a nonstarter in a place that elected Innamorato as executive, they aren't going to play much better elsewhere. Demanding increased funding for police and prosecutors sounds good, but the people making these arguments out of one side of their mouth are bitching about taxes being to high out of the other side. It's basically like the school board meeting from The Simpsons. Where is this money supposed to come from, exactly? take it out of the highway budget? EMS? The board of elections? Parks and recreation? It's easy to blame bullshit on your political opponents, but it's hard to offer any realistic alternatives.
Stuff like this is exactly why I support a more inquisitorial model of criminal justice. One that does not require a complicated trial process, necessitating multiple layers of in-person testimony, for a crime that can easily be verified with a simple sharing of a video file, or even just by the police finding a shoplifted item on the person of a shoplifter. The dispensation of justice in such a scenario should be trivially simple and quick to administer, and should not require so many individuals to burden themselves.
What you're essentially advocating for is the abolition of the 6th Amendment, which gives the right to confront one's accusers. Even if we eliminated this requirement, though, it still doesn't solve the problem, as the witness still needs to be present, it's just the judge doing the questioning and not the lawyers. As for your specific evidentiary examples, the video is actually the least persuasive piece of evidence in the scenario, since it probably doesn't show enough to convict. I grabbed the first shoplifting video I could find from YouTube; it's a news report about a theft from a liquor store in Kenya. https://youtube.com/watch?v=ErfIL-_UOiA This is actually a better video than I originally pictured — it's in color, has reasonably high resolution, and appears to show most of the store. Now tell me, without looking at the transcript, what items are being stolen and how much do they cost? Would you be confident in being able to identify someone you had never seen before as the person in this video? Would you be okay with someone you've never met before identifying you in this video? Now imagine that the only video we have just shows you removing an item from a shelf, and all you can see is the aisle that you're in. It's good evidence in that it buttresses other testimony, but it's pretty useless on its own.
This is even worse evidence. A police finds an item on you. What basis does he have to determine that it was stolen? How would you feel about the following scenario: A shopkeeper reports that he observed a white male stealing a pair of expensive headphones from an electronics store. The police see you a block away listening to a pair of headphones that match the shopkeeper's description. The shopkeeper does not identify you in court, but you are nonetheless convicted on the cop's testimony that you had the shoplifted merchandise in your possession?
Just to steelman this, unless the people guilty of stealing have reason to fear getting punished, the law against stealing is basically dead. There are large portions of most major cities where these kinds of situations exist. The laws against stealing, drug dealing, and murder are not enforced consistently. The results are not freer people unconcerned about crime, in fact it’s the opposite. In those areas, since the cops can’t (often because of government policies) deter crime or reliably enforce the laws, the people who can’t afford to leave take the job of self protection on themselves. Bars go over windows, people carry weapons, and gangs take over to protect criminals from other criminals. It’s basically a post collapse society on display in the middle of downtown Chicago or St. Louis.
Sure an inquisition isn’t a great system for a modern functioning state. It’s not something that’s compatible with civil rights as we know them. But the other side is that the alternative is also terrible for civil rights. You have a right to private property. Sure, but what good is it when the cops for lack of proper paperwork and prosecutorial authority simply shrug as local thugs help themselves to anything not physically impossible to steal? What good is it to be protected from the cops detaining you when you and your family are prisoners in your own homes behind barred windows because your neighborhood is to unsafe to be outside in? What good is it to say “I am safe from the cops shooting me” when you have to worry about getting caught in a drive by shooting? Freedom isn’t just freedom from the state, but the presence of law, order and justice. If you don’t have the ability to come and go as you please without fear of the Cripps, it’s not far off from not being able to come and go for fear of the cops.
Why not?
Why is this a problem?
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