Will increased penalties reduce theft?

The Governor and legislators are showing increased interest in tackling the problem of commercial theft. TV reports show terrifying depictions of theft crews entering stores in mass to grab expensive merchandise and quickly fleeing. Retail owners have been closing their shops for good, blaming rampant theft, and many stores have stopped reporting thefts because nothing seems to happen to the offenders. Even when someone is arrested for shoplifting, they are usually out of custody quickly and can return to steal again.

Blame is placed by many on Proposition 47, the Safe Neighborhoods and Schools Act, which was approved by voters in 2014 and made many prior felony theft crimes misdemeanors. It is possible these scenarios may be the result of Proposition 47, but maybe not. Entering a store to grab expensive merchandise is a felony burglary, assuming the items taken exceed $950 in value, or can be robbery if force or fear are used. Plus, organized retail theft laws target group criminality. Are retail shops closing due to increased theft, or because shoppers prefer to shop online, particularly post-pandemic? It is true that options for dealing with convicted shoplifters and petty thieves are more limited under Proposition 47 because the traditional carrot-and-stick approach to sentencing is weakened. But are the options any better if some of these crimes become felonies again?

As a judge who spent many years presiding over criminal cases, most repeat theft offenders in my courtroom had mental illness, addiction problems, or both. Many were homeless. Prosecutors, defense attorneys and probation officers usually agreed that the best solutions for these individuals were treatment and housing, which can stop the cycle of reoffending. Simply locking someone up for what might typically be a year on a two-year middle term sentence will not solve the problem. But if treatment and housing alternatives are not available, custody will be the default.

Proposition 47 was supposed to reallocate funds that were used for incarceration and funnel them into rehabilitation resources. But in my experience, alternatives to custody continue to be in short supply. A defendant wanting a treatment slot or housing could burn up all their felony custody time just waiting for an opening.

Any efforts by state leaders to change the laws for theft crimes should be coupled with renewed efforts to fund and implement treatment and housing. Otherwise, the efforts will be for naught.