Newsom splits from voters on Prop 36

I’ve never seen an issue in which Gov. Newsom was more out of step with California voters than Proposition 36, which is on the November ballot. A huge majority of Californians favors it. The Governor, by contrast, does not. He’s resigned to the fact that it will pass, though, and doesn’t care if he’s on the losing side.

Personally, I’m in favor of Prop 36. As an Oaklander who’s witnessed criminals brazenly loading up on stolen goods and blithely walking out of stores while security guards do nothing, I’d like to see these thieves thrown into jail. At the same time, I have deep affection and respect for Gavin Newsom. So I want to understand the basis of his opposition to what, on the surface, looks like a good idea.

Prop 36 takes two different things and mooshes them together into a single law. On the one hand, it does what everyone, including Newsom, wants: goes after retail theft far more than has thus been the case. That’s good. But Prop 36 also goes after drug dealers. Newsom’s argument is that arresting more drug dealers is bad policy, for several reasons. First, it’s a repeat of the failed old war on drugs. “I won’t be part of 1980 redux,” Newsom has said, adding that “Nancy Reagan (‘Just Say No’) would have been proud” of Prop 36.

Newsom’s second reason is cost: Depending on who does the analysis, Prop 36’s crackdown on drug dealers would add hundreds of millions of dollars, if not billions, to California’s budget, in the form of more prisoners, court costs and all the rest. And, of course, California is currently afflicted with an historic budget deficit. Newsom argues that, if he’s forced to allocate a lot more money to busting drug dealers, he’d have to make comparable cuts to existing state programs, which, he feels, would further burden poor people and people of color. Besides, Newsom concludes, he just signed a spate of new laws that go after retail theft—new laws that should take a significant bite out of retail crime once they have time to get up and running.

These are all reasonable positions for him to take. But so is the desire to punish shoplifters. So what’s up? Should we vote for or against Prop 36?

Probably the most famous, or infamous, current law that would be affected by Prop 36’s passage would be the $950 limit on whether a theft is a misdemeanor or a felony. It’s been widely publicized by 36’s backers that this threshold would be eliminated, meaning that more shoplifters could be charged with felonies. Newsom has argued that Prop 36 “doesn’t touch the $950,” but things are more complicated than that. According to the California Legislative Analyst (in the Voter Information Guide), Prop 36 “allows felony charges…for thefts under $950.” But, it adds, only “if [the] defendant has two prior drug or theft convictions.” I’ve been unable to determine how that proviso ended up in Prop 36, but its substantiates Newson’s contention, in that it would severely limit the number of shoplifters potentially liable for a felony charge. A thief could steal $949 worth of goods and be indictable for a felony, if she didn’t have those prior convictions.

This is why Newsom argues that Prop 36 “was never about $950. [Prop 36] is a drug policy initiative. It isn’t a retail initiative, it’s a drug possession initiative that lies about treatment on demand and drug courts because there is no money included.”

Newsom’s reference to “treatment on demand” is about Prop 36’s creation of “a new category of crime, a ‘treatment-mandated felony,’” according to CalMatters, which explains that “People who don’t contest the [theft] charges could complete drug treatment instead of going to prison, but if they don’t finish treatment, they still face up to three years in prison.” To the extent that Prop 36 doesn’t specify where the money for this “drug treatment” would come from, Newsom is correct. Prop 36 thus becomes an unfunded mandate.

Despite there being some good arguments against Prop 36, I’m still voting for it. Yes, we have a massive state deficit, but we’ve had massive deficits many times since I’ve lived in California (1978), and somehow we managed to get through them. Maybe our governors have cried “the sky is falling” too many times. I also don’t necessarily buy into Newsom’s contention that Prop 36 “would further burden poor people and people of color.” How is that? If they’re not shoplifting, they have nothing to fear from a crackdown on retail theft.

Bottom line: Prop 36 has problems, but it’s still worth voting for, if it can help us to stop these awful shoplifters. And it can.

Steve Heimoff