Campaign to Roll Back Proposition 47 Criminal Justice Reforms Could Head to Voters

A campaign by prosecutors and retailers to roll back parts of Proposition 47, California’s landmark 2014 criminal justice reform, could soon move forward.

Backers say they believe they have enough signatures to qualify for the November ballot. The deadline for the group to submit the 546,651 signatures needed is April 23.

Meanwhile, lawmakers in Sacramento are pushing forward on legislation that Gov. Gavin Newsom and Democratic leaders say would solve the problems critics see with Proposition 47, without a need to go back to voters. On Tuesday, Assembly Speaker Robert Rivas plans to introduce what he’s calling a “comprehensive, bipartisan legislative package,” to attack retail theft.

Proposition 47 reduced charges for personal drug possession and for theft of anything worth less than $950 from a felony to a misdemeanor. It also required that the money the state saved from keeping people out of prison and jail, about $800 million so far, be invested in rehabilitation programs.

But critics blame Proposition 47 for a host of issues, from an increase in drug use and homelessness to what they say is a spike in shoplifting and retail theft, even though state data doesn’t fully support that claim. A KQED investigation found no major increase in reported shoplifting or overall theft since the measure passed, though the crimes appear to be underreported — but the investigation did find a large drop in arrest rates for theft over the past decade.

The proposed measure wouldn’t entirely repeal Proposition 47, but it would gut some of its key provisions, which were aimed at keeping lower level criminals and drug users out of jail and prison. The proposal would make it easier to charge repeat offenders with a felony and increase penalties for organized retail theft rings. It would also stiffen penalties for selling fentanyl and other “hard drugs” such as heroin, methamphetamines and cocaine. And it would mandate as much as a year in jail for possessing those same drugs — though the ballot measure also gives judges the option of diverting those accused of possession into drug treatment programs.

Backers have raised more than $7 million, mostly from large retailers like Walmart, which has donated $2.5 million, and Home Depot, which cut a $1 million check last month. And many prosecutors in California, who have long been critical of Proposition 47, helped write and are backing the ballot measure.

Campaign spokesperson Becky Warren said the measure has received “overwhelming” support from people across the political spectrum as they gather signatures.

“This bipartisan ballot measure is a commonsense approach that prioritizes improving community safety while balancing accountability for repeat retail theft offenders and drug traffickers, with meaningful treatment and rehabilitation for serious addicts who need support,” she said in a written statement.

But supporters of the original criminal justice reforms in Proposition 47 are pushing back. They’ve joined with progressive lawmakers to roll out a package of legislation they say would help curb retail theft and address the fentanyl crisis, without altering Proposition 47. Among the proposals: legislation aimed at making it harder for people to sell stolen goods online, bills to increase diversion programs for people accused of theft, and measures to increase drug treatment opportunities.

Tinisch Hollins is executive director of Californians for Safety and Justice, the group that sponsored Proposition 47. She said the provisions in the potential November ballot measure have already been proven to fail — and that’s why voters embraced reform in the first place.

“We’ve tried tough on crime, right? … We have decades of proof that that doesn’t work,” she said. “The issue of organized retail theft is much too nuanced to just throw a blanket repeal for a proposition — not to mention the cost to the state and our communities if we go back to just criminalizing everyone and putting them in jail and prison for low-level offenses. It’s just the wrong approach.”

Hollins said her group broadly supports efforts in the Legislature to tackle organized retail theft and she added that laws to hold fentanyl dealers and thieves accountable already exist. She said it’s up to law enforcement to use the tools they already have, noting there’s been a huge decrease in arrest rates for theft over the past decade.

An assessment by the nonpartisan Legislative Analyst Office (PDF) found that the proposed ballot measure would result in California spending hundreds of millions of dollars more each year to incarcerate people in prison. The report said it would also cost counties tens of millions of dollars annually in jail, probation and court spending. Hollins questioned, with increased costs and the existing shortage of drug treatment programs, whether there would even be treatment available for people eligible for diversion under the proposed measure.

“The ballot initiative doesn’t increase funding. In fact, if [Proposition] 47 is repealed, then we have hundreds of millions of dollars going back to the system instead of for these types of intervention,” she said.

Proposition 47 supporters also recently filed a complaint with the Federal Election Commission alleging that Congressman Kevin Kiley, an outspoken critic of Proposition 47, has illegally coordinated with the campaign committee collecting signatures — an allegation both Kiley and representatives for the ballot measure deny.

The complaint was filed by attorney Ann Ravel, a former FEC chair, who said she got involved at the request of Californians for Safety and Justice, but that she is not being paid.

In her complaint (PDF), Ravel accuses Kiley of establishing and controlling the campaign committee that is backing the effort to overhaul Proposition 47, and alleges that control is illegal because the six- and seven-figure donations collected by that committee exceed the federal limits Kiley’s congressional campaign is subject to. Under federal law, a candidate may only solicit up to $3,300 per election from an individual donor and up to $5,000 a year.

“He has raised an enormous amount of money that is a violation of campaign finance law,” Ravel said. “We are just asking them to investigate the violations.”

Ravel cites (PDF) as proof Kiley’s long standing criticism of Proposition 47 and his involvement with the campaign, including email blasts and a website linked to his congressional campaign that asks people to sign the ballot measure petition. In one email, Ravel states, “he solicits funds for the ballot measure, to be made by check to ‘Kevin Kiley for Congress’ indicating that he has solicited earmarked contributions for the measure, using his committee as a conduit.”

A spokesperson for Kiley called the allegations “frivolous and full of falsehoods,” adding that Kiley has “no official or unofficial position or control over the ballot measure committee,” and found out about its existence months after it was created.

“Ms. Ravel has a history of filing these types of political complaints that go nowhere,” Kiley’s political consultant Dave Gilliard said in an email. “[Kiley] has not solicited donations to the ballot measure committee from anyone and has not spoken about the initiative with any of the donors named in the complaint.”

Gilliard added that Kiley asked for donations to his congressional campaign to defray the cost of mailing petitions.

“We are reporting the amounts spent on such mailings as an in-kind contribution to the committee, as required by law. The total value of that in-kind will probably end up being about 1% of the money raised by the committee,” he said.