Newsom’s Support for Harsher Theft Penalties Raises Questions From Criminal Justice Advocates

Editor’s Note: An earlier version of this story misstated the penalties under Proposition 36, which would increase sentences for certain drug and theft crimes if voters approve the ballot measure in November. 

After Gov. Gavin Newsom signed a new law bringing back harsher sentences for “smash and grab” retail theft, criminal justice advocates are questioning its similarities to a tough-on-crime ballot measure that Newsom has vocally opposed.

The new law signed Thursday, Assembly Bill 1960, raises the required sentences for those convicted of taking, damaging or destroying property while committing any felony. A similar law expired in 2018. The new law will sunset by 2030.

Progressive groups such as the San Francisco Public Defenders Association and Oakland’s Ella Baker Center for Human Rights have raised alarms that the language in AB 1960 is “identical” to sentencing guidelines proposed in Proposition 36, a controversial ballot measure going before voters in November.

Proposition 36 would add new penalties for theft and drug crimes  by rolling back pieces of Proposition 47, a criminal justice reform measure passed by voters a decade ago. Newsom has called it unfairly punitive. While the sentencing guidelines in AB 1960 and Proposition 36 are similar, the ballot measure does not include a sunset date.

“If we want to address the issues of the public feeling less safe when it comes to retail theft, then we need to address the root causes of why these crimes happened in the first place — and also equip stores to have the resources that they need to offer effective deterrence,” said Taina Vargas, the executive director of Initiate Justice Action, a nonprofit that seeks to end mass incarceration in California.

“Historically, we have seen that adding additional enhancements is something that is not effective,” Vargas said. “All it succeeded in doing is incarcerating more people, which usually has a disproportionate impact on communities of color.”

Research by the California Policy Lab shows that sentencing enhancements disproportionately affect Black and American Indian men and that the majority of those in California’s prisons have had their sentences affected by enhancements.

In August, Newsom said that Proposition 36 “takes us back to the 1980s, the war on drugs, mass incarceration. It promotes a promise that can’t be delivered.”

“[Proposition 36] has nothing to do with retail theft,” Newsom added. “This initiative has everything to do with retail theft.”

Videos of large-scale, smash-and-grab thefts shared on social media have brought particular attention to retail theft and property crime, which retailers and lawmakers have called a major problem in the state.

While most large counties saw increases in retail theft — which includes both shoplifting and commercial burglary — from 2019 to 2023, more than 90% of the statewide rise occurred in just four counties: Alameda, Los Angeles, Sacramento and San Mateo, according to an analysis by the Public Policy Institute of California.

Both kinds of retail theft have soared since the pandemic.

However, rates of shoplifting — targeting lower-value items — appear to be skewing the data, overpowering a more recent decline in higher-value commercial burglaries like those targeted by the new law.

“If you look at those commercial burglary rates in California, we’re not seeing evidence that they are continuing to go up. In the most recent data, they are even coming down in 2023,” the PPIC’s Magnus Lofstrom said. “And if we’re talking about the smash-and-grab incidents, they’re very likely to be higher-value retail theft incidents above $950.”

Newsom touted the state’s approach to retail theft in a bill-signing statement on Thursday morning.

“California already has some of the strictest retail and property crime laws in the nation — and we have made them even stronger with our recent legislation,” he said. “We can be tough on crime while also being smart on crime — we don’t need to go back to broken policies of the last century. Mass incarceration has been proven ineffective and is not the answer — we need true accountability and strategies that enhance our nation-leading efforts to address crime.”

The California District Attorneys Association, law enforcement groups, and the California Retailers Association supported the bill.

“Those who deliberately target and destroy property in the commission of felonies will now face harsher penalties, sending a clear message that this behavior will no longer be tolerated in California,” Rachel Michelin, president and CEO of the California Retailers Association, said in a statement.