How California Got Convinced to Lock More People Up

California voters chose harsher sentencing, the continuation of forced labor in prisons, and tough-on-crime prosecutors this week in overwhelming numbers.

Proposition 36, a bill that upgrades a raft of petty theft and drug crimes from misdemeanors to felonies, was approved by 70 percent of voters in the initial counts. It is designed to incarcerate thousands more people by reversing a ballot measure passed 10 years ago, Prop 47, which downgraded theft and drug crimes from felonies to misdemeanors in response to massive prison overcrowding.

On the same ballot, voters rejected a prison reform measure that would have made slave labor illegal in state prisons. Meanwhile, in Los Angeles County, reformist District Attorney George Gascón lost his reelection bid to a former federal prosecutor, who ran on a tough-on-crime campaign. And in Alameda County, voters decided to recall another reform-minded district attorney, Pamela Price, after two years on the job.

News outlets, experts and elected officials have been quick to frame the election day results on crime as a clear sign that California voters want to undo the criminal justice reforms of the past decade.

“The pendulum of public opinion has swung back,” wrote the San Francisco Chronicle. Dan Schnur, a former Republican strategist told the Los Angeles Times that voters are “notorious course correcters” who “are always adjusting their last decisions to try to make them a little bit better.” California Attorney General Rob Bonta told Politico that he was concerned about effects of mass incarceration from the bill, which he refused to publicly oppose, but said he wasn’t surprised about its passage. “Criminal justice swings back and forth, and four years ago was a huge time of interest in reform,” he said.

Advocates and organizers in criminal justice reform reject the idea that voters are shifting to the right. They instead point to the well-funded, corporate-backed campaign behind Prop 36 that distorted facts, and the complicity of media outlets eager to paint a picture of an unsafe California and echo the fearmongering that became central to Donald Trump’s successful presidential campaign. And on the defensive side, some say Democrats and criminal justice organizations themselves failed to mount an opposition campaign until months before election day.

“All of this was avoidable,” said Lex Steppling, an organizer with Los Angeles Community Action Network, who has been a part of previous successful campaigns against state crime bills and opposed Prop 36. “I don’t want anybody acting like this is just an organic social phenomenon, it’s not. People feel insecure because they’re one paycheck away from having to leave their house, people feel insecure because goods and cost of living has doubled — that is a lack of safety, right? And it’s easy to tell people to blame that on the wrong people for the wrong reasons.”

Jody Armour, a law professor at the University of Southern California, said he was also concerned by the “cyclical and pendulum” analogies being applied to Californians.

“It makes it seem like it’s inevitable, that things are going to go this way and that things are going to go back the other way — no, there is a fierce pitched battle,” Armour said. “This idea that things just happen, it papers over the real pitched battle, the struggle, the political contest going on that makes change happen.”

Copaganda

Police and prison guard groups have tried to roll back Prop 47 multiple times since its passage in 2014, but none have been as well-funded as this year’s Prop 36. Retail giants Walmart, Target, and Home Depot poured more than $6 million into the campaign, while In-N-Out and 7-Eleven each chipped in $500,000. Along with major donations from pro-business PACs and the state prison guards union, the campaign racked up nearly $17 million, dwarfing the opposition.

The opposition raised about $6 million, leaning heavily on major donations from wealthy Democrats such as Patty Quillin, wife of Netflix executive chair Reed Hastings, and oil heiress Stacy Schusterman.

For months, the Prop 36 campaign ran ads presenting the bill as a way to address the fentanyl crisis and make both businesses and consumers safer by putting people committing low-level property crimes behind bars.

After a spike during the initial years of the pandemic, property crimes have again begun to decline across California, continuing a decadeslong trend, which sees rates at about half of what they used to be in the 1990s, according to Department of Justice figures. But that hasn’t stopped media outlets from keeping broadcasts of “smash-and-grab” incidents as mainstays of evening news cycles, often recycling the same footage.

One recording in particular came to stand in for crime and chaos writ large. During the holiday shopping season in 2021, police in Concord, a suburban city just outside of San Francisco, released grainy surveillance footage showing a group of people in hoodies and masks hacking at glass casings of a Kay Jewelers with hammers and crowbars. That same day, television news outlets across the Bay Area and nationally on CNN and NBC News broadcast the police video of the so-called smash-and-grab robbery.

The Yes on 36 campaign seized on the endless news coverage and used the broadcasts, including footage of the 2021 Concord incident, in TV ads and on the campaign’s website.

“You see it almost everyday, smash-and-grab criminals cause stores to raise prices, lock up items and close their doors,” said Sacramento County Sheriff Jim Cooper in a TV ad urging voters to vote yes on the proposition while the Concord footage played over eerie music. The ad also features former Los Angeles Mayor Antonio Villaraigosa, who said voters have to “do more to solve California’s crime problem.”

This paints a deeply misleading picture of reality, according to criminal justice experts.