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by Peter Moskos

May 18, 2016

Make misdemeanors great again!

Shoplifting has gotten a boost in California. From the AP:
Shoplifting reports to the Los Angeles Police Department jumped by a quarter in the first year, according to statistics the department compiled for The Associated Press. The ballot measure also lowered penalties for forgery, fraud, petty theft and drug possession.
The increase in shoplifting reports set up a debate over how much criminals pay attention to penalties, and whether law enforcement is doing enough to adapt to the legal change.
It's so rare (but more common than many people admit) to see good direct cause and effect in criminal justice. My general belief is that people don't give a damn a potential penalty and instead commit crimes when they think they won't get caught. But I could be wrong.

I remember a conversation on the street, back when I was a cop. From my notes:
Had a weird talk with a guy who was suspected of pointing a gun out a car window. No gun was found. The guy said, “I don’t have a gun, I’m a convicted felon!” I asked him for details. He said he did strong armed robbery, no weapon involved other than hands, got four years.

I said, you didn’t do that in Baltimore, cause you won't get 4 years for yoking [unarmed robbery] in the city. Turned out it was in the county. He said the max was seven years. He was expecting 2 years for a four year crime: “I wouldn’t have done it if I knew it was seven years.”

Let me get this right, you’re saying you weighed the severity of the punishment with the how-useful-is-the-crime?

“I always weighed the punishment.... I was [also] copping for others, but they didn’t send me any commissary money. Fuck that, if they won’t look after me.... So now I’m trying to go straight.”
Back in California:
Prosecutors, police and retailers ... say the problem is organized retail theft rings whose members are well aware of the reduced penalties.

"The law didn't account for that," said Capt. John Romero, commander of the LAPD's commercial crimes division. "It did not give an exception for organized retail theft, so we're seeing these offenders benefiting and the retailers are paying the price."
On the other hand:
Adam Gelb, director of the public safety performance project at The Pew Charitable Trusts, disputes those sorts of anecdotes.
His organization recently reported finding no effect on property crimes and larceny rates in 23 states that increased the threshold to charge thefts as felonies instead of misdemeanors between 2001 and 2011. California raised its threshold from $400 in 2010.

"It's hard to see how raising the level to $950 in California would touch off a property crime wave when raising it to $2,000 in South Carolina six years ago hasn't registered any impact at all," Gelb said.
My first thought is that seems like ideological wishful thinking. It might be hard to want see how... but you can try harder.

But here's what I don't get. Why can't police investigate serious misdemeanor? (Hell, in Baltimore they're putting cops on trial for minor misdemeanors.)

The article concludes:
For his part, Lutz, the hobby shop owner, has provided police with surveillance videos, and even the license plate, make and model of the getaway vehicles.

"They go, 'Perry, our hands are tied because it's a misdemeanor,'" Lutz said. "It's not worth pursuing, it's just a waste of manpower."
But why should a legal and semantic redefinition "tie police hands"? Police could investigate; they are choosing not to investigate because the crime -- with the same dollar amount as last year -- has been redefined a misdemeanor. That's more a police choice. And maybe it's not the right one.

[Though in some states (I don't know about California) the rules are different and many misdemeanor crimes need to be viewed by a cop for a cop to make an arrest. That said, shoplifting is an exception.]

Leaving aside the specifics, I think more felonies should be misdemeanors. Misdemeanors are crimes, too. These days almost everything can be a felony, and that's not right. Felonies are supposed to be life-changing citizen-disqualifying kinds of crime. Not run of the mill drugs or non-violent theft. Maybe sometimes people should get a year for a serious misdemeanor instead of a PB&J (probation before judgement). The problem isn't that a serious crime is only a misdemeanor; the problem is we don't take misdemeanor's seriously.


john mosby said...

Also if you commit multiple misdemeanors, such as when you're a member of an organized shoplifting ring hitting several stores a day, your sentences could run consecutively.

About 20 years ago, I ran across a defense lawyer who proudly hung up articles in his office showing how he spent 3 years in prison. They were for 3 separate misdemeanor counts - he really PO'd the judge. But he had no loss of civil rights when he got out, which explains why he still had a bar card.

But more to the point: do we think police ignoring misdemeanors was a feature, not a bug, of the reclassification?

After all, wasn't the driving factor prison overcrowding?


campbell said...

At least out west, part of the problem is staffing. Officers per capita isn't everything, but it's certainly something, and NYPD has almost twice as many sworn personnel per capita as San Fran and L.A. I bet LAPD could go after a great many misdemeanors with another 10K officers.

campbell said...

I'm skeptical that the big difference driving the shoplifting rates though is the organized rings. I'm sure it's part, but a consequence of reduced penalties for drug and property offenses is having a lot more addicts out and about and newsflash, those people are kind of fans of taking shit and not paying for it.

Peter Moskos said...

I'm with you Campbell. There should be more cops, and I'm always skeptical of "organized gangs" when junkies are roaming about. But somebody boosting $900 was and could be worthy of police time.

John, yeah, I think you're right about the motivations and it being a feature and not a bug. But all that should mean is that the recommended and maximum penalties are less, right? It wouldn't mean that police can't investigate and make arrests.

Jay said...

Misdemeanor doesn’t mean the shoplifter has to go free. It can mean jail time less than a year.
“people don't give a damn a potential penalty and instead commit crimes when they think they won't get caught.” Most views of deterrence going back to Beccaria agree – certainty is more important that severity. But apparently the cops and the system they are part of don’t see it that way. They don’t think there’s much to be gained by locking up lots of people for shorter terms. They’d rather go after big fish. I’d like to see what happens if the decrease in penalties is coupled with an increase in incarceration, albeit for a shorter stint.

Otis Blue said...

In my agency the quality of and amount of prep time allowed for the prosecutor varies dramatically with felonies vs misdemeanors. I can't count how many solid misdemeanor cases I've had go to trial only to find a certified law student or brand new prosecutor who likely just got handed the case (along with two other cases) the evening before. We then lose everything in motions and the case dissolves. My experience is so bad that I've never actually had any of my dashcam evidence allowed into a misdemeanor trial; it always gets excluded in motions. Granted, this is largely due to the fact that the prosecutor doesn't want to bother editing the video to remove only what has been excluded, but it reflects the fact that it's not just cops who don't care about misdemeanors, it is the prosecutor's office as well. I learned pretty early on to not waste effort bringing cases that the DA doesn't want; I'm just exposing myself to liability on cases that will be dropped or handled as an annoyance.

JPP said...

There's an article in star tribune Minneapolis detailing a struggle for officer's gun, if anyone's interested.

campbell said...

Link to the above if anyone's interested.


Kind of a rough one, but at least ended well. For fuck's sakes, unless there's no other option, don't try to handcuff a perp by yourself. And learn some basic fighting defense and get a small fixed blade you can easily access from your weak side to use in a fight over your gun.

JPP said...

@campbell, my cop buddy agreed, he thought the guy looked undertrained. He went to arrest him for a felony warrant by himself, which seems out of protocol, right?

Andrew Laurence said...

Among rich countries, only the US and the UK disenfranchise felons. The UK is actually prohibited from doing so by EU rules but does it anyway. Unless your felony was related to electoral fraud, you should never be stripped of your right to vote. For a freedom-loving people, Americans sure don't seem to think that depriving people of their freedom by locking them up is sufficient punishment.

Bruce Ross said...

The officers I've talked to tell me the rules about "cold misdemeanors" can make it not worth the time to investigate -- and yet even when they catch someone in the act, they are often cited and released. I don't quite get it.

Other problems I've heard involve the ability of the courts to order defendants into drug treatment or the like, and the lessened ability of probation departments to supervise.

It is one thing to say people shouldn't do hard time for non-violent crimes. But the larger issue with the transition seems to involve nuances over how the system handles misdemeanors. It is not clear to me how many of those are statutory and how many are the system just defaulting to how it used to handle misdemeanors when almost any crime was at least a potential felony. I.e., if officers weren't arresting on misdemeanors, they still don't -- even the nature of "misdemeanor" has changed.

campbell said...

He went to arrest him for a felony warrant by himself, which seems out of protocol, right?

Absolutely, at least in any kind of decent sized city PD. Highway/state guys or county deputies in remote areas will do things a city guy would never do, simply because the shortage of manpower. But in this case it seems he had other units who could back and should never have been trying to take a big guy like that into custody by himself for no good reason.

Adrian said...

Link to a story about a shoplifting ring where I'm at that only got investigated/busted because it eventually led to a murder.
But for that, it'd still be going on.