Is The Yolo County District Attorney Betraying CA Voters?

On March 8, 2018, brothers Oleg and Sergey Galushkin drove to a Nugget Market in Yolo County, California, where, police said, they shoplifted bottles of vodka, lighters, butane and lighter fuel, a total value of under $200. The two then went to a Safeway and took six bottles of vodka and some frozen meat.

Someone called the police, and the men were arrested and charged with the felony of “conspiracy to commit a misdemeanor,” which made them eligible for time in state prison, even though, under California law, thefts under $950 are all considered misdemeanors, which carry a sentence of less than 12 months. (They ultimately pleaded to misdemeanors.)

In another area case, Karina Chavarria shoplifted about $600 worth of merchandise from a Walmart, including bedding, lamps, laundry detergent, and soap. The store recovered all of the items, but Chavarria was charged with a felony, like the Galushkin brothers. (She ultimately pleaded to a misdemeanor.  Jonathan Raven, the chief deputy district attorney in Yolo County, said his office tried to get her into treatment.) And, in Davis, California, Alec Morgan was charged with a felony conspiracy to commit a misdemeanor when he and two friends stole two bicycles, both worth under $200, from an apartment complex.

In a county of a little over 200,000 people, the elected Yolo County district attorney, Jeff Reisig, has been using his prosecutorial discretion to circumvent Proposition 47 and Proposition 57, two measures that passed in 2014 and 2016 intended to reduce state prison populations. Prop 47 makes certain low-level crimes misdemeanors. But by using a felony charge known as “conspiracy to commit misdemeanor”—the charge makes any theft conducted by more than one person a felony regardless of the amount—Reisig is threatening to send people to prison for minor acts of theft.

Reisig–like other nominally progressive district attorneys in California–opposed Prop 47 and Prop 57 when they were on the ballot. He argued that Prop 47 was a “revolving door” on crime. In 2003 and 2010, his office had the highest rate of children charged as adults under California’s direct file law. He has a history of overcharging, including, for example, Vincent Ruiz, a man who was playing outside with a laser pointer and was charged with the felony of “discharge of a laser at an occupied aircraft.” But it’s clear that residents of Yolo County want the new reforms enforced. Both Prop 47 and 57 passed with a majority of votes in the county. According to the ACLU Foundations of California, 61 percent of county residents voted in favor of Prop 47; 68 percent for Prop 57.

In the lead-up to his primary election on June 5, Reisig has promoted his creation of a neighborhood court and other diversion courts, but he has remained a steadfast opponent of criminal justice reforms favored by many California voters. He is one of the many prosecutors in California who have decried Prop 47 as a “public safety disaster.”

DAs and other officials who oppose criminal justice reforms have persistently presented a message that Prop 47 has resulted in shoplifting with impunity because would-be thieves know that they will not go to state prison if their theft is less than $950. Some local California police have argued that they can’t even arrest people for shoplifting because the law doesn’t allow them to be charged with a felony. As a result, they claim, arrestees are released into the community quickly and do not face state prison time.

In reality, there is ample evidence to show that crime in California has continued to decline. Even the California Retailers Association, a trade group that advocates for store owners, says that it’s too early to tell if Prop 47 has caused any change in shoplifting patterns.

Michael Romano, an attorney with Stanford’s Three Strikes Project, pointed out in a phone interview with The Appeal that shoplifting is still against the law, despite changes to sentencing or charging decisions. And, there’s actually nothing in Prop 47 forbidding local police departments from holding accused shoplifters in jail on bail. What Prop 47 did do was force county jails to decide which people would get probation rather than jail time, and most departments have opted to save their limited jail space for violent crimes.

But, those against reform have argued that shoplifting is increasing and Prop 47 should be changed. There are two proposals to roll back Prop 47. One is comprehensive and backed by groups who strenuously argue against the criminal justice reforms that California residents overwhelmingly voted in favor of. The other focuses purely on the shoplifting issue and enjoys broad support from liberal DAs. Both rely on statistics that suggest shoplifting is rising nationally, but not that California is experiencing an increase.

One major driver of the campaign to roll back Prop 47 is the California Retailers Association. Using anecdotal evidence, the association has helped spread anxiety that shoplifters have formed “retail theft rings,” the equivalent of a shoplifting criminal enterprise. While some thefts are most likely part of a group effort—people may be stealing some products to resell—there’s no official definition of “organized retail theft” beyond the one that the trade association has created. Retail associations and law enforcement have long claimed that shoplifting is a major source of income loss, but the data comes from the National Retail Federation itself, and it’s not clear whether this is the result of outside shoplifters or employee theft. And while the National Retail Federation did a 2017 survey that found 95 percent of store owners said organized theft was a problem, they did not do any California-specific research. Bill Dombrowski of the California Retailers Association confirmed in a phone interview that while “we all know” shoplifting has increased, there was no state data.

More comprehensive rollback efforts are being spearheaded by California Assemblyman Jim Cooper, a Democrat whose district includes Sacramento, and the Republican district attorney in Sacramento, Anne Marie Schubert. Their backers include the Klass family, prominent proponents of the Three Strikes Law, under the banner of the California Public Safety Partnership. Cooper has cast the shoplifting problem as one that impacts small businesses, not big-box stores. In a statement released by the California Police Chiefs Association, Cooper said, “Emboldened thieves will continue to extort the law with no consequences, resulting in increased costs for day-to-day essentials for working-class families.” The partnership includes trade groups like the California Grocers Association, whose policy director said: “Since 2014, we’ve seen a significant increase in both incidents and in the value of cases as it became known that no matter how many times you’re caught—so long as you stay under $950—you’ll just get a citation to show up in court.” (Assemblyman Cooper was the grocers association’s “Legislator of the Year.”)

The second proposal, in contrast to Cooper’s, is sponsored by Assemblyman Reggie Jones-Sawyer from Los Angeles and backed by the California Retail Association as well as half a dozen DA offices, including San Francisco’s DA office. (Governor Jerry Brown also participated in the drafting, according to Jones-Sawyer.) Promoted as a compromise bill, the proposal would make organized retail theft a “wobbler” – something that can be charged either as a misdemeanor or a felony. Jones-Sawyer described this as “right down the middle.” Dombrowski of the California Retailers Association said Prop 47 has “contributed” to shoplifting, but added, “I’m not willing to say it’s the source of all problems.” He said the association supported  Jones-Sawyer’s bill because “our industry didn’t have any interest in getting involved in that fight [over general criminal justice reform].”

Raven, the Yolo County chief deputy DA, explained to The Appeal that the data did not show a significant increase in the number of “conspiracy to commit misdemeanor” charges. The number of cases charged as “conspiracy to commit misdemeanor” more than doubled between 2014—the year that Prop 47 passed—     and 2015, from nine to 21. But at least half of those cases include other felony charges, which Raven argues shows no intent to inflate charges. Instead, he cast the use of a conspiracy charge as prosecutorial discretion that “is a valuable tool in the right cases.” He also pointed out that the number of misdemeanor conspiracy cases was only a small portion of the nearly 4,000 misdemeanors filed in Yolo County every year. (Raven also discussed the specific cases at issue and pointed out factors that he thought would justify a conspiracy charge.)

Reisig’s decision to charge people with felonies for stealing even a few hundred dollars’ worth of merchandise has become an acceptable move for prosecutors even when the electorate has specifically decided that such thefts should not be punishable by state prison time. Tracie Olsen, the public defender of Yolo County, said in an email statement: “Jails and prisons should be reserved for those that are truly a present danger to public safety. It’s really all about differentiating between those that we are afraid of and those we are simply mad at.”

Reisig now faces opposition for district attorney from Dean Johansson, a public defender who has argued against this sort of overcharging. It remains to be seen how much a factor the issue will be in tomorrow’s June 5 primary, which may come down to a partial referendum on the future of criminal justice reform in the state. Jonathan Simon, a law professor at University of California, Berkeley, who has studied trends in California incarceration, said: “It is important not to underestimate how seriously both prosecutors and police organizations take the very recent and still emerging popular turn against the politics of ‘fear of crime’ that had dominated American politics from LBJ to Obama. …Without the extraordinary valorization of law enforcement freedom of action in the era of fear of crime, the extraordinary expansion of law enforcement power would strike many as intolerable and unconstitutional.”