California’s Predictable Descent into Petty Lawlessness

By Charles C. W. Cooke

Monday, August 14, 2023

 

Like many others, I saw the astonishing footage of the robbery in Southern California over the weekend, and I wondered, “How on earth did we get here?” If you haven’t seen it yet, prepare to be shocked. Without a care in the world, between 30 and 50 criminals run into a Nordstrom in  Topanga, smash the place up, and leave with nearly $100,000 worth of merchandise. Worse still, it was not an isolated incident. Per NPR, “Saturday’s robbery was the third Nordstrom heist in California in less than two years,” while “just days before,” a similar attack was staged “at the Yves Saint Laurent store in Glendale.” Next up? Wherever they want to go, apparently.

 

Elsewhere on the West Coast, the battle is slower and less brazen, but highly damaging nevertheless. Last month, ABC reported that “shoplifting continues to be an issue for stores across San Francisco” — to the point at which Walgreens is complaining that it is being “hit 15 to 20 times a day” and has decided to chain up its stores’ freezers as a result. During the filming of a recent segment at a Walgreens on 17th Avenue, the network “witnessed multiple shoplifters” wander in and steal supplies within the space of a single hour. “One of them,” ABC relayed, “took the time to explain why he simply didn’t pay: ‘It’s San Francisco, Bro.’”

 

Why has this happened? At least in part, it has happened because California decided to let it happen. In 2014, voters in the state passed Proposition 47, a ballot measure that transmuted certain nonviolent property crimes — in particular, those whose damages do not exceed $950 — from felonies into misdemeanors. And, would you believe it, the result has been a massive increase in nonviolent property crimes whose damages do not exceed $950! Couple Proposition 47 with the rise of prosecutors who do not prosecute — a national problem that is particularly acute in California — and you get that most inexplicable of outcomes: a diminishment in public order that was consciously approved by the state’s voters.

 

Bro.

 

When criticized, the architects of such reforms tend to become hyper-literal. “No,” a recent fact check over at Verify.com insisted pedantically, “you can’t steal up to $950 worth of merchandise in California without consequence under Proposition 47. The proposition reduced the punishment for certain theft crimes, but it still classifies shoplifting as a misdemeanor.” Which is true, but misses the larger point. No, Proposition 47 did not legalize theft. But it was symptomatic of an attitude that held that robberies did not especially matter — or, at least, that they did not matter enough to take as seriously as California had been taking them until 2014. Stores, you see, are owned by rich people with insurance. Who cares if they are inconvenienced? Inequality, systemic racism, mental health — those are our real challenges. Walgreens, schmalgreens. What could possibly go wrong?

 

As a guy who considers himself a small-l liberal on many criminal-justice matters, I must confess that I found this approach baffling at the time, and I find it baffling now. This isn’t liberalism, it’s nihilism. It’s not reform, it’s abdication. It’s not empathy, it’s self-indulgence. Dispositionally, I do not have much Archie Bunker in me; I’m a squish, a proceduralist, more Alan Dershowitz than Nancy Grace. As a matter of habit, I am staunchly defensive of the Constitution’s explicit guarantees of presumption of innocence, due process, speedy and public jury trials, the right to remain silent, and the right to confront one’s accuser, as well as its explicit prohibitions against warrantless and unreasonable searches and seizures and double jeopardy. Policy-wise (rather than constitutional-mandate-wise; I’m still an originalist), I favor pretty much every prophylactic rule you can imagine. I like the exclusionary rule, which prevents evidence that was illegally collected from being used in court; I like the right to counsel, which obliges the states to provide attorneys to defendants who cannot afford their own; I like the Miranda warning, which forces the police to inform suspects of their right to avoid self-incrimination. Moreover, I believe that it is not enough to have these ideals merely enshrined within the law; they must also be cherished by the culture, lest they atrophy over time. A political culture that will tolerate an obviously guilty man walking free because the government broke the rules — or was unable to prove his guilt satisfactorily in court — is a political culture that will retain the antibodies that are necessary for the preservation of liberty. In a free country, it should be difficult to convict someone of a crime.

 

But it should not be impossible — or, worse, unthinkable. There is — or, at least, there ought to be — an enormous difference between insisting on placing a series of obstacles in front of the government when it is trying to punish presumptively innocent people and deciding preemptively that a whole bunch of our laws will be downplayed or ignored. In democratic countries, lawyers like to distinguish between laws that exist to reflect and enforce pre-existing, broadly held moral sentiments (don’t steal, don’t kill, etc.) and laws that exist because they are part of the broader system we have elected to erect. A good example of the latter type — which we call malum prohibitum (bad because it’s prohibited) — is tax compliance. A good example of the former type — which we call malum in se (bad in and of itself) — is . . . well, stealing other people’s stuff. It is often noted that, far from helping the downtrodden, the secondary effects of tolerating property theft are disastrous for the poor. This is true. But it is also the case that stealing is wrong per se. Private property is the foundation of our society. To signal that theft is no big deal is to undermine that foundation. As one cannot have a culture of ordered liberty without protecting the public from violence, one cannot have a culture of ownership without protecting the public from theft. It’s the little things — not the big ones — that most acutely affect the quality of life.

 

Ultimately, California’s descent into petty chaos is predicated upon a devastating misunderstanding of the proper role of the state. The ideal government is one that passes no more laws than are necessary, keeps the number of malum prohibitum regulations as small as possible, and aggressively enforces what remains within a system that is tilted toward the rights of the accused. By refusing to take its role within this scheme seriously, California has forfeited the benefits of an adversarial system of justice and attempted in vain to play both sides. It won’t work.