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PaperclipPerfector  4d ago (text post)   22569 thread views

Culture War Roundup for the week of October 28, 2024

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(1) Another Scott Watch. Note: I am not a California resident.

How's about this essay and comments on ACX?

The Case Against California Proposition 36

Scott publishes a guest essay by Clara Collier who argues against California's Proposition 36. Prop 36 modifies California's Prop 47 which increased the value required in crimes such as shoplifting and theft ($950) before qualifying as a felony charge. Readers of this forum should be familiar with the basic story arc here. Prop 47 passed, 2018-2022 came, more compassionate district attorneys were elected, less thieves kept in prison, and policing was softened. Now it is common in the big CA metropolises for stores lock up items like toothpaste to deal with an increase in opportunistic and organized retail theft.

Offenders repeatedly arrested with hard drugs (now including fentanyl) will face felony charges if Prop 36 passes. It allows judges to send presumed dealers or suspects with large quantities of drugs to prison instead of county jail. It carves out some exceptions for mandated or opt-in treatment-- which Clara Collier thinks is useless, because CA doesn't have enough in-patient beds anyway. Collier also shares there's not enough room in prison and identifies Prop 47 as a response to an overcrowded prison population. The money saved from not putting people in jail is spent on various treatment and rehabilitation programs.

No real comment on the efficacy of treatment programs that California mandates through Prop 47. It sounds like they're probably not very effective.

The comment section on this article is lively for ACX. Lots of finger pointing and blame to go around.

As Collier says, California can lock people up for longer, but there's a hard limit for how many prisoners can be housed. I would think this answer would be obvious: build more prisons. Personally, I still think there's a place for work camps and chain gangs for offenders less likely to run off. Probably more personnel heavy, but less structural overhead to build a camp out and dig a well out in the wilderness. Maybe this is an impractical romanticized idea, or it is considered cruel and unusual these days.

There's an additional argument between people pointing out that an increase in prison time doesn't matter if prosecutors don't prosecute. Which became more common since 2018 in liberal cities and was supercharged in 2020. The other side, including Clara, points fingers at police for being lazy good-for-nothings (my words, not hers) that don't do their job right. For me, it is obvious that police who don't expect the criminals they arrest to be punished are less inclined to arrest people. I would expect this to be the conclusion of rationalists who are interested in incentive structures, but I guess there's enough compounding problems, and policing unpopular enough, it can be quietly asserted that cops are bad, or swept under the carpet.

I do agree that following through with prosecution and "clearing" cases matters more than whether something is a felony or misdemeanor. The value in making it a felony is that it should encourage prosecutors and police to go after cases. It is a signal from the people saying, lock these people up actually and felony convictions hold more weight in law enforcement and DA offices. "I have X felony arrests or X felony convictions" is a metric most police and prosecutors will point at as a record, unless your police and prosecutors consider more arrests/convictions as a bad thing. It can be a bad metric for performance that leads to unnecessary prosecutions and pleas, but maybe it's still better than this alternative.

If I were a California resident, and my city left me dissatisfied, I would probably vote for Prop 36 just to send a signal to officials. Deal with this problem. That's pretty much it. I wouldn't care about how ineffective prison is, or impossible it is to jail more people. I'd start with this, then ask for more. The alternative, which Collier advocates, is more of the same. Which, as a dissatisfied resident, would not appeal to me. Then, I'd probably vote for DA's that do stuff like convict criminals and a state leadership that builds more prisons when they're full instead of releasing criminals.

(2) Among the comments was posted this piece by City Journal earlier this year. I had missed this whole story, it is more interesting than the ACX post, and it probably deserves its own post. Maybe you guys already did that.

The The California Racial Justice Act of 2020 is starting to bear fruit for convicts in the California penal system.

"The Act, in part, allows a person to challenge their criminal case if there are statistical disparities in how people of different races are either charged, convicted or sentenced of crimes. The Act counters the effect of the widely criticized 1987 Supreme Court decision in McClesky v. Kemp, which rejected the use of statistical disparities in the application of the death penalty to prove the kind of intentional discrimination required for a constitutional violation."

The Act, however, goes beyond countering McClesky to also allow a defendant to challenge their charge, conviction or sentence if a judge, attorney, law enforcement officer, expert witness, or juror exhibited bias or animus towards the defendant because of their race, ethnicity, or national origin or if one of those same actors used racially discriminatory language during the trial.

The RJA allows convicts that can show racial disparities in sentencing and various other flavors of racial bias. Including one example in the article of a policeman who, claiming that he did not see the race of an individual driver in a car before he pulled it over, where it was argued this could be true-- but still racially biased because of "unconscious" implicit bias.

Judge Cheri Pham wrote, a person could reasonably conclude that Shore “believes certain racial or ethnic groups commit more crimes than others.” (They do.) Just as bad, Shore may not “give weight to statistical evidence that indicates there is an implicit bias against certain racial or ethnic groups.” (Fittingly, Pham earned her J.D. from the Berkeley law school.)

The San Diego Public Defenders Office had sought to prevent a San Diego Superior Court judge from hearing an RJA motion in a homicide case. The judge’s sin? In a previous prosecution, he had questioned the defense claim that blacks and Hispanics are disproportionately incarcerated—a claim based on population ratios, rather than crime commission. “There is absolutely no evidence that . . . the proportion of persons in an ethnicity committing a crime must be the same as the proportion of the population,” Judge Howard Shore had said in court. In another case, Shore had questioned whether the criminal-justice system is infected by racism.

I'm open to the idea City Journal is being uncharitable and misrepresentative here, but it seems like California's legal system faces a number of crises. Which, given the statistics of crime and prosecution, is what I would call this trend. Ok, I'm out of steam.

No real comment on the efficacy of treatment programs that California mandates through Prop 47. It sounds like they're probably not very effective.

You don't need efficacy numbers, or really any reasoning at all, if you have the magical incantation of "treatment". The author tells us exactly how magical she thinks "treatment" is:

But tougher sentences don't keep fentanyl off the streets, and treatment does.

What plausible causal mechanism could be behind this sorcery? Especially since I have it on good authority, from advocates at the highest court in the land, that a person cannot go from being addicted to drugs to not being addicted to drugs.

I'd be curious to see how Californian treatment programs compare to PRC treatment programs in success rates. At least, they seem proud of it, and their statistics sound compelling: http://us.china-embassy.gov.cn/eng/zggs/202307/t20230706_11108971.htm

They have a clever way to encourage addicts into treatment. There are voluntary treatment programs, which you're encouraged to choose to do. If you don't, you fall through to the compulsory rehabilitation and isolation programs.

Major HBD confounder, there.

Clara's core argument is that longer sentences do not decrease crime, so vote no on 36.

Californians - at least, those of us in big cities - shouldn’t have to tolerate the current rate of retail theft. But the decreased sentences of Prop 47 didn’t cause this crime, and there’s substantial evidence that harsher criminal penalties won’t decrease it. So what should we do?

The paper she links says the opposite, Clara just chooses to ignore the sections that don't agree with her:

8.6. Summary: Incapacitation versus standard release Surveying these studies of incapacitation relative to standard release reveals a few patterns:

• All find incapacitation.

• Incapacitation emerges more clearly for property crime than violent crime. Possibly this is merely because some of the policies studied (in the Netherlands and California) focused on people convicted of property crimes. But it may also be that the propensity for violence is more evenly distributed in the population, so that incarcerating some people does less to contain it.

Clara is not an honest person. She does not seriously engage with the question "do longer sentences decrease crime." She selectively engages in the question in such a way that points to her favored outcome. She openly lies about the content of papers she uses to argue her favored outcome.

An honest reckoning of this question needs to consider incapacitation - when someone is locked in prison they cannot engage in crimes outside of prison. I have yet to see an explanation for the below two facts.

  1. criminality is extremely concentrated, it is the same people being arrested over and over again. https://x.com/cremieuxrecueil/status/1647031826202935300

  2. people who are released from prison will the majority of time go on to commit more crimes.
    https://www.prisonpolicy.org/research/recidivism_and_reentry/

It is extremely clear that criminality is very concentrated. It is the same people being arrested over and over again, of course keeping them locked up longer will decrease crime. When they're let out they usually reoffend. They reoffend at such rates that it is impossible to believe that letting them out will not increase crime.

You definitely need to post this call-out in the thread. Lying about what's in cited papers knowing nobody will read them should be disqualifying, or the spirit of SSC is just another hollowed-out skin-suit for leftist propaganda.

I did go back and reread the paper. "Openly lies" was not very charitable of me, and there is an interpretation of it that supports what she says. I just think its a very bad interpretation, to the point still makes me question her and the authors integrity.

The claim is this, from the top line summary. Basically that while incarceration does reduce crime via incapacitation (Section 8), it also causes more crime inherently (Section 9). And that these effectively cancel each other out:

The crux of the matter is that tougher sentences hardly deter crime, and that while imprisoning people temporarily stops them from committing crime outside prison walls, it also tends to increase their criminality after release. As a result, “tough-on-crime” initiatives can reduce crime in the short run but cause offsetting harm in the long run.

So the question becomes: does a reasonable reading of Section 9 say this? I do not think it does, and I think its very weak to the point of dishonesty to claim it does. There are 13 studies examined, here is the summary.

9.14. Summary: Aftereffects The preponderance of the evidence says that incarceration in the US increases crime post-release, and enough over the long run to offset incapacitation. A quartet of judge randomization studies (Green and Winik in Washington, DC; Loeffler in Chicago; Nagin and Snodgrass in Pennsylvania; Dobbie, Goldin, and Yang in Philadelphia and Miami) put the net of incapacitation and incarceration aftereffects at about zero. In parallel, Chen and Shapiro find that harsher prison conditions—making for incarceration that is harsher in quality rather than quantity—also increases recidivism. Gaes and Camp concur, though less convincingly because in their study harsher incarceration quality went hand in hand with lower incarceration quantity. Mueller-Smith sides with all these studies and goes farther, finding modest incapacitation and powerful, harmful aftereffects in Houston; but modest hints of randomization failure accompany those results.

Some studies dissent from the majority view that incarceration is criminogenic. Roach and Schanzenbach find beneficial aftereffects in Seattle—a result that is also subject to some doubt about the quality of randomization. Bhuller et al. make a more compelling case that incarceration reduces crime after—in Norway. Berecochea and Jaman, one of the few truly randomized studies in this literature, also looks more likely right than wrong, and is also somewhat distant in its setting, early-1970s California. And there are the two Georgia studies (Kuziemko and Ganong), which upon reanalysis no longer point to beneficial aftereffects, but still do not demonstrate harmful ones either.

Aftereffects must vary by place, time, and person. But the first-order generalization that best fits the credible evidence is that at the margin in the US today, aftereffects offset in the long run what incapacitation does in the short run.

Ok so of the 13 studies they looked at, some say more prison makes people commit more crimes when they are released. Some say that more prison makes people commit less crimes when they are released. Some say that more prison doesn't have any effect people committing crime when released.

Positive aftereffects, count of more crime studies: 9.3!, 9.4!!, 9.9

Negative aftereffects, count of less crime studies: 9.1, 9.7, 9.8, 9.11, 9.12!!!!

Zero aftereffects, count of same crime studies: 9.5!!!, 9.6, 9.10, 9.13

Not clear aftereffects, count of little predictive value: 9.2

I did really only skim these, so possible I misassigned some. But I think it is very clear that from the studies reviewed they have no idea the impact of incarceration on recidivism. Very curious how aftereffects can vary by place, time and person so much and still offset the results of incapacitation. Looks very unclear to me, and given the highly concentrated nature of criminality this is not sufficient evidence to conclude that being incarceration is criminogenic such that it cancels out the effects of incapacitation. No idea how the author comes to the top line conclusion they do. Wonder if it has anything to do with this:

The Open Philanthropy Project has joined a latter-day criminal justice reform movement. It too is motivated by the belief that something is wrong with the state’s use of punishment to combat crime. Something is wrong, in other words, with those pictures. Higher incarceration rates and longer sentences, along with the “war on drugs,” have imposed great costs on taxpayers, as well as on inmates, their families, and their communities (Alexander 2012).

! 9.3 does not actually look at how long prisoners are in prison, it only looks at security levels. Why is it in here?

!! 9.4. Similar to 9.3, this only looks security levels, and only among those that return to prison. Nothing about if they commit more crimes, or even if those in higher security commit more or less crimes. It just asks "if they were in a higher security level prison, does someone who is reoffend do so faster or slower than in lower security." Say only 1 of high security prisoner reoffends, but he does it in a day after release. If 100% of lower security releasees reoffend, but they all do it longer than 1 day after release, then this study says its more assignment to a higher security prison causes releasees to go back to prison faster.

!!! 9.5 - this one was actually very weakly more crime, but author says it is so weak he is counting it as 0

!!!! 9.12 - original study said strong negative aftereffects, author reanalyzed and says ambiguous. Maybe this goes in zero.

I do wish we could figure out real rehabilitation methods for those that could be receptive. We can program people to think and believe lots of things. Norway, Denmark, and Japan all have seemingly more successful release programs. Although, I have read on Wordcel Substacker #300 differences in recidivism may not be as stark as they are made out to be as commonly understood.

This 20% vs 76.6% comparison is particularly egregious as the Norwegian figure is more narrowly defined and measured over a much shorter time frame. The American 76.6% figure above was based on rearrest within 5 years (Durose et al., 2014), whereas the Norwegian 20% figure described the number who received a new prison sentence or community sanction that became legally binding within 2 years (Kristoffersen, 2013). Both figures refer to prisoners released in the year 2005.

Of the American recidivism statistics mentioned in the previous section, the 28.8% incarceration figure is arguably the most comparable in definition to that of the 20% Norwegian figure.2 Thus, when the comparison is closer to apples-to-apples, the difference between Norway and the United States is far more modest.

Norway still releases more young people in their 20's that reoffend less than the US. So, something over there works better. Whether that's ethnic, cultural, procedural, or a combination. Intaking people young and releasing them old will decrease crime, yes. Clara would probably say it isn't fair to keep someone in jail for 20 years after stealing $500 of shampoo (for the 5th or 25th time).

Bleeding heart advocacy might be better aimed at separating the extreme serial offenders (who should remain in jail) at the tails from the less dedicated (but regular) criminal. Instead it appears to all be wrapped together in the general Prison Bad memeplex and abolitionist impulse. Effective parole programs should keep former criminals busy and out of trouble, but they don't do this very well. The profit incentive for a private probation contractor is another, if often overstated, complicating factor in my eyes.

I don't trust the state to throw up its hands and say, sorry the best we can do is hand out X year sentences to everyone until they're 40. Thankfully this isn't proposed. For the person on their 12th conviction? I don't know what else can be done. Either accept the trade off (more criminals more crime), ship them to Australia, or some Prospera-style project where Progressive Abolitionist, Inc. can run their own rehabilitation experiments.

Anyone starting to feel like there's nothing really that dystopic about A Clockwork Orange?

The only dystopic part of Clockwork Orange is that they even bothered trying to rehabilitate ultra violent criminals instead of summary execution.

Norway uniquely jails speeders who reoffend far less than a normal which is discussed further down the piece bringing the gap to 25% vs 28%.

The gap is so small that imo default should be incapacitation is not rehabilitory. Maybe not so much in that its so ironclad to be true, but because it would shift the idea that it where innovation in the justice system has potential.

Your points about parole theoretically much better potential seems drastically underexplored compared to prison.

I do wish we could figure out real rehabilitation methods for those that could be receptive. We can program people to think and believe lots of things. Norway, Denmark, and Japan all have seemingly more successful release programs. Although, I have read on Wordcel Substacker #300 differences in recidivism may not be as stark as they are made out to be as commonly understood.

I think to a large extent we already have figured this out, and there really was not much to figure out to begin with. Being receptive to rehabilitation is the battle, that is all it takes, that is rehabilitation. Someone is rehabilitated when they don't want to do crime anymore, and then they go out and don't do crime anymore. Maybe we can program people to think and believe things, but we cannot program people who do not want to be programed. They will just do what they want. But really there is nothing much to program - just don't do crimes.

It is largely forgotten in these conversations that we are asking for the bare minimum. Do not steal, do not be violent, pay your taxes. People refuse to cooperate, they make active and conscious choices to break the law in ways we (almost) all agree are unacceptable, and it suddenly turns into this vexing social problem of "why?" or "how do we fix this". As if something is wrong with us, society, and not them, the criminal. I think that we as a society need to get over asking "why" here, we should realize that it is the simple answer: they want to. They are the problem, they need to fix it. And if they don't want to fix it then they can stay in the cage for the agreed upon time.

To speak to the larger conversation, which I don't necessarily think you are arguing: When we have a conversation about rehabilitation, who is this conversation centered on? It is the criminal. Whose interests should the criminal justice system serve? Is it the criminal's? Or is it society's? I do think that rehabilitation needs to be a large part of the conversation, but the frame always needs to be on society and what is best for us. The conversation cannot just center on rehabilitation, it needs to include incapacitation. The conversation needs to be centered on what is best for society. Clara, and most progressives, ignore this.

As if something is wrong with us, society, and not them, the criminal.

This gets to a key point in my "disparate impact" effortpost, as well as the Emile DeWeaver "Crime, the Myth" piece I linked and quoted here, particularly the bit:

Then there’s a second myth, that crime is an act committed by an individual. Calling an act a crime is instead a choice we make as a society about how we respond to harms committed in our community.

(Emphasis added).

The criminal laws we have did not descend from the heavens. They are a social construct, a societal choice, and we can always choose differently; laws have varied quite a lot across human history.

It's a matter of where we place the problem. I remember an anti-HBD piece from @ymeskhout, giving the example of a game law limiting shellfish harvesting from a beach, and how everyone caught breaking it was a Cambodian immigrant. One can frame this as a problem with the Cambodians, and ask how we get them to stop over-harvesting shellfish… or we can frame it as a problem with a law that disproportionately punishes Cambodians by labeling behaviors more common among them as "criminal." One could easily eliminate said disparate impact by repealing the limit on shellfish gathering, after all.

If, instead of picking our leaders by elections, we did so by a test of sprinting ability ("There's only one Big Giant Office, and whoever outruns the fireball wins!"), the racial makeup of our government would be rather different, wouldn't it? (A lot more Kenyans, Afro-Caribbeans no?) Similarly with all the "13/50" memes; if you replaced the current US criminal code with that of, say, the Kingdom of Dahomey, would the racial disparities stay nearly as stark?

The position in the Kendi, DeWeaver, etc. space is that to frame the problem as being with people is inherently bigotry, and incompatible with values of tolerance and equity. The problem must be seen as with the system, and to address any problems, we must change who and what our society chooses to label as "criminal," and how we treat those so labeled.

I'm reminded of all the "Positive Action" self-esteem building crap we got in grade school back in the late 80s and early 90s (I thought it was stupid and nonsense back then, and my opinion has only gotten lower). It was full of "you're perfect just the way you are" assertions. Take this idea — the flower of liberal tolerance and the individualist view that "[a]t the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" — and combine the value of "equity," and this seems to follow rather straightforwardly.

There's a core liberal impulse here — a "the laws were made for Man" view, a "that to secure these rights, governments are instituted among men… it is the right of the people to alter or to abolish it" view — that we must adapt "the system" to fit, and bring equity and fairness to, the people in all their diversity and freedom, rather than force people to adapt to a particular "system" created by one specific culture, reflecting a specific set of values, out of all the many possibilities.

Kenyans are the distance runners. It's west africans, the dominant genetic heritage of Caribbean blacks, that are the sprinters.

Thanks, fixed. (Like Hakan Rotmwrt said, "High-quality racism is extraordinarily hard work.")

For the person on their 12th conviction? I don't know what else can be done.

Every society in human history before about the year 1900 understood that the death penalty was a perfectly salutary way to get rid of individuals who have conclusively demonstrated, numerous times over an extended duration, that they’re unwilling and/or incapable of participating non-parasitically in society. I have no idea why nearly the entire world forgot this more or less simultaneously.

conclusively demonstrated, numerous times over an extended duration, that they’re unwilling and/or incapable of participating non-parasitically in society

To play devils advocate this would describe the red tribe to people who will very likley end up in charge of the US in the long term.

As I’ve made clear before, I don’t believe that there is such thing as “the red tribe”, nor do I believe that there is any meaningful number of progressives in positions of power who believe in executing people for expressing conservative opinions.

I don’t believe that there is such thing as “the red tribe”

While it's definitely true that there is no cohesive red tribe with common elders and kings, the various groups of normally-republican-voting Americans who side with each other for me and my brother against my cousin reasons are enough of a thing with enough commonalities to merit having a name.

I don’t think there’s anywhere near enough commonality between these various groups, nor enough history of voting together, to constitute anything remotely like a “tribe”. There have been significant political realignments over the last fifty years, including ones even within my lifetime. Entire demographic groups, income brackets, and occupations which used to reliably vote for one party now vote for another. Working-class laborers in the Midwest used to be a very reliable Democratic voting bloc, but the Republicans started peeling them off less than 20 years ago. To me, this sort of thing does not make a “tribe”. Tribes have a long history. What we’re talking about today are just people who watch the same cable news programs and follow the same content creators on Twitter.

Yes, I will agree with you that 'tribe' is a stupid description, although many of the component groups can be fairly described that way. But it is a thing that exists, and has common shibboleths and cultural convergences.

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nor do I believe that there is any meaningful number of progressives in positions of power who believe in executing people for expressing conservative opinions.

True but if once we got to the point where we decided as a society "we should start just liquidating inconvenient people again" it might not be entirely clear where that stopped or who would be designated disposable under that paradigm. I am just as I said playing devils advocate here, I think if we got to the point where we were just executing either thieves or conservatives society would have gone pretty far off the rails albeit in radically different directions in those two cases.

Draco and the bloody code and the regulator-moderator war were exceptions, most historical societies did not execute petty criminals, although corporal punishment, fines, and public humiliation were common and enslavement slightly less so.

Christianity.

The Second Great Awakening was a hell of a drug.

The timing for that doesn’t work out at all. The Second Great Awakening burnt out by the 1830s–40s, several generations before most states eliminated or severely restricted the death penalty. Also, Christians support the death penalty at higher rates than non-Christians, at least in the United States.

The surge in the 70s depends on Supreme Court jurisprudence which probably couldn’t have occurred before the New Deal. But I think capital punishment advocacy does date back to the 1800s. States like Michigan banned it early with explicitly Christian arguments.

Today’s split probably has more to do with partisan habits than with religion.

IIRC the death penalty still retains majority approval in many countries around the world, even those where it has been abolished. It’s not a case of “the entire world” forgetting, so much as it is the Western ruling classes forgetting. This, I suspect, can be ascribed to the ruling class living in ever more of a low-crime, high-trust bubble as compared to the common rabble.

So, yes, the death penalty does have majority public support in many if not most advanced countries. However, in how many of those countries do you believe the statement “the death penalty should be used on individuals who have shoplifted 45 times, but who have not otherwise committed any violent crimes” would enjoy majority support? My sense is that the answer is probably zero. People in European-derived societies appear to have become incredibly squeamish about executing non-violent but otherwise persistent and un-rehabilitatable criminal offenders.

The death penalty for sex crimes and drug dealers probably has majority support in the U.S., although shoplifting specifically I doubt it.

There's a knock on effect of execution for murder or attempted murder on how expensive and awful prisons are. Gangs thrive in prison because the guards are not able to maintain a monopoly on violence, which is partly because many prisoners have nothing left to lose.

Edit: forgot to make the full connection to the current topic, which is that policing minor offenders like shoplifting would still get a lot easier with the consistent application of the death penalty even if they aren't the ones getting executed.

I voted no on all propositions except 36, for which I enthusiastically voted yes. As always, the proposition titles are misleading and meant to misdirect voters. "Involuntary servitude" is of course meant to evoke images of slavery and chain gangs. If that one passes, I am reliably informed that most of the prison jobs will go away due to lack of funding, leaving prisoners without any options to make money.

I entirely agree that 36 is largely seen as an obvious measure by the majority of Californians and will pass easily. I live in a mostly blue area and people who I've spoken with from all walks tend to agree - with the caveat that they're mostly men.

The entire proposition system is fairly useless as the legislature and courts just ignore or distort the results anyway.

If that one passes, I am reliably informed that most of the prison jobs will go away due to lack of funding, leaving prisoners without any options to make money.

Why? If the prisoners wish to work, they'll keep working. If the prisoners largely don't wish to work, I don't think it makes sense to make them work so that a small minority can fulfill their preferences.

They aren't actually forced to work. They may be granted certain privileges if they do work (along with the meager stipend) but no one is forcing them to work. That's the deliberately misleading part.

Here's the full text of the prop.

Slavery and involuntary servitude are prohibited.

(b) The Department of Corrections and Rehabilitation shall not discipline any incarcerated person for refusing a work assignment.

(c) Nothing in this section shall prohibit the Department of Corrections and Rehabilitation from awarding credits to an incarcerated person who voluntarily accepts a work assignment.

(d) Amendments made to this section by the measure adding this subdivision shall become operative on January 1, 2025.[6]

Concretely, which section here do you find objectionable?

I work with a few former prosecutors, and this topic has come up a number of times. It's easy to look at the number of dismissals and non-prosecutions of shoplifting and conclude that the prosecutors are being wishy-washy, but the realities of the situation often leave them with no real alternative. Consider the following case: A store clerk observes a thief stealing an item and calls the police. The suspect is arrested, and a body search uncovers the item. There is video of the suspect stealing the item. This is the perfect case, a slam-dunk to convict right?

In theory, yes; the evidence is incontrovertible. But think about what's actually required for a conviction:

  • The clerk needs to testify that she saw the subject steal the item
  • Someone familiar with the CCTV system needs to authenticate the video
  • The cop needs to testify that the item was in the suspect's possession

The only witness who has a reasonable chance of actually testifying at trial is the cop, but unless he also happened to be there when the item was stolen, his testimony is useless on its own. A clerk making ten bucks an hour is unlikely to spend her day off testifying in court, and her employer is unlikely to pay her to not work. And unless the clerk is also the manager or has some familiarity with the CCTV system, they're going to need a manager to testify if they want to use the video, and good luck with a manager taking the day off to testify. With small convenience stores, there may be one guy running the whole place who would have to close for the day if he were required to be in court. The prosecutor's best bet in these cases is to confront the defendant with the evidence, offer a deal, and if they take it they take it and if they don't, drop the charges. Of course, defense attorneys know this as well, and they know why prosecutors do this, so they can be fairly confident that even if the charges aren't dropped that their client won't be convicted anyway, and the prosecutors aren't stupid so they can just skip the first step and dismiss the case before they waste any time on it, unless the victim is adamant about prosecution. Some are, but when a store proprietor finds out how much it's going to cost him to prosecute over a few hundred dollars in merchandise he usually decides it isn't worth it. Keep in mind that in most of these cases the merchandise is actually recovered, so there isn't even much of a tangible loss. Paying two employees a day's wages to testify is an expensive way of proving an abstract point.

Now combine this with the fact that DA's offices are chronically short-staffed and have high turnover rates. Some people love it, but most people burn out pretty quickly. You make less money for more work. They don't exactly have the manpower to take on every single theft case that gets reported. It's similar to the solution you give of building more prisons — it's easy to say "hire more DAs", it's quite another to actually be willing to pay for it. We're dealing with this situation right now in Allegheny County. County Executive Sara Innamorato is the exact kind of single, progressive, tattooed, DSA-supporting lefty that J.D. Vance hates. The county is currently facing a budget crisis, and she wants to increase property taxes to cover the deficit and give a small bump to the DA's office budget. County Council has describes her plan (which would increase property taxes by $182 for the average homeowner) as dead on arrival, and she's basically thrown down the gauntlet and told them that if they had any better ideas she'd consider them.

If tax increases are a nonstarter in a place that elected Innamorato as executive, they aren't going to play much better elsewhere. Demanding increased funding for police and prosecutors sounds good, but the people making these arguments out of one side of their mouth are bitching about taxes being to high out of the other side. It's basically like the school board meeting from The Simpsons. Where is this money supposed to come from, exactly? take it out of the highway budget? EMS? The board of elections? Parks and recreation? It's easy to blame bullshit on your political opponents, but it's hard to offer any realistic alternatives.

Make the thief, if convicted, liable for the lost wages. If they can't pay, have the state front the money and charge the prevailing interest rate to the thief. If they malinger once out of prison, impress them and make them work it off laboring for the state.

You'd honestly have to do more than that. I'm a litigator, and I regularly attend Plaintiff's depositions. Most of the deponents understand that, while unpleasant, it's part of the process. A few however, act like the whole thing is bullshit and get annoyed any time a lawyer jumps in and wants to ask questions. I want to tell these people that they're suing my company and that they're probably going to get a large settlement so the least they can do is answer ten minutes of questions and if that's too much to ask then they can drop the case and go home right now.

I understand that testifying is inconvenient, but it's part of the process. If we could snap our fingers and put the bad guys in jail, we'd do that, but that isn't how it works. If a shop owner expects the legal system to convict shoplifters, then participating in the system isn't too much to ask.

America can find trillions to pay for silly overseas wars but preventing the robbery of stores is too costly?

I have some experience with legal practitioners, there's a certain inherent status-quo-ism whenever they hear anyone looking for a quick fix to these absurdities. They produce all these examples of edge-cases and procedural reasons for why things can't be done or changing anything is very complicated. Or they blame badly drafted laws (which is fair and reasonable given how badly written some laws are in my country, presumably the USA too).

But I think to myself, none of this applies when people really want something. Free commerce and protection of private property? Not in war time, your property belongs to the state! You're in the army now, straight off to the front! Prices? Regulated! Speech? Restricted! Rights? Gone!

Or take COVID. There must've been a million reasons why, in theory, you can't just order everyone to stay in their houses, have businesses shut down, why it's just too impractical and hard and expensive. But they did it anyway. Were there unreasonable edge-cases and were there absurdities? Absolutely, in industrial quantities.

Law is interpreted and enforced by men. If they really want something to happen, they can make it so. If they really want to stamp out petty crime like this, it can be done.

I mean, yeah. Boost pay for prosecutors and hire more of them. Same for public defenders. Expand the courts. Give police enough money that they can actually investigate all of the crimes that are reported to them. Make juror compensation $500/day so people will stop trying to get out of it. I don't have any problem with any of this. But that's not the world we live in. the point I was making wasn't that you can't make changes to fix these things, but that the reason for this goes beyond woke prosecutors deciding they don't want to charge shoplifting.

Treating petty offenses (at the discretion of the prosecuter I suppose) more as administrative violations would probably work -- lower the burden of proof (as with traffic tickets), then you can slap tickets on the prolific offenders and jail them when they don't pay up.

Not that anyone in a position to do this would want to, but it would be way cheaper than your idea.

So there's an official in ancient Japan, sharp as a tack, a real up-and-comer. He's rapidly making his way up the imperial bureaucracy, and his rivals decide they need to nip him in the bud. The capitol is overrun with pickpockets, has been forever; the crimes are too trivial for serious punishments, and yet no lesser punishments seem to dissuade the criminals. So they decide the thing to do is to give him the job of cleaning up the pickpocket problem, and then when he fails to do so, they can quash his career.

He accepts the job, thinks it over, and issues a new imperial statute: pickpocketing is now legal, provided the pickpockets obtain and carry an official license from the government while plying their vocation. This license is a large placard, five feet tall and two wide, with the word "pickpocket" written on it in large letters visible at a considerable distance. Pickpocketing without a license is now not just pickpocketing, but violation of the imperial law, a crime punishable by death.

The pickpockets examine their options, up-stakes and relocate elsewhere. The official's career proceeds unimpeded.

This is exactly the argument for just hanging them- crime is committed by the same few people, but rarely prosecuted, so anyone who actually gets convicted is a serious repeat offender.

Yeah, we could do that. But when your 13-year-old gets caught stealing a dirty magazine from a convenience store, don't come crying to the court.

"If you want law enforcement, don't complain when you get anarcho-tyranny instead". Yes, this strategy keeps "working", but it doesn't actually solve the problem better enforcement would.

The sorts of stores that will still stock physical porn when my children are teenagers are the sort which won’t even let them in the front door without an ID. This isn’t the eighties.

Okay then, replace it with a six pack of beer from Sheetz, or a candy bar, or whatever the hell else you think kids steal these days.

whatever the hell else you think kids steal these days.

You're talking as if "kids" as a general category are broadly guilty of shoplifting something. IME, most kids didn't, and don't, shoplift; and those who do tend to be greatly concentrated in terms of class, culture, family background, etc.; and much as with crime in general, it's dominated by a small number of repeat offenders.

It includes more people than you think it does. I can recall the following instances from high school where I was either aware of or partially complicit in theft:

  • One friend of mine would steal practically anything he could out of museum gift shops whenever we were on field trips. I don't even know that he necessarily wanted the stuff he was stealing. He was a good kid who got good grades and came from a good family. He's currently some kind of engineer for General Electric.

  • A group of us decided to whitewash the local graffiti tunnel just after all the seniors in our graduating class painted their names on it. A friend who worked at Wal Mart put several hundred dollars worth of white paint on the loading dock for us to steal. We kept joking about it being a heist. I wasn't there for the actual heist, but I participated in the whitewashing.

  • Two friends of mine were convicted in juvie court for stealing plants from a local nursery that they intended to give as Mother's Day gifts.

  • On the band trip junior year my roommates and a few other friends did a grab and run of beer cans out of the cooler in the hotel bar. My role was to create a distraction by trying to get served underage and getting into an argument with the bartender.

  • I was at a Halloween party and a bunch of us piled into a Dodge Neon and drove to a farm field nearby where we proceeded to grab pumpkins and throw them in the back of this one kid's El Camino. This fat, black cop who was the local fuzz showed up and started chasing us while running with a flashlight. I remember I had to jump a fence at the edge of the field and I actually stopped to let him catch up because I wanted to see how he negotiated it; he was trying to wriggle his fat ass underneath it and I started laughing before continuing running. We all had to walk back to the party, and when the officer showed up and saw all the pumpkins my friend's parents said that they told everyone to bring a pumpkin to the party.

I'm not aware of any of the people involved in the above incidents having any contact with the law whatsoever as adults. I also spent 4 years working for the Boy Scouts and dealing with kids all the time who, while I don't have any specific knowledge of criminal activities, they were the kind of jackwagons who I wouldn't be surprised if they stole something. The entitled rich kid brats who are bound and determined to see how close to the line they can get before I have a talk with their scoutmaster about my ending their participation in my program.

When people say shit like this I always get an image of the naive mom who says "well certainly my David would never do anything like that!" Kids are idiots, and if you think that the impact of harsh punishments for petty crime among teenagers would be limited to minorities and poor people, well, I have some swampland in Jersey for sale.

I can recall the following instances from high school where I was either aware of or partially complicit in theft:

Sounds to me like you just hung out with a particularly bad crowd. Nobody I knew growing up was anything like this (and I come from a rather poor background, probably much lower class than yours).

Plural of anecdote is not data, personal experience not necessarily representative, etc.

More comments

Kids are idiots

It sounds like you and your friends were idiots. My friends and I didn’t get up to anything this bad. Of course we did stupid shit, but none of it involved theft. My parents would have been mortified to learn I was involved in stealing anything.

Also, I don’t know what gives you the impression that I support draconian punishments for first-time teenage offenders. In any of the anecdotal scenarios you referenced, I’d be happy to see the kids involved forced to do some sort of community service. The people for whom I have zero sympathy, and for whom I prescribe maximally harsh penalties, are habitual offenders.

Sure, kids steal stuff and do other bad things. But it is certainly possible, in principle, to have a system of law and enforcement that comes down hard on shoplifting gangs and habitual criminals while applying consequences to the girl swiping some earrings at Claire's which, while unpleasant, are not ACTUALLY life-ruining.

That when people ask for that, they're offered tyranny -- "OK, but if your kid does anything wrong we're going to have him thrown into the general population with the father-stabbers and mother-rapers" -- or anarcho-tyranny -- "We'll start by throwing middle-class kids in jail if they step out of line and if that doesn't work, maybe we'll consider moving on to the gangs" tends to make them stop asking for enforcement. But that's because the responders are acting in bad faith and don't actually want to stop the problem.

Are you a time traveler from 1975? Do you think teenagers still need to steal “dirty magazines from convenience stores” to be able to see boobs?

It's easy to blame bullshit on your political opponents, but it's hard to offer any realistic alternatives.

Here's one off the top of my head: If the store catches you stealing, they can beat the shit out of you with a stick, and we collectively agree to, at most, tut-tut about it. I note that this solution arises organically without the need for any government intervention at all, and in fact significant government intervention is needed to stop it from instantiating itself.

It should go without saying that this is not the ideal way to do things. It seems pretty clear to me that it still, heh, beats the scenario you're offering where thieves are allowed to steal without consequence because it's just too much paperwork otherwise. If your message is that the law is so sclerotic that basic rules like "don't steal shit that doesn't belong to you" cannot be enforced, then my reply is that the law in its present form has outlived its usefulness.

Aren't witnesses legally required to testify, under penalty of being held in contempt of court?

If they’re subpoena’d. Making prosecutors subpoena witnesses over misdemeanors is probably a norm violation even if there isn’t an actual rule against it.

They are, but if the complaining witness isn't motivated enough to show up for 15 minutes of questioning, then the prosecutor isn't going to waste their time with the case either.

Seems like you could probably work with the big corporate chains to encourage their employees to testify. A day's wage to have an employee testify should reduce losses that pay dividends, or a tax break for collaboration with local law enforcement & courts on this matter. Ma and Pop shops seem like they'd be encouraged by necessity and a glimpse at actually tackling the problem, but getting them into court for a day might be more difficult.

Either way these things should be made (some amount) easier just by proving they are having an effect. People become motivated when they believe they're contributing to tackling a problem they've dealt with first hand.

I admit even typing them they sound like optimistic "just solve the problem lol" ideas, but it shouldn't be some impossible feat of man to convict thieves. At least if we are looking at a power law, then resources can be focused. That darn constitution and protections do be causing inconveniences. Sad!

but it shouldn't be some impossible feat of man to convict thieves.

It's not, it's just very difficult under the system as shaped and maintained by our ruling elites. (I am once again reminded of a trad-cath friend's argument that pretty much all of the US's problems, this one included, have known and simple solutions — not necessarily easy, but simple — only we're not allowed to enact out any of them, leaving a single political priority.)

Stuff like this is exactly why I support a more inquisitorial model of criminal justice. One that does not require a complicated trial process, necessitating multiple layers of in-person testimony, for a crime that can easily be verified with a simple sharing of a video file, or even just by the police finding a shoplifted item on the person of a shoplifter. The dispensation of justice in such a scenario should be trivially simple and quick to administer, and should not require so many individuals to burden themselves.

What you're essentially advocating for is the abolition of the 6th Amendment, which gives the right to confront one's accusers. Even if we eliminated this requirement, though, it still doesn't solve the problem, as the witness still needs to be present, it's just the judge doing the questioning and not the lawyers. As for your specific evidentiary examples, the video is actually the least persuasive piece of evidence in the scenario, since it probably doesn't show enough to convict. I grabbed the first shoplifting video I could find from YouTube; it's a news report about a theft from a liquor store in Kenya. https://youtube.com/watch?v=ErfIL-_UOiA This is actually a better video than I originally pictured — it's in color, has reasonably high resolution, and appears to show most of the store. Now tell me, without looking at the transcript, what items are being stolen and how much do they cost? Would you be confident in being able to identify someone you had never seen before as the person in this video? Would you be okay with someone you've never met before identifying you in this video? Now imagine that the only video we have just shows you removing an item from a shelf, and all you can see is the aisle that you're in. It's good evidence in that it buttresses other testimony, but it's pretty useless on its own.

or even just by the police finding a shoplifted item on the person of a shoplifter.

This is even worse evidence. A police finds an item on you. What basis does he have to determine that it was stolen? How would you feel about the following scenario: A shopkeeper reports that he observed a white male stealing a pair of expensive headphones from an electronics store. The police see you a block away listening to a pair of headphones that match the shopkeeper's description. The shopkeeper does not identify you in court, but you are nonetheless convicted on the cop's testimony that you had the shoplifted merchandise in your possession?

The US has fairly generous citizen’s arrest laws for holding suspected shoplifters until the police arrive.

Just to steelman this, unless the people guilty of stealing have reason to fear getting punished, the law against stealing is basically dead. There are large portions of most major cities where these kinds of situations exist. The laws against stealing, drug dealing, and murder are not enforced consistently. The results are not freer people unconcerned about crime, in fact it’s the opposite. In those areas, since the cops can’t (often because of government policies) deter crime or reliably enforce the laws, the people who can’t afford to leave take the job of self protection on themselves. Bars go over windows, people carry weapons, and gangs take over to protect criminals from other criminals. It’s basically a post collapse society on display in the middle of downtown Chicago or St. Louis.

Sure an inquisition isn’t a great system for a modern functioning state. It’s not something that’s compatible with civil rights as we know them. But the other side is that the alternative is also terrible for civil rights. You have a right to private property. Sure, but what good is it when the cops for lack of proper paperwork and prosecutorial authority simply shrug as local thugs help themselves to anything not physically impossible to steal? What good is it to be protected from the cops detaining you when you and your family are prisoners in your own homes behind barred windows because your neighborhood is to unsafe to be outside in? What good is it to say “I am safe from the cops shooting me” when you have to worry about getting caught in a drive by shooting? Freedom isn’t just freedom from the state, but the presence of law, order and justice. If you don’t have the ability to come and go as you please without fear of the Cripps, it’s not far off from not being able to come and go for fear of the cops.

I think you misunderstand my point. The police will make arrests for retail theft. District attorneys will prosecute. There's no reluctance whatsoever on the part of those who are tasked with enforcing the law. These are, on paper, some of the easiest cases to prosecute. The problem is that the victims of these crimes are unwilling to make a minimal effort to engage in necessary participation. Police and prosecutors aren't going to waste their time and the taxpayer's money pursing cases where they can't get a conviction because the victim won't participate. I have no interest in upending centuries of well-established constitutional protections because of the apathy of those the laws are designed to protect.

It depends on the jurisdiction. In some places, these shop owners do try to get people prosecuted, do cooperate, and it turns out that the state is much less concerned about putting the guy in jail and thus they see the effort as a waste of time. It’s an odd situation. They’re kind of stuck, not only because of the costs, but the risks that they can count on other people to care about. If they testify and press charges, do the next group of lawless thugs come in and shoot potential witnesses? Are they or their children going to be targeted because snitches get stitches? And if they need the cops are the cops going to bother to show?

See the situation in lawless areas is because of years of neglect and distrust in which the criminals tend to get away with it. The only solution to my mind is to create a system, even if extremely flawed (inquisition is far from ideal) in which you can hope to put enough of the gang members in jail to lower the crime rate and have people willing to participate. If I lived in a place controlled by gangs, I’m not cooperating simply because of the two, the cops are the weak ones, and they can’t or won’t protect me.

Sure an inquisition isn’t a great system for a modern functioning state.

Why not?

It’s not something that’s compatible with civil rights as we know them.

Why is this a problem?

A police finds an item on you. What basis does he have to determine that it was stolen?

He asks the store clerk (with his bodycam on to record the interview) to describe what happens, and then he watches the video the store has of the shoplifting. Do you have any idea how well-surveilled Walmart is? How many cameras they have everywhere? And how advanced their facial recognition technology is?

You’re acting as though getting falsely accused of shoplifting is something that happens to middle-class white people all the time. How likely do you actually think that scenario is? I’ve gone my entire life without ever being accused of shoplifting. I simply assess the probability of the scenario you’re describing as basically nonexistent.

Also remember that we’re talking about a small segment of society who shoplifts over and over and over. If it’s someone’s first time ever being charged, then sure, let’s have some heightened evidentiary standards. If it’s Charlie the Crackhead, caught shoplifting from the same store he’s already shoplifted from 10 previous times, then there is zero reason to go through the whole song and dance. Who are we kidding?

You’re acting as though getting falsely accused of shoplifting is something that happens to middle-class white people all the time. How likely do you actually think that scenario is? I’ve gone my entire life without ever being accused of shoplifting.

Is this meant to imply that we should accept low-class nonwhite people being falsely accused, because they're not us?

No, it is not.

However, we’re talking about tradeoffs: on the one hand, reduced standards of evidence and expedition of the trial process is likely to increase false accusations, while also massively reducing the odds that a criminal will avoid prosecution; on the other hand, heightened standards of evidence and the requirement of a full in-person trial process for all accused person is likely to reduce false convictions, while exposing the public to greater levels of crime by allowing criminals to avoid prosecution.

When considering these tradeoffs, it’s important for me to keep in mind which side of that ledger is likely to impact me personally. Am I more likely to be falsely accused of a crime than I am to be the victim of a crime? Almost certainly not. As a matter of fact, I have already been the victim of multiple crimes, whereas I have never been falsely accused of a crime. In fact, I’m not even sure I know anyone who has.

It turns out that the vast majority of people accused of crimes are in fact guilty of those crimes; this is particularly true of crimes like shoplifting which nearly always produce some sort of video record and/or physical evidence. It is generally quite easy for businesses to determine the specific individual responsible for a given act of shoplifting. And if there is the rare instance of mistaken identity, such a thing is unlikely to happen to a person such as myself, who bears little resemblance to any of the demographics responsible for the lion’s share of shoplifting; therefore, I’m extremely unlikely to ever need to avail myself of any of the myriad protections afforded to criminal suspects.

Our systems were developed for free Englishmen. The demographics are rather different now.

If this is true, why is shoplifting as a societal problem so localized? All of the factors you mention should also apply to Texas, but I have seen exactly one shoplifting event in my entire life. People in LA or San Francisco say they see it every week.

Because in Texas the law, patchy as it is, exists to protect respectable citizens from scoundrels. In California, the law exists to protect scoundrels from respectable citizens.

To put another way, a certain amount of very low level rough justice is tacitly allowed and encouraged by Texas police and, to the extent they know about it, prosecutors. Surely you’ve seen the signs in front of businesses with a man’s picture and full name, captioned ‘Thief!’?

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