Inadequate analysis yields unintended consequences

Syndicated columnist Thomas Elias has this column with the above title on the consequences of California’s sentence-reducing ballot propositions of the previous decade, Proposition 47 of 2014 and Proposition 57 of 2016.

Here’s a reality that needs to soak into the consciousness of California lawmakers, the governor and voters who put them in office: This state needs far better analysis and vetting of new laws if it’s to avoid negative unintended consequences.

And when we get solid analysis and reliable predictions of some consequences, we need to pay heed, not ignore reality.

These facts of life are perhaps best illustrated by the 2014 Proposition 47, which ended felony status for thefts and burglaries involving less than $950 worth of goods and reduced some other felonies, like stealing a gun, to misdemeanors.

One unintended consequence has been closure of some stores, notably Walgreen’s and Whole Foods outlets that suffered constant shoplifting and no penalties for thieves caught red-handed. That’s an inconvenience making life more complex from San Francisco to San Diego.

The people were warned in the opposition argument in the ballot pamphlet, Elias notes, but apparently not enough people paid attention. And two years later it happened again.

At the same time, increased rates of rape and human trafficking have followed the 2016 passage of Proposition 57, which allows early releases of rapists, child molesters, hostage takers and those convicted of hate crimes.

So … hate crimes last year reached record levels in California, and there is every indication that trafficking of prostitutes is also more common than before. Ballot arguments against 57 predicted both increases, but the measure, also backed by Brown as a prison-clearing measure, passed by 64-36%.

Not to be outdone, the Legislature joined the unintended consequences march by decriminalizing loitering for the purpose of prostitution. This was supposed to have something to do with greater freedom for gay people hanging out to hook up, but the consequence was a dramatic increase in old-school street walking. Elias continues:

The reported near doubling in numbers of young women loitering in fish-net dresses over skimpy g-strings was surely not [SF Sen. Scott] Wiener’s intention, but it’s reality, as drivers can see when passing through vice-ridden parts of California cities. It’s an unintended, very foreseeable, consequence that many feel outweighs new convenience for seekers of gay partners.

But are these consequences truly “unintended”? The criminal law recognizes several types of mens rea (guilty mind), including purpose, knowledge, and recklessness. These consequences were probably not the purpose of the bill authors, so they are “unintended” in that sense. But I think they were likely done with the knowledge that the consequences were nearly certain to follow. There is no doubt they were done with at least reckless disregard of highly likely consequences.

These are all culpable mental states, and the people who pushed these deleterious changes are responsible for the consequences.