Movement builds to correct major flaw in Prop. 47

An unintended consequence of the popular Prop. 47 was to reduce the collection of DNA samples

All of us must have been snoring when Proposition 47 passed. If anyone was awake and noticed a huge flaw, nothing was said. Nary a peep.

That's too often the problem with ballot initiatives. They're products of focus groups and polling to see what sells. They're not filtered through the checks and balances of the legislative process, which can detect glitches and head off unintended consequences.

Starting in 2016, however, the Legislature will be allowed to tinker with initiatives if sponsors agree.

Prop. 47 was the measure that reduced many drug and property crimes from possible felonies to mere misdemeanors. It passed in a landslide last November.

Here's the big flaw: It is resulting in far fewer DNA samples being taken from suspects. And that is making it much harder — sometimes impossible — to solve old violent crimes such as murder and rape.

That's because state law allows cops to collect DNA only from felony suspects. Now that so many crimes have been reduced to misdemeanors, there are several thousand fewer DNA samples being taken each month.

Also, there's a legal question — pending in the courts — whether 255,000 samples already in the state database can be used to solve past crimes.

"DNA is the greatest tool ever given to law enforcement to find the guilty and exonerate the innocent," says Sacramento County Dist. Atty. Anne Marie Schubert.

Before being elected D.A. last year, Schubert worked for two decades solving crimes with DNA. She'd match the DNA of an arrestee — often the suspect in a drug or property crime — with the DNA found at the scene of a murder, rape or other violent crime.

"We know statistically that there is a high correlation between drug and theft crimes with violent crimes," she says. The D.A. cites studies showing that the DNA of suspects in low-level crimes frequently matches DNA found in past violent crimes.

Schubert is the one who sounded the alarm on this flaw in Prop. 47.

She's an interesting story in herself. Schubert, 51, is openly lesbian and a Republican in a county where Democrats enjoy a nearly 13 percentage-point registration advantage. She upset a Democratic establishment favorite endorsed by Atty. Gen. Kamala Harris and Gov. Jerry Brown, who rarely embraces any candidate.

Schubert last week persuaded a local freshman assemblyman — Democrat Jim Cooper of Elk Grove — to introduce corrective legislation. AB 390 would allow DNA collections from everyone convicted of crimes that were lowered to misdemeanors under Prop. 47. Unlike before 47, however, suspects wouldn't be forced to submit samples merely upon arrest.

Why not collect it from arrestees too? "I don't think it would pass," says Cooper, a former sheriff's deputy. "Fundamentally, people don't want to see Prop. 47 changed."

San Francisco Dist. Atty. George Gascon was a leading advocate of Prop. 47. The D.A. recently acknowledged to the Sacramento Bee that he realized the initiative would reduce DNA collections, but this was "not a primary area of concern."

In other words, it was deemed more important to substantially reduce penalties for drug and property crimes than to catch and lock up murderers and rapists.

Gascon doesn't have a position on the new DNA bill. if legislators decide that more DNA should be collected, Gascon said, "that is a topic worthy of significant debate."

The Legislature and governor can correct this problem on their own without placing another measure on the ballot. All the lawmakers need to do is tweak the DNA law, not Prop. 47.

But Prop. 47 would need to be amended by voters to correct two other glaring flaws that were well-known before the election but basically ignored.

One I've written about. Because the initiative reduced from a possible felony to always a misdemeanor the theft of property valued at under $950, it meant that stealing most any gun was punishable by essentially a wrist slap. Same with possessing or selling a stolen firearm.

Assemblywoman Melissa Melendez (R-Lake Elsinore) has introduced a bill, AB 150, to restore the old penalties for gun theft: Stealing one of any value would be a felony. Possessing a stolen weapon could be a felony or a misdemeanor.

A third flaw involves so-called date rape drugs. When Prop. 47 reduced the penalty for narcotics possession from a possible felony to a misdemeanor, it included these insidious drugs. Only suspects previously convicted of a serious crime can now be charged with a felony.

"Let's be honest," says freshman Assemblyman Tom Lackey (R-Palmdale), a former highway patrolman, "if you have a date-rape drug in your pocket, your intention is not to get high."

Alameda County Dist. Atty. Nancy O'Malley: "These are really predator drugs. There's no reason for people to possess them other than for the purpose of committing sexual crime."

There seems to be bipartisan support to correct this. Lackey and Sen. Cathleen Galgiani (D-Stockton) are teamed on legislation, AB 46, to allow prosecutors to charge possessors of a date-rape drug with either a felony or a misdemeanor.

Both the firearms and date-rape bills would need to go on the statewide ballot.

"When an initiative such as Prop. 47 is placed before voters, the potential for unintended consequences arises," Galgiani told reporters.

The Legislature and governor — who took no stand on 47 — now should do their jobs by beginning to reverse those unfortunate consequences. Everyone is finally awake.

Twitter: @LATimesSkelton

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