Summary
California Proposition 36 is wide-ranging and has many elements:
- Increases penalties for various drug and theft crimes and elevates numerous misdemeanors to felonies
- Adds fentanyl to a list of drugs that carry additional enhancements, which themselves will tack on from 3 to 25 years, depending on the quantity of the drugs
- Creates a new “treatment-mandated felony,” which allows certain defendants to plead guilty, enter a treatment program, and get their cases dismissed if they successfully complete the program
- Adds new theft criteria that allow prosecutors to add together the value of separate thefts to turn misdemeanors into felonies
- Requires judges to warn people convicted of drug crimes that they can be prosecuted for murder if a recipient of the drugs they sell (or even give) dies
Fiscal Impact
According to the legislature, Prop. 36 would likely inflate state criminal legal system costs by “hundreds of millions of dollars” a year. According to the Legislative Analyst and Director of Finance, “Some of these costs could be offset by reductions in state spending on local mental health and substance use services, truancy and dropout prevention, and victim services due to requirements in current law.” Local governments would also experience tens of millions of dollars in added costs.
Proponents’ Arguments
Proponents argue that increases in retail theft and fentanyl use require harsher penalties. The main proponents are law enforcement officials and large retailers. They claim reforms adopted a decade ago took needed tools from prosecutors and have caused twin crime and homelessness crises. “Over the past couple of years, our cities have been impacted by retail crime, drug-related activities and homelessness,” said Marcel Rodarte, executive director of the California Contract Cities Association. “We have also seen the fentanyl epidemic increase, killing hundreds of Americans every day. Yet, law enforcement lacks the tools to hold traffickers and dealers accountable…” Proponents also claim that the new laws would reduce homelessness.
Opponents’ Arguments
A principal objection by opponents is the enormous cost, both financially and to communities that have benefited from the lower sentences and amped-up services that came with California Proposition 47. Opponents are wary of returning to high sentences for these offenses, which are not effective in addressing therapeutic needs or preparing individuals to return to the community more stable than when they were removed. Mandatory enhancements lead to unnecessary incarceration and take away discretion from judges to impose lower sentences in the interests of justice in individual cases.
California Attorneys for Criminal Justice, a statewide organization of criminal defense lawyers and allied professionals, called the provisions in the proposition “draconian.” In particular, opponents point to ample evidence that longer sentences are ineffective at reducing crime, and that evidence shows incarcerating people for drug crimes doesn’t reduce drug use.
The Vera Institute of Justice concludes that the theft provisions in Prop. 36 are “so broad that some provisions would even increase prison time for failing to return a rental car on time. However, studies show that increasing charges and punishments (including for repeat offenses) does not meaningfully deter crime. Neither does lowering felony theft thresholds work.” Moreover, the drug treatment programs created in this measure would be mandatory, and it is well established that coerced treatment is not effective.
The proponents don’t have any evidence that relaxed drug penalties impacted homelessness. The Vera Institute of Justice argues that tougher drug laws reducing homelessness “is unlikely given the evidence on harsher penalties and mandated treatment, as well as the well-documented likelihood of becoming homeless after incarceration.”
Discussion
In expressing his opposition to Prop. 36, California Governor Gavin Newsom noted: “It’s really drug policy reform that brings us back decades. I’m very concerned about that. I hope people take a close look at what they’re proposing.” The ideas in this proposition are squarely in the tough-on-crime vein.
Diverting spending from upstream, preventative tactics such as treatment and dropout prevention into incarceration costs is a counterproductive idea as it would compound problems rather than be an effective solution to the harms sought to be addressed by this measure.
In fact, the provisions in this measure are so harsh precisely as they are largely intended to roll back Proposition 47, which passed in 2014. According to the Vera Institute of Justice, Prop. 47 “reclassified six minor felony offenses to misdemeanors, including shoplifting and simple drug possession, and funneled cost savings into safety measures like drug and mental health treatment, homelessness prevention, and victim services centers. These changes aligned with research concluding that addressing these offenses with jail or prison time is both expensive and ineffective.” The current threshold for felony theft, $950, is already lower than in many other states indicating the threat of felony conviction isn’t much of a deterrent.
The Vera Institute also notes that “[s]tudies have concluded that [Prop. 47] reduced recidivism, saved the state more than $800 million, and reduced both the prison population and its racial disparities. Multiple reports have shown that it did not increase violent crime.”
But the climate around criminal legal reform has changed a lot since a decade ago when Prop. 47 came into being, most notably because the country (and the world) experienced the COVID-19 pandemic. During the early part of 2020 and into the pandemic, there was an increase in several categories of violent crimes in all parts of the country. While that violent crime uptick has subsided and crime is falling again, the politics of crime has become newly fraught. Many states are rolling back reforms, even when those reforms had been working, because people perceive that crime is worse and worry about it.
At the same time, numerous unhelpful and inaccurate narratives surrounding public safety have been circulated. Some retailers have blamed store closures on shoplifting—particularly organized smash-and-grab-style thefts—though these claims have been widely debunked.
Ironically, Prop. 36 is the same number as a ballot measure famously passed in 2000. That Prop. 36 was a groundbreaking achievement in California, moving the state’s policy away from reflexive incarceration and toward a treatment approach to drugs.