In the Spotlight is a Sacramento Bee series that digs into the high-profile local issues that readers care most about. Story idea? Email metro@sacbee.com.
This November, Proposition 36 will ask California voters whether to undo a handful of criminal justice reforms they approved a decade ago.
In 2014, voters passed another ballot measure called Proposition 47, which reduced punishments for a handful of non-violent drug and theft crimes. Prop. 47 made most drug possession crimes a misdemeanor and raised the threshold for felony theft and forgery from $400 to $950.
This year’s Proposition 36 is pushed by a coalition of district attorneys from across the state, along with major retailers like Target and Walmart. It’s aimed at cracking down on retail theft and fentanyl, and supporters argue it would close gaps in the state’s sentencing rules to bring more accountability.
Videos of retail thefts – from coordinated smash-and-grabs at designer stores to individuals stuffing items in backpacks at drugstores – during the height of the COVID-19 pandemic threw a spotlight on the issue. And the emergence of the potent opioid fentanyl, which led to the deaths of around 6,000 Californians in 2021, has added new urgency to the drug crisis.
State lawmakers in California’s Democratic supermajority have wrestled with how to address the two issues without undoing the main tenets of Prop. 47, which was passed in part to reduce the population in the state’s overcrowded prisons.
Progressive Democrats in control of the Legislature’s public safety committees have, for the most part, refused to pass laws that would increase criminal penalties, citing a historically biased criminal justice system that has put disproportionately more Black and brown people behind bars.
Because of that, Prop. 36 has fractured the ranks of elected Democrats. Gov. Gavin Newsom, Assembly Speaker Robert Rivas, Senate President pro Tem Mike McGuire and other Democratic lawmakers oppose the ballot measure. But some moderate Democratic lawmakers and influential big-city mayors support it.
Newsom and legislative leaders were even planning a countermeasure earlier this summer, but they abandoned it at the eleventh-hour last month, just before lawmakers recessed for their summer recess.
What a ‘yes’ vote on Prop. 36 means
Prop. 36 contains several components related to criminal punishments. A yes vote would:
Increase punishment for certain drug and theft crimes. Currently, theft of property worth $950 or less is usually a misdemeanor. Prop. 36 would make it a felony for people who have two or more previous theft-related convictions on their record.
Create a new “treatment-mandated felony” classification for drug crimes. If a person with two or more previous drug convictions is charged with possession of a substance — specifically, fentanyl, heroin, cocaine or methamphetamine — they could be ordered to get treatment. Those who finish treatment could have their charges dismissed; however, failure to complete treatment could result in a sentence of up to three years in prison.
Require courts to warn people convicted of selling or giving drugs to others that they could be charged with murder if they sell drugs that kill someone.
What a ‘no’ vote means
A no vote on Proposition 36 would keep criminal sentencing laws as they are: theft valued under $950 and drug possession crimes would continue to generally be prosecuted as misdemeanors, with a punishment of up to one year in jail.
Who supports Prop. 36?
Prop. 36 is supported by a broad swath of business and law enforcement groups, the California Republican Party and a smattering of Democratic elected officials.
The California Business Roundtable, California Sheriffs Association, California District Attorneys Association and the California Retailers Association are supporting the measure.
Mayors supporting Prop. 36 include Democrats London Breed of San Francisco, Todd Gloria of San Diego, Matt Mahan of San Jose and Bobbie Singh-Allen of Elk Grove.
“California is suffering from an explosion in crime and the trafficking of deadly hard drugs like fentanyl,” proponents wrote in official ballot arguments for the measure. “Prop. 36 will fix the mess our politicians have ignored for far too long. It is a balanced approach that corrects loopholes in state law that criminals exploit to avoid accountability for fentanyl trafficking and repeat retail theft.”
As of mid-August, the Yes campaign had raised more than $7.9 million. Top donors include major retailers like Walmart ($2.5 million), Target ($1 million) and Home Depot ($1 million).
Opponents of Prop. 36
While some Democrats are supporting Prop. 36, many others oppose it, including Newsom, lawmakers and some progressive DAs, including Diana Becton of Contra Costa County.
The initiative also faces opposition from criminal justice reform groups like the Anti-Recidivism Coalition and the Vera Institute of Justice.
“We must address persistent problems like theft and fentanyl, but we must use solutions that work and are targeted at the actual issue, instead of the scattershot failed solutions of the past,” opponents wrote in the official ballot arguments
“By making simple drug possession a felony, this measure will send thousands into state prison, drive up prison costs, and slash money for local safety programs. That will make crime worse, not better.”
As of mid-August a ballot committee opposing Prop. 36 had raised $195,000, with sizeable donations from the ACLU of Northern California along with philanthropists Quinn Delaney and Stacy H. Schusterman.
Fiscal impacts of Prop. 36
If approved, Prop. 36 would likely increase state criminal justice costs by tens or hundreds of millions of dollars; counties could also pay tens of millions more, according to an analysis by the Legislative Analyst’s Office.
That’s because harsher criminal punishments means people convicted of these crimes would spend more time in prison.
The LAO analysis predicts the state prison population, which is currently around 90,000, could grow by “a few thousand people” under Prop. 36. Statewide, county jails could see a similar increase.
State court workloads would also increase since felonies take more time to resolve than misdemeanors.
Finally, by undoing parts of Prop. 47, the measure could mean less funding for mental health, drug treatment, and other prevention programs.
This story was originally published August 15, 2024 12:50 PM.
