CA Election Results: Prop. 36, Criminal Sanctions and Treatment

Californians are voting today on a measure that would impose tougher penalties for some drug and theft offenses, reversing some of the changes the state made a decade ago to reduce the population in its overcrowded prisons.

Proposition 36, which Gov. Gavin Newsom opposed, would reclassify some theft and drug offenses as felonies.

The measure also creates a new category of crime – a “crime requiring treatment.” People who do not contest criminal charges after multiple drug possession convictions could complete drug treatment instead of going to prison. However, if they do not complete treatment, they still face up to three years in prison.

Following the pandemic, property crime increased in California while the state, counties and local governments struggled to contain and control homeless encampments on sidewalks.

Prop. 36 was proposed by its supporters in response to these concerns. Led by the retail industry, these advocates promised that the measure would target drug dealers and individuals who commit multiple retail thefts.

They raised about $17 million for the measure, which included large checks from major retailers as well as contributions from the California District Attorneys Association and the California Correctional Peace Officers Association.

Opponents raised about $7.7 million, including contributions from the ACLU, teachers unions and labor group Service Employees International Union.

If voters approve the measure, Californians would reverse some of the changes they made to the criminal justice system a decade ago with Proposition 47, which reduced penalties for some crimes while attempting to reduce the state’s then-swelling prison population.

Polls leading up to the election consistently showed that a large majority of likely voters supported Prop. 36. Several Democratic city mayors and district attorneys also supported him, although Newsom opposed it.

“In poll after poll over the past few months, Californians of all ideological backgrounds have expressed overwhelming support for Proposition 36 as an important step forward in combating retail theft, homelessness and deadly drug overdose epidemics in California,” Mahan said in a written statement last week.

What would Prop. 36 do?

Since California voters passed Prop. 47 in 2014, prosecutors, police and major retailers have blamed the law for increases in property crime and homelessness. Prop. 36 is their attempt to dismantle some elements of the previous initiative.

During the pandemic, shoplifting and commercial burglaries skyrocketed, particularly in Los Angeles, Alameda, San Mateo and Sacramento counties. Nationally, the Public Policy Institute of California found that reported shoplifting of items valued at $950 or less increased 28% over the past five years. This is the highest value observed since 2000.

By combining shoplifting and commercial burglaries, the institute’s researchers found that the total number of reported thefts was 18% higher than in 2019.

Another aspect of pandemic-era shoplifting has been viral videos of crowds rushing into stores and grabbing whatever they could before fleeing. Under Prop. 36, theft sentences can be extended by three years if three or more people commit the crime together.

How much does the California crime measure cost?

The Legislative Analyst’s Office predicts the measure will cost tens to hundreds of millions of dollars annually.

These costs arise mainly from the incarceration of a few thousand more people and their longer prison sentences. The rest of the cost to the state will come in the court system, where felonies take longer to prosecute than misdemeanors, and district courts will have to create new processes to deal with the measure’s new crime category, a treatment-mandatory felony.

Some of these costs will also be borne by the district courts themselves, which the Legislative Analyst’s Office projects will amount to tens of millions each year.

Who supports Prop. 36?

Advocates see Prop. 36 as a way to combat homelessness, which has increased by more than 50% since Prop. 47 was passed. Advocates say the reason is that drug addiction is driving people onto the streets and increasing penalties for drug possession is the only way to force people into treatment.

Supporters also say Prop. 36 represents a happy medium between the times when tough crime was rampant in California, when prison capacity was exceeded its breaking point, and the last decade under Prop. 47, which they say ” “Created loopholes in state law that prevent criminals from exploiting them to evade responsibility for fentanyl trafficking and repeated retail theft.”

Who is against Prop. 36?

Opponents, including the governor and Democratic leadership, say no studies on criminal justice or homelessness support the idea that harsher penalties — or the threat of harsher penalties — prevent crime or take people off the streets.

Opponents of the measure include the ACLU of Northern California, the Alliance for Safety and Justice and the California Democratic Party.

Opponents of the measure argue that Prop. 36 would mark a return to the war on drugs, which they say California voters rejected with Prop. 47 a decade ago.

Newsom hasn’t put any money into opposing the measure, but he has drawn attention to its potential to drive up spending on the justice system.

“It is the prevailing wind and I understand it. I just hope people take the time to understand what they support,” Newsom said in remarks to reporters last week. “It’s just drug policy reform. It is unfunded and unfortunately may impact some existing drug treatment and mental health services.”