CA Proposition 36: Increase penalties for drug and theft offenses

CALIFORNIA — Proposition 36 marks the latest shift in the Golden State's stance on mass incarceration and the war on drugs. If passed, it would roll back some provisions of the controversial Proposition 47, passed a decade ago to reduce overcrowding in California's prison system.

While Prop 47 downgraded certain drug and theft offenses to misdemeanors, Prop 36 would make them felonies again, increasing the penalties associated with them. Specifically, fentanyl, possession and theft under $950 could become felonies if the measure passes. In some cases, the change would increase a defendant's prison sentence from one year in prison to up to four years in prison.

In addition, defendants with two prior convictions for theft could face a felony charge if rearrested, regardless of the value of the items stolen.

Proposition 36 is also intended to curb mob and flash theft in stores. The penalty can be increased if two or more people commit the crime together or if they cause damage of $50,000 or more.

The measure would also make certain drug offenses felonies that require treatment, and would allow people who plead guilty to aggravated drug possession to have their charges dropped if they complete a drug treatment program.

Supporters of the measure argue that it will help combat the scourge of fentanyl and other drugs while reducing homelessness. They also believe it will help curb rampant retail crime and safety issues that are affecting the quality of life in the Golden State.

Opponents argue that it will return California to an expensive era of mass incarceration in which minorities are disproportionately incarcerated and communities suffer. They also claim that it will cost the state hundreds of millions annually while drying up funding for drug treatment programs, job services, victim assistance and housing.

In fact, the Legislative Analysts Office estimates that the financial impact of this measure will be significant for the state and counties.

The office predicted: “Increased costs to the state criminal justice system, likely to be in the tens of millions of dollars to the low hundreds of millions of dollars annually, primarily due to the increasing prison population” and “increased costs to the local criminal justice system, likely to be in the tens of millions of dollars annually, primarily due to the workload of county jails, probation, and court-ordered mental health and drug treatment.”

Official backers of the proposal include the California Republican Party, Republican Congressman Ken Calvert, San Francisco Mayor London Breed, a number of bipartisan state legislators and retail giants such as Target, Home Depot and Walmart.

In addition, the measure is supported by unions such as the California District Attorneys Association, the California Police Chiefs Association, the California Retailers Association, the California State Sheriffs' Association and groups such as the California Chamber of Commerce and the California League of Cities.

“The Homelessness, Drug Addiction and Theft Reduction Act will make targeted but impactful changes to our laws around fentanyl and help us combat the chronic shoplifting that harms our retailers, our workers and our cities,” Breed said in endorsing the measure. “I fully support this measure and know it will make a meaningful difference for cities across California.”

Joe Coto, president of United Latinos Action, said the measure would help communities of color.

“Shoplifting disproportionately affects communities of color, exacerbates economic inequalities and hinders progress,” Coto said. “This initiative is about restoring common-sense accountability measures that will make our streets safer and stop the rampant theft that plagues too many neighborhoods across California.”

Opponents of the measure include the California Democratic Party, Governor Gavin Newsom, more than a dozen Democratic state legislators, the ACLU of Northern and Southern California and the League of Women Voters of California. Unions opposing the measure include the California Nurses Association and the California Teachers Association.

“First, Prop 36 would undo the state's successes in reducing the dangerous, racially disparity and unconstitutionally overcrowded prison population (since 2014, California's prison population has fallen 28 percent while racial disparities have decreased),” the Vera Institute of Justice said in a written statement on the measure. “Second, it would dry up funding for much-needed services, including job services for those released from prison, victim services and housing. Finally, it risks making California less safe, as the programs funded by Prop 47 have reduced recidivism without increasing violent crime.”

According to the Public Policy Institute of California, the state's prison population has declined sharply, reaching a 30-year low in 2023. After increasing nearly eightfold from 1977 to 2006, reaching a peak of over 173,000 prisoners, the state's prison population is projected to drop to nearly 94,200 in 2023, according to the Public Policy Institute of California, bringing it back to 1990 levels, before a series of tough crime-fighting laws like the three-strikes law led to explosive growth in the state's prison population.

“Prop. 36 takes us back to the 1980s, to mass incarceration, it promotes a promise that cannot be kept,” Newsom told ABC7. “I would ask those who support it, especially mayors: Where are the treatment spaces, where are the beds? 22 counties don't have a single residential treatment facility. 22 counties don't have one. I mean, they're lying to you.”