Proposition 36 on California’s General Election ballot Nov. 5 would cause crimes of certain drug possession and thefts under $950, which are currently classified as misdemeanors, to be charged as felonies.
Individuals with two prior convictions of drug possession or thefts under $950 would face felony instead of misdemeanor charges.
The proposition would create a “treatment-mandated felony” charge for some cases of misdemeanor drug possession in which the court could enroll individuals into treatment programs to have their charges dropped upon completion.
Courts would also be required to warn convicted drug dealers they could be charged with murder if they sell drugs that kill someone in the future.
The “certain drugs” pertains to drugs like fentanyl, heroin, cocaine or methamphetamine, according to the California Official Voter Information Guide.
Lastly, it would lengthen some felony prison sentences for theft or damage of property by up to three years if three or more people committed the crime.
This is a direct roll-back to measures passed with Proposition 47 in 2014, which made most drug possessions and thefts under $950 a misdemeanor. Proposition 47 was California’s answer to The U.S. Supreme Court’s demands to reduce its prison population since the level of overcrowding led to inhumane conditions, violating the Eighth Amendment of the Constitution that protects against cruel and unusual punishment.
After Proposition 47 passed, California’s incarceration rate immediately dropped 20% and by 2022 was 23% lower than the national average.
Proposition 36 was developed by county district attorneys working with chain stores like Target, Home Depot and Walmart, who are also the top three contributors, providing over 30% of the $14.7 million raised in support and more than the entire contributions raised to oppose it, according to CalMatters.
Proponents of Proposition 36 say that current drug possession laws are ineffective at reducing drug use and overdose deaths since light punishments don’t force them into treatment. They also think that harsher penalties would deter drug dealers from selling dangerous drugs, such as fentanyl.
However, harsh drug laws have been in place since Reagan’s War on Drugs in the 1980s, long before Proposition 47, and have had little impact on deaths due to drug overdoses. In fact, according to the Center for Disease Control and Prevention, 2023 was the first year the nation saw a decrease in opioid overdose deaths since 2018, a drop of 3% compared to 2022. They didn’t give any reasons for this, but The Oak Leaf reporting suggests that increased drug awareness to reduce stigma against drug users and treatment, the opposite of harsh drug laws, may have an effect.
According to the California Official Voter Information Guide, proponents of proposition 36 use similar reasoning as to why stronger penalties are necessary to deter thefts. They say the recent rise in individual and group “smash-and grab” thefts is because thieves know that they won’t face serious penalties, nothing amounting to more than the equivalent of a “traffic ticket.” This encourages repeat offenders. On their website, Californians for Safer Communities claims Proposition 47 led to increased repeat and organized retail theft offenders.
While smash-and grab thefts have been widely publicized, they were uncommon until the COVID-19 pandemic era, seven years after Proposition 47 passed. According to the Public Policy Institute of America, these thefts were more a result from the “pandemic response by the criminal justice system” than any effect from Proposition 47.
Smash-and-grab thefts also came about at the same time as COVID-19 induced inflation, and prices for common goods reached an all-time high. Even after social distancing and demand for goods has subsided, inflation has increased to the highest level the nation has seen in 40 years, according to the Board of Governors of the Federal Reserve.
Opponents of Proposition 36 say it will have little to no effect on drug use and overdoses in California, much like the laws in place before Proposition 47, and would only lead to overcrowded prisons that lead to inhumane conditions and cost taxpayers money. They say the same for the case of thefts under $950.
According to the Vera Institute, an independent organization aimed at reducing mass incarceration, Proposition 36 would make California less safe because of decreased funding for drug and mental health programs that reduce recidivism rates, which received nearly $100 million annually since Proposition 47 passed. It will reverse gains toward fighting the racial disparity in the state’s incarceration rate as well. According to the California Official Voter Information Guide, supporters include Crime Victims United of California, California District Attorneys Association and Family Business Association of California.
Opponents to Proposition 36 include District Attorney of Contra Costa County Diana Becton, Crime Survivors for Safety and Justice, and the Reentry Providers Association of California. Gov. Gavin Newson also publicly opposes the proposition.
If passed, Proposition 36 would lead to state costs from tens of millions to hundreds of millions of dollars annually, mainly due to the added incarceration of thousands of Californians, according to the California Official Voter Information Guide. This is less than 1% of the state’s total General Fund Budget.
The increased annual cost would reduce funding for state mental health, drug treatment, and school truancy and dropout programs, according to the California Official Voter Information Guide. This is because part of Proposition 47 was that the state had to use the savings from the decreased incarceration rates for these programs.
If Proposition 36 is rejected there would be no change to California’s current drug possession and theft laws and no fiscal impact.
