There’s a lot at stake in the November 5 election. While the presidential race will determine the future direction of democracy in this country, state Proposition 36 will impact our immediate communities in significant ways.
Backed by big-box retailers and law enforcement, Proposition 36 is being touted as a solution to homelessness and the scourge of fentanyl on the streets. But the initiative does not provide money for housing or treatment beds or allocate any money to create new funding sources to enforce it. In fact, the ballot measure has little to do with addiction and nothing at all to do with homelessness.
Voters, however, can be easily lured into supporting the measure where its deep pocketed strategists have the financial capital to promote it in the media as an altruistic approach to both and a measure that will combat petty theft crimes to boot.
Prop. 36 calls for increased punishment for drug and theft crimes. People who have two or more previous theft-related convictions on their record would be charged with a felony.
It creates 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, but failure to complete treatment could result in a sentence of up to three years in prison. It would mandate a warning to people convicted of selling or giving drugs to others that they could be charged with murder if they sell drugs that kill someone.
Linking the measure to homelessness is a manipulation that the proponents of the measure are banking on. It is a smart idea since this concern ranks amongst the top on California voters’ minds. Trouble is, that it is simply a lie. While communities face real problems related to housing, substance abuse and retail theft, Prop 36 exploits these valid concerns and offers no real solutions.
The measure is calculated to unwind some of the positive changes that resulted from the passage of Proposition 47, ten years ago. Critics of Prop 47 falsely blame it for an increase in property crimes, most of which are well outside its purview—like organized retail theft rings and flash mobs that target luxury goods stores—as well as blaming it for an increase in homelessness.
Proposition 47 did what it sought to do, reducing California’s prison overcrowding by making some theft and drug crimes misdemeanors instead of felonies. It has saved the state more than $800 million by keeping people out of jails and prisons — $113 million this fiscal year alone.
The money saved by the reducing the prison population has been invested into reentry programs with very high success rates. For instance, according to the most recent state data available, about 44 percent of people who left prison in California returned with a new conviction in three years as opposed to only about 8 percent for people who completed a Proposition 47 reentry program.
Proponents of Prop. 36 like to blame Prop. 47 for the increase in the threshold at which theft crimes can be charged as felonies, from $400 to $950. This is another demonstrable lie. That amount was changed by the Legislature in 2010. In any event, California has one of the lowest felony theft thresholds in the nation.
Still, Retailers like to blame Prop. 47 for their losses from theft since its passage. While reported retail theft has ticked up since 2019, it remains at roughly the same level it was during the 2010s, and lower than it was reported in the 1970s, 1980s and 990s.
Relying on debunked stories about retail theft, the corporate lobby has poured millions of dollars into passing this law to make it easier to prosecute shoplifters. Major donors to Prop. 36 include Walmart ($2.5 million), Home Depot ($1 million), Target ($1 million), In-N-Out Burger ($500,000), the California Correctional Peace Officers Association ($300,000), and Macy’s ($215,000).
But there is no need to risk the gains made by Prop 47 to accomplish their goal. Recent legislation signed by Governor Gavin Newsom has already made it easier to do this. It allows for bundling the value of stolen property from different retailers or jurisdictions to reach the $950 “felony grand theft” threshold and also allows for thefts and related offenses from different counties to be tried together. This new legislation also subjects those “possessing more than $950 of stolen goods with intent to sell, exchange, or return the goods” to up to three years in prison, without the prosecution even proving that the person knew those goods were stolen.
False narratives that pervade the media are readily accepted as true. But voters should not lose sight of common sense and historical facts. The self- serving rhetoric of the Prop. 36 lobby must be scrutinized.
It’s no secret that mandating drug treatment for individuals convicted of a drug-related offense does not effectively reduce drug use. Prop 36 will not address the root causes of homelessness, which are widely accepted to be economic rather than a result of substance abuse and addiction. Disability Rights California and Civil Rights Corps oppose Proposition 36 because it disproportionately harms California’s most vulnerable residents—Black and Latinx people, especially those with disabilities, who are most likely to end up in the criminal legal system.
Moreover, a nonpartisan report by the state’s legislative analyst estimates that Prop 36 will increase the state prison and jail populations and will increase state criminal justice costs, that could range from several tens of millions of dollars to the low hundreds of millions of dollars annually. Prop 36 will cut hundreds of millions from successful programs, including cuts to mental health and substance abuse treatment; trauma recovery services for survivors of crime and programs for K-12 students.
Addressing the very real and persistent problems affecting our communities, like theft and the prevalence of fentanyl, require real solutions. Solutions that are evidenced based and fiscally responsible and that do not hearken back to failed and punitive “tough on crime” legislation. Prop 36 is a huge step backward for Californians and will do nothing to make our communities safer.
Bobbi Stein is a former law school professor and criminal defense and civil rights attorney and a board member of the San Francisco Pretrial Diversion Project and California Attorneys for Criminal Justice.
