By Vera Institute of Justice
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Proposition 36, which is on the ballot in California this November, proposes extending harsh “three strikes”-style sentencing to low-level nonviolent drug and theft offenses. It would cost California taxpayers billions each year and strip funding from critical crime prevention programs that keep communities safe and healthy, like mental health and drug treatment, housing services, and K-12 school programs. Everyone deserves to live in safe and stable neighborhoods, but instead of fixing homelessness, drug use, and crime, Prop 36 would make these issues worse by eliminating programs proven to turn people’s lives around and wasting billions of dollars on mass incarceration instead.
What is Prop 36?
In the early 2010s, California’s prison system was overfilled, dangerous, ineffective, and untenably expensive. The situation was so dire that the United States Supreme Court ordered California to take action. To comply with the U.S. Constitution, save money, and improve the prison system without compromising public safety, Californians passed Proposition 47 with an overwhelming majority of the vote. Prop 47 reclassified six minor felony offenses to misdemeanors, including shoplifting and simple drug possession, and it funneled costs savings into safety measures like drug and mental health treatment, homelessness prevention, and victim services centers. These changes aligned with research concluding that addressing these offenses with jail or prison time is both expensive and ineffective. A previous effort to recall Prop 47 in 2020 received less than 40 percent of the vote.
A decade of research has concluded that Prop 47 accomplished its goals. Studies have concluded that it reduced recidivism, saved the state more than $800 million, and reduced both the prison population and its racial disparities. Researchers have shown that it did not increase violent crime, robbery, or burglary. Much of its cost savings have gone towards programs that make the state safer, like mental health and drug treatment, diversion programs, housing, and victims’ services.
This year, big corporations, the prison lobby, and right-wing interests are funding Prop 36, a ballot proposition that once again seeks to roll back Prop 47. Although they describe Prop 36 as “The Homelessness, Drug Addiction, and Theft Reduction Act,” none of its provisions directly address homelessness, and it seeks to address substance use and petty theft through longer sentences and enhanced punishments that evidence shows will only worsen these problems.
How would Prop 36 impact California?
By rolling back Prop 47, this ballot proposition would return California to its worst days of ineffective and expensive mass incarceration and a time when we had fewer tools to keep our communities safe. Prop 36 would strip approximately $100 million annually in funding for drug treatment, housing, and school-based programs—the very things proven to prevent crime in the first place—as well as services for survivors of crime. Because more Californians would languish in jail and prison on low-level offenses, Prop 36 would cost taxpayers an additional $5 billion a year on top of the $27 billion spent annually for jails, prisons, and courts across the state.
While supporters of Prop 36 claim it will make California safer, it actually risks making California less safe, as programs funded by Prop 47 have reduced recidivism without increasing violent crime. Additionally, it would reverse the state’s gains in reducing the dangerous, racially unequal, and unconstitutionally crowded prison population (since 2014, California’s prison population has dropped 28 percent with reduced racial disparities).
What would Prop 36 do?
Prop 36 would both roll back Prop 47 and add new penalties for drug use and a broad range of theft offenses, as well as adding new sentencing enhancements that would apply to any type of crime. For example:
- If someone gets caught possessing a small amount of drugs three or more times, they could go to jail or prison for up to three years.
- If someone gets arrested for low-level theft three or more times, including something as simple as returning a rental car late or stealing a sandwich, they could go to jail or prison for up to three years.
Drug Use
Prop 36 increases prison time for those who use drugs, though evidence shows that imprisonment for drug crimes does not reduce drug use. While Prop 36 imposes mandated drug treatment in some cases, it will reduce funding for (and consequently availability of) such treatment, and research casts doubt on the effectiveness of mandated drug and mental health treatment.
Prop 36’s authors also claim that these new drug laws will reduce homelessness, which is unlikely given the evidence on harsher penalties and mandated treatment, as well as the well-documented likelihood of becoming homeless after incarceration. Prop 36:
- Allows judges to sentence someone to a felony (up to three years in state prison and a host of other consequences including limitations on future employment, voting rights, and other civil rights) for possessing any amount of drugs if the person has previously been convicted of two or more drug-related offenses, including misdemeanor possession.
- If a judge determines the person is “eligible or suitable for treatment,” they can participate in court-mandated addiction and mental health treatment instead of incarceration.
- Note that while this is technically the person’s choice, Prop 36 calls this a “treatment-mandated felony,” recognizing the choice is more or less made for them.
- A judge or prosecutor may remove the person from treatment at any time, and wealthier people can pay for a program of their choice instead of the one the court mandates.
- Adds fentanyl to the list of drugs for which it is a felony to possess any amount of drugs while also possessing a loaded firearm, even if the firearm is possessed lawfully and the person has a license to possess the firearm.
- Requires the court to warn anyone convicted of possessing for sale, transporting, or distributing any amount of so-called “hard drugs” that they could be charged with murder if they sell or distribute drugs in the future and the recipient dies.
- This makes it easier to prosecute that person for murder in the future because it satisfies the prosecutor’s burden to demonstrate the death was intentional.
- This applies not just to drug dealers but also to anyone who might provide a friend or fellow user with drugs (whether in exchange for money or not).
Theft
Prop 36 increases prison time for a range of theft offenses so broad that some provisions would even increase prison time for failing to return a rental car on time. However, studies show that increasing charges and punishments (including for repeat offenses) does not meaningfully deter crime. Neither does lowering felony theft thresholds work.
Finally, research (both in general and specifically for retail theft) shows that when the law allows discretion to charge either a misdemeanor or felony (as in Prop 36), people of color more often receive harsher punishments. Prop 36:
- Allows judges to punish someone who commits any of a wide range of misdemeanor and felony theft offenses with a felony (up to three years in state prison and other civil rights consequences) if they have two or more prior convictions for a theft-related offense.
- Prosecutors or probation officers could refer people convicted under this section for diversion, but only if counties have theft diversion programs in place (which many counties, for example Los Angeles County, do not).
- Allows prosecutors to add together multiple unrelated misdemeanor level (under $950) thefts to arrive at a dollar amount of over $950 in order to charge them as a felony.
- Prop 47 set the felony threshold for theft at $950, an amount lower than 40 other states including South Carolina ($2,000) and Texas ($2,500).
- This would allow prosecutors to combine entirely unrelated thefts to charge someone with a felony, for example stealing a sandwich in January, returning a rental car late in June, and then taking money out of your employer’s cash register in December.
- Under current law, prosecutors can already add together thefts that are demonstrably related, for example multiple thefts from the same store in the same week or skimming small amounts from your employer every day.
Sentencing Enhancements
Sentencing enhancements require judges to add additional years of prison time on top of the sentence for the underlying crime. This means that the person is punished twice, once by the actual sentence associated with the crime and again by the extra time added by the enhancement. There is a broad consensus that longer sentences have little to no public safety value.
Further, California’s heavy use of sentencing enhancements (particularly for nonviolent felonies) has contributed heavily to both the size of its prison population and its large racial disparities. Prop 36 adds sentencing enhancements that apply to any type of offense and are not limited to drug or theft offenses. Prop 36:
- Adds a mandatory sentencing enhancement if someone “takes, damages, or destroys any property” during any felony offense, and the damage exceeds $50,000 of value.
- This is a sentencing enhancement that previously existed but was allowed to sunset in 2018. Governor Brown vetoed a similar enhancement in 2018 on grounds that there was no “corresponding evidence that it was effective in deterring crime.”
- Unlike the previous version of this enhancement, Prop 36 does not require damage to be intentional, meaning, for example, that it could apply to property damaged in a car accident.
- The dollar amounts are also set at a lower amount when compared to the previous version of this enhancement and will not be adjusted for inflation (meaning the punishments are harsher).
- Adds a mandatory sentencing enhancement of up to three years when two or more people “take, attempt to take, damage, or destroy any property” during a felony, regardless of the value or whether it was intentional.
- Adds fentanyl to an existing mandatory sentencing enhancement for drug sale or possession that adds between three and 25 years (depending on the amount of drugs) to a person’s sentence.
