How California’s Embrace of a Tough-on-Crime Measure May Undo a Decade of Reform
The passage of Prop 36 marks a return to harsher punishments for some drug and theft crimes. Advocates worry it will also lead to a surge in prison populations.
| November 25, 2024
Earlier this month, California voters turned back toward the tough-on-crime era with the overwhelming passage of Prop 36, a ballot measure that elevates certain drug and theft charges from misdemeanors to felonies. The measure will effectively revive a sort of “three strikes” policy for some low-level crimes in the state, raising penalties for theft under $950 and drug possession and making those charges punishable by jail or prison time if defendants have two prior drug or theft convictions. The measure passed with roughly 70 percent of voters approving it.
The passage of Prop 36 will also lengthen the sentences of some existing felonies up to three years if the crime, like felony theft causing property damage, was committed together by three or more people. It will also require that felony convictions for selling drugs be served in state prisons, whereas currently some of those sentences are served in county jails. The measure will also create a new category of offense, a “treatment-mandated felony,” which carries a prison sentence of up to three years for people with previous drug convictions who fail to complete court-ordered treatment.
Prop 36 reverses some of the changes California voters made a decade ago when they passed Prop 47, which made some felonies misdemeanors in order to reduce severe overcrowding in the state’s prisons. The state estimates that the reduced incarceration from Prop 47 helped save $800 million over the past decade, the majority of which was reallocated to mental health and drug treatment services.
Advocates who supported those reforms a decade ago are now bracing for a reversal of those trends, as the state’s own analysis predicts that costs associated with increased punishment and prison will soar as state funds allocated to treatment services fall with the passage of Prop 36. While this year’s ballot measure was put forth as a way to make communities safer, opponents worry it will bring a drop in services that erodes community safety.
“Rather than strip money away from resources, we should have doubled down and really fund these things that actually worked,” said Jose Bernal, Political Director of the Ella Baker Center for Human Rights. “The safest communities are the ones that are the most resourced, and so that’s the alternative. That’s what we’ve been fighting for.”
Advocates for incarcerated people fear that Prop 36 will also exacerbate the overcrowding and dangerous conditions that still exist inside many local jails and state prisons. Sam Lewis, executive director of the Anti-Recidivism Coalition, one of the groups that opposed Prop 36, said jails are already severely overcrowded and understaffed, and sending more people to jail will prevent them from getting treatment and prevention.
“We’re going to fill them up with more people, that means people are going to die in there, it means people are going to take a longer time to be able to go to trial, that means more people in the county jail will be suffering instead of actually receiving the treatment that they need.”
Prison overcrowding, and the dangerous and squalid conditions that it created behind bars, helped motivate California to take a step away from mass incarceration with the 2014 passage of Prop 47.
At the time, California prisons held about 156,000 men and women in custody, almost twice their holding capacity. The prison system averaged around one death each week as overcrowding created dangerous conditions inside. Civil rights lawsuits over inadequate medical and mental health care eventually led to a 2011 Supreme Court ruling that the California Department of Corrections and Rehabilitation had violated people’s Eighth Amendment rights. The 5-4 ruling, which found that overcrowding was the primary cause for lapses in treatment, upheld a lower court’s order for the prison system to decrease its population by 46,000.
“Prop 47 was passed because we decided that we want to change felony [charges] so people would not be incarcerated, cost us millions of dollars and human lives,” Lewis said.
From the time the measure passed in 2014 to now, the incarcerated population has fallen from about 131,200 to over 91,800. But after a decade of falling prison populations, Prop 36 is now set to rapidly grow the number of people behind bars in the state. According to an analysis by the Prison Policy Initiative, elevating penalties for theft and drug crimes could increase California’s prison population by 35 percent over the next five years, which would fully undo the reductions the state has seen over the past decade.
A state legislative analysis estimated that implementing Prop 36 would increase state spending on criminal punishment “ranging from several tens of millions of dollars to the low hundreds of millions of dollars annually.” The analysis also estimated that local criminal justice authorities like jails and police departments could see costs increase “by tens of millions of dollars annually.”
The Prop 47 reforms a decade ago funneled savings from decarceration toward community-based support services like mental health and addiction treatment, school truancy and dropout prevention, and job training and housing assistance. Since 2014, the state has allocated around half a billion dollars in savings from Prop 47 to local programs that have helped reduce recidivism for low-level offenses across California.
As those savings dry up thanks to the passage of Prop 36, so will state funding for those local programs, according to the legislative analysis, which estimated a reduction of state spending “in the low tens of millions of dollars annually.”
Bernal with the Ella Baker Center said he would often hear people who supported Prop 36 say that they thought the measure supported programs for people who needed treatment or housing. He said that grassroots organizers who opposed the measure struggled to convince voters concerned about public safety that it could actually threaten community programs that help prevent crime. “I think the people who voted in favor of Prop 36 really want to live in safe communities and don’t want everyone locked up, particularly Black and brown folks,” Bernal added. “But I think folks were misguided.”
Prop 36 was introduced as an effort to assuage voters’ fears about surging rates of shoplifting and commercial theft, which did increase during the pandemic. This time also saw dramatic videos of so-called smash-and-grab burglaries that spread widely across social media and national news.
But a longer-term view reveals an opposite trend: Property crime rates are at some of the lowest levels they’ve been in 40 years. More recent analysis by the California Budget and Policy Center shows that rates of shoplifting remain below pre-pandemic levels.
At the same time, a study of the Prop 47 reforms published in the journal Criminology & Public Policy found that its passage had no impact on homicide, rape, aggravated assault, robbery and burgalary; while motor theft and larceny rates went up, California’s rates still remained below the national average. Bradley Bartos, a professor of government and public policy at the University of Arizona who co-authored the study, said he doesn’t think that “the nitty gritty technical details of the proposition are going to address the change to the landscape of property crime.”
The authors of Prop 36 have also stated that it is aimed to reduce homelessness, but studies show that formerly incarcerated people are ten times more likely to become homeless than the general population. Accordingly, California’s leading homeless policy organizations have come out against the measure.
Already, observers are characterizing the passage of Prop 36 as part of a larger “pendulum swing” towards harsher punishment in California politics. At the same time voters approved Prop 36, they rejected another measure—Prop 6, which would have prohibited slavery and banned forced labor in California. Los Angeles also ousted progressive District Attorney George Gascon in favor of his more conservative opponent, and in Oakland, voters recalled progressive prosecutor Pamela Price after just two years. More California counties voted red than in 2020. Bartos said “it certainly is movement in the opposite direction California had been moving” over the last decade.
But advocates point out that this swing has much more to do with public perceptions of crime than facts on the ground. Lewis attributes the measure’s success to scare tactics pushed by politicians and harmful narratives from news media that led people to believe that crime was going up, despite FBI data showing otherwise.
“The narrative has been one to scare people, to believe that if we lock people up for addiction, that’s going to help us,” Lewis said. “We did that before, and we found that it didn’t work.”
Bartos at the University of Arizona concurs: “People’s perception of how at risk they are has changed over the last four years,” he said, in large part due to shoplifting videos that have gone viral on social media.
The Prop 36 “yes” campaign was backed by large retailers such as Walmart, Target, and Home Depot, which collectively gave more than $4 million to the campaign, as well as statewide prosecutor and prison guard organizations. Bartos fears Prop 36 will give law enforcement officials the discretion to arrest and prosecute low level offenders.
“If police and prosecutors interpret this as a broad countering crime mandate, you may start to see them act as such and be more willing to arrest, pursue,” Bartos said. “It’s going to be a question, how people view it more so than how it changes the calculus of crime.”
Ricardo Garcia, the Los Angeles County Public Defender who opposed Prop 36, said California has “gone back in time 10 years” and predicted a decline in services that will likely lead to worsening drug addiction, substance abuse and trauma.
“After this election, we may find ourselves in the most challenging landscape for the criminal legal system and reform that we’ve seen in decades,” Garcia said. “But it doesn’t mean that we stop the struggle or that the struggle is over. Elected officials need to own the solutions that bring us real safety, accountability and justice, and they need to be proud of them.”
Lewis points out that poverty is a main driver of criminal behavior, and that addressing people’s material needs is a more lasting solution, rather than mass incarceration. He points to instances he has heard of people being arrested for selling baby formula, for example.
“When we think about people that are committing these petty crimes, do you think they’re trying to take over the world and make a million dollars from that? No, they’re trying to feed their children, but those are also the type of people that will be locking up,” Lewis said.
Numerous advocates have said that they will continue to push local and state elected officials to find ways to fund resources that are going to lose money following the passage of Prop 36. The goal, they said, is to redirect resources into proactive measures like substance treatment, schools, creating jobs, and affordable housing for individuals and families.
“We’re not going to stop, we’re going to keep fighting,” Lewis said. We’re going to do the things that the government that’s supposed to represent us, that’s supposed to really fight for us. If they won’t do it, we’ll do it.”
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