Voters approve Prop. 36 to toughen the penalties for theft and drug crime

On November 6, 2024By Littum

California voters lined up solidly behind Proposition 36, the ballot measure aimed at stiffening penalties for serial theft and fentanyl trafficking, making good on countless polls heading into Election Day showing over 70% support for the initiative.

Early results showed a support margin of nearly 3 to 1. The earliest votes tallied Tuesday night were primarily from mail-in ballots.

Proposition 36 was crafted in response to growing public frustration over organized retail theft and serial shoplifting that became highly visible since the pandemic in the form of viral videos on social media and ubiquitous media coverage. The measure also targets the trafficking and possession of fentanyl, which has come to embody the deadliest dimensions of the national opioid epidemic.

The initiative calls for an amendment to the state’s penal code to circumvent the $950 limit that separates petty theft, a misdemeanor, from grand theft, a felony. The distinction is important because a felony arrest typically involves more rigid follow-up in court and a higher likelihood of incarceration, while a misdemeanor often results in a citation and on-the-spot release.

Supporters of the initiative argued that current policies have left law enforcement toothless in pursuing serial theft, arguing that offenders can stay out of jail and court with impunity as long as the theft is below the threshold. The amendment will make any theft a felony if the offender has two or more prior theft convictions.

Under Proposition 36, fentanyl-related crimes would be subject to tougher penalties, including mandated prison terms for those convicted of selling fentanyl and other hard drugs while armed, and potential murder charges if the drugs they sell leading to an overdose death. Additionally, those arrested for possession of fentanyl and similar classified drugs would be eligible for “treatment-mandated” felony charges, which would put them in a new drug court infrastructure and give them the choice of going to rehab — their charges dismissed upon completion — or spend up to three years in prison.

The changes to the penalties for theft and drug crimes marked a rollback of part of Proposition 47, the 2014 voter-approved law that set the monetary threshold and reclassified low-level theft and drug charges from felonies to misdemeanors. Advocates of the initiative, which included the state’s major civil rights groups and Santa Clara County District Attorney Jeff Rosen, say it helped California depopulate its prisons to comply with a U.S. Supreme Court order and shift crimes fueled by homelessness and drug addiction away from incarceration and toward rehabilitation and mental health treatment.

And while homelessness is mentioned in the formal title of Proposition 36, the ballot does not have any provisions that directly address the issue. The architects of the new law argued that a plurality of theft and drug crimes are driven by homelessness, and that a more aggressive response to these crimes would move significant numbers of homeless people off the streets and into treatment and rehabilitation programs.

How the changes will be paid for remains to be seen: Proposition 36 does not tie any funding source to the changes it aims to enact. The nonpartisan Legislative Analyst’s Office said in a bill analysis that the new law would raise state costs from “several tens of millions of dollars” to “the low hundreds of millions of dollars” through an increased prison population.

Critics say it highlights an understated effect of the new law: the erosion of revenue for mental health and drug treatment programs that are tied to the amount of savings the state nets by diverting people away from prison.

Questions about the state’s rehab capacity also remain if Proposition 36 works as intended and adds a flood of people into the treatment pipeline. Advocates and critics have sparred over whether there are enough treatment beds to handle even the existing flow of people queuing for court-ordered treatment; the state’s largest counties are already overcrowded, which has meant people are being held in jail, expressly because there is no room for them.

Supporters of Proposition 36 have cited Proposition 1, which was narrowly passed by voters in March to add 6,800 beds to the state’s mental health and substance abuse treatment systems, as a boon to the goals of Proposition 36. But as recently as last week, Gov. Gavin Newsom said — who opposed the vote — said those funds were secured with specific plans in mind and cannot be easily diverted or disbursed to fulfill the promises of Proposition 36.

That’s not to mention the fact that Proposition 36 will overlap with an August package of anti-theft laws approved by Newsom and his legislative allies that were widely seen as an attempt to undercut the ballot by introducing changes like giving prosecutors permit to collect petty thefts. to meet the felony threshold of $950.

California is also in the early stages of implementing CARE Court, the state-mandated program that seeks to force unhoused people and others with severe, untreated psychotic disorders into treatment, but without the leverage of jail or prison that Proposition 36 ushers in. How it all jibes together — or doesn’t — is likely to be a problem for state courts to sort out for years to come.

Originally published: 5 November 2024 at 8:10 p.m. PST