The coalition behind Proposition 36 says the initiative, if passed by California voters on Nov. 5, would “fix some of the unintended consequences” of 2014’s voter-approved Proposition 47, which downgraded some theft and drug crimes to misdemeanors.
Organizers, led by the California District Attorneys Association, said the initiative would amend Prop. 47 to hold repeat retail theft and drug criminals more accountable while incentivizing treatment over jail time for drug users and sellers.
They also say it would not substantially increase jail or prison populations, a key consideration of those opposed to it.
The coalition is concerned that retailers in the state lost nearly $9 billion in 2022 due to theft. According to a recent report from the nonpartisan Public Policy Institute of California, shoplifting jumped by 29 percent in the same year and by another 39 percent in 2023.
In the text of the ballot initiative, the coalition describes the statistics as “an explosion” in crime and says Prop. 36 will “fix the mess our politicians have ignored for far too long.”
“We have an exploding theft problem—cargo theft, porch piracy, fuel theft—and part of the reason we’re having those problems is [Prop. 47],” Greg Totten, CEO of the California District Attorneys Association, told host Siyamak Khorrami on a recent episode of Epoch TV’s California Insider.
Totten said that during his decades as a prosecutor, he has seen the state swing wildly from California’s 1994 Three Strikes law to today’s criminal justice reform, which has led to the early release of many felons.
But he said Prop. 36 is a more moderate approach.
“This is not a wide swing. This is a very centrist swing back toward the middle,” he told Khorrami. “We recognize there’s got to be change in California.”
The goal of Prop. 47 was to reduce the state’s jail and prison populations by reclassifying some drug possession and retail thefts under $950 as misdemeanors.
That changed the mindset of the criminal, Totten said.
Now, he said, “many of the more serious offenders [recognize] there are no consequences and they have stepped up their criminal conduct and are preying upon small businesses and large retailers alike.”
Under Prop. 36, first and second offenses of a retail theft crime would remain misdemeanors—as is the case with Prop. 47—but a third offense would be a felony, at the discretion of the court. Additionally, groups of three or more convicted of theft can also be charged with felonies.
“There [will be] felony consequences for those individuals who repeatedly prey on retailers in that way,” he said.
Fentanyl and Hard Drugs
Regarding those convicted of a third possession of hard drugs—specifically fentanyl, heroin, cocaine, or meth—Prop. 36 allows them to be charged with a “treatment-mandated felony” instead of a misdemeanor. The felony would be expunged from a person’s record when treatment is completed.“It will be as if it never occurred,” Totten said during the 45-minute interview.
He said the initiative’s drug focus is on addiction and trying to help addicts.
“Our goal is to incentivize treatment, and get [people] into treatment,” Totten said. “Unless we change our laws, we are not going to be able to motivate those people into treatment.”
Other Prop. 36 provisions related to possession of hard drugs include the possibility of penalty enhancements if the offender carries a firearm and a warning to those who sell such drugs that they could be charged with murder if they sell again and someone dies.
Totten said the coalition behind Prop. 36 is especially aware of the 100,000 overdose deaths from drugs annually in the nation, and particularly those in California. He said the Centers for Disease Control and Prevention estimates that 70 percent of such deaths are from fentanyl.
“Fentanyl is being used to poison countless people here in this country, and particularly here in California,” he said. “It is the single most lethal drug I have ever seen.”
Homelessness
The changes, Totten said, should lead to a reduction in the state’s homeless population, which he said has grown due to the relaxation of theft and drug laws.“California has a serious homelessness problem. It is related to Proposition 47,” he said.
According to Totten, 80 percent of those who are chronically homeless suffer from both serious substance abuse and mental health issues. And because they currently only receive a citation for drug possession or petty theft, they have no enticement to get off drugs or the street.
“We can’t incentivize those people into treatment under existing law because everything is a misdemeanor,” he said.
He also said Prop. 36 would not dramatically increase the number of those incarcerated in the state’s prisons or its county jails.
According to Totten, the state’s nonpartisan Legislative Analyst Office indicated the initiative would produce only a few thousand more inmates.
“The numbers are not very big,” he said. “Historically, a very small percentage of offenders commit the majority of crimes.”
The focus of the initiative is not putting new criminals away, he said, but targeting repeat “career criminals.”
He said the coalition behind Prop. 36 is made up of more than 2,000 individuals and businesses, including more than 1,000 small businesses. He added that 10 Democratic legislators recently signaled support, as did the mayors of several cities, including San Francisco, San Jose, San Diego and Santa Monica.
“These are communities that are known to be very progressive, very conscious about criminal justice reform. Mayors recognize the problem is so serious that they have signed on and are supporting this initiative,” he said.
Opposition to Prop. 36
But Matt Gonzalez, chief attorney at the San Francisco public defender’s office and former president of the San Francisco Board of Supervisors, says the initiative will ensnare some who don’t deserve jail or prison time and will bog down the state’s already overburdened criminal justice system.According to Gonzalez, crime statistics wax and wane and there is only a perception of it being up now due to video from police body cameras and surveillance cameras on streets and in stores.
“I don’t want to disparage the way people are feeling about the state of crime in their communities. ... People deserve to be safe and deserve to have law enforcement and their tax dollars going to safety. But I am not sure that watching sensational footage of crime on a daily basis is the best measure of whether or not crime is increasing,” he told Khorrami in a separate California Insider episode on the topic.
He said crime in California has been on the decline, for the most part, since the 1980s.
He added that there is already a system in place to handle petty theft misdemeanors, in which a judge can impose a sentence of up to six months in jail. If the person is convicted of stealing again, they can receive another six months.
He said if current law is not working regarding those who commit crimes over and over again, prosecutors are to blame.
“If someone with repeated offenses never has consequences, it’s because the prosecution is doing something wrong,” he said. “It’s not because [Prop. 47] does not allow you to do something.”
He also said “tinkering” with statutes to make third petty theft cases felonies will create a new host of problems for the court system. He said judges won’t want to take such cases to trial, district attorneys already have heavy caseloads, and there aren’t enough courtrooms to boot.
“I promise you there is no judge that is going to want to go to trial on a felony petty case. It’s not going to happen,” Gonzalez said.
He also said Prop. 36’s mandate that a third drug offense would create a “treatment-mandated felony” is misguided and that manufacturers of such hard drugs should be held accountable, not users or sellers.
He said Prop. 47 is a more compassionate approach.
“You have a drug addict suffering from poverty who needs to hustle up money and is willing to sell,” he said. “They’re vulnerable and just trying to make it work.”
He also said provisions are already in place for someone charged with drug possession to go to treatment rather than serve jail time.
“That exists right now,” he said. “[We] don’t need the felony tool to accomplish what [organizers of Prop. 36] want.”
He said he also worries that Prop. 36 would take away discretion when making an arrest, filing charges or determining convictions, all of which, he said, is better done by taking each case individually to better understand a person’s circumstances.
He said perhaps an arrestee is facing immigration issues, or perhaps they are in school or trying to get a certificate for employment and jail time would set them back indefinitely, perhaps forever.
“I think the system is agile enough to try to make exceptions for people to make sure we protect the public ... but also not ruin people’s lives,” he said.
He said he believes that Prop. 36 would ultimately do more harm than good.
“Are you and I better off with a bunch of people running around with felony convictions?” he said. “They will have more trouble getting housing, more trouble getting jobs. How does that help us?”
Instead, he said, the system should help those convicted of petty theft and low-level drug crimes to become law-abiding citizens.
“You can’t go backward,” he said. “It’s about moving forward in a way that respects the safety of the victims and future potential victims but also respects a human being’s ability to turn things around.”
