During the final inning at the 2024 ballot box, criminal justice reform took three strikes with the defeat of reform-minded prosecutors, the defeat of Proposition 6 to remove involuntary servitude, and the passing of Proposition 36 to hyper-criminalize retail theft into the felony zone.
Sarah Staudt of the Prison Policy Institute titled a report, “California may take a big step backwards towards more incarceration with Proposition 36” and showed her analysis that the ballot initiative would return the prison population to a projected 130,340 from the current 96,225. Her projection, over a period of five years, would mean roughly 135% of the present population.
“This could make our population go up to where it was a decade ago. If that happens, it’s good-bye to single cells,” said San Quentin resident Darryl Farris, 66. He added that he would dread to see triplebunks in the gym again.
The state’s Official Voter Information Guide headlined the measure as a change that “allows felony charges and increases sentences for certain drug and theft crimes.” The PPI article said Proposition 36 would reverse many of the gains made by Proposition 47, which had passed 10 years ago and reduced minor crimes of drug possession and theft from felonies to misdemeanors.
“What Prop 36 would actually do is make thefts of less than $950 dollars — with no minimum — a ‘strike’ for the purposes of future felony charges,” stated Staudt. She illustrated the severity of the measure with the idea that the theft or a candy bar could land the thief in prison.
“Prop 36 will grow prison populations by reversing the sentencing policy changes of Prop 47,” wrote Staudt.
“Because Prop 36 has no funding stream of its own, it will cut into those same Prop 47 savings that fund essential local programs. This will leave local communities without the resources they need to reduce recidivism, house people, treat mental health and substance use disorders, and help people reenter society successfully after incarceration.”
In 2014, proponents of Proposition 47 called the measure “transformative” because of a provision that required reinvestment of savings from decreased incarceration into programs for local reentry, diversion, substance and mental health treatment, and crime prevention. The success of Proposition 47 showed in recidivism rates of 15.3% for participants in reentry programs — two to three times lower than the average of persons who had served prison sentences.
Staudt’s analysis paid close attention to the funding implication of the measure. She called Proposition 36 an “unfunded mandate” that allowed prosecutors to ask for “treatment mandated felonies” for three-time repeat offenders for drug possession but did not provide funding for treatment to take place. Successful completion of treatment mandates could mean a dismissal of charges, but failure would result in a felony conviction with possible incarceration.
Failure would remain subject to broad criteria, Staudt wrote. “If at any time, it appears that the defendant is performing unsatisfactorily in the program, is not benefiting from treatment [or] is not amenable to treatment,” that person has failed. The proposition put determination in the hands of courts, not medical professionals, the article said.
According to the article, the measure might have an unseen racial component. “[P]eople arrested for retail theft are disproportionately young and Black despite white people being more likely to engage in shoplifting.”
Proposition 36 also included sentencing enhancements for distribution and possession with intent to distribute fentanyl. These sentencing enhancements “will not just target the people putting fentanyl into the drug supply — they will target the majority of drug users,” said the article.
“We might get a lot of young addicts with a gang mentality — the antithesis of programmers —who could crash and burn the idea of a rehabilitation center,” said San Quentin resident John Czub, 55, about the possible incoming population. He added that he feared a rise in theft in the buildings: “Users have to support their habit.”
Proposition 36 passed with approximately 68% Yes votes, said CalMatters. The measure might have one positive aspect that voters may not have envisioned. “I see one benefit here,” said San Quentin resident William Tolbert, 65. “If overcrowding gets worse, this new law may push us old lifers out of the system.”
