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Allow Felony Charges and Increases Sentences for Certain Theft and Drug Crimes. People convicted of certain drug or theft crimes could receive increased punishment, such as longer prison sentences. In certain cases, people who possess illegal drugs would be required to complete treatment or serve up to three years in prison.
Proposition 36, titled Allows Felony Charges and Increases Sentences for Certain Drug and Theft Crimes, was an initiated California ballot proposition and legislative statute that was approved in the 2024 general election.[2] The proposition repealed parts of Proposition 47, passed during the 2014 general election, and amends the state constitution to increase penalties and allow felony charges for certain crimes.[3]
The proposition will allow for the authorization of the following:[3]
Increasing the penalty for repeat shoplifters (two or more past convictions) of $950 in value or less from a misdemeanor to a felony, punishable by up to three years in prison.
Allowing felony sentences for certain crimes such as theft or damage to property to be lengthened if the crime is committed by a group of three or more people.
Requiring that sentences for certain felonies such as drug dealing be served in prison.
Allowing people convicted of possession of illegal drugs (specifically those who possess certain drugs such as methamphetamines or fentanyl or those who have two or more past convictions for drug crimes) to be charged with a "treatment-mandated felony" instead of a misdemeanor in some cases. Upon completion of treatment, charges will be dismissed. Upon failure to complete treatment, charges stand and include up to three years in state prison.
Requiring courts to warn people that they could be charged with murder if they sell or provide illegal drugs (such as methamphetamines, fentanyl, heroin, and cocaine) that kill someone. This could allow for murder charges in the future if they later sell or provide illegal drugs to someone who dies.
Background
In 2014, California voters passed Proposition 47, which reclassified several felonies as misdemeanors. Proposition 47 passed with nearly 60%[4] of votes across California, and was supported by the editorial board of the New York Times,[5] the editorial board of the Los Angeles Times,[6] and the American Civil Liberties Union.[7] Support for Proposition 47 largely hinged on concerns about the overcrowding of California prisons, deemed an Eighth Amendment violation by the U.S. Supreme Court in 2011,[8] as well as arguments for the reallocation of funds to other crime prevention measures.[7]
In the first five months after Proposition 47 was instated, prison populations dropped by approximately 9,000.[4] As per the U.S. Supreme Court's Brown v. Plata, the prison population reduction necessary to satisfy constitutional requirements could be as high as 46,000 people.[8] As a result of severe overcrowding in California prisons, the findings of the District court in that case affirmed that, “[I]t is an uncontested fact that, on average, an inmate in one of California's prisons needlessly dies every six to seven days due to constitutional deficiencies in the [California prisons’] medical delivery system.”[8][9]
In addition to making a significant reduction in prison populations, Proposition 47 reallocated savings from state incarceration costs in the following ways:[7] 65% to the Board of State and Community Corrections for drug treatment, mental health programs, and housing; 25% to the Board of Education to address truancy, and 10% to the California Victim Compensation Program to provide grants for victims of crime. The use of county-level savings were left to the discretion of county officials.[7] Since 2014, Proposition 47 has generated nearly $1 billion in savings from reductions in incarceration, with funds diverted to programming for homelessness, to reduce recidivism, and to support job seeking programs.[10]
Since then, prosecutors and police organizations have blamed the proposition for the state's increased retail theft, which in 2023 were reported to have reached the highest recorded level since 2000.[11] Statistics released in July 2024 by the California Department of Justice have stated that those earlier figures were inflated and that 2019 through 2024 figures indicate a decline in almost all major crime categories.[12] Some local officials have also blamed the state's increase in homelessness on Proposition 47, which eliminated the legal compulsion of treatment for those struggling from addiction and mental illnesses.[13] Statistics and analysis released from the Board of State and Community Corrections (BSCC) in February 2024 states that Proposition 47-funded programs reduced unemployment, homelessness and recidivism.[14]
In 2024, a campaign was started to qualify Proposition 36 for the November ballot. Despite being opposed by criminal justice reform groups and prominent Democrats such as Governor Gavin Newsom, who at first tried to negotiate competing legislation in order to keep the measure off the ballot[15] and then proposed a competing ballot measure,[16] the proposition gained strong support from Republicans and divided Democrats, with several prominent local officials such as San Francisco mayor London Breed and several members of the state legislature coming out in favor of the measure.[17]
Major financial backers of Proposition 36 include Walmart ($2.5 million), Home Depot ($1 million), Target ($1 million), In-N-Out Burger ($500,000), the California Correctional Peace Officers Association ($300,000) and Macy's ($215,000).[18]
Opposition
The official opposition statement of Proposition 36 argues "Don't be fooled. Proposition 36 will lead to more crime, not less. It reignites the failed war on drugs, makes simple drug possession a felony, and wastes billions on prisons, while slashing crucial funding for victims, crime prevention, treatment, and rehabilitation. This puts prisons first and guts treatment. Vote No."[19]
Opponents stress the limited resources available for anyone charged with Prop 36's new Treatment Mandated Felony Care facilities for Californians with substance-use disorders. In addition, resources for those experiencing mental health crises are already insufficient and Prop 36 will only make matters worse. According to Sacramento County's behavioral health director, Dr. Quist, counties across the state "simply don't have enough capacity right now to take on a whole new population of folks that are getting mandated into treatment."[20]
Prop 36 will cost the state tens of millions of dollars in policing and incarceration,[21] funds that currently support mental health and drug treatment programs.[22] Moreover, mandated treatment has been demonstrated not to be effective, with studies pointing out that it actually causes more harm through its involuntary nature.[23]
Immigration and deportation concerns
Immigration advocates have expressed strong concerns about Proposition 36, arguing that it could lead to an increase in deportations of non-citizen Californians, including green card holders, DACA recipients, and refugees. The proposition reclassifies certain misdemeanor offenses, such as drug and theft, as felonies, which could have severe immigration consequences. Under U.S immigration law, a felony conviction can be considered an “aggravated felony”, which often results in mandatory deportation regardless of the length of residency.[24]
Grisel Ruiz, a supervising attorney at the Immigrant Legal Resource Center,[25] warned that Prop 36 would significantly increase the number of undocumented individuals facing deportation for minor offenses. For example, if “petty theft” misdemeanors become reclassified as felonies, then more immigrants–including green card holders–will be barred from getting legal status and may lose any legal status they previously had, including their ability to obtain a green card and their ability to access valuable waivers to fight deportation cases “which means deportation even if that would cause USC [U.S. Citizen] or LPR [Lawful Permanent Resident] dependents extraordinary hardship”[25] Advocates are concerned about the effect this could have on immigrant families in California because families are separated during deportation, leaving children without parents. This is particularly concerning in California because nearly half of all children, the majority of families have at least one immigrant parent. “one in four people in California is foreign born, and half of all children in California have at least one immigrant parent.”[24]
Public financing: allocation of funds
Critics argue that Proposition 36 reinforces rigid sentencing laws that prioritize punishment over rehabilitation. The California Budget and Policy Center warns that Proposition 36 may impose additional unfunded financial burdens on both state and local governments.[26] This could force local leaders to cut funding for essential public services to manage these unexpected expenses.
The reduction of drug and theft-related felony charges to misdemeanor charges by Proposition 47 of 2014 has saved the state of California nearly one billion dollars in the last ten years, by incarcerating fewer people and imposing shorter sentences. Proposition 36 would remove significant components of Proposition 47, which allocated funds to the Safe Neighborhoods and Schools Fund.[27] This fund provided support for behavioral health services, K-12 education, and trauma recovery programs for crime victims. The latest estimate indicates that Proposition 47 has produced $95 million in savings for the 2024-25 state budget.[28] Funds that were saved by incarcerating fewer people were redirected to crime prevention and substance treatment programs. The reduced charge of a misdemeanor instead of a felony charge, has less of an impact on incarcerated people's employment opportunities and access to housing, which additionally creates cost savings.[29] The recidivism rates of Prop 47 reentry programs were 15.3%, between two and three times lower than the average recidivism rate for people who have served prison sentences.[29]
If Proposition 36 were to be enacted, the savings would diminish by tens of millions of dollars, according to the Legislative Analyst's Office (LAO),[30] or potentially vanish entirely, per the Center for Social Justice (CSJ) assessment.[31] Such changes would result in a substantial decrease in funding for programs aimed at crime reduction, youth support, and victim recovery. Essentially, Proposition 36 would shift tens of millions of dollars annually away from crucial behavioral health services and other essential initiatives back into the state prison system.
The California Budget and Policy Center released a report in which they estimated that Proposition 36 would increase prison costs, with the current estimated cost at $4,553,423,985 annually,[32] cutting funding for crucial services such as behavioral health services, K-12 school programs for vulnerable youth, and trauma recovery services for crime victims, which have been supported with the savings that come from Prop 47. Another concern is that Prop 36 could push more people into homelessness since formerly incarcerated people are ten times more likely to experience homelessness.[33]
Increase in incarceration
It is projected that Proposition 36 could increase the state prison population by 35% by 2029.[29]
The California Budget and Policy Center emphasizes how Proposition 36 advances an “incarceration-focused approach,”[34] rather than prioritizing smart investments in social programs that address the root causes of crime and promote community well-being. Proposition 36 ignores the success of previous sentencing reforms such as Proposition 47, which successfully reduced mass incarceration while maintaining the crime rate at levels significantly lower than historical peaks. "Incarceration-focused" approaches are not only ineffective but also costly and likely to exacerbate existing racial, economic, and health disparities, particularly for communities of color who are already disproportionately impacted by the carceral system.[34]
Proposition 36 will change the dynamics of people sentenced to county jail time and instead create prison sentences. The current estimated number of people in prison is approximately 90,000. If proposition 36 passes, it is estimated to create overcrowded prisons again, at an estimate of roughly 50,000 people incarcerated for drug possession and 33,000 more people in prison over the course of seven years.[32]
The official support statement of Proposition 36 argues that "Prop. 36 makes California communities safer by addressing rampant theft and drug trafficking. It toughens penalties for fentanyl and drug traffickers and "smash-and-grabs" while holding repeat offenders accountable. It targets serial thieves and encourages treatment for those addicted to drugs, using a balanced approach to fix loopholes in current laws."[19]
