Can Tough-on-Crime Proposition 36 Solve Theft, Drug Use and Homelessness, Despite No New Funding?

Backers of Proposition 36, appearing before voters on next week’s ballot, promise their tough-on-crime measure will create “real accountability” for retail theft, fentanyl use and homelessness. But with no funding for drug treatment, police hiring or housing, experts say the measure could instead reduce money for existing rehabilitation programs if it passes as is widely expected.

Proposition 36 would make it easier for prosecutors to send repeat shoplifters and drug users to jail or prison — and aims to use those felony charges to pressure drug addicts into treatment.

It would do that by rolling back provisions of a ballot initiative passed by state voters in 2014, known as Proposition 47. Proposition 47 downgraded low-level thefts and drug possession to misdemeanors, and it diverted state savings from incarcerating fewer people into programs, including mental health and drug treatment, school truancy and dropout prevention and victim services.

Since Proposition 47’s passage, the state has rerouted approximately $800 million to those programs through grants — funding that could diminish significantly if Proposition 36 passes.

“It’s unfunded and unfortunately, it may impact some existing drug treatment and mental health services,” Gov. Gavin Newsom said at a news conference on Oct. 28 when asked about his opposition to Proposition 36.

While critics, including the governor, frame the measure as a return to the tough-on-crime policies of the 1980s and 1990s, which led to overcrowded prisons, backers, including Napa County District Attorney Allison Haley, argue the ballot measure is “reasoned and thoughtful, designed to narrowly address issues that are reducing the quality of life of Californians.”

At a Sept. 10 hearing in the state Capitol, Haley identified those issues as rising homelessness and retail theft and “a startling proliferation of opioid-related deaths.”

“Prop. 36 incentivizes drug treatment for addicts by giving them choices, by giving them determinative agency in their own lives. … It allows prosecutors to treat an offender with a single theft differently than someone who is a serial offender,” she said. “And it allows prosecutors to treat fentanyl-like the scourge that it is.”

But experts say those promises may be difficult to keep without a huge influx of resources, given the state’s limited drug treatment capacity, its shortage of police officers and the ongoing housing crisis. Meanwhile, the ballot measure is likely to drive up jail and prison spending, according to the nonpartisan Legislative Analyst Office. 

The LAO estimates Proposition 36 would cost taxpayers hundreds of millions of dollars a year, partly by increasing the state prison population “by around a few thousand people,” roughly the capacity of one state prison. It would also increase the number of people in local jails and on probation supervision and decrease the money from Proposition 47 for treatment programs by tens of millions of dollars each year.

All this comes as the state, as well as many local governments, are facing budget shortfalls. San Diego County supervisors recently declined to endorse Proposition 36 after conducting an analysis that concluded the ballot measure would cost the county $58 million a year, could push its jail population beyond its system capacity and would reduce funding for Proposition 47 programs.

Law enforcement staffing 

Supporters of Proposition 36 argue that by making shoplifting and other low-level thefts misdemeanors, it has undercut police officers’ ability to hold people accountable for those crimes. But there’s nothing preventing police from arresting misdemeanor offenders now — except, according to many in law enforcement, their own resources.

Sacramento County Sheriff Jim Cooper, a former lawmaker and longtime critic of criminal justice reforms, told lawmakers at the September hearing that his department doesn’t “have the resources to go after every misdemeanor offender” — and that when faced with a decision between responding to a violent offense or a property crime, they will choose the more serious incident.

“We don’t have the resources for the misdemeanor stuff, the day in and day out stuff because of Prop. 47,” he said. “We only have so much capacity.”

Cooper blamed Proposition 47 for limiting police response to minor crimes. However, that measure didn’t directly impact police staffing, which hit a 30-year low in California, with 3,600 officers lost between 2020–2022, according to the Police Officers Research Association of California.

Proposition 36 wouldn’t change that staffing crisis said Tom Hoffman, who headed the state’s parole department from 2006–2009 and spent over 30 years as a police officer. The measure does not include any new money for police agencies — and in most cases, police officers will have no way of knowing when a shoplifting call comes in whether it will qualify as a felony.

“These cases are the lowest priority,” he said, adding that they should be. “There are 35,000 (misdemeanor) warrants for people in Sacramento County alone for violations of these crimes. And the sheriff freely admits he’s not going to go find them, he’s not going to arrest them, and he won’t accept them being booked into his jail. And [Proposition] 36 isn’t going to change that.”

San Joaquin Probation Chief Steve Jackson supports Proposition 36, saying it would “return balance” to the criminal justice system by allowing more severe penalties for repeat offenders. But he acknowledged that some of its promises may not be easy to achieve.

“There’s no money written into it to fund any of this,” he said.

A solution to fentanyl and homelessness?

Proposition 36 backers are leaning heavily on the ballot measure’s provisions related to drug possession and use — and what they frame as a connection to homelessness.

They note that since Proposition 47 passed, there’s been a sharp decline in participation in drug courts and other diversion programs, which offer someone facing a criminal charge the option of participating in treatment and having those charges dropped. They connect that decline to the rise in homelessness.

“We’ve had a massive explosion in drug addiction, particularly fentanyl, in the last ten years in California since Prop. 47 passed. And that’s associated also with a massive increase in homelessness,” Yolo County District Attorney Jeff Reisig, who helped craft Proposition 36, said at an Oct. 23 news conference.

“There are lots of reasons for people being homeless, but one of the reasons we know very well is serious addiction,” he added. “And because of Prop. 47, they can use fentanyl and heroin every single day, multiple times a day. And it’s a ticket. There’s literally no incentive for them to get help.”

Proposition 36 would let prosecutors charge someone with a felony if they’re caught possessing “hard drugs” like fentanyl more than twice — and offer them court-mandated drug treatment to avoid that felony. Reisig said this would fix what he sees as one of Proposition 47’s major shortcomings: that because drug possession was lowered to a misdemeanor, people have no reason to agree to treatment when they’re arrested.

A KQED analysis of more than a dozen counties shows he’s right that drug court participation is down sharply since Proposition 47’s passage — but drug treatment programs are still widely utilized, said Gary McCoy, vice president of policy at HealthRIGHT 360, which provides substance use disorder treatment, mental health services and other health care to over 49,000 Californians annually.

He said that in San Francisco, which has some of the most robust treatment networks in the state, fewer than 40 residential treatment beds are available out of the city’s 575 total. And in some rural counties, the options are even slimmer, he said.

“There’s no money to expand treatment in the proposition,” he said, noting that if someone can’t get into treatment and is facing a felony charge, they will likely be kept in jail. “It’s promising to incarcerate people again.”

Reisig rejects this argument, saying that Proposition 36 isn’t “reinventing the wheel” but simply bringing back programs that existed prior to 2014. Jackson, the probation chief, said some counties may struggle to find treatment space, but he believes many, including San Joaquin County, do have space available.

Critics argue the measure’s only impact on homelessness would come through increased incarceration, noting it contains no provisions or funding for housing or shelter beds.

Proponents point to recent state laws and initiatives to expand mental health and drug treatment options, including Proposition 1 in March, which Newsom wrote. Proposition 1 was a $6.4 billion bond to increase mental health and substance abuse services and build supportive housing.

Newsom said that the ballot measure was carefully crafted to help people with chronic mental illness get off the streets — and that Proposition 36 will increase demand for treatment beds and staff that wasn’t anticipated as part of the multiyear process that led to Proposition 1.

“So I guess what they’re trying to say is, well, we’ll just attach Prop. 1 dollars,” Newsom said. “It’s a very lazy response to a very serious issue and a complicated issue.”

Hoffman, the former parole chief, called it “absurd to suggest that there is a solution to any one of those super complicated social, economic, political and criminal problems” in one ballot measure.

“Homelessness is going to be impacted, fixed by Prop. 36. Really?” he asked. “For me, it just seems beyond logical.”