Voters Overwhelmingly Approve Prop. 36, Ramping up Penalties for Theft and Drug Crimes

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California voters on Tuesday approved a tough-on-crime ballot measure that would allow prosecutors to pursue felony charges against repeat offenders for shoplifting or drug possession.

The Associated Press called the race just before 9 p.m., with an early tally of votes showing more than 70% support for the measure.

Proposition 36, which was written by district attorneys and had the backing of most California law enforcement groups, would allow district attorneys to charge suspects with a felony — instead of a misdemeanor — if they have two prior low-level theft convictions. It would also let prosecutors charge suspects who have multiple drug convictions with a felony or offer them drug treatment as an alternative.

Backers of the measure cheered the results, saying it would help California tackle the state’s visible retail theft problem as well as its fentanyl crisis.

“It’s a clear indication that Californians are ready for safer communities and to get back to some balance here,” said Anne Marie Schubert, the former Sacramento DA and co-chair of the Yes on 36 campaign.

Proposition 36 will roll back key provisions of Proposition 47, which voters overwhelmingly approved a decade ago. That measure, which lowered penalties for most drug possession and low-level theft convictions from a felony to a misdemeanor, has resulted in thousands of fewer people sentenced to jail or prison for nonviolent crimes. The measure also mandated that the money saved from incarcerating fewer people be spent on treatment and reentry programs, as well as victims’ services. To date, more than $800 million have been redirected to those programs, including $95 million this year alone, according to the governor’s office.

Despite opposition from most of the state’s prosecutors and law enforcement groups, Proposition 47 sailed to victory in 2014. It came as the state was undergoing a transformation of its criminal justice system, spurred in part by a U.S. Supreme Court order to reduce its prison population and a backlash against the state’s tough-on-crime push in the 1990s and early 2000s that left thousands of people languishing in prison for relatively minor offenses.

California has been dealing with the aftereffect of Proposition 47 for a decade, Schubert said.

“We’ve seen this increase in theft. This humanitarian crisis of drug addiction,” she said. “Now we also see this epidemic of fentanyl in our communities.”

Backers of Proposition 36 have argued the measure will restore accountability to California’s criminal justice system and ensure that prolific thieves are held accountable. They also say that by mandating drug treatment for repeat users, the measure will help tackle the opioid crisis and even reduce homelessness in California.

“The goal of this initiative, particularly with the drug addiction piece, is to get people back into treatment, to incentivize that treatment, to get them back on track and ultimately actually to keep them out of jail so that they can get rehabilitated,” Schubert said.

But opponents, including many civil rights and criminal justice reform groups, staunchly refute those arguments, insisting the measure will instead result in more people going to jail or prison for being impoverished or struggling with drug addiction — calling it a return to the draconian policies that led to the state’s overcrowded jails and prisons.

Opponents also note that the measure does not include any funding for additional drug treatment, law enforcement or housing and say that rather than increase treatment options, it would actually strip money from drug and mental health services and other programs that help former offenders turn their lives around.

“It really is a bait and switch,” Tinisch Hollins, executive director of Californians for Safety and Justice, told KQED. “I think people are really looking for solutions to issues like the fentanyl crisis and homelessness and retail theft, but Prop. 36 doesn’t offer anything. In fact, it’s the exact opposite. It’s going to defund the programs that people who are going to be mandated to treatment or offered mandated treatment are going to be relying on.”

The measure, Hollins added, “masqueraded as a reform, and it’s the exact opposite.”

“It’s actually an old play,” she said. “It’s tough on crime. It’s the war on drugs 3.0. It’s the reiteration of things like the Three Strikes initiative where we’re holding stiff penalties over people’s heads.”