Is California Back to Tough-on-Crime Policies? Not Necessarily

Supporters of criminal justice reform in California suffered major losses in last week’s election. Yet, even those who pushed to rein in the state’s progressive movement warn against seeing the election as a repudiation of those reforms entirely.

Among the most high-profile ballot box outcomes: A resounding win for Proposition 36, which rolled back some criminal justice reforms embraced by voters just a decade ago. And the ousting of progressive prosecutors in two of the state’s largest counties, Los Angeles and Alameda. Los Angeles DA George Gascón was handily defeated in his reelection bid, while Alameda County DA Pamela Price was voted out in a recall just two years into her term.

“I think it’s just a ratification that Californians are ready for something more moderate than the progressive reforms that we’ve seen in the last few years,” said Yolo County District Attorney Jeff Reisig, who helped write Proposition 36. “It was too much too fast, and it resulted in a lot of negative consequences that people could see with their own eyes.”

But Reisig doesn’t see this moment as a return to the tough-on-crime laws that dominated California politics for decades. He and other prosecutors have campaigned for years to pass something like Proposition 36, which increased criminal penalties for repeat thieves and drug users by rolling back portions of an earlier ballot measure, Proposition 47.

“Proposition 47 went too far. And this kind of brings it back to the middle,” he said, noting that the ballot measure emphasized treatment for drug users and gave prosecutors wide discretion to decide whether someone should face a felony charge if they repeatedly steal or are caught possessing drugs.

The measure’s passage with more than 70%of voters backing it – support that came from every corner of the state, Reisig said, “doesn’t negate the righteous arguments that the system needed to be corrected coming out of the ‘90s.”

That’s not the argument law enforcement and conservative politicians made for years against reform,s including Proposition 47, which made most low-level thefts and drug charges misdemeanors instead of felonies. Four years ago, prosecutors and retailers tried unsuccessfully to pass a more draconian rollback of Proposition 47 that focused solely on incarceration.

This time, they took a different tack, leaning into the need for more treatment, even though Proposition 36 provides no new funding for those types of programs.

Lenore Anderson, who wrote Proposition 47 and has been a leading national voice for criminal justice reform as president of the Alliance for Safety and Justice, said it’s striking that Proposition 36 was not framed to voters as a return to the harsh incarceration policies of the 1990s.

“The proponents of the campaign talked about mass treatment. They talked about a balanced approach to public safety,” she said. “And in that regard, I don’t think you can walk away from looking at how the proponents ran that campaign and say, this was a referendum on criminal justice reform. It just wasn’t.”

Anderson argues that Proposition 36, which she opposed, was successful precisely because it borrowed cues from the reform movement in focusing on rehabilitation over incarceration. She said those who supported reforms need to better address public concerns.

“Voters have been asking for solutions to the crime and fentanyl issue for years now. And I do think there has been a problem in communicating real-world solutions to concerned Californians,” she said.

Emily Bazelon, a fellow at Yale Law School who wrote a book about prosecutor’s power, says the election results reflect public frustration with visible problems like homelessness, fentanyl use and viral videos of shoplifting.

That may explain why progressive district attorneys in both Los Angeles and Alameda counties lost their jobs last week. Gascón, who rode into office four years ago, at the height of the 2020 racial justice protests, promised to roll back his predecessor’s tough policies. But Bazelon says he lost public support by not doing what politicians are expected to do: Respond to the disorder his constituents were seeing and feeling.

“If you’re Gascón and you’re looking at stats showing that violent crime has come down, you’re going to try to rationally argue with people like, come on, you shouldn’t be so upset. Like, look, things are basically fine – and that does not work,” she said.

Bazelon said whether it’s a policy question or candidate race, politicians fail when they try to talk voters out of their own emotional responses to problems.

State Sen. Scott Wiener (D-San Francisco) agrees that there are some throughlines between Proposition 36’s passage, Gascón’s loss and the recall of Price: Voters want to see accountability for people who break the law.

“People are deeply frustrated when they go into their Walgreens or CVS, and everything is locked up. They’re frustrated when they see growing tent encampments on the street. And they want something to change,” he said. “People want to have confidence that the law is being consistently enforced.”

While the political pendulum has swung back toward the center after more than a decade of criminal justice reforms, Wiener said he doesn’t believe California will ever return to the harshest sentencing policies of its past.