Proposition 36 is about trying to reduce crime, particularly by imposing stricter sentences for repeat offenders of certain crimes. It changes several of the punishments set when Prop 47 was approved in 2014.

Prop 47 reduced certain nonserious and nonviolent property and drug offenses from felonies to misdemeanors. The measure limited these reduced penalties to offenders who had not committed certain severe crimes listed in the measure — including murder and certain sex and gun crimes. Its intent was to reduce state prison populations.

Prop 36 reclassifies certain of these crimes from misdemeanors to felonies. For example, the theft of items worth $950 or less by a person with two or more past convictions would become a felony under Prop 36 but is currently a misdemeanor.

A misdemeanor is less serious than a felony. Typically, people convicted of a misdemeanor can serve their sentence in a county jail, overseen by the local sheriff’s department, for a maximum of one year.

A felony is defined as a violent or serious type of crime. People convicted of felonies can be sentenced to county jail and community supervision, or to state prison.

It also lengthens the sentences for certain crimes and conditions. For example, if Prop 36 is approved, the sentence for theft or damage of property, if three or more people committed the crime together, will be lengthened by up to three years.

People convicted of selling certain drugs (such as fentanyl, heroin, cocaine, or methamphetamine) may be required to serve their sentence in prison. Currently, these sentences are served in county jail or state prison depending on the person’s criminal history.

The measure would also create a new category of crime — a “treatment-mandated felony.” People who don’t contest the charges could complete drug treatment instead of going to prison. If they don’t finish treatment, they still face up to three years in prison.

The third major change would require courts to warn people convicted of selling or providing illegal drugs to others that they can be charged with murder if they keep doing so and someone dies.

Background

In 2011, a U.S. Supreme Court upheld a decision against the state of California that required reducing the prison population to avoid overcrowding. A federal three-judge panel had ordered every state prison in California to reduce its population to 137.5% of its “design capacity” within two years. In the 2010s, the state’s prisons were functioning at over 180% capacity, which meant they were holding about 34,000 inmates over the limit established by the federal court.

Liberal advocacy groups pushed for Prop 47 as another way to reduce the prison population and direct more money to drug treatment and victim services.

The measure passed by more than 1.3 million votes.

Fiscal Effect

Prop 36 would increase state criminal justice costs in two main ways. First, it obviously increases the State prison population. The Legislative Analyst’s Office estimates that total prison population could increase by around a few thousand people. (There are about 90,000 people in prison now.)

Secondly, the LAO expects increases in State court workload. Not only do felony cases typically require more time, but the new treatment-mandated felonies would increase the courts’ workload.

The estimated cost would be between several tens of millions of dollars to the low hundreds of millions of dollars each year. This amount is less than one-half of 1 percent of the state’s total General Fund budget.

However, the LAO also expects there will be Increased costs for local criminal cases because of the net Increase in County jail and community supervision population. While some offenders would now serve their sentence in prison, thus reducing local jail populations. It could also increase local jail populations because some people would spend more time in county jail or on community supervision before the trial is concluded.

The LAO predicts this increase could be around a few thousand people. Currently, about 250,000 people are in local jails.

One reason felony cases require more time to complete than misdemeanors is because of the need for more evidence and analysis of the crime. This will increase workload for local prosecutors and public defenders, according to the LAO. Also, treatment-mandated felonies would create workload for some county agencies (such as probation or behavioral health departments).

In total, Prop 36 would increase local criminal justice costs, likely by tens of millions of dollars annually, the LAO estimate.

And there is one more additional cost. Prop 47 created a process in which the estimated state savings from its punishment reductions must be spent on mental health and drug treatment, school truancy and dropout prevention, and victim services. These estimated savings totaled $95 million last year.

Prop 36 reduces these savings. If the State were to continue to make the same level of expenditure for these services, for example, mental health and drug treatment, school truancy and dropout prevention, and victim services, it would cost the General Fund tens of millions of dollars annually, the LAO estimated.

Arguments in favor of approval

The California District Attorneys Association, including Riverside County District Attorney Mike Hestrin, and the California Small Business Association are major supporters of Prop 36.

In the Voter information Guide, they begin their statement, “Yes on prop. 36: tougher laws to make our communities safer and hold repeat criminals accountable

“California is suffering from an explosion in crime and the trafficking of deadly hard drugs like fentanyl. . . It is a balanced approach that corrects loopholes in state law that criminals exploit to avoid accountability for fentanyl trafficking and repeat retail theft.”

The explosion in retail theft has caused stores across California to raise prices, lock up items, and close their doors. Prop. 36 increases penalties for smash-and-grab crimes when three or more people act together to commit theft. It also allows prosecutors to file felony charges if a defendant has two or more prior theft convictions.

Once Prop 36 qualified for the November ballot, Hestrin released the following statement on X, formally Twitter. “On behalf of California prosecutors, I am asking for your support for the Homeless Drug Addiction and Theft Reduction Act, an initiative poised to be on the November ballot. This initiative targets sophisticated repeat theft offenders, requires treatment for longtime users of dangerous drugs like heroin and fentanyl, and creates stiffer penalties for fentanyl traffickers.”

“Prop 36 will make our communities safer by creating real accountability for those drug traffickers and criminals who repeatedly steal while also providing meaningful treatment incentives for individuals with mental health and drug addiction issues,“ they averred.

Arguments against Prop 36 approval

“Proposition 36 is the wrong answer. . . This is a one-size-fits-all prison-first approach. Prop. 36 is so extreme that stealing a candy bar could lead to felony charges,” begins the opponents’ arguments against its approval.

“We must address persistent problems like theft and fentanyl, but we must use solutions that work and are targeted at the actual issue, instead of the scattershot failed solutions of the past. By making simple drug possession a felony, this measure will send thousands into state prison, drive up prison costs, and slash money for local safety programs. That will make crime worse, not better.”

Other comments

The League of Women’s Voters opposes Prop 36. They stated, “Prop 36 would erode criminal justice reform in California by reversing key advances aimed at reducing mass incarceration and promoting rehabilitation. It would impose stricter sentencing laws that disproportionately impact people of color and those with low-income, exacerbating existing racial and socioeconomic disparities in the criminal justice system.

Emphasizing punishment over rehabilitation detracts from effective and humane criminal justice policies, and increased incarceration rates will lead to higher costs for taxpayers without improving public safety.”

The League of California Cities (Cal Cities), representing 476 cities and 80% of Californians, voiced support for Prop 36.

Financial support

The major Political Action Committee supporting Prop 36 is “Yes on Prop 36 – Californians for Safer Communities.” As of Sept. 26, they reported collecting $10.6 million since Jan. 1 and had expended $11.4 million. Their cash available was about $400,000. Since Sept. 26, they have received about another $400,000 in contributions.

There are four PACs that are officially raising money to oppose Prop 36. “The Committee to Protect Public Safety” had $1.2 million in cash available as of Sept. 21. Since then, they have reported contributions in excess of $5 million.

Current Poll results

When asked which of the 10 propositions the voter was most interested in, 26% chose Prop 36, which was the most interest of all the propositions.

And 71% of likely voters were planning to cast a “Yes” ballot and only 26% opposed it. Regardless of party, ideology, gender, race, age or region, a majority of voters were supporting Prop.36. These results were collected by the Public Policy Institute of California in the middle of September.

In a California Elections and Policy Poll conducted about the same time, support favored Prop 36, but not to the level found in the PPIC poll. 57.9% of likely voters say they will vote for Prop 36 to increase criminal penalties for petty theft and drug use, while only 19.0% oppose. We also asked if California voters perceived that crime is higher or lower than last year and 27.2% said crime in the state is “at historic highs” and another 24.5% said it was higher than last year. Only 4.7% of voters said crime was at historic lows and 26.9% perceived that crime had dropped in the state since last year.

At the end of September, a University of California, Berkeley Institute of Governmental Studies poll found the support at 60% and opposition at 21%,

Again 61% of those likely to vote “Yes” said their main reason was “Those convicted of repeatedly breaking the law should receive harsher punishments”

The strongest reason was “More people who break the law should be prosecuted.”