[This is a guest post by Clara Collier. Clara is the editor of Asterisk Magazine.]

Proposition 36 is a California ballot measure that increases mandatory sentences for certain drug and theft crimes. 

It’s also a referendum on over a decade of sentencing reform efforts stemming from California’s historical prison overcrowding crisis. Like many states, California passed increasingly tough sentencing laws through the 90s and early 2000s. This led to the state’s prisons operating massively over capacity: at its peak, a system built for 85,000 inhabitants housed 165,000. This was, among other things, a massive humanitarian crisis. The system was too overstretched to provide adequate healthcare to prisoners. Violence and suicide shot up.

 In 2011, the Supreme Court ruled that California prisons were so overcrowded that their conditions violated the 8th Amendment ban on cruel and unusual punishment. That year, the state assembly passed a package of reforms called "realignment," which shifted supervision of low-level offenders from the state to the counties. Then, in 2014, Californians voted for Proposition 47, which reduced some felony crimes to misdemeanors – theft of goods valued at under $950 and simple drug possession – and made people in prison for those crimes eligible for resentencing. Together, realignment and Prop 47 brought down California’s prison and jail population by 55,000. 

The campaign for Prop 36 is based on the premise that Prop 47 failed, leading to increased drug use and retail theft (but don’t trust me – it says so in the text of the measure). 36 would repeal some parts of 47, add some additional sentencing increases, and leave some elements in place (the LA Times has a good breakdown of the changes here).

It’s easy to round this off to a simple tradeoff: are we willing to put tens of thousands of people in jail if it would decrease the crime rate? But this would be the wrong way to think about the measure: there is no tradeoff. Prop 36 will certainly imprison many people, but it won’t help fight crime.

Drugs

Prop 36 raises the penalty for certain drug crimes from a misdemeanor (months in jail) to a felony (years in jail) - with a few complications that which we’ll return to in the next section.

Across jurisdictions, there’s no correlation between tough drug laws and lower drug use. This is an ecological result , and vulnerable to obvious confounders - for example, maybe jurisdictions with more drug use are more likely to institute strict laws. But the best quasi-experimental studies we have, usually looking at changes in drug use after sentencing reforms, find the same. It also matches common sense: drug users are often deeply addicted and not thinking about the long term.

Proponents of the new measure say California is the exception. An argument by the advocacy group Grow SF includes this chart:

Drug overdoses in California started to spike dramatically starting around about 2017,  a few years after Prop 47 was passed.

But something else happened to influence California drug overdose rates in 2017. If you’ve been following local news at any point in the past decade, you might be able to guess: fentanyl started to reach California markets. The spike in overdoses perfectly tracks the spread of fentanyl in the state – in fact, you can see it right there on the chart. 

(the rise in cocaine and methamphetamine overdoses over this same period most likely also reflects the spread of fentanyl. The data here records deaths by “non-mutually exclusive substance category” – that is, if a person is found dead with both fentanyl and methamphetamine in their system, both will be recorded. These combined overdoses from fentanyl+meth or fentanyl+cocaine are common in San Francisco.)

None of this has anything to do with California's particular approach to drug policy. Fentanyl has had the same devastating impact all over the country: 

California is slightly behind the curve – the drug was first introduced on the East Coast – but clearly following the same trend. In fact, grim as the situation here may seem, California is actually outperforming most of the country: our rate of drug fatalities per capita puts us at 35th place.

The spread of fentanyl is a tragic natural experiment. If states with tougher drug possession were weathering the fentanyl epidemic with fewer deaths, we’d have seen that in the data. But they’re not. There’s no relationship.

(at least, none that I’ve been able to find, though it’s hard to do a direct comparison because state sentencing regimes are so specific. You can play around with the state sentencing data here.)

California’s rise in overdose deaths is an ongoing disaster, and the state must do more to address it – but it has nothing to do with Prop 47, and we should return to our prior that longer sentences don’t do much to affect drug use.

Treatment Mandated Felonies

Returning to the promised complication: Prop 36 doesn’t just raise drug crimes from misdemeanors to felonies. It creates a new category, the treatment-mandated felony. Judges can tell offenders that their crime could be a felony, but that their sentence will be commuted if they complete a substance abuse or mental health treatment program.

This isn’t a bad idea on merits. There’s a thorny debate to be had about the efficacy of involuntary treatment, but at least it’s more helpful for addicts than prison. But there’s an catch: before we can worry about whether treatment programs are effective, we should be certain that they exist.

Prop 36 doesn’t set aside any funding for new mental health and substance treatment beds. This might make sense if California was full of empty treatment centers waiting for addicts to fill them. But in fact, the state desperately lacks treatment beds. A 2022 report by the California Department of Health Care Services found that 70% of our counties "urgently need" residential addiction treatment services. 40% – that’s 23 counties – have none at all. Even the larger and wealthier counties are struggling. San Francisco currently has 2,551 residential treatment beds, of which just 690 are for substance abuse treatment – but the city’s homeless population in need of treatment alone measures over 8,000. Worse still, due to post-COVID staffing shortages, the state is actually losing thousands of treatment beds. 

Even the existing beds may not be accessible. A 2024 RAND study in five central California counties found that – in addition to severe shortages – "many facilities do not accept individuals with prior involvement in the criminal justice system, those with such physical health comorbidities as dementia, and those who either are enrolled in Medicaid or are uninsured." These policies are common in private treatment centers across the state. Of course, everyone forced into treatment by a felony conviction will have had contact with the criminal justice system, and the vast majority will be on Medicaid. In fact, Prop 36 requires that the court refer patients “to programs that provide services at no cost to the participant” – ruling out the most private treatment options. 

In fact, Prop 36 might actually reduce the resources available for treatment programs. That’s because the reduction in prison costs following Prop 47 freed up about $800 million in savings for the state. By law, that money has to be spent on crime prevention, victim services, mental health – and drug treatment. According to the Legislative Analyst’s Office, if Prop 36 passes, the drop in savings is likely to cost these programs tens of millions of dollars annually.

So the most likely outcome in many of these drug cases is that an offender will be willing to go into treatment, but there are no treatment beds available. What happens then? The proposition doesn’t say. Neither outcome - getting years of prison time for a bed shortage that isn’t their fault, or walking free without treatment - makes the treatment-mandated felony idea look very good.

Fentanyl is a terrifying drug. It kills and steals lives at an unprecedented rate. It’s tempting to pass tougher sentencing laws – as many states have – because it’s so crushingly obvious that something must be done, and making simple possession a felony is something.  

But tougher sentences don't keep fentanyl off the streets, and treatment does. Instead of spending this money on more prison beds ($132,000 per person per year!), we should spend it on more treatment beds, and on increasing the availability of effective addiction treatments like methadone and buprenorphine.

Theft

California’s surge in shoplifting and smash-and-grab burglaries over the past three years has been hard to miss. Governor Newsom has made it a signature issue – in August, he signed a new package of laws increasing penalties for retail crimes. A key plank of the argument for Prop 36 is that the old Prop 47 is responsible for California’s retail crime problem, and repealing some of its key provisions would bring things back under control. 

This is one place where my fellow opponents of the new proposition somewhat overstate their case. The otherwise very good LA Times editorial arguing against the measure claims that Prop 47 was “unrelated” to rising retail theft.  The reality is a little more complicated. 

…but only a little. My main source here is a recent report by the Public Policy Institute of California, a nonpartisan think tank which does the most comprehensive data collection I’ve yet seen on the impact of California’s criminal justice reform measures. This report summarizes the results of a year-long research program by PPIC to figure out how Prop 47 impacted crime. The researchers used a few different empirical strategies to isolate the impact of Prop 47. First, they created a synthetic control – a group of states with underlying demographics and trends that roughly match California, but which didn't pass a major criminal justice reform law in 2014. They also compared trends across California counties. Because different counties had different changes in things like recidivism, police clearance rates, and levels of crime, county comparisons can help identify which enforcement mechanisms are associated with particular outcomes. 

They found an increase in property crimes after 2015, but it was almost all car break-ins, which for some reason seemed especially elastic to the sentencing reform (we’ll come back to these later). Shoplifting may have gone up slightly, but this lasted less than a year – by 2016, rates were back down to 2010 levels. Then they continued to gradually decline until early 2020, when pandemic lockdowns made them really plummet. The current retail theft wave started in the summer of 2021, after the economy re-opened. I'm not going to weigh in on the root cause – it could be a functional police strike in response to the George Floyd protests, lockdown-induced dysfunction that never got better, the decrease in police staffing across California over the past few years, or maybe some combination of the above. But something about the pandemic era emboldened criminals or broke policing. Prop 47 is not to blame.

(talking about state averages here is actually slightly misleading: shoplifting is down or static in California's small counties and a few of the larger ones, but very high in Los Angeles and the Bay Area. Shoplifting rates in San Francisco were 24% higher in 2022 compared to 2019, while San Mateo saw a rise of 53%. This is another indicator that Prop 47 – a statewide measure – isn’t the primary driver of the trend.)

Californians - at least, those of us in big cities - shouldn’t have to tolerate the current rate of retail theft. But the decreased sentences of Prop 47 didn’t cause this crime, and there’s substantial evidence that harsher criminal penalties won’t decrease it. So what should we do?

The same PPIC report that showed little effect of Prop 47 on shoplifting found it did have an effect on another type of crime - car break-ins, which rose substantially over the following few years. But if you've been following the debate over Prop 36, you'll have noticed that car break-ins barely feature. The Grow SF blog post in favor of the measure argues that "shoplifting became endemic after prop 47," and the text of the measure itself blames prop 47 for "an explosion in retail and cargo theft causing stores throughout California to close." Retail theft is mentioned four times; cars don't come up once. 

That’s because the car break-in epidemic in San Francisco (and California more broadly) has subsided. It’s getting better statewide, and in its former epicenter in San Francisco, it’s down 60%. That’s because after it made national news, San Francisco got serious and cracked down. What worked wasn’t increasing sentences – it was a targeted operation to track and arrest the most organized, prolific offenders. This approach – focusing on the small number of people responsible for most crimes – has also proven astonishingly successful for violence prevention in Boston and Oakland (before the program got cut).  

Prop 36 supporters’ explicit argument is that, if we raise criminal penalties, it might motivate our police officers to put in a similarly impressive effort and actually arrest criminals. They admit that California’s shoplifting crisis isn’t about recidivism - ie shoplifters getting arrested, serving short sentences, getting out of jail, and shoplifting again. It’s about low clearance rates - shoplifters never get arrested in the first place. But they argue that longer sentences will help raise clearance rates by convincing police that it’s worthwhile to go after shoplifters. This argument is cruel, backwards, and if true would be a damning indictment of the motivations of law enforcement officers.

Instead, we should give police departments the resources they need to do their jobs. Yes, this means more cops -  California is under-policed for its size, and our police staffing rate has been declining since 2008. But we should also expect officers to do their best to enforce the law using the resources they have – even if it means changing a department policy or two. Instead of longer sentences, we should ask our police departments for smarter, more targeted interventions. Unfortunately, police accountability is hard. As with drug addiction, we know the answer – but it’s expensive, difficult to implement, politically unpalatable, involves lots of reduplicated work across 58 counties and countless municipalities, and won’t yield immediate results.

But we shouldn’t give up. Californians can solve our problems – after all, we solved our car break-in epidemic and our prison overcrowding crisis. Our decade of progress on sentencing reform is a significant accomplishment for tens of thousands of people in our state. Reversing it won’t fix the issues we have now. Californians deserve real solutions, not imaginary ones. Vote no on 36.