In summary
Californians overwhelmingly backed Prop. 36 to lengthen criminal sentences for certain theft and drug offenses, and to direct more people to drug treatment after convictions. Voters’ views changed on public safety after the COVID-19 pandemic.
From their phones and their television screens and sometimes out their windows, Californians saw their state change quickly in the pandemic. Homelessness grew then and continued to grow. Fatal fentanyl overdoses soared. Brash daytime smash-and-grab robberies floated from TikTok to nightly newscasts.
A constellation of law enforcement, prosecutors and big-box retailers insisted the cause was simple: Punishment wasn’t harsh enough.
They put forward a measure that elevated some low-level crimes to felonies and created avenues to coerce reluctant people into substance abuse treatment. That measure, Proposition 36, passed overwhelmingly Tuesday night. It led 70% to 30% early Wednesday.
It undoes some of the changes voters made with a 2014 ballot measure that turned certain nonviolent felonies into misdemeanors, effectively shortening prison sentences. Amid the pandemic’s visible changes to California, in its growing homeless encampments, its ransacked Nordstroms and its looted rail yards, critics of that previous initiative finally found the right climate to turn back the law.
The strategy at the center of Prop. 36 is still a matter of debate. Its opponents say harsher sentences will never be an effective deterrent to crime. Much of the science, some of it funded by the U.S. Justice Department, backs them up.
But the victory of Prop. 36, despite opposition from the governor and most of the state’s Democratic leadership, was not about what people know, it’s about what they saw.
An IT technician was afraid to walk five blocks to work in downtown Los Angeles, so he bought a parking pass and drove. A big-box retailer moved all of its goods to its second floor because people kept stealing from the ground floor. The fentanyl crisis had police on body camera videos panicking and fainting when exposed to the substance.
The Prop. 36 campaign ran on images like those, and it promised to make them go away.
That Prop. 36 would pass has been fairly clear since late summer, when Gov. Gavin Newsom’s last-ditch attempts to preempt the measure with other retail crime bills failed to siphon funding from Prop. 36 or to keep it off the ballot. So how did Californians, who supported more lenient sentences under 2014’s Proposition 47, come to support a tougher crime measure a decade later?
“What we might be seeing is evidence of a course correction of a long path of criminal justice reform efforts,” said Magnus Lofstrom, criminal justice policy director at the Public Policy Institute of California. Prop. 36 “targets crime and social problems that people can see: retail theft, more merchandise locked up, more viral videos (of thefts) and then the media talking about all of it.”
It’s those visible problems, Lofstrom said, that can quickly change voters’ minds. That also includes growing sidewalk encampments of the unhoused, paired with public drug consumption.
During the pandemic, the rate of shoplifting and commercial burglaries skyrocketed, especially in Los Angeles, Alameda, San Mateo and Sacramento counties. Statewide, the institute found that reported shoplifting of merchandise worth up to $950 soared 28% over the past five years. That’s the highest observed level since 2000.
Combining shoplifting with commercial burglaries, the institute’s researchers found that total reported thefts were 18% higher than in 2019.
“California voters have spoken with a clear voice on the triple epidemics of retail theft, homelessness and fatal drug overdoses plaguing our state,” said San Jose Mayor Matt Mahan. “In supporting Proposition 36, they said yes to treatment. They said yes to accountability. And they said yes to putting common sense before partisanship, so we can stop the suffering in our communities.”
Californians still want rehabilitation for prisoners
The measure’s opponents say that Prop. 36 was a clever way to reintroduce the war on drugs in a way that will be palatable to voters in 2024. They argue that no studies on criminal justice or homelessness support the idea that harsher punishment — or the threat of harsher punishment — prevents crime or gets people off the street.
Prop. 36 will expend hundreds of millions of dollars in court and prison costs, they say, without measurably reducing crime or poverty.
“We are aware that there’s been a shift in terms of the vibe around criminal legal reform,” said Loyola Law School professor Priscilla Ocen, a former special assistant attorney general at the California Department of Justice.
“I don’t agree with the premise that California is swinging more rightward when it comes to the bad old days of mass incarceration,” she said. “I think on certain issues, yes, the electorate is frustrated with feelings of insecurity — despite the fact that those feelings are often not grounded in data in terms of your likelihood of being victimized, either by a property crime or a crime against a person.”
The Yes on 36 campaign focused on “a sense of insecurity and uncertainty” highlighting the most visible elements of pandemic-era crime, Ocen said. Despite overall violent and property crime rates far closer to their historic lows than their peaks, certain visible crimes such as burglaries and car break-ins have risen year-over-year since the pandemic until at least 2023, the last year for which statistics are available.
“There’s a frustration that in addition to seeing unhoused people routinely on the streets, there’s just feelings of unease, even if it’s not born out in the data,” Ocen said.
Late September polling showed that just as many likely voters favored expanding treatment and rehabilitation as those who advocated for harsher sentences.
The measure’s backers insist the changes will not require the kind of mass incarceration that led to California’s massive prison overcrowding problem of the 1990s and 2000s.
What Californians see in downtowns
Claudia Oliveira, chief executive of the Downtown Los Angeles Chamber of Commerce, said businesses in the city’s commercial center have had to make adjustments since the pandemic to combat retail theft — a Burlington Coat Factory, she said, moved all of its merchandise to the store’s second floor for a while because of repeated thefts on the ground floor.
“It’s not something that we should be angry about, but more sad that we are in a place where people are not healthy and people are still living in scarcity where they have to steal,” she said.
“Sometimes people say ‘It’s just property crime, so why do you care, they have insurance.’ Which is not always true. They have deductibles. I’ve seen small businesses closed after being looted. And it’s not always true that they have the resources to get back on their feet, especially downtown.”
Oliveira said she could not vote on Prop. 36 because she is undocumented. But she said she supported the measure because she expects it to connect people with substance abuse or mental health issues to social services, while preventing theft on the scale California has seen since the start of the pandemic.
Jeff Ashook, 48, said his life in downtown Los Angeles has changed for the worse.
“I started working here in downtown Los Angeles, before the pandemic, and I was living in Glendale at the time, and, yeah, I parked about, maybe, oh, about a half mile away from where I work,” he said. “And I felt safe walking to work. I did.
“Post pandemic — the homeless people came back, but the police officers never did.”
Ashook said he now lives downtown but drives the five blocks to work, out of fear for his safety.
“And I’ve had coworkers who were actually, like, physically assaulted. A few coworkers that ended up having to go to the hospital during that short distance that I was walking,” he said. “So yeah, like I said, it’s made me a bit more jaded.”
Ultimately, Ashook said he could not support Prop. 36 because of the projected costs.
“I don’t like that the fiscal impact (is) ranging from several tens of millions of dollars to a low hundreds of millions,” he said. “That’s a lot of money. And it doesn’t say where that money’s coming from.”
Voters changing priorities on California crime
Ultimately, Lofstrom said, it’s not really a contradiction to have voted for Prop. 47 in 2014 and also for Prop. 36 this year.
In 2014, the state urgently needed to reduce its prison population, for practical reasons and because of a judicial order to keep the population no higher than 137.5% of the prison system’s capacity.
Today, the urgency is pushing in the other direction, he said. But the underlying causes for the increases in shoplifting and overall property crime are still unclear, he said.
“We don’t know what’s contributing to the increases in retail theft. We don’t know how much of this is driven by economic and social challenges that leads to shoplifting,” he said.
Even with Prop. 36 on the books, Lofstrom said much about the measure’s implementation is still to be determined.
“Will cops arrest for it?” he asked. “Will prosecutors pursue these charges? It’s uncertain how all this will play out.”
Joe Garcia is a California Local News fellow
