Voters approve Proposition 36 to increase penalties for theft and drug crimes

California voters came out firmly behind Proposition 36, the ballot measure aimed at toughening penalties for serial theft and fentanyl trafficking, confirming countless polls leading up to Election Day that showed over 70% support for the initiative.

Early results showed a support margin of nearly 3 to 1. The earliest votes counted Tuesday evening came primarily from mail-in ballots.

Proposition 36 was developed in response to growing public frustration with organized retail theft and serial theft, which has been highly visible since the pandemic through viral videos on social media and pervasive media coverage. The measure also targets the trafficking and possession of fentanyl, which now represents the deadliest dimensions of the national opioid epidemic.

The initiative requires a change to the state penal code to bypass the $950 threshold that distinguishes petty theft, a misdemeanor, from grand theft, a felony. The distinction is important because a felony arrest typically results in more stringent prosecution in court and a higher likelihood of jail time, while a misdemeanor often results in a citation and release on the spot.

Proponents of the initiative claimed that current policies left law enforcement toothless in prosecuting serial thefts, and contended that offenders could get out of prison and go to court with impunity as long as the theft was below the threshold. The change would make any theft a felony if the perpetrator has two or more prior convictions for theft.

Under Proposition 36, fentanyl-related crimes would face harsher penalties, including a mandatory prison term for those convicted of selling fentanyl and other hard drugs while armed and a possible murder charge for those selling them Drugs cause death by overdose. Additionally, those arrested for possession of fentanyl and similarly classified drugs could be charged with “treatment-requiring” offenses, which would place them in a new drug court infrastructure and give them the choice of undergoing rehab — their charge will be dismissed upon completion – or spend up to three years in prison.

The changes to penalties for theft and drug offenses represented a rollback of part of Proposition 47, the law voters passed in 2014 that set the monetary threshold and upgraded petty theft and drug offenses from felonies to misdemeanors. Supporters of the initiative, which included the state's largest civil rights groups and Santa Clara County District Attorney Jeff Rosen, said it helped California depopulate its prison to comply with a U.S. Supreme Court order to stop crimes committed Homelessness and drug addiction are due to shift out of incarceration and toward rehabilitation and mental health treatment.

And while homelessness is mentioned in Proposition 36's formal title, the ballot does not contain any provisions that directly address the issue. The new law's authors argued that a large number of thefts and drug crimes are fueled by homelessness and that a more aggressive crackdown on these crimes will push significant numbers of homeless people off the streets and into treatment and rehabilitation programs.

How the changes will be paid for remains to be seen: Proposition 36 does not provide a funding source for the changes it seeks to introduce. The nonpartisan Legislative Analyst's Office said in a legislative analysis that the new law would increase the cost to the state of increasing prison populations from “tens of millions of dollars” to “the low hundreds of millions of dollars.”

Critics say that highlights an understated impact of the new law: a decline in revenue for mental health and drug treatment programs that is tied to the amount of savings the state makes by diverting people from prison.

Questions also remain about the state's rehab capacity if Proposition 36 works as intended and injects a flood of people into the treatment pipeline. Proponents and critics argue about whether there are enough treatment beds to even accommodate the existing flow of people lining up for court-ordered treatment; The state's largest counties are already experiencing congestion, resulting in people being held in jail simply because there is no space available for them.