California’s Prop 36: A Familiar Tune

By Darius Spearman (africanelements)

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California’s Proposition 36, also known as the “Homelessness, Drug Addiction, and Theft Reduction Act,” took effect recently after voters approved it in November 2024. For many in our community, this new law feels like a step backward, echoing past policies that disproportionately harmed Black people. It brings to mind the “war on drugs” and the 1994 federal crime bill, which filled prisons with our brothers and sisters.

This proposition increases penalties for certain drug and theft crimes. It reclassifies some offenses as felonies and lengthens sentences for specific actions, especially those involving multiple individuals or the sale of certain drugs (November 5, 2024, General Election Voter Information Guide – Proposition 36). The law aims to address concerns about rising crime and the trafficking of deadly hard drugs like fentanyl in California (November 5, 2024, General Election Voter Information Guide – Proposition 36). However, the early data suggests a troubling trend: Black people are being disproportionately targeted and harmed, a consequence of systemic issues like poverty, over-policing, and inherent biases within law enforcement.

Understanding Prop 36

Proposition 36 significantly changes how California handles drug and theft offenses. It allows people who possess illegal drugs to be charged with a “treatment-mandated felony” instead of a misdemeanor in some cases (Proposition 36 Analysis | Official Voter Information Guide). This applies to individuals who possess certain drugs, such as fentanyl, heroin, cocaine, or methamphetamine, and have two or more prior convictions for specific drug crimes, like possessing or selling drugs (Proposition 36 Analysis | Official Voter Information Guide).

Furthermore, sentences for these crimes, which previously could be served in county jail or state prison depending on criminal history, will generally be required to be served in state prison under Proposition 36 (Proposition 36 Analysis | Official Voter Information Guide). This shift means more people will face the harsher realities of state incarceration. The proposition also increases punishment for certain thefts, including expanding the aggregation of stolen property value (Criminal laws created or amended by Proposition 36).

Reversing Prop 47

This new law represents a significant reversal of Proposition 47, which California voters passed in 2014. Proposition 47 was a landmark reform that reclassified most unlawful drug possession as a misdemeanor (Understanding Proposition 36). It also significantly lowered penalties for non-violent petty crimes, including drug offenses and property crimes, by downgrading certain felonies to misdemeanors (Understanding Proposition 36).

Proposition 36, in essence, undoes much of that progress. It allows felony charges and increases sentences for certain drug and theft crimes (November 5, 2024, General Election Voter Information Guide – Proposition 36). This change is a stark reminder of how quickly reforms can be rolled back, especially when public fear about crime is high. The shift from rehabilitation-focused approaches to more punitive measures is a familiar pattern in our nation’s history.

“Treatment-Mandated Felony”: What Does It Mean?

A “treatment-mandated felony” is a new type of felony created by Proposition 36 specifically for certain drug possession offenses (Criminal laws created or amended by Proposition 36). Instead of going straight to jail, individuals charged with this felony might get a chance to have their charges dismissed. This happens if they plead guilty and successfully complete a required treatment program (November 5, 2024 Ballot Prop. 36).

This differs from a standard felony, which usually leads directly to incarceration, and a misdemeanor, which has less severe penalties. The “treatment-mandated” part means that the legal consequence is tied to finishing a specific treatment plan, often under court supervision. Supporters of Proposition 36 believe this approach is a middle ground between past “tough-on-crime” policies and recent reforms, aiming to force people into treatment (Proposition 36: Criminal penalties).

Understanding “Wobblers” and Aggregation

“Wobbler offenses” are crimes in California that can be charged as either a felony or a misdemeanor. The prosecutor or judge decides which way to go. This decision often depends on the details of the crime, the defendant’s past criminal record, and other factors. While the data does not explicitly detail how Proposition 36 changes the application of “wobbler offenses,” its focus on increasing penalties for certain drug and theft crimes could mean that some previously misdemeanor or wobbler drug offenses might now be charged as felonies if specific conditions are met (Criminal laws created or amended by Proposition 36).

The aggregation of stolen property value is another important concept. This legal principle allows the values of multiple, separate thefts to be combined to reach a higher threshold, often turning a misdemeanor into a felony. For example, if the felony threshold for grand theft is $950, and someone commits three separate thefts of $400 each, the total value of $1200 could be combined to charge them with a felony, even though each individual theft was below the felony threshold. Proposition 36 expands this aggregation (Criminal laws created or amended by Proposition 36). This means it may be easier to charge multiple small thefts as a felony, potentially leading to more severe consequences for individuals, especially those struggling with poverty.

Jail Versus Prison: The Harsh Reality

There is a big difference between serving time in county jail and state prison. County jail sentences are usually for misdemeanor offenses or shorter felony sentences, typically less than one year. These are served in facilities run by the county. State prison sentences are for more serious felony offenses, often for longer periods, and are served in facilities run by the state.

State prisons generally have higher security levels, different rehabilitation programs, and more restrictive environments than county jails. Under Proposition 36, sentences for certain drug and theft crimes that could previously be served in county jail or state prison, depending on a person’s criminal history, will now generally be required to be served in state prison (November 5, 2024 Ballot Prop. 36). This means that individuals convicted under Proposition 36’s new rules are more likely to face the harsher conditions and longer terms associated with state prison, increasing the burden on individuals and their families.

The Disproportionate Burden: Black Communities

The impact of Proposition 36 on Black communities is already clear and deeply concerning. Just six months after the law took effect, data shows a disproportionate targeting of Black individuals. In San Diego, for example, 32 percent of the 374 people arrested for Proposition 36-related drug or theft charges from mid-December through May were Black. This is alarming because Black people make up only 5.6 percent of San Diego’s 1.9 million residents.

The situation is similar in Alameda County. About 90 percent of the people from north Alameda County, including Berkeley, Emeryville, and Oakland, charged under Proposition 36 are Black. Yet, Black people make up just 10 percent of Alameda County’s total population. These statistics are not accidental. They reflect a historical pattern where policies sold as “tough on crime” inevitably become tools to target Black and Latino communities, often under the guise of racial profiling.

The Cost of “Tough on Crime”

Governor Gavin Newsom, who initially opposed Proposition 36, has allocated about $110 million for its implementation. He noted that the estimated cost to incarcerate one person could exceed $130,000 per year. This significant expense will put pressure on other successful criminal justice reforms. It could slow down the reduction of the total number of prison closures, all at a cost to taxpayers.

The increased incarceration costs and budget strain are a direct result of the proposition generally requiring sentences for certain crimes to be served in state prison rather than county jail. State prisons are typically more expensive to operate. The creation of “treatment-mandated felonies” could also incur costs related to establishing and overseeing new treatment programs and court processes. These financial burdens could affect public services and state and local budgets, diverting funds from other critical areas.

Treatment or Trap?

Proposition 36 establishes a “treatment-mandated felony” where defendants can have charges dismissed upon successfully completing treatment. This indicates a direct link with existing or new drug treatment programs. However, a critical question remains: Is there enough treatment capacity to meet the increased demand that might arise from these mandates?

Ricardo D. García, the chief public defender for Los Angeles County, highlights this concern. He states that “Prop 36 and its treatment mandates are meaningless if there’s no bed, no place for someone to go to.” This points to a potential gap between the law’s intent and the reality of available resources. The proposition also notes prosecutorial discretion in applying felony charges, but specific guidelines or safeguards for this discretion are not clearly defined in the provided information. This lack of clarity could lead to inconsistent application and further disparities.

Recidivism and Rights

The data does not offer specific projections on whether the increased penalties and treatment mandates under Proposition 36 are expected to reduce recidivism rates or improve community safety. Supporters argue that increasing penalties for drug possession is necessary to force people into treatment, which they believe will combat homelessness and potentially reduce crime (Proposition 36: Criminal penalties). However, without clear data or projections, these remain claims rather than proven outcomes.

Regarding legal protections, the provided information does not detail defendants’ rights or appeal options under the new law. However, in the United States legal system, individuals charged with felonies generally have a right to legal representation, a fair trial, and the right to appeal a conviction or sentence. For “treatment-mandated felonies,” there would likely be specific legal processes related to entering and completing the treatment program, and potentially avenues for appeal if treatment is deemed unsuccessful or if there are disputes regarding compliance.

A Familiar Tune: History Repeats

The patterns emerging from Proposition 36 are not new. They are a familiar tune in the history of criminal justice in America, especially for Black communities. The “war on poverty” often becomes a war on poor people. The “war on drugs” becomes a war on drug addicts. And every war sold as a war on crime ultimately becomes a reason to target Black and Latino people disproportionately.

Consider the Anti-Drug Abuse Act of 1986, which made penalties for possession of crack cocaine far more serious than those for powdered cocaine. This law established a racially discriminatory 100:1 sentencing disparity between crack and powder cocaine (The Leadership Conference on Civil and Human Rights). For example, possessing 5 grams of crack cocaine, which African Americans disproportionately consumed, triggered an automatic five-year jail sentence. However, 500 grams of powder cocaine, mostly consumed by wealthier, White demographics, merited the same punishment (The Leadership Conference on Civil and Human Rights).

These racial disparities are never just simple happenstance. They happen by design. The language in Proposition 36 that allows for stiffer penalties for the sale of “certain drugs” raises similar concerns. We must remain vigilant and question whether these new policies are truly about public safety or if they are another chapter in a long history of criminalizing poverty and race.

ABOUT THE AUTHOR

Darius Spearman has been a professor of Black Studies at San Diego City College since 2007. He is the author of several books, including Between The Color Lines: A History of African Americans on the California Frontier Through 1890. You can visit Darius online at africanelements.org.