California voters are considering rolling back some of the criminal justice reforms enacted a decade ago as concerns about mass incarceration give way to public anger over property crime and the fentanyl crisis that has plagued the state since hit of the covid-19 pandemic.
Critics say this has allowed crime to flourish and given those suffering from addiction little incentive to break the cycle. The law has also become a political weapon for former President Donald Trump and other Republican politicians who have tried to link it to Vice President Kamala Harris to paint her as soft on crime. As California’s attorney general he did not take a position on the matter.
Much of the debate over Proposition 36 has focused on increased penalties for shoplifting, but the changes in drug policy are even more dramatic. In addition to strengthening penalties for certain drug crimes, the measure would create a new “treatment-directed felony” that could be imposed on people who illegally possess so-called “hard” drugs, such as fentanyl, heroin, cocaine and methamphetamine. and have two or more prior convictions for certain crimes.
Those who plead guilty to the new felony will have to complete drug or mental health treatment, job training or other programs aimed at “breaking the cycle of addiction and homelessness.” Those who complete the treatment program will have their charges dismissed, while failure could result in three years in prison.
The measure has opponents, including Gov. Gavin Newsom, warning against renewing a “war on drugs” that once helped swell California’s prison population.
Proponents argue that tougher sentences are needed as fentanyl overdose deaths from fentanyl crowd morgues. They also point to studies showing that more than 75% of people experiencing chronic homelessness struggle with substance abuse or a serious mental illness.
“We built this not to move people into any custodial environment, but to incentivize them to seek treatment,” said Greg Totten, executive director of the California District Attorneys Association and a spokesman for the initiative’s supporters.
Totten and others pitched the measure as a way to revive drug courts, which they say have become less effective since Proposition 47 removed the stick from what was a carrot-and-stick approach.
Drug courts are judge-led with a specialized caseload, use a collaborative approach to promote rehabilitation, and have been found to be effective in California and nationally. California participants had “significantly lower recidivism rates,” according to a 2006 study commissioned by the Judicial Council of California: 29 percent were rearrested compared to 41 percent of an untreated group.
The Center for Justice Innovation, a national research and reform group developed out of the New York state court system, found that drug court caseloads dropped across California after Proposition 47.
But decriminalization advocates dispute the idea that the approach is effective and say coercive treatment violates people’s rights. Meanwhile, Proposition 47 co-author Lenore Anderson said “we can’t pretend that this kind of good idea that we’re going to arrest and imprison her is going to work. It never has.”
Proposition 47 has led to an increase in property crime, but there is no evidence that changes in drug arrests caused crime to rise, according to a recent study by the nonprofit, nonpartisan Public Policy Institute of California.
The latest reform effort leaves many questions, said Darren Urada of the University of California-Los Angeles Comprehensive Substance Abuse Programs. He was the principal investigator on the UCLA evaluation of an earlier effort to promote the treatment.
“When the policies are implemented correctly, the treatment received through the courts can help people. However, there are many details here that are not clear, and therefore many opportunities for it to go badly,” Urada said.
For example, the ballot measure doesn’t say what would happen to someone who enters treatment but relapses, as is common. how long would it take to complete the program; or what would constitute completion for someone in long-term treatment for mental illness or substance abuse.
Those details were intentionally left vague so that local experts, such as community corrections partnerships, which are already established under existing law, can decide what works best in their jurisdictions, Totten said.
Totten expects a range of approaches, including diversion and inpatient and outpatient treatment programs, and that judges will be guided by the recommendations of treatment professionals.
“I hope this will help people who are really struggling with addiction, who are living on the streets, who are involved in petty theft and other crimes to support their habit – that it will be a door to treatment for them,” he said. Anna Lembke, an addiction expert at Stanford University.
The November ballot measure would also allow judges to send drug dealers to state prisons instead of county jails and increase penalties for fentanyl possession. It would be easier to charge someone with murder if they supply illegal drugs that kill someone.
The changes could increase California’s prison population, currently about 90,000, and county jail and community supervision populations, currently about 250,000, each by “a few thousand people,” the nonpartisan state Legislative Analyst’s Office. Opponents of the measure predict the increase would be much larger: 65,000 people, most for drug offenses and most people of color.
Newsom, one of the initiative’s most outspoken critics, argues that the measure on the November ballot lacks funding. it would reduce the $800 million in savings in Proposition 47, much of which has gone to treatment and diversion programs; and it would only exacerbate the existing shortage of alternative treatments.
“Proposition 36 takes us back to the 1980s,” Newsom, a Democrat, said in August as he signed a package of 10 property crime bills that he and legislative leaders are pushing as an alternative to the broader ballot measure.
But underscoring the contentious debate, the ballot measure has been endorsed by some Democratic leaders, including San Francisco Mayor London Breed, San Diego Mayor Todd Gloria and San Jose Mayor Matt Mahan, who often stress the requirement for of.
This article was produced by KFF Health News, which publishes California Healthline, an editorially independent service of the California Health Care Foundation.
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