The Question

Should California allow people to be charged with felonies for possessing certain drugs and for thefts under $950, if the defendant has two prior drug or theft convictions?

The Situation 

The law divides crimes into one of two general categories: a felony or a misdemeanor. Felonies are considered by the legal system to be the most severe crimes and can result in state prison or county jail time for more than one year. The sentence for a felony depends on the specific crime and the defendant’s history of other criminal convictions. Less severe crimes are called misdemeanors. The sentence for a misdemeanor can be a fine, some sort of supervision, or time in a county jail for no more than one year.

In 2014, voters passed Proposition 47, which changed some crimes from felonies to misdemeanors. For example, it reduced shoplifting (stealing items worth $950 or less) from a felony charge to a misdemeanor unless the accused person had prior convictions for serious crimes. Drug possession became a misdemeanor as well. Prop 47 also created the Safe Neighborhood and School Fund, which funneled savings from lower incarceration rates to mental health and drug treatment programs, programs to keep kids in school, and for victim services.

One of Prop 47’s purposes was to reduce overcrowding in state prisons that had been ruled unconstitutional by the U.S. Supreme Court in 2011. Since 2014, the prison population has decreased and the money saved has been redirected toward the Safe Neighborhood and School Fund.

The Proposal

Proposition 36 would turn some misdemeanors into felonies, make some sentences longer, and require some sentences be served in prison instead of county jail. For example:

• If someone has two past theft convictions, then shoplifting could be charged as a felony with a possible 3-year sentence.
• A person who gives or sells an illegal drug to someone who suffers a major injury from using it could receive a longer prison term instead of a jail sentence. This includes drugs like psychedelic mushrooms and peyote.
• If someone with two or more past drug convictions possesses certain drugs, like fentanyl or cocaine, they could be charged with a felony. If the judge decides that someone is “eligible” or “suitable” they must be sent for drug or mental health treatment. If not, they could be sent straight to jail or prison. If someone finishes treatment, the charges will be dismissed. If not, they could be sent to jail or prison.

Prop 36 also requires that people convicted of selling or providing certain drugs, like fentanyl and cocaine, receive a warning by the court that they could be charged with murder if they do it again and someone dies as a result. This practice could increase the likelihood of a murder conviction for the warned person.

Fiscal Effects

Proposition 36 would have financial impacts on both the state and local governments, but the extent of these effects is uncertain and would depend on factors like decisions made by local prosecutors.

The state would experience higher costs, likely in the tens of millions to hundreds of millions of dollars each year, from an increased prison population and the length of time it takes to resolve felonies versus misdemeanors. At the local level, Proposition 36 would likely increase the number of people in county jails and under community supervision. Local courts, prosecutors, and public defenders would also see increased workloads due to the more complex felony cases. Overall, local criminal justice costs could rise by tens of millions of dollars each year.

Proposition 36 would reduce the state savings created by Proposition 47, which are currently used for mental health and drug treatment, school programs, and victim services. This reduction could be in the low tens of millions of dollars annually.

Supporters Say

• Prop 36’s tougher laws against “smash-and-grab” thefts will protect businesses in every community.
• Prop 36 will allow prosecutors to combine the value of items stolen from multiple thefts to increase accountability for serial thieves.
• Prop 36 will reduce crime and substance abuse by mandating treatment for felony drug offenders.

Opponents Say

• The law already requires felonies for smash-and-grab robberies, drug trafficking, and repeat theft – the purpose of Prop 36 is to increase prison time for unrelated crimes.
• Prop 36 will make California less safe by reducing funding for crime prevention, treatment, rehabilitation and services for crime victims.
• Prop 36 would cost taxpayers billions to imprison more people without reducing crime.

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