Californians accused of certain drug and retail theft crimes may already be facing stiffer penalties under an initiative voters passed this year, alongside related bills Gov. Gavin Newsom signed into law.

Cayla Mihalovich

CalMatters

Voters this November overwhelmingly approved Proposition 36, which both modifies and adds key changes to California law.

That includes prosecutors being able to charge people convicted of various third-time drug offenses with a so-called treatment-mandated felony, which would direct them to substance use disorder or mental health treatment in lieu of up to three years in jail or prison.

Under the new law, courts are also obligated to warn people convicted of selling or providing certain drugs, such as fentanyl, that they could face murder charges for later distributing illegal drugs that kill someone.

And heavier consequences may also extend to petty theft and shoplifting offenses, including the possibility of up to three years in jail or prison if a person has already been twice convicted for certain theft offenses.

Several district attorneys and police departments announced arrests this month that they planned to charge under the new law, including in San Francisco, Solano and Shasta counties.

The measure partially reversed a different initiative voters approved a decade ago, which reduced penalties for certain lower-level drug and petty theft offenses from felonies to misdemeanors. The initiative, Proposition 47, was intended to develop new public safety strategies and reduce incarceration after the state’s prison population exploded due to tough-on-crime policies dating back to the 1980s.

But prosecutors, law enforcement and large retailers who rallied in favor of Prop. 36 said those sentencing reforms went too far and created a revolving door for people to repeatedly commit crimes without being held accountable.

“It’s a clear mandate from the public that we need to take a new approach on public safety issues, specifically hard drugs, retail theft and fentanyl,” said Jeff Reisig, Yolo County District Attorney.

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Those who opposed the measure warned that it will worsen homelessness, drug use and crime by cutting funding for treatment programs, and increasing court and prison costs in the hundreds of millions of dollars.

Behavioral health experts across the state have voiced concern over the efficacy of a treatment-mandated felony, given that most California counties lack the resources needed to provide ‘mass treatment’ that has been promised by the measure’s proponents.

“I believe that (proponents) have also received a mandate to embrace problem solving and supportive services for people who are struggling,” said Cristine Soto DeBerry, executive director of the Prosecutors Alliance of California, a nonprofit organization that opposed Prop. 36.

“I don’t believe the mandate was (to) put more people in prison. It was not what people believed they were voting for. I hope that people with the discretion to enforce this law will think very carefully about the communities they serve and what they were asking for in this moment,” she said.

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Gov. Gavin Newsom tried to keep Prop. 36 off of the fall ballot and for a time considered putting a competing crime measure before voters. Instead, he signed a package of 10 bills in August that will make it easier to prosecute retail and vehicle theft. Those laws go into effect on Jan. 1.

Although Gov. Newsom didn’t put any money into fighting Prop. 36, he referred to the initiative as an “unfunded mandate” that will take California back to the War on Drugs. Indeed, the measure included no new funding streams. But supporters like Reisig voiced optimism that funding opportunities already exist in the law, pointing to a $6.4 billion from the mental health bond voters approved in March.

“I hope that lawmakers and the governor embrace the mandate and work collaboratively to make sure that we’re successful in delivering the promise of Prop. 36,” Reisig said.

About the Author

Cayla Mihalovich is a justice reporter for CalMatters. She is a California Local News fellow and a graduate of the UC Berkeley School of Journalism, where she studied investigative reporting and audio storytelling. She has covered reparations, aging and incarceration for outlets including KQED, The Oaklandside, Oakland North, and others.

About CalMatters

CalMatters is a nonprofit, nonpartisan newsroom committed to explaining California policy and politics.