Transcript: Proposition 36 Would Increase Penalties for Some Drug and Theft Crimes

Olivia Allen-Price: So, recently I was in one of those big box stores in search of a humble can of shaving cream… I make my way to the pharmacy section. Find the right aisle. But then I get to the shelf and … my shaving cream is locked behind plexiglass.

Ericka Cruz Guevarra: Been there before. But with toothpaste. And Tums. 

Olivia Allen-Price: Right. I mean, we’re talking about a can of shaving cream that costs $2.19… and yet, there I was. Ringing a bell, having someone unlock this cabinet for me, annoyed that this is the state of affairs where I live…

Ericka Cruz Guevarra: Also I don’t know if it’s just a me thing, but I get super self conscious about inconveniencing employees for some toothpaste. But I digress …

Olivia Allen-Price: Same. The proliferation of these plexiglass cases for shaving cream and toothpaste, is just one example of how rising concerns about crime and theft are changing how we live. 

Ericka Cruz Guevarra: But proponents of Prop 36 want to take these measures even further – waaaaay beyond some plexiglass case at the local Target. 

Olivia Allen-Price: I’m Olivia Allen-Price, host of Bay Curious.

Ericka Cruz Guevarra: And I’m Ericka Cruz Guevarra, host of The Bay. And y’all – we’ve made it! To the final episode of Prop Fest, our ten part series that goes deep on the California propositions.

Olivia Allen-Price: All so you can vote with confidence! Today we’re digging into Proposition 36, which would increase penalties for some drug and theft-related crimes. 

Ericka Cruz Guevarra: It’s a rollback of criminal justice reforms from a decade ago – and would put more people behind bars in California.

Olivia Allen-Price: But doing so would cost the state money that would otherwise be used for treatment programs that are working.

Ericka Cruz Guevarra: We’ll get into it all, right after this. Stay with us. 

SPONSOR MESSAGE

Olivia Allen-Price: Alrighty, for our final day of Prop Fest, we’re discussing Prop 36, which will read about like this on your ballot..

Samantha Lim: Prop 36 is a statute that allows felony charges and increases sentences for certain drug and theft crimes.

Olivia Allen-Price:  To help us understand what’s at stake with Prop 36, I’m joined by KQED politics correspondent and co-host of the podcast Political Breakdown, Marisa Lagos. Hey, Marisa.

Marisa Lagos:  Hey, Olivia.

Olivia Allen-Price: So Prop 36 has a lot of parts to it which will break down one at a time in just a minute. But to kick us off broadly, what is Prop 36 flooking to do?

Marisa Lagos: I mean, essentially it is looking to crack down on both shoplifting and sort of low level thefts and drug use, which its backers say are sort of the responsible for a lot of the homelessness and kind of the crisis you see in retail stores where everything is locked up. And what they see is really a chaotic sort of state of play on the ground here in California.

Olivia Allen-Price: Now, Prop 36 has undone some of the changes that voters ushered in in 2014 with the passage of Prop 47, which, you know, is one of the probably biggest criminal justice reforms that California has ever passed. Let’s walk through a little bit like what did that prop do? Because so much of 36 is about unwinding, undoing 47.

Marisa Lagos: When Prop 47 passed, we were kind of in this era of trying to reverse a lot of the tough on crime laws. And that wasn’t just out of the goodness of everybody’s heart in California, it’s because the Supreme Court of the United States told California, your prisons are overcrowded. It’s resulting in unsafe conditions for prisoners, and you must figure out a way to reduce the prison population, or we’re just going to start letting people out of the state prisons. 

And so this was one in a series of initiatives that were put forward both by the Democratic governor at the time, Jerry Brown, passed by lawmakers. And then this one was one that kind of came from the outside. Proponents gathered signatures and put it on the ballot. And essentially their argument at the time was, hey, why are we wasting bed space on people who aren’t actually a danger to society? They’re drug users. They’re poor people who are stealing because they’re poor. They should not be in state prison. They should be getting help. And if we pass this, we can use the money we’d save on putting them in prison to actually help them. 

Let’s use it for reentry programs, for drug treatment, programs, for rehabilitation. 

Olivia Allen-Price: Prop 47 passed in 2014 with nearly 60% California voters voting in favor. How’s it all gone over?

Marisa Lagos: I think you can argue it did what it set out to do. It saved $800 million a year in prison costs. And that money was invested into programs that have largely had very successful track records. I mean, if you look at the recidivism rates of people who are just let out of state prison versus those who go into Prop 47-funded programs, there’s no comparison. People who participate in these 47 funded programs are incredibly unlikely to re-offend. 

And so I think part of what we’re talking about here is like. It’s almost like folks are having two different conversations because the proponents of Prop 47 would say, look, we saved this money. We helped people in the process. And the folks on the other side are like, Yeah, but we still have problems with homelessness and drug use and theft. And so, you know, I don’t think anybody who promoted Prop 47 argued that this would end those other issues. I think the question is whether Prop 47 contributed to them. 

Olivia Allen-Price: And that’s a question that’s tricky to answer from a data perspective. What can we say about?

Marisa Lagos: Alright well first let’s talk about theft. In truth, really, a lot of the of problems we’ve seen from a numbers perspective actually only went up in the last couple of years. The first several years after Prop 47 passed, there was n ot a huge spike in shoplifting, there was not a huge spike in a lot of the types of, you know, retail theft that have gotten so much attention. But since the pandemic, we have seen some upticks.

And I’ll just flag because this is who’s backing this: law enforcement never liked Prop 47. And so a lot of what we’re seeing now, I think, is a reaction to a policy that was always sort of reviled within the police and prosecutor community.

Olivia Allen-Price: So you talked a little bit about how Prop 47 worked. What were some of the critiques that people have had about Prop 47?

Marisa Lagos: Right. So I think people who are critical of this see it as kind of letting people off the hook. They think that a misdemeanor is not a serious enough consequence. If somebody is repeatedly shoplifting, if somebody is going into a store again and again and stealing an amount that’s under $950, which is that felony threshold. But that, you know, they know they can get away with it, essentially. And so what we have seen is a real decrease in the number of arrests that are made for those types of thefts. 

And then obviously, we have seen just an explosion of the fentanyl crisis on our streets. You know, in our hospitals. You just have such a dire situation with this incredibly addictive drug that also is so strong that it leads to a lot of overdoses. And so, you know, I think the people backing Prop 36 think that there is a tie between what changed in 2014 with Prop 47 and the fentanyl crisis, and it’s not just because the drugs are stronger, but it’s because. There is not an incentive for drug users to accept treatment if they get arrested.

Olivia Allen-Price: I know this is a pretty important nuance in this one – can you explain how those incentives have changed?

Marisa Lagos: So prior to Prop 47, a lot of district attorneys, if they had somebody who was clearly a drug addict, not necessarily somebody selling drugs, would say, “Hey, you have an option here. You can either take a year in prison or jail. Or you could take drug treatment. And if you complete this drug treatment program, we will wipe that off your record. You will not have a felony drug possession charge anymore.” And a lot of people would take that. But if you’re told it’s going to be a slap on the wrist and a small fine, or maybe you don’t even get arrested at all, you might say, I’m going to keep using.

What we have seen since Prop 47 passed is a real decrease in the number of people who are willing to go into these diversion programs like drug court. 

And I talked to Yolo County District Attorney Jeff Reisig. He’s a big proponent of Prop 36, and he says that he has seen this reality in his own county, even as they’ve really tried to put resources into these drug courts.

Jeff Reisig: The percentage of the population that these new prop 47 programs are serving is like 15% or lower of the total population of individuals that used to be present in drug courts across California. It may be even lower than that in some places, but I can the data in Yolo shows that we used to on average have anywhere from 340 to 500 people a year in drug courts. And the only way you get into a drug court is if, you know, you were caught with possession of hard drugs, right? Meth. Heroin. Cocaine. Fentanyl. PCP. And then after prop 47 passed, those drug courts just slowly started to disappear because there was no incentive anymore for people to participate. 

Olivia Allen-Price: Voters are now being asked if they want to bring back these harsher penalties. How did this get on the ballot in the first place and why this 180?

Marisa Lagos: Yeah. So I mentioned before that this has always been a policy that was very disliked by prosecutors and law enforcement. So district attorneys were kind of the lead folks who crafted Prop 36 and went out to get signatures from voters to put it on the ballot. At the time, as they were collecting these signatures, there was a debate happening in Sacramento about what I’ve alluded to, which is a real crisis for retailers in terms of not just simple shoplifting, people coming in and stealing small amounts of things, but also organized retail theft rings who are coming in. You know, you’ve seen those videos of the smash and grabs, but that’s the tip of the iceberg. You know, we’ve seen a lot of organized criminal gangs essentially target big box stores, small mom and pop stores, steal huge amounts of things and then resell them maybe on online marketplaces or on the street. 

As prosecutors were pushing this ballot measure, a lot of these retailers were getting very frustrated that in the past few years, the legislature and Democratic governor hadn’t been willing to take on this issue. And so a lot of them – Home Depot, Wal-Mart, Target – put in $500,000, $1 million to help get this on the ballot there. It is not clear whether they are going to continue to support this ballot measure, because we did see the legislature and Governor Gavin Newsom actually really tackle this issue this year and pass a huge package of laws that are broadly aimed at the more serious organized retail crime issue. But this is something that I think prosecutors had had their eye on for a long time, and they saw the politics shifting as we came out of the pandemic and the visibility of this retail theft issue became so apparent to voters. 

And so, you know, it went viral on social media. We’ve seen so much outrage on cable news and in the media in general. And I think it just really built to a breaking point where they were … it was very easy for them to ask voters to sign this. And we’re seeing polling now that it’s very likely to pass.

Olivia Allen-Price: OK, so that all brings us to where we are this year, considering Proposition 36. It proposes a lot of different changes, and I want to step through some of them now. So let’s start with how it would increase punishments for drug crimes.

Marisa Lagos: So Prop 36 would create something they’re calling treatment mandated felonies. Essentially, it would say if you have been arrested and prosecuted previously for drug possession that a prosecutor would have the option to charge you with a felony on a third arrest, and if they did they could also offer you something like drug court, where you participate in treatment, and if you complete that treatment the charge would be expunged and you receive no jail time. So, treatment mandated felony is what they’re calling it, but to be clear, nobody would be forced into treatment … they would have the option to take the felony or go into drug treatment.

I’ll note that there’s nothing in this ballot measure to increase funding for treatment. And so I think there are open questions about whether if this were to pass, there would actually be enough beds for all the folks who might get arrested and prosecuted under Prop 36. 

Olivia Allen-Price: Alright, and how would Prop 36 impact theft crimes?

Marisa Lagos: Yeah, I mean under Prop 36, if you’re a repeat thief, you can also be charged with a felony, even if it’s for a small amount of something, you know, worth less than $950. And this is for people who have two previous convictions. So, prosecutors could send you to prison or county jail for repeatedly stealing things. 

This is one of the kind of hearts of the prop 47 criticisms is that one person could sort of repeatedly go into the same store and never face a felony, even if they’re targeting the same place and, you know, really racking up big losses for that store and putting the employees at risk. So this kind of tries to get at that by saying, “hey, look, we’re not going to throw the book at you the first time you steal a small amount of something. But if you keep doing it, we can charge you with a felony by aggregating those offenses together.”

Olivia Allen-Price: And can you just break down for people who aren’t sort of living in the criminal justice world? Felony, misdemeanor. What is the difference there?

Marisa Lagos: Yeah. So a misdemeanor is a crime. It can net you up to a year in county jail and fines. So if you get arrested for a misdemeanor, there’s some sort of discretion for a police officer whether they’re going to cite you right there, say a jaywalking ticket, or maybe if you get arrested for something more serious that they can take you and book you into county jail, you know, a misdemeanor DUI, for example, or something like that. A felony generally comes with more serious criminal penalties, including jail or prison time. It also tends to stick on your record longer. It can affect your ability to get a job later on. It can affect your ability to get housing to coach Little League, things like that. It’s a far more serious criminal penalty and one that has kind of longer lasting impacts on somebody’s life beyond just whatever the sentences for the felony that they’re convicted of.

Olivia Allen-Price: Prop 36 also ups the stakes for people who are charged with selling or providing drugs. Can you sort of explain that, that part of this?

Marisa Lagos: So essentially, Prop 36 says that if you are caught selling or providing drugs to somebody, you could be admonished in court that if you continue to do this, you could get charged with murder. So, for example, if a dealer is given this warning in court, and then someone were to die because of drugs they sold, a prosecutor would have a better case for a murder charge and it definitely is something that harkens back to the kind of tough on crime laws of the 90s.

Olivia Allen-Price: Now, on the ballot, this prop is titled The Increased Drug and Theft Penalties and Reduce Homelessness Initiative. But we haven’t talked that much about homelessness. What does this prop have to do with homelessness?

Marisa Lagos: I mean, nothing directly. But as I said before, I think some of the proponents are really connecting the dots between poverty, drug use and homelessness, and particularly drug use and homelessness. You know, Jeff Reisig, the Yolo County D.A., has talked to me extensively about his nephew, who is a drug user, who is homeless and who has a very supportive, large family, who is willing to support him and get him into treatment, and he will not do it. 

Jeff Reisig: My nephew, I told you, is a poster child for this whole deal. I mean, literally the poster child because he started using heroin in 2014, and he’s been on the streets ever since, and he steals every day to support his habit. And it’s all misdemeanors. And it’s just a big like, we want to force him into treatment. We want him to be compelled into treatment, but there’s no tool for that. 

Marisa Lagos: And so for someone like Reisig, he feels like if people are homeless and using drugs and they just keep getting essentially misdemeanor tickets for stealing or for that drug use, they’re just going to continue to hurt themselves and the communities around them and that this could be a way to essentially get them into that treatment that they need, that it could push them to do something that they may not be willing to do otherwise.

Olivia Allen-Price: If Prop 36 passes, what kind of impact could this have on our prison population and thus the budget?

Marisa Lagos: Right. So it would definitely cut into that $800 million that we have been saving because of Prop 47. The nonpartisan Legislative Analyst’s Office did do their own analysis of this. They’re not sure exactly what will happen because we don’t know, you know, how many people will get caught stealing or doing drugs, how many people prosecutors will choose to charge with felonies. But they’re estimating that it could cost tens of millions of dollars a year, to hundreds of millions of dollars a year in added incarceration costs. It’s a lot of money. It is still in the context of a over $100 billion state budget, a tiny percentage of that, something like one half of 1%. 

But, you know, I think that you can argue that there will be obviously huge implications for the people who end up locked up. They say that up to a few thousand people could end up in jail and prison who would not be there otherwise. 

And then also any of these programs that are doing good work in communities around rehabilitation or reentry, if they’re losing out on that money, there could be sort of domino effects there, because it’s not just the people that are going to be, you know, prosecuted under this. The people who will miss out on opportunities to get help because that money is now being spent on those prosecutions and jailings.

Olivia Allen-Price: What are supporters of Prop 36 sort of arguing and who are they?

Marisa Lagos: Right. So I mentioned the prosecutors, the District Attorney Association of California as the biggest proponent. We also saw major retailers like Target, Wal-Mart, Walgreens, Home Depot and initially back this. I’m waiting to hear if they’re going to continue to support this or if they’re just going to stay neutral. 

I think most interestingly, big city mayors – San Francisco’s London Breed, San Jose’s Matt Mahan, San Diego’s Todd Gloria. These are all pretty liberal Democrats who are backing this. I think that they see what we’re seeing reflected in polls, which show that this is wildly popular and that people are blaming them for a lot of these very visible issues both on the streets and in stores.

The California Republican Party is in support and I would say in the state legislature, we’ve seen kind of a split between more moderate members who do support this and more liberal members who are very reticent to return to any sort of tough on crime laws.

Olivia Allen-Price: And let’s talk opposition. What’s the case being made there and who’s making it?   

Marisa Lagos: The most high profile opponent of Prop 36 is definitely our Democratic governor, Gavin Newsom. He’s really been a long time proponent for these criminal justice reforms. He also backed Prop 64 to legalize marijuana, which had the effect of essentially like wiping a lot of people’s records. And so this is something I think he feels really strongly about. And he has been really reticent to admit any problems with Prop 47 because it is something that he has backed and I think believes in.

Gov. Gavin Newsom: Everyone I know is rushing to reform Prop 47 to raise the threshold. OK. That’s not the fundamental issue. The fundamental issue is the other issues that are not 47 related. And that is the nature of retail theft has changed. It’s not just the onesie, twosies – yes, that’s an issue, I don’t deny that – but it’s also become deeply organized. And that’s what we need to go after. And that’s a whole different thing. 

Marisa Lagos: He’s out there. You have the legislative leadership who also shepherded a lot of these bills to tackle organized retail theft in opposition. The state Democratic Party has voted to oppose it. And then you have, I think, what you would expect, which is a lot of these criminal justice reform and civil liberties groups. Californians for Safety and Justice, who wrote Prop 47, the ACLU, the Anti Recidivism Coalition. These are groups that are largely on the ground working with the populations that were impacted by 47 that would be impacted by 36. And they say we’ve been down this road before and it didn’t work.

I sat down this year with Tinisch Hollins. She leads Californians for Safety and Justice, which originally wrote Prop 47 and has been one of the biggest leaders in pushing criminal justice reforms.

Tinisch Hollins: We’ve tried tough on crime right? Right. You tried. We’ve tried different policy. We don’t. We not only have scientific data or we have lived experience, and we have decades of proof that that doesn’t work. It doesn’t work as appropriate interventions for addiction.

Marisa Lagos: Another thing, talking to Tinisch and a lot of folks within this world is that they feel like police and law enforcement have not been using the tools that they have at their disposal already to get at these problems. 

I mentioned before, you know, you can arrest someone for a misdemeanor. We’ve seen a real pulling back by police since Prop 47 passed. Crime rates have held largely steady in a lot of these kind of property crimes. But clearance rates, which is essentially the arrest rates — how likely are you to get arrested for something? — have gone down by almost half in the last decade or two. 

And so if you’re in San Francisco and you commit a property crime, only 5% of those people get arrested. That’s not to say prosecuted, just arrested. And prosecutors can’t make a case if there’s no arrest. So Tinisch, I think, feels like this is not necessarily calling for a change in law and policy, but a change in how we apply the laws that already exist.

Tinisch Hollins: We already have laws on the books to address those issues, right? Like selling fentanyl is a crime is a felony, right? People can go to jail or prison for that. The question is, “what is the challenge with making arrests?” I’m from San Francisco. I see this all the time. Right? So there’s a lot of public concern around it, and rightfully so, because the tools that law enforcement currently have are not being used. They’re being underutilized.

Olivia Allen-Price: And how are things looking on the spending front for this one?

Marisa Lagos: It is very uneven. I think about $9 million has been raised on the pro-Prop 36 side versus less than $200,000 for the opposition. Again, I think that this campaign is really just starting in earnest. Having someone like the governor on your side, on the no side, is a huge opportunity for what’s called earned media, right? You don’t have to go out and spend money if you’re the governor. You just talk and people put you on TV. But it does seem to me like the criminal justice reform advocates and the people on the no side, in some ways aren’t spending a lot of political capital and money to try to fight this, maybe because they feel like it’s kind of a foregone conclusion.

Olivia Allen-Price: All right. Such a fascinating topic. Thank you for breaking it all down for us, Marisa. 

Marisa Lagos: Thank you.

Olivia Allen-Price: Marisa Lagos is KQED’s politics correspondent and co-host of the podcast Political Breakdown.

Olivia Allen-Price: Alrighty, here’s a semi-condensed review of all that….

A vote yes on 36 means…

• You want to increase sentences for certain drug and theft crimes. 
• You want to establish a new classification of crime, called a treatment-mandated felony that could be issued for certain drug offenses. These would give people charged with some drug felonies the option to get drug treatment instead, and have their record expunged.
• You want judges to be able to warn drug distributors that they could face murder charges if they are caught distributing drugs that lead to a death.

A vote no would keep things they way they are now.

Ericka Cruz Guevarra: And that’s a wrap on Prop Fest!

Olivia Allen-Price: Pfew! It has been a journey, but thank you so much for coming along on the ride. 

Ericka Cruz Guevarra: If you found Prop Fest helpful, please share it with a friend, or give us some love on social media. We want to get the word out so everyone can listen before those ballots are due!

Olivia Allen-Price: If you’re a new listener, welcome! We hope you’ll stick around. I’m Olivia Allen-Price, the host of Bay Curious, which is a weekly podcast that explores the hidden true stories of the San Francisco Bay Area.

Ericka Cruz Guevarra: And I’m Ericka Cruz Guevarra, host of The Bay. We are local, Bay Area news to keep you rooted.

Olivia Allen-Price: Subscribe to both shows to feel more connected to your Bay Area community, and in the know about what’s going on here!

Ericka Cruz Guevarra: Prop Fest is made with love by Alan Montecillo, Jessica Kariisa, Olivia Allen-Price, Amanda Font, Christopher Beale, Ana De Almeda Amaral, and me, Ericka Cruz Guevarra.

Olivia Allen-Price: We get extra support from Katie Sprenger, Jen Chien, Maha Sanad, Holly Kernan …

Ericka Cruz Guevarra: …and the whole KQED family. Thank you so much for listening!