Would Prop. 36 reduce retail theft and drug offenses, or would it just punish harshly without deterring crime?

Despite claims and counterclaims by politicians, police officials and community groups about the direction of Oakland’s crime rate, one thing is clear: Many Oakland voters say they continue to feel unsafe when they are out shopping, dining at a restaurant, or even strolling around Lake Merritt.

On Tuesday, California voters will decide on a new statewide ballot measure that proposes tougher penalties for law-breakers. Proposition 36, say its supporters, will provide much needed relief to the crime plaguing the city. But critics say it is at best a Band-aid, and at worst, no solution at all.

Prop. 36, known as The Homelessness, Drug Addiction and Theft Reduction Act, would increase jail and prison time for repeat offenders of crimes such as possession of fentanyl and methamphetamine, and reclassify many misdemeanors as felonies. The ballot measure would introduce a “treatment-mandated felony” option for third-time drug offenders. This would give the offender a choice between receiving drug and mental health treatment or going to jail. Those choosing drug treatment would have the charge expunged at the completion of the program. 

The California District Attorneys Association is among those supporting the proposition. In a Sept. 30 joint op-ed in The Press Democrat, Napa Valley District Attorney Allison Haley and Sonoma County District Attorney Carla Rodriguez called Prop. 36 “reasoned, thoughtful and designed to narrowly address issues that are reducing the quality of life of all Californians: wildly increased homelessness, rising and repeated retail theft and a heartbreaking increase in opioid-related deaths.” They said it would provide incentives for voluntary drug treatment and would be harsher to dealers of fentanyl, which is responsible for a significant uptick in deaths among young people.

The campaign for Prop. 36 is being funded primarily by giant retailers like Walmart, Target and Home Depot, as well as the Phillip Morris tobacco company and the California Correctional Peace Officers Association, among others. Californians for Safer Communities and Californians for Safe Stores and Neighborhoods reported that supporters have collectively put about $13.6 million into the campaign. A recent poll by the Public Policy Institute of California showed 73% of respondents favoring Prop 36.  

But Bay Area and California politicians are divided. Oakland Mayor Sheng Thao has not taken a position on Prop. 36 but has previously questioned whether it would actually lower crime. Oakland North reached out to Thao but did not receive a response. San Francisco Mayor London Breed and San Jose Mayor Matt Mahan have endorsed Prop. 36. 

Gov. Gavin Newsom came out strongly against it. “Prop 36 takes us back to the 1980s mass incarceration, it promotes a promise that can’t be delivered,” he said in September. Newsom reiterated his opposition to the proposition in a virtual press conference last week.

Impact like three strikes

At an Oct. 3 town hall meeting, Alameda County public defender Brendan Woods criticized the measure for its emphasis on punishment instead of rehabilitation. “I’m not exaggerating when I say that this is the biggest issue we’ve seen that’s going to impact criminal justice since three strikes,” Woods said. “Prop. 36 does not address robberies, smash-and-grabs, homelessness. … It will just send more people to jail for petty crimes and deplete funding from services that would help community-based organizations.”  

In their op-ed, Haley and Rodriguez countered that argument, saying, “Prop. 36, if passed, is still subject to the discretion of district attorneys and Superior Court judges. You have the right to expect DAs to be smart and surgical in how they apply the changes, and mindful of the facts of individual cases they prosecute.”

But Haley acknowledged that Prop. 36 leaves unclear where the funding for any mandated treatment would come from. In a joint Public Safety Committee and Senate Public Safety Committee meeting on Sept. 10, Haley said the proposition creates no new funding for community services and provides nothing for the drug and mental-health treatment services that would be mandated through it. The financial responsibility would fall on the counties, she said. 

A report by the California Legislative Analyst’s Office affirmed this. “In total, Proposition 36 would increase state criminal justice costs, likely ranging from several tens of millions of dollars to the low hundreds of millions of dollars each year. …  [And] local criminal justice costs, likely by tens of millions of dollars annually.”

Incarceration costs in California are about $132,000 per person per year, according to the Department of Corrections. Opponents say those costs would increase dramatically if the measure is passed.

“Prop. 36 is projected to put 1.5 million people in jail over the first decade,” said Jose Bernal, political director at the Ella Baker Center for Human Rights in Oakland. 

Further, 22 of California’s 52 counties don’t have a county residential treatment facility, so those who choose the “treatment-mandated felony” option in those counties could sit in jail waiting to receive treatment from another county.  

A questionable reversal

Prop. 36 is seen by many of its critics as a backlash to Proposition 47. That measure, passed a decade ago, decreased certain drug and theft crimes from felonies to misdemeanors. In addition, it required state savings from punishment reductions to be spent on mental health and drug treatment services. Prop. 47 has saved the state more than $800 million dollars, says a report by the Public Policy Institute of California. That money has been used to fund community programs. 

In early October, Alameda County District Attorney Pamela Price, who faces a recall vote initiated by an anti-Prop. 47 coalition, credited Prop. 47-related savings for funding a treatment alternative to incarceration in Alameda County. According to the PPIC report, Prop. 47 reduced prison populations and recidivism rates, improved employment opportunities and housing stability, and had a positive impact on racial disparities in arrests and bookings. PPIC says there is no evidence that changes in the law toward drug arrests after Prop. 47 or after the pandemic increased crime. 

There is evidence, however, that incarceration increases homelessness. A 2020 report by the American Public Health Association found that incarcerated individuals released from confinement are nearly 10 times more likely to experience homelessness than the general public, and are more likely to face restricted access to education, employment and public housing.

Former San Francisco District Attorney Chesa Boudin, who was ousted from office in a 2022 recall and is the founding executive director of UC Berkeley’s Criminal Law and Justice Center, said Prop. 36 would take the state backward in terms of justice. “Prop 47 effectuated a massive transfer of law enforcement resources to local communities for investment in meeting local needs, and that money has been really beneficial.” he said.

Prop. 36 would shift that money back into longer incarceration terms, he said, adding, “And we know that that’s not an effective way to deal with a lot of the underlying root causes of crime.” As for what would better get at root causes, he suggested, “Spending money to make police more effective, holding police accountable to response times and clearance rates would be a far more effective tool than increasing the severity of punishment.”

But in many Oakland neighborhoods, where police response is slow, and residents feel abandoned by city government, a solution can not come soon enough. Take, for example, Ebony Beauty Supply, in East Oakland was robbed four times in the same night. A worker there said they don’t bother calling the police, because the police don’t come.

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Price to supporters: Recall campaign trying to ‘nullify our votes, silence our voices’