Knock LA

Proposition 36, a California state ballot initiative appearing on the November ballot, is a criminalization measure backed by the prison and police lobby and financed by giant corporations like Walmart and Home Depot.

The initiative is the latest attempt by “tough on crime” groups and their corporate allies to return to the policies and mindset of the War On Drugs era and to fatten the budgets of state prisons and county jails. The campaign for Prop 36 builds upon years of carefully cultivated backlash to a decade of modest but significant criminal justice reforms. Perhaps the most prominent and sinister effort is the now-retracted false claim from the National Retail Federation about the scope of “organized retail crime,” which unleashed a flood of credulous news coverage.

California’s reforms, though far from sufficient, made our communities safer and saved hundreds of millions in taxpayer dollars by reducing prison sentences and expanding treatment-focused approaches to substance use disorders. If passed, Prop 36 would roll back much of this progress. It would bring back felony charges for simple drug possession, create new mandatory sentence enhancements for petty theft, expand the Three Strikes Law, and claw back millions in funds from treatment programs and other community services to fund the expansion of jails and prisons.

To defeat Prop 36, we have to organize and push back against the lies that its backers are spreading. Organizations like the Ella Baker Center for Human Rights, Initiate Justice Action, our sister 501c3 Initiate Justice, California Black Power Network and others are working together to defeat this measure, and it’s going to take every one of us educating our communities about the dangers of Prop 36 to succeed. 

The Harms of Prop 36

If passed, Proposition 36 would bring back felony charges for simple drug possession for personal use, permitting judges to sentence someone battling a substance use disorder to up to three years in prison. It would allow prosecutors to aggregate petty theft convictions and charge someone with a felony with up to a three-year prison sentence, even if the total value of stolen goods equaled far less than $950. That could mean three years in prison for someone convicted of stealing a bag of diapers one day, a pack of toilet paper the next day, and a slice of pizza after that. Meanwhile, Californians wait years for their wage theft claims to be processed, a crime that costs everyday Californians billions of dollars yet somehow lacks political urgency.

Prop 36 would also create a new property-damage enhancement, wherein judges could tack on up to four more years of prison time if damage was done to a property in the commission of another felony — whether the damage was accidental or intentional. It would also require judges to issue advisories to people who sell or share drugs. If two siblings or two partners were sharing drugs and one died or overdosed, the other would be given this court advisory and potentially face a future murder charge. 

Prop 36 would also expand the disastrous Three Strikes Law by allowing prosecutors to charge someone with great bodily injury — a strike offense — if a drug they provided resulted in overdose or death. A similar law in Louisiana has been on the books for over a decade and it hasn’t made a dent in that state’s overdose crisis. But such laws can have a chilling effect on people seeking help for their loved ones during an overdose, with potentially fatal results.

These penalties would likely deepen the systemic racial biases in our prison system. Already in California, more than one in three people in prison are serving a sentence enhanced by the Three Strikes Law, and a whopping 72% of people with a third-strike enhancement are Black or Latine.

But the costs do not stop there. If Prop 36 were to pass, it could increase prison spending by $26 billion over the next decade, increase jail spending by $10 billion over the same time period, and lead to $13 billion in higher court costs. The full extent of the human toll of wasting billions on these failed systems is incalculable, but one clear effect is entirely predictable — Prop 36 will also make homelessness worse in California. Currently, roughly one in five unhoused Californians entered homelessness directly after a stint in jail or prison, and people with a history of incarceration are ten times more likely to experience homelessness.

Prop 36 and Drug Treatment

Prop 36 does not allocate a single dime for treatment or prevention. Instead, over the next decade, it would take away $750 million from drug treatment and homelessness response, subtract $300 million from crime survivor programs, and deduct $10 million from school-based violence prevention programs. These critical funds would instead be directed into bloated state prison and county jail budgets, where access to treatment is woefully inadequate and where the spending would take the form of mandatory new sentence enhancements and court proceeding costs. 

California should be making substance use treatment available on demand. In a 2022 report from the California Department of Health Care Services, 70% of the 58 counties in the state said they are in desperate need of residential treatment services at all levels of care, and nearly 40% of counties said they have zero residential treatment facilities whatsoever. Prop 36 has a confusing and misleading “treatment-mandated felony” provision, but would take hundreds of millions away from existing treatment programs? Furthermore, mandating treatment under the threat of incarceration does not foster healing or a desire to change one’s behavior. It simply recycles the tired and failed punishment model that fuels substance use as opposed to curbing it. People impacted by incarceration are 10 times more likely to have a drug overdose than the general population. And yet, grimly, Prop 36’s backers are billing it as a solution to California’s desperate substance use and overdose crisis. 

And then there are the exorbitant costs associated with jails, prisons, and the court system. Today in California, it costs nearly $133,000 per year per person in state prison. In fact, annual incarceration costs per person have increased 91% over the last decade — largely because of how lengthy sentences are making the prison population much older, which comes with higher healthcare and related costs. There is considerable evidence that lengthy sentences do not deter future crime, and can actually have the opposite effect. A mere 24 hours in jail has an immensely destabilizing effect on a person’s life and dramatically increases their likelihood of re-arrest, not to mention the negative impact on the person’s employment, child custody, and housing, all factors that increase the chances that someone may commit a crime in the future. California’s three-year recidivism rate is already over 40% — measures like Prop 36 are only going to make these figures worse. Wasting billions in public funds to expand the footprint of our prison system is not only morally bankrupt, it is actively counterproductive. 

Simply put, our communities cannot afford this prison spending scam. We deserve real and compassionate solutions to homelessness, substance use, and mental health. Prop 36 seeks to capitalize on people’s fears to unravel important reforms that have made California safer and provided cost savings to fund prevention and treatment programs. Prop 36 will worsen the racial and economic inequities that plague countless Black and brown Californians and decimate our already precarious state budget. 

The choice on Prop 36 should be simple — a resounding NO.

For more information around plugging in with the No on Prop 36 campaign, follow the Ella Baker Center (@ellabakercenter), Initiate Justice (@initiatejustice) and Initiate Justice Action (@ij_action).

Shervin Aazami is the policy manager for Initiate Justice Action