Felonies for Fentanyl: California Swings Right on Sentencing Legislation

On November 5th, 2024, California voters overwhelmingly passed Proposition 36, The Homelessness, Drug Addiction, and Theft Reduction Act. Like many states across the U.S., California allows individuals and lobbying groups to propose their own legislation which, with enough public support, can be codified by a direct majority vote of state citizens. This form of direct democracy allows voters to enact laws they support directly, ignoring opposition from the Governor or state legislators. When Prop 36 goes into effect on January 1st, 2025 [1], felony sentences for repeat offenders of drug and petty theft crimes will be codified into law. The massive margin of success for Prop 36, with nearly 70% of voters supporting the forthcoming legislation [2], marks a stark shift from nearly a decade of preceding reforms decreasing sentencing mandates for similar petty crimes. 

Prop 36 was backed by California law enforcement agencies, prosecutors, and major figures in the retail industry reacting to the rise of petty theft and drug abuse in California. These concerns are well-founded in both sentiment and statistics. In 2014, there were around 5,000 overdose mortalities reported in California, and in 2022, there were over 10,000 [3]. This was largely due to the influx of fentanyl. Additionally, “crime statistics for 2023 show continued growth in shoplifting statewide; reported incidents are 28% higher than in 2019” [4]. Besides raw statistics, Californian voters hold a general sentiment of dissatisfaction with the extreme visibility of petty theft and drug use, especially within major cities. Rows of cars with smashed windows, mass broad-daylight retail theft, and the horrifying conditions of drug addiction are in full view of the media and Californians themselves. Crime bumps up against centers of commerce, wealthy neighborhoods, and some of the most culturally significant sites in the world. The actual rise of the specific crimes subject to Prop 36 and public outcry caused by crime’s unignorable presence in popular public spheres has led to a sense of anger towards crime in the state. Voters want to see petty crime that has damaged businesses, communities, and the reputation of the state punished.

Prop 36 institutes harsh sentencing mandates and crime classifications to address issues of petty theft and drug abuse. Additionally, Prop 36 allows prosecutors the discretion to charge a felony for hard drug possession after two previous offenses, and it adds fentanyl to the current statutory list of “hard drugs,” which includes cocaine, heroin, and methamphetamine [5]. Prosecutors also have the power under Prop 36 to charge a felony for misdemeanor theft (theft under $950) for third-time offenders [6] to discourage the massive amount of misdemeanor theft that has gone unpunished throughout major Californian cities. Before Prop 36, sentencing legislation classified petty theft and drug possession as misdemeanors, leaving prosecutors hesitant to press charges on these offenses. Misdemeanors carry much lighter sentences, and it is often seen as a waste of District Attorney resources to press charges for such minor crimes. Elevating these petty crimes to a felony level is an attempt to address the public outrage about the lack of convictions for prevalent crimes by giving prosecutors an incentive to press charges against repeat offenders. Proponents of Prop 36 on social media use viral pictures of San Francisco signage warning potential thieves that “STOLEN GOODS MUST REMAIN UNDER $950” to illustrate how, in their view, light-handed sentencing legislation in California has led to backward and lawless cities where the government is powerless to stop crime. Despite the punitive nature of most clauses in this bill, it is not a complete departure from the rehabilitative criminal justice reforms California has implemented over the last decade. For example, Prop 36 allows repeat drug abuse offenders to go through court-mandated drug treatment programs as an alternative to harsh felony sentences [7]. This maintains progressive measures California has taken to help victims of drug addiction get the treatment they need to stay clean without derailing their lives with a felony charge and the barriers felons experience upon release. Overall, however, Prop 36 rolls back much rehabilitation reform California has experienced in favor of more punitive sentencing mandates for petty crime. 

Prop 36 is not just a response to rising crime rates; it is a reaction to a decade of rehabilitative criminal justice reform beginning with the passage of Prop 47 in 2014. Known as The Safe Neighborhoods and Schools Act, Prop 47 removed felony status for nonserious property and drug possession crimes unless the offender had a previous conviction of a violent or otherwise serious crime [8]. A large motivation for passing this bill was that voters hoped to reduce spending in the criminal justice system used on felony charges for petty crimes and redirect that taxpayer money toward education and drug treatment programs [9]. Passing by a relatively large margin, this bill had a lot of support. Still, the worsening conditions concerning petty crime over the past decade have culminated in Prop 36, which directly strikes down Prop 47 and reinstates felony status for repeat offenses of petty crimes. Prop 36, while it is the largest move against rehabilitative criminal justice reform in recent California history, is not the first conservative reaction California has experienced since the passage of Prop 47. In 2022, San Francisco recalled their District Attorney, Chesa Boudin, under a platform arguing his policies were too soft on crime. At the time, San Francisco was a national spotlight of homelessness, drug addiction, and anti-Asian hate, with viral videos of rampant theft inspiring outrage at Boudin’s refusal to prosecute “quality of life” crimes and his preference for pre-trial diversion programs and lighter sentences [10]. Prop 36 is a culmination of years of anger at public and brash petty crime but also comes at a moment when the nation, as a whole, has shifted right.

Prop 36 comes in light of the Republican party taking control of the executive and legislative branches of government, a shocking change from the Democrat-dominated government in 2020 under the Biden Administration. Rhetoric concerning a loss of law and order regarding immigration used by the Trump administration and most successful Republican Senate campaigns is influential nationwide. It is reasonable to think that successful Republican rhetoric about the lawless state of Democratic policies would have far-reaching effects on local policies, even in a deeply blue state like California. Despite Prop 36 being state-level legislation, it can be contextualized as part of a wider shift towards right-wing, tough-on-crime policies this election cycle. Prop 36 will have impactful effects on petty crime offenders and the justice system as a whole in California. It remains to be seen if voters will be satisfied with more punitive sentencing mandates until the next election.

Sources:

1. Proposition 36, The Homelessness, Drug Addiction, and Theft Reduction Act, Text of Proposed Law (Ca. 2024).
2. Nigel Duara, California voters get tough on crime, pass Prop. 36, CA Matters, (Nov. 5, 2024), https://calmatters.org/politics/elections/2024/11/prop-36-california-election-result/.
3. CDC, Drug Overdose Mortality by State, (2014), https://www.cdc.gov/nchs/pressroom/sosmap/drug_poisoning_mortality/drug_poisoning.htm.
4. Magnus Lofstrom & Brandon Martin, Commercial Burglaries Fell in 2023 but Shoplifting Continued to Rise, Public Policy Institute of California, (Aug. 2, 2024), https://www.ppic.org/blog/commercial-burglaries-fell-in-2023-but-shoplifting-continued-to-rise/.
5. Id at 1.
6. Id at 1.
7. Id at 1.
8. Cali. Pen. Code § 666.1 (2014).
9. Id.
10. Harvard Law Review, San Francisco District Attorney Chesa Boudin Recalled, State and Government Law – Recent Election, (Apr. 9, 2023), https://harvardlawreview.org/print/vol-136/san-francisco-district-attorney-chesa-boudin-recalled/.