By Casey Rafter

When results from local elections came in last November, large retailers like Walmart and Target saw a big win in the passing of Proposition 36, aimed at increasing punishments for drug and theft crimes. In addition to big box stores, who were hit with an increase in theft of 22% in 2022 and 39% in 2023, ads in support of the proposition showed graphic images of public disorder in California, including property damage being carried out during thefts followed by promises that this new measure offers a balanced approach to reducing crimes by increasing punishments.

Winning with a margin of 68%, Prop 36 allows felony charges – and other increases in punishment – for possessing specific drugs and committing thefts that cost under $950. In both cases, this also affects consequences if the individual offender has two or more prior convictions related to drugs or theft.

While broadly supported by the business community, the measure isn’t free. According to the Official California Voter Guide website, this change in law could yield incarceration costs for state prisons and local jails by tens-to-hundreds of millions of dollars every year.

The Legislative Analyst’s Office also analyzed the effects of the increase in punishments put into law by the bill and found an expected increase in the state prison population by over 500 in the first year, with an increase in population of about 3,300 inmates by the end of 2026.

During a recent presentation by Justice2Jobs, Sacramento Criminal Attorney Tiffanie Synnott explained that the overall goal of Prop 36 is to solve the issues of theft and drugs that California has faced since the 1950s, but it will have complicated impacts to local courts and health systems. 

The bill labels a specific list of narcotics as “hard drugs,” including fentanyl, heroin, cocaine-based drugs and methamphetamine. All of these substances have historically been tied to overdose and death for users, Synnott pointed out. Now, Prop. 36 makes the punishment for selling these drugs align with the potentially fatal consequences for handing them to another user.  

“The court must legally advise you on record that, if you have one of these ‘hard drugs’ and … you sold it to someone, or you transported it to someone, and that person died as a result of a drug you gave them, you can now be convicted of murder,” Synnott detailed. “If you have a prior conviction for possessing or selling a hard drug in your past, and then you pick up a new case … the court does not have to offer you a mandatory [rehab] program.”

Synnott also talked about the way felony sentences for theft or damage to property will now be lengthened if the crime is committed by a group of three or more people.

Prop.36 allows a court to deem a drug abuser with mental health disorder as gravely disabled, which allows flexibility with civil holds in psychiatric hospitals.

“Department Health reviews any petitions, Synnott said. “If the client is ordered to appear in court, they’re offered voluntary services with a provider. If not, then the court can put them into care court to get treatments for up to one year.”

Other changes to law include penal code 7806.5, which allow agencies to wield their jurisdiction based on any or all of three factors, regardless of their distance from where a suspect was apprehended or charged.

“This is really scary, because it allows jurisdiction to happen in any county in which the theft occurred, the merchandise was recovered, or a county where any act was done to aid a theft,” Synnott emphasized. “If you’re in possession of stolen goods in Solano County, Solano County can now charge you, not just Sacramento County.”

Throughout the presentation, Synnott talked about unintended consequences of Prop. 36. According to the Department of Justice’s Office of Justice Programs, research shows that merely getting caught for a crime like theft or drug trafficking is often a more effective deterrent than the punishments associated with a conviction. The study indicated that criminals aren’t often deterred by punishments like jail or prison because, at the time of the crime, they have little to no knowledge of those realities.

Synnott also pointed out that successive crimes of three or more instances can now be a compounding factor for state prison, if those crimes were carried out within a 10-year period. She gave an example of a criminal with a history of theft or drug sales four years ago, six years ago and 10 years ago.

“But four, six and 11 wouldn’t work,” Synnott said. “They pick up a new one, and now they’re looking at State Prison. A felony if it’s one of the hardcore drugs … like the cocaine, meth. But the problem with Prop 36 is it could be a misdemeanor possession, and people are looking at felony in state prison. It’s crazy.”