In 2014, California voters passed a ballot initiative that punished most drug possession and shoplifting as misdemeanors rather than felonies. For the past decade under Prop 47, these convictions have largely not involved jail time. In November, voters will decide whether to undo that with Prop 36, which among other increased penalties would create a new category of “treatment-mandated felony.”
Prop 36, the “Homelessness, Drug Addiction and Theft Reduction Act,” would give prosecutors the discretion to bring felony charges on third or subsequent possession of fentanyl and other so-called “hard drugs.” Rife with misinformation about fentanyl and synthetic drugs, the measure proposes that people facing third-time charges be given an option of treatment rather than incarceration. Those who don’t complete treatment could be sentenced to three years in prison.
“If the offender refuses drug and mental health treatment, they would serve jail time for hard drug possession. For a second conviction of the treatment-mandated felony (the fourth total conviction for hard drug possession), a judge would have the option of imposing time in jail or state prison,” Prop 36 states, encouraging the latter option.
“Only our state prisons are equipped to manage security for hardened drug dealers.”
“It’s cost-saving to keep people at home.”
Mandated treatment has no clear benefits, but many clear harms—one of which is increased risk of overdose immediately after treatment concludes. Denise Elerick, founder of the Harm Reduction Coalition of Santa Cruz County, told Filter that’s one reason she opposes Prop 36.
“If they have to, they will complete it and [then] return to use, which is very risky,” she said. “There is no benefit to the community for sending someone to prison for three years … do you want that person working and part of society with their families? It’s cost-saving to keep people at home.”
Prop 36 blames Prop 47 for increasing so-called property crime. However, a comprehensive review by the Public Policy Institute of California found that “no evidence suggests that changes in drug arrests after Prop 47 or after the pandemic led to any increases in crime.
Disability Rights California stated that Prop 36 boiled down to “punishing people that are poor and unwell.” The Vera Institute of Justice warned that it would “reverse the state’s gains in reducing the dangerous, racially unequal and unconstitutionally crowded prison population.” Research has shown that Prop 47-funded programs decreased recidivism, and saved the state an estimated $800 million in incarceration costs.
According to some estimates, Prop 36 could increase prison population by “a few thousand.” According to others, by tens of thousands.
“It promotes a promise that can’t be delivered.”
“Prop. 36 takes us back to the 1980s, mass incarceration, it promotes a promise that can’t be delivered,” Governor Gavin Newsom (D), who opposes the measure, said according to ABC7. “I would ask those who support it, particularly mayors: Where are the treatment slots, where are the beds? Twenty-two counties don’t have one residential treatment facility. Twenty-two counties don’t have one. I mean, they’re lying to you.”
Although Los Angeles District Attorney George Gascon and at least three other county DA are against the measure, the California District Attorneys Association is in favor. Other supporters include San Francisco Mayor London Breed, San Diego Mayor Todd Gloria and San Jose Mayor Matt Mahan.
Elerick told Filter that many Democratic senators and assembly members have avoided commenting on the measure.
“Harm reduction has a reputation issue in some communities,” Elerick said. “We haven’t seen the political champions we saw with Prop 47. People are laying low.”
Image (cropped) via Arizona Superior Court in Pima County
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