California voters are facing a decision about how the state should punish people who are repeatedly convicted of robbery or crimes involving the deadly drug fentanyl. Proposition 36, which will be on the November ballot, asks voters to change certain parts of Proposition 47, an initiative passed in 2014 that turned some nonviolent felonies into misdemeanors.
Here's what you need to know about how this year's measure, if passed, would change the law Californians passed a decade ago.
Why was Proposition 47 passed?
In May 2011, a U.S. Supreme Court upheld a decision against the state of California that requested Reducing the prison population to avoid overcrowding. A three-judge federal panel had ordered all California state prisons to reduce their population to 137.5% of their “design capacity” within two years. By the 2010s, the state’s prisons were operating at more than 180% of capacity, meaning they were housing about 34,000 inmates over the limit set by the federal court.
State lawmakers passed legislation that changed the way the state prosecuted misdemeanors and non-serious crimes, known as “realignment,” allowing some offenders to serve their sentences in county jails instead of state prisons.
Liberal advocacy groups pushed for Proposition 47 as another way to reduce the prison population and allocate more money to drug treatment and victim services.
How did Proposition 47 in 2014 change California law?
Proposition 47 had three main components: reducing some felonies to misdemeanors; allowing prisoners to reduce their sentences if they were serving time for crimes that were reduced to misdemeanors; and transferring the money saved by reducing incarceration to services in local communities.
Proposition 47 reclassified some felonies and provided that people who committed certain nonviolent drug and property crimes, including shoplifting in which merchandise worth less than $950 was stolen and simple drug possession, would be convicted of misdemeanors rather than felonies. Although prosecutors filed misdemeanor charges for many of those crimes before Proposition 47 was enacted, some had been deemed “delinquent” and could be charged with both misdemeanors and felonies. A misdemeanor sentence would still lead to a person serving up to a year in county jail. Proposition 47 did not apply to people who already had a prior conviction for serious or violent crimes, and it did not apply to registered sex offenders.
Proposition 47 has allowed more than a million people to have nonviolent felonies on their records reduced to misdemeanors. But the mechanism for doing so under Prop. 47 expired in November 2022, according to the state Judicial Council, and state law only allows people to file later if they can show “good cause.” The criminal justice advocacy group Californians for Safety and Justice, which was a leading proponent of the measure, said thousands of prisoners are estimated to still be eligible for resentencing, and a bill that would extend the deadline indefinitely is expected to be voted on in August.
The measure passed by more than 1.3 million votes. Prominent supporters of the measure at the time included social justice organizations such as Californians for Safety and Justice and the American Civil Liberties Union, and it was largely funded by five major philanthropic foundations, including the Rosenburg Foundation, a Bay Area social justice organization, George Soros through his Open Society Foundation, and the Ford Foundation. Opponents of the measure included the California Police Chiefs Association and other law enforcement groups and district attorneys from Alameda and Contra Costa counties, as well as former Assemblyman Jim Cooper, who is now the sheriff of Sacramento County.
Since 2014, the state has saved around 100 million dollars annually resulting from sentencing changes made under Proposition 47. Those funds have gone to victim services, mental health, and substance abuse services.
What is the difference between a misdemeanor and a felony?
A misdemeanor is less serious than a felony. Typically, people convicted of a misdemeanor will serve their sentence in a county jail for up to one year. In California, county jails are overseen by the local sheriff's department. Other forms of punishment for a misdemeanor conviction include being under the supervision of a probation officer or a fine.
A felony is defined as a type of violent or serious crime. These crimes may include murder, robbery, or rape. People convicted of felonies may be sentenced to county jail and community supervision, or to state prison.
How would this year's Proposition 36 change things?
Proposition 36 would impose mandatory treatment for some drug-related offenses, add new penalties for some theft and drug-related offenses, and add new sentencing enhancements that would apply to any crime.
Drugs
Possession of illegal drugs for personal use is typically considered a misdemeanor. The ballot measure would add fentanyl to a list of hard drugs, such as heroin, cocaine or methamphetamine, that are already considered a felony depending on the amount sold or if one is armed with a firearm while trafficking the drugs. Fentanyl is a synthetic opioid that is 100 times more potent than morphine and is used to treat severe pain under the supervision of a licensed medical professional. Illegal forms of fentanyl have been smuggled into the U.S. in recent years, and other more common street drugs, such as cocaine, are known to be laced with lethal doses of the drug. These drug-related deaths have been on the rise in California, with 3,946 people known to have died from fentanyl overdoses in 2020 in California alone.
Under Proposition 36, a judge could sentence a person who possesses any amount of hard drugs, if he or she has already been convicted of two or more drug-related offenses, to up to three years in state prison. The measure allows the judge to determine whether a person is eligible for treatment and can participate in a felony that requires treatment instead of prison time.
If a person successfully completes drug treatment, their charges will be dismissed.
The ballot measure also allows judges to sentence convicted drug dealers who traffic large amounts of hard drugs, including fentanyl, or who are armed with a firearm while trafficking the drugs, to state prison instead of county jails. It would also make it a felony the fourth time someone is found in possession of such drugs and also in possession of a firearm. Current law requires felony charges in these situations for a short list of drugs. The measure would add fentanyl to that list.
Proposition 36 would also authorize greater consequences for hard drug dealers whose fentanyl sales kill or seriously injure a person using those drugs. It would authorize a judge to warn convicted dealers that they could be charged with murder in the future if someone dies as a result of the drugs they sold.
Heist
Under Prop 36, stealing money or property worth $950 or less would be punishable as a felony for people who have two or more prior convictions for a theft-related crime. It would also allow prosecutors to file felony charges if a person is accused of multiple thefts totaling a dollar amount greater than $950. Prior theft convictions can also count. If someone has two misdemeanor theft charges on their record from years ago and then steals again — a third time — after Prop 36 is enacted, they may also be eligible for a felony charge.
Costs
Proposition 47 has helped the state save nearly $100 million a year on corrections expenses, while spreading the money around to victim services and reentry programs. Those savings would likely shrink, the nonpartisan Legislative Analyst’s Office wrote in an analysis, if more people are incarcerated under the new ballot measure. That would mean fewer dollars would be allocated to those public services.
The analyst’s office also said the state would see increased costs in two other ways: The first is that it would require some people now serving their sentences at the county level to serve them in state prisons, which would increase the prison population by a few thousand people. The second is the cost of increased caseloads, given the extra time it takes for courts to resolve felonies and to facilitate handling of mandatory felonies.
What parts of Proposition 47 would remain in effect if voters approve Proposition 36?
Drugs
Before Prop 47, if someone was carrying drugs of any weight, known as simple drug possession, it could be considered a felony or a misdemeanor. When Prop 47 passed, simple drug possession became a misdemeanor. Under Prop 36, a person would still be charged with a misdemeanor for the first two convictions for simple drug possession, but on the third conviction, the person would be charged with a felony and could be sentenced to prison or jail.
Heist
Since Proposition 47, any nonviolent theft of property worth less than $950 is generally considered a misdemeanor.
Under Proposition 36, the first two thefts under $950 would still be a misdemeanor (similar to Proposition 47), but a person's third theft conviction, regardless of whether less than $950 was stolen, would be considered a felony and make the person eligible for prison time.
New sentence
Prop 36 does not explicitly change anything about resentencing rules, but policy analysts have raised the possibility that certain people might not be eligible for resentencing under the new measure.
