Golden State Democrats are divided about a proposition that would make key revisions to a signature criminal justice reform measure that voters passed 10 years ago. The disagreement comes amid voters' perceptions of an uptick in criminal activity and the economic struggles many cities have as they recover from the COVID pandemic versus the fear of returning to an era of increased incarceration.
Proposition 36, officially titled "Allows Felony Cases and Increases Sentences for Certain Drug and Theft Crimes," aims to target two persistent problems for Californians — organized retail theft and the drug overdose crisis. To do so, it would make a number of changes to 2014's Proposition 47. For example, Prop 36 would make the theft of items worth $950 or less a felony if a person has two or more past convictions for theft crimes. Prop 47 generally made those crimes misdemeanors.
The measure would also allow people who possess illegal drugs to be charged with a "treatment-mandated felony" instead of a misdemeanor. Those who possess drugs, including fentanyl, heroin, methamphetamine, and cocaine and have two past convictions for drug crimes would have charges dismissed if they complete mental health or drug treatment. But those who don't finish treatment could serve up to three years in state prison. The changes undo some of the punishment reductions in Prop 47, according to the nonpartisan legislative analyst.
Governor Gavin Newsom is against the measure, and earlier this year signed a package of bills to address retail theft, hoping to dampen enthusiasm for the measure. But a coalition of district attorneys and retail giants put Prop 36 on the ballot, and it's significantly ahead in public opinion polls.
Gay San Francisco District 6 Supervisor Matt Dorsey, who is in recovery and has been open about his past drug use, is supportive of Prop 36. He said in a phone interview with the Bay Area Reporter that the measure "puts drug courts back in the game in a way that can be consequential for people at the end of their rope struggling with untreated drug addiction."
"It will also be a spur for state and local government to dramatically ramp up drug treatment, which we need," said Dorsey, who before becoming a supervisor was the chief spokesperson for San Francisco Police Chief William Scott. "Particularly in the realm of treatment mandated felonies, there is no scenario where someone is going to jail unless they choose not to complete drug treatment."
Another supporter is San Jose Mayor Matt Mahan. During a recent news conference in Dorsey's South of Market district, Mahan said that "public safety is a nonpartisan concern and treatment is what we need, treatment is the answer."
"We aren't going back to an era of mass incarceration," Mahan said. "We need to enter an era of mass treatment."
Mahan recalled stories of his cousin whom he said "sold his Mustang — fancy car — for drug money, dropped out of school, sold his car, and was caught in a pattern of self-destructive behavior on the streets."
Mahan said his uncle looked for his cousin on the streets of Santa Cruz and often "they went to bed not knowing if their son was still alive."
"Fortunately, my uncle was able to locate my cousin and, with a lot of effort, was able to effectively force him to face his addiction," Mahan said. "It was that story that made me attuned to the challenges folks face."
Thomas Wolf, the director of West Coast initiatives for the Foundation for Drug Policy Solutions, and is based in the Bay Area, stated that Prop 36 could help address the fentanyl epidemic.
"If you're homeless and struggling with SUD [substance use disorder], the chances of you making a voluntary decision to seek treatment and then actually following through with the requirements to do so are small," he stated to the B.A.R. "Since the advent of fentanyl, the window is even smaller. And while I do believe housing can help, it's important to look at the data. Seventy percent of all OD deaths in San Francisco last year happened at a fixed address."
But Anthony York of the No on Prop 36 committee said that "to say it's about drug treatment is disingenuous."
"The more people learn about what's actually in Prop 36, the less they like it," York told the B.A.R. in a phone interview. "The yes side has done a good job misleading people."
York agrees with Dorsey on the fact that it creates a third-strike felony for people possessing certain drugs, but York emphasized that "there are no available treatment spots" in many parts of the state.
The nonpartisan legislative analyst's office states that if passed, Prop 36 would "increase state criminal justice costs, likely ranging from several tens of millions of dollars to the low hundreds of millions of dollars each year" and would "reduce the amount the state must spend on mental health and drug treatment" likely "in the low tens of millions of dollars annually."
"I feel that's kind of a shell game," Dorsey said in response to that criticism.
"I get what they're trying to say but I also don't buy it," Dorsey added. "It's at the end of the day a policy position to fund treatment. All it's doing is changing the scheme by which we fund this. There's nothing about Prop 47, the previous scheme, that creates a funding source."
Dorsey told the B.A.R. October 18 he authored a resolution he intended to introduce at the Board of Supervisors in support of Prop 36. But his legislative aide Bryan Dahl stated October 22 that Dorsey had decided it was "unlikely" he would introduce it before the election after all. Asked via text message if it was because he didn't have the votes, Dahl replied, "That's not the reason. Just not at the top of our list at the moment."
Board of Supervisors President Aaron Peskin, who is running for San Francisco mayor, told the B.A.R. he had supported the proposition but has evolved and now opposes it.
"When it comes to making policy via the ballot, I think it's very important to listen to experts and impacted communities. I think the real question here is: will Prop 36 make our communities safer? In doing further research and listening to queer leaders like Vinny Eng and Laura Thomas, as well as trusted LGBTQ-led organizations like Equality CA, SF AIDS Foundation, Alice B. Toklas and Harvey Milk Democratic Clubs, I have heard the same answers: NO. They are all No on Prop 36 because reviving a failed war on drugs will not actually make us safer and will disproportionally impact the LGBTQ community," Peskin stated, referring to Equality California, the statewide LGBTQ rights organization and the city's two main LGBTQ Democratic clubs. They, along with the AIDS foundation, have all come out against Prop 36.
"There are zero dollars in Prop 36 for the mass treatment claims being pushed by the backers of the measure," Peskin added. "They are pushing false promises contingent on a revolving door of mass incarceration. Evidence shows that these policies already don't work and will create system involvement without ensuring that people get access to the services they need to exit homelessness or recover from substance use disorders."
The San Francisco AIDS Foundation's voter guide takes a No on 36 position, stating "as a provider of substance-use disorder treatment and other health services for people who use substances, San Francisco AIDS Foundation strongly supports a public-health response to the public-health issue of problematic substance uses — strategies like giving out clean syringes and providing people treatment on demand. We know that a criminal-legal response will not end substance use, nor prevent the spread of HIV and hepatitis C. Along with unions like SEIU and legal experts like the ACLU, San Francisco AIDS Foundation urges voters to say no to Prop 36."
Peskin's major mayoral opponents, incumbent London Breed, former mayor Mark Farrell, Levi's heir and former nonprofit executive Daniel Lurie, and District 11 Supervisor Ahsha Safaí are all in favor of Prop 36.
At odds with an ally
But being in favor of the measure puts Breed at odds with ally gay state Senator Scott Wiener (D-San Francisco), who appeared at the Castro Merchants Association meeting earlier this month to urge a no vote on 36. Wiener declined to be interviewed for this report.
"The Legislature passed a very robust set of public safety bills this year, working together with the governor and other folks to address organized retail theft, serial stealing, but also auto break-ins, that I've been trying to pass for seven years," he told the merchants.
One of those was nixing the so-called locked door loophole — that is, a requirement that there be proof doors were locked before prosecuting a vehicle break-in.
"We finally got rid of that, and the governor signed the bill," he said, referring to his Senate Bill 905. "Just because you don't get it done the first time doesn't mean you stop trying." His previous attempts at similar legislation died in committee.
Wiener said that the Legislature also passed a bill aggregating serial shoplifting of $950 or above to a felony.
"The bills that we passed already target retail theft and auto break-ins," he said, and are "much more effective for their needs than Prop 36. We did the work in the Legislature in a very focused way to address a focused situation around retail theft. Unfortunately, some right-wing DA's have decided they were still going to go to the ballot, which will send people to state prison for simple drug possession."
The legislative package, signed by Newsom on August 16, included 10 laws that mandated sentencing enhancements for large-scale operations, created new penalties for damages to businesses and property in the course of theft, and tried to ensure police can arrest retail theft suspects without witnessing the crimes taking place themselves. Gay Assemblymember Rick Chavez Zbur (D-Hollywood) headed up the Assembly Select Committee on Retail Theft.
"Let's be clear, this is the most significant legislation to address property crime in modern California history," Newsom stated at the signing ceremony at a Home Depot store. "I thank the bipartisan group of lawmakers, our retail partners, and advocates for putting public safety over politics. While some try to take us back to ineffective and costly policies of the past, these new laws present a better way forward — making our communities safer and providing meaningful tools to help law enforcement arrest criminals and hold them accountable."
Newsom stated at a September news conference that Prop 36 is "about mass incarceration, not mass treatment. ... What an actual insult it is to say it's about mass treatment when there's not a dollar attached to it."
Either way, Dorsey is confident that it will pass — only a quarter of voters told a pollster they were opposed to the measure.
"I think whatever we may think about where people stand on Prop 36, I don't think there's any disagreement it's passing," Dorsey said. "This is poised to pass overwhelmingly, including in San Francisco."
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