California voters will have the opportunity this fall to roll back a controversial criminal justice reform measure that they adopted in 2014 that's drawn criticism for its impact on public safety.
Proposition 36, known as the Drug and Theft Crime Penalties and Treatment-Mandated Felonies Initiative, will be on the ballot this fall and would reform elements of Proposition 47 that voters approved a decade ago and has been criticized for contributing to a rise in retail theft.
Under Proposition 36, penalties would be increased for certain theft and drug crimes, with the theft of items worth $950 or less a felony if a person has two or more past convictions for certain theft crimes like shoplifting, burglary or carjacking.
It would also require that sentences for certain felony convictions be served in state prison rather than county jail and would allow sentences for selling drugs such as fentanyl, heroin, cocaine or meth to be lengthened. The proposal would also create a new "treatment-mandated felony" that could be used for offenders with past convictions for drug crimes and dismiss their charges if they complete treatment, or they would face up to three years in state prison.
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Stephen Cazares, a partner at Foundation Law Group and a former federal prosecutor, told FOX Business that if it's approved, the ballot measure's effectiveness at mitigating drug abuse and theft will depend on how courts apply its provisions and whether funding is allocated to treatment programs.
"On its face, it's attractive when we see what appears to be increased criminal activity, drug use in public places by homeless people – it sounds right to kind of enhance the penalties to dissuade that kind of behavior," Cazares said. "I'm just not sure the history shows that increased penalties do much to dissuade… habitual drug use and things of that nature."
"The discretion to enhance the third charge to a felony, it's still a discretionary ability to enhance to the felony," he explained. Cazares added that it's not clear that offenders would have the distinction between a misdemeanor and felony in mind, while there's also the potential for that discretion to be applied in a biased manner if it's not applied broadly to all communities, which could concern opponents of the measure.
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"The authors are making an effort to put prevention in the form of the ability to provide treatment for substance abuse, which, obviously, the fentanyl crisis has been a huge problem in recent years. So that, seemingly if the funds are made available, could hopefully have a real impact in an area where we are seeing real harm on an almost daily basis in our schools and on the streets," Cazares added. "If the funds are provided, that could have a real impact."
San Francisco Mayor London Breed, whose role is officially non-partisan though she is a Democrat, endorsed Proposition 36 and said on a website supporting the ballot measure, "The Homelessness, Drug Addiction, and Theft Reduction Act will make targeted but impactful changes to our laws around fentanyl and help us tackle the chronic retail theft that hurts our retailers, our workers, and our cities. I fully support this measure and know it will make a meaningful difference for cities across California."
Greg Totten, CEO of the California District Attorneys Association, said in a statement when the measure qualified for the ballot, "We continue to see an outcry of overwhelming support from Californians of every political affiliation and geographic region across the state demanding for change that will improve community safety and hold repeat offenders of theft and serious drug crimes, including those involving fentanyl, accountable."
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California Gov. Gavin Newsom, a Democrat, expressed opposition to the measure arguing, "Prop. 36 takes us back to the 1980s, mass incarceration, it promotes a promise that can't be delivered. 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."
The Vera Institute of Justice, a national organization that seeks an end to mass incarceration, opposes Proposition 36 and said the proposal would extend "'three strikes'-style sentencing to low-level nonviolent drug and theft offenses."
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"It would cost California taxpayers billions each year and strip funding from critical crime prevention programs that keep communities safe, like mental health and drug treatment, housing services, and K-12 school programs," the group wrote. "Everyone deserves to live in safe and stable neighborhoods, but instead of fixing homelessness, drug use, and crime, Prop 36 would make these issues worse by eliminating programs proven to turn people's lives around and wasting billions of dollars on mass incarceration instead."
