Proposition 47: A successful reform under attack

APHC rejects Proposition 36 and all efforts to strengthen the carceral state.

Law enforcement, supported by corporate retailers, have placed a ballot initiative before California voters this November that seeks to renew and increase the long-ago discredited drug war and to provide harsher penalties for people accused of low-level theft offenses. Proposition 36 is an effort to rollback successful reforms approved by Californians a decade ago through Proposition 47. Those reforms reduced prison populations and helped people leaving prison return to their communities. APHC rejects Proposition 36 and all efforts to strengthen the carceral state.

Proposition 47: A successful reform under attack 

In 2014, California voters passed Proposition 47 by a nearly 60 to 40 percent margin. The ballot initiative sought to reduce state prison populations by reclassifying certain drug possession and low-level theft crimes from felonies to misdemeanors, while directing money saved from these reductions to help people leaving prison to re-integrate into their communities. Law enforcement, including police and prosecutors, have resented this popular limitation on their punitive powers and, since its passage, they have attempted to repeal it, including a failed ballot initiative in 2020. 

Law enforcement groups, with funding from corporate retailers, have exploited fears among Californians about perceived increases in crime and drug use, as well as the increase of houselessness across the state, to promote a new effort to undermine Prop 47 and impose harsher penalties for these crimes. Their initiative, called “The Homelessness, Drug Addiction, and Theft Reduction Act,” or Prop 36, has qualified for the 2024 ballot.  

How Prop 47 changed Californians' lives. 

Prop 47 was an effort to correct some of the excesses of the worst era of mass incarceration. Its most important achievement was to make certain crimes that were designated as felonies under state law into misdemeanors, including allowing people to remove felonies from their prior records. A felony on one’s record dramatically changes their life, making it significantly harder to find a job, housing and income needed to survive in an already unlivable state.  Because of Prop 47, individual, families and communities throughout the state have had their lives improved by removing or avoiding felony convictions.

Prop 47 reduced the penalty for drug possession, including cocaine and heroin, to misdemeanors—meaning the maximum sentence would be up to one year in county jail, still a serious punishment, instead of up to three years in prison. 

It raised the threshold for a misdemeanor theft from $400 worth of stolen property, the amount it had been for decades despite substantial inflation over those years, to $950, an amount still below that in 80 percent of other states. This lowered the potential punishment for those thefts to a one-year county jail maximum, while retaining felony punishment for higher value thefts and robberies that involve force or threats. Prop 47 also prohibited felony punishment for thefts just because a person had previous theft convictions on their record, again unless the amount stolen was valued over $950,

The proposition allowed judges to reduce pre-existing sentences for these crimes from felonies to misdemeanors, thus allowing some people to get out of prison and to avoid the negative consequences of a felony record.

How Prop 47 gave money back to Californians.  

Finally, Prop 47 established a fund to take money saved from decreasing the use of prison and to invest it in educational programs for K-12 students, re-entry programs for people leaving prison, and trauma recovery for survivors of crime.

Prop 47, along with other legislative measures like AB 109 (Realignment), successfully reduced prison populations and lowered dangerous overcrowding—a legal necessity due to a federal court order in the Brown v. Plata case. Between 2016 and 2023, it saved nearly $600 million in prison costs, while requiring the state to reinvest that money to help an estimated 40,000 receive services, including housing support and behavioral health care that help prevent houselessness. Studies indicate that program participation has reduced recidivism.  Prop 47 has helped reduce racial disparities in California prisons. 

Prop 47 did not cause crime to increase.

Although actual crime rates are near the lowest they have been since the 1960s, the rise in surveillance and cell phone cameras and the immediate distribution of footage across the internet, along with social media echo chambers, like the Nextdoor site, have increased the perception that crime is rampant. The media, corporations, and law enforcement have focused on retail theft, often blaming people struggling with addiction for our state’s failures. They have produced a false story that Prop 47 has caused uncontrollable crime.

A 2018 study by the Public Policy Institute of California found, in fact, no increase in violent crime attributable to Prop 47 and only a slight increase in property crime, mainly driven by thefts from cars. It found that recidivism decreased from 71 percent to 46 percent, though the authors speculated that part of the reduction could be because police were not making arrests. 

Another study from 2018, out of UC, Irvine, compared crime rates from 1970 through 2015 in California to those of other states that did not pass laws like Prop 47. It found no evidence that the measure was responsible for crime increases. 

More recent studies show that shoplifting, auto theft and burglaries have generally gone down or remained the same since the passage of Prop 47. Reports of shoplifting declined during the Covid-19 lockdowns, but appear to be rising back to their prior levels. Opponents of Prop 47 say that it is causing police to stop making arrests for smaller thefts and drug offenses. 

Californians feel unsafe and vulnerable in stores, on the streets, and in our communities not because of Proposition 47 or a falsely reported increase in crime, but because living conditions in this state are untenable. What people truly need is access to money, housing, and fewer barriers to employment.

Why Prop 47 is under attack. 

Law enforcement groups have been attacking Prop 47 since its inception. By reducing sentences for theft and drug crimes, it limits the coercive power of the state. Prosecutors can no longer threaten people accused of drug possession with prison terms to coerce them into pleading guilty quickly or to pressure them into drug court programs that require treatment a person may not need and punish relapses with incarceration.

Law enforcement related groups put Proposition 20 on the 2020 ballot to roll back some of Prop 47’s reforms. Over 61 percent of California voters rejected it. 

However, the current attack on Prop 47 is stronger, in part because Governor Newsom and the Democrat Party majority are more willing to accept the false claims about its impact and are wavering in their support. 

What the new law enforcement initiative would do.

Prop 36 begins with a series of unsupported findings, including claiming that Prop 47 is to blame for the recent increase in houselessness in California and that people refuse to enter drug and mental health treatment programs because Prop 47 reduced punitive incentives. In fact, the massive shortage of affordable housing, rising housing costs relative to wages, government disinvestment in housing, and lack of eviction controls have caused houselessness to rise. The state has failed to provide voluntary, community-based mental health and drug treatment on the necessary scale to help those in need. Without the stability provided by permanent housing, forcing people into drug courts and other “treatment” modes, will have little positive long-term impact.

Building on these false premises, Prop 36’s authors propose to make it easier to punish people convicted of low-level theft offenses with felony charges, enabling prison sentences. A person with two or more petty thefts on their record can be sent to prison regardless of the amount taken; the amounts of two or more separate thefts can be combined to surpass the $950 charging threshold. It reverts punishment for drug possession to the felony level for a third offense, while allowing a judge to require a person to participate in a drug treatment or mental health program, under threat of a prison sentence. Failure to satisfactorily complete these programs will result in a person going to prison.

Prop 36 adds a variety of sentencing enhancements for drug related crimes, including facilitating charging a person with murder if they give or sell another person fentanyl and that person dies as a result of using it. Using fear generated by highly publicized, though relatively rare, incidents in which large groups of organized people conduct “smash and grab” thefts, the “act” adds a sentencing enhancement if two or more people take or damage property while committing a felony. While these “smash and grabs” are not covered by the changes in law from Prop 47, they have been used to mislead the public about its impact.

Prop 36 would take money out of the successful programming established by Prop 47 and divert it to pay for coerced drug treatment. Reversing Prop 47 may actually lead to an increase in homelessness.

Opposition to Rolling Back Prop 47

Despite Prop 47’s success in achieving its goals and the popular support it has held since its passage, California political figures who have stood by it in the past are wavering. Governor Newsom has spoken against the “reform” initiative, but has conceded many of the underlying premises behind it. He speaks of the need to take a more punitive approach towards unhoused people and he has driven a remaking of California’s mental health system that emphasizes forced or mandatory treatment, while not making investments in voluntary, community-based care that has proven to work.

California Democrat Party leadership, no doubt with Newsom’s involvement, initially proposed or backed bills that would accomplish much of what Prop 36 seeks to do, increasing the punitive power of law enforcement. They withdrew that effort and instead have proposed their own ballot measure, Senate Bill 1381, that similarly repeats many of Prop 36’s provisions. Rather than make a factual case for the merits of reducing incarceration, they concede the Republican and law enforcement campaign points about an unfounded crime wave. Even some of the non-profits who advocate for criminal legal system reform have hesitated to make a strong case for rejecting changes to Prop 47.

Instead of eliminating Proposition 47, as the state proposes, we should focus on non-punitive reforms. 

While most voters no doubt supported Prop 47 originally out of a desire to scale back California’s punishment system and emphasize helping people, a large segment of the political leadership only supported it to comply with court-ordered reductions in prison population. This matters because California’s system still emphasizes punishment.

Misdemeanors can still lead to jail time, but law enforcement prefers harsher punishments partly because they give prosecutors more leverage to pressure guilty pleas, thus speeding up court processes. 

APHC makes no concessions to those who seek to increase incarceration as a solution to problems related to poverty and health. APHC calls for more housing, better access to community-based, voluntary and culturally appropriate health care. APHC calls for investment in our communities, not in our prison and prosecution system.

The Homelessness, Drug Addiction and Theft Reduction Act will reduce none of those things it claims to address. It will not help house anyone. It will not increase access to mental health and substance use treatment. It will put more people in prison, increasing their likelihood of becoming unhoused upon release. It will require the state to allocate more money for police, prosecutions and prisons to be used against people whose underlying circumstances of poverty and trauma have most likely led them to drug use and theft, while taking money away from successful programs that help people address trauma and recover from imprisonment.

While Prop 47 is imperfect and still validates punishment as a response to crime rooted in poverty, it is an advance away from mass incarceration that destroys so many individuals, families and communities. The move by law enforcement to “reform” it and the willingness of ambitious Democrat politicians to concede the need to “reform” and to revert to punishment as a response to poverty, will divert us from real solutions and return to the worst destructive mentality of the past.