Would Prop. 36 reduce retail theft and drug crimes, or would it just punish harshly without deterring crime?

Despite claims and counter-claims from politicians, police officials and community groups about the trend in Oakland's crime rate, one thing is clear: Many Oakland voters say they continue to feel unsafe shopping, eating at a restaurant or even walking along Lake Merritt.

On Tuesday, California voters will decide on a new statewide ballot measure that would impose tougher penalties for violating the law. Proposition 36, its supporters say, will provide much-needed crime relief in the city. But critics say it's a band-aid at best and no solution at all at worst.

Prop. 36, known as “The Homelessness, Drug Addiction and Theft Reduction Act,” would increase jail and prison sentences for repeat offenders of crimes such as possession of fentanyl and methamphetamine and classify many misdemeanors as felonies. The ballot measure would create a “treatment-requiring offense” for third-party drug offenders. This would give the offender the choice of undergoing drug and mental health treatment or going to prison. Those who choose drug treatment will be cleared of charges after completing the program.

The California District Attorneys Association is among the proposal's supporters. In a joint Sept. 30 editorial in The Press Democrat, Napa Valley District Attorney Allison Haley and Sonoma County District Attorney Carla Rodriguez called Prop. 36 “reasoned, thoughtful and designed to closely address issues that impacting everyone's quality of life.” Californians: soaring homelessness, increasing and repeated retail thefts, and a heartbreaking rise in opioid-related deaths.” They said it would incentivize voluntary drug treatment and mean tougher action against dealers of fentanyl, which for a significant Increase in deaths among young people is responsible.

The campaign for Prop. 36 is funded primarily by major retailers such as Walmart, Target and Home Depot, as well as tobacco company Phillip Morris and the California Correctional Peace Officers Association, among others. Californians for Safer Communities and Californians for Safe Stores and Neighborhoods reported that supporters have poured a total of about $13.6 million into the campaign. A recent poll from the Public Policy Institute of California found that 73% of respondents support Prop 36.

But Bay Area and California politicians are divided. Oakland Mayor Sheng Thao has not commented on Prop. 36, but has previously questioned whether it would actually lead to a reduction in crime. Oakland North reached out to Thao but received no response. San Francisco Mayor London Breed and San Jose Mayor Matt Mahan have supported Prop. 36.

Governor Gavin Newsom spoke out strongly against it. “Prop 36 takes us back to the mass incarceration of the 1980s, it promotes a promise that cannot be kept,” he said in September. Newsom reiterated his opposition to the proposal in a virtual press conference last week.

Impact like three punches

At an Oct. 3 town hall meeting, Alameda County Public Defender Brendan Woods criticized the measure for placing an emphasis on punishment rather than rehabilitation. “I am not exaggerating when I say this is the biggest issue to impact the criminal justice system in three strikes,” Woods said. “Prop. 36 does not address robberies, robberies and homelessness. … This only sends more people to prison for petty crimes and depletes funding for services that would help community-based organizations.”

In their editorial, Haley and Rodriguez countered this argument by saying, “Prop. 36, if passed, will remain subject to the discretion of district attorneys and Supreme Court justices. They have the right to expect prosecutors to implement the changes wisely and accurately, taking into account the facts of the individual cases they pursue.”

But Haley acknowledged that Prop. 36 leaves unclear where funding for mandated treatment will come from. At a joint meeting of the Senate Public Safety and Security Committee on Sept. 10, Haley said the proposal creates no new funding for community services and provides nothing for the drug and mental health treatment services it would mandate. The financial responsibility lies with the districts, she said.

A report from the California Legislative Analyst's Office confirmed this. “Overall, Proposition 36 would increase costs to the state’s criminal justice system, likely from tens of millions of dollars to the low hundreds of millions of dollars per year. … [And] The cost to the local criminal justice system is expected to be tens of millions of dollars per year.”

According to the Department of Corrections, the cost of incarceration in California is approximately $132,000 per person per year. Opponents say those costs would rise dramatically if the measure passes.

“Support. “36 is expected to put 1.5 million people in prison in the first decade,” said Jose Bernal, policy director at the Ella Baker Center for Human Rights in Oakland.

Additionally, 22 of California's 52 counties do not have a residential treatment facility, so those who choose the felony treatment option in those counties could end up sitting in jail awaiting treatment in another county.

A questionable reversal

Prop. 36 is viewed by many of its critics as a backlash to Proposition 47. That measure, passed a decade ago, reduced certain drug and theft crimes from felonies to misdemeanors. Additionally, it required that state savings from sentencing relief be spent on mental health and drug treatment services. Prop. 47 saved the state more than $800 million, according to a report from the Public Policy Institute of California. This money was used to fund community programs.

In early October, Alameda County District Attorney Pamela Price faces a recall vote initiated by an anti-prop. 47 Coalition, crediting Prop. 47-related savings to fund a treatment alternative to incarceration in Alameda County. According to the PPIC report, Prop. 47 reduced prison populations and recidivism rates, increased employment opportunities and housing stability, and had a positive impact on racial disparities in arrests and bookings. According to PPIC, there is no evidence that changes in the law regarding drug arrests under Prop. 47 or after the pandemic have increased crime.

However, there is evidence that incarceration increases homelessness. A 2020 report from the American Public Health Association found that incarcerated people released from prison are nearly 10 times more likely to become homeless than the general public and are more likely to experience limited access to education, employment and social housing are faced.

Former San Francisco District Attorney Chesa Boudin, who was forced out in a 2022 recall and is the founding executive director of UC Berkeley's Criminal Law and Justice Center, said Prop. 36 would set the state back on justice. “Prop 47 created a massive transfer of law enforcement resources to local communities to invest in meeting local needs, and that money has been really useful,” he said.

Prop. 36 would convert that money back into longer prison sentences, he said, adding, “And we know that's not an effective way to deal with many of the underlying causes of crime.” As for the question of what the causes are could better combat it, he suggested: “Spending money to make police more effective, to hold police accountable for response times and clearance rates, would be a far more effective tool than increasing the severity of punishments.”

But in many Oakland neighborhoods where police are slow to respond and residents feel abandoned by city government, a solution can't come fast enough. Take, for example, Ebony Beauty Supply in East Oakland, which was robbed four times in the same night. A worker there said they wouldn't bother calling the police because the police weren't coming.

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