California voters appear ready to approve the Tough on Crime initiative

Crime rates have fallen after a spike during the pandemic, but voters in several states are considering ballot measures that promote tougher crime policies.

Notably, a ballot initiative in California that would toughen penalties for drug offenses and theft is likely to pass with more than two-thirds support, polls show.

The measure is a response to fentanyl abuse, an “explosion” in homelessness that may be due in part to drug use and retail theft and “has gotten out of control,” says Greg Totten, CEO of the California District Attorneys Association, which sponsored Proposition 36.

He describes the initiative as a course correction of Proposition 47, a criminal justice reform measure passed a decade ago that reduced penalties for certain nonviolent crimes in an attempt to reduce incarceration rates. “This is not a major departure from the 'be tough and lock 'em' initiative of the past,” Totten says. “This is a very modest, thoughtful move toward the center.”

The measure has divided Democrats and faced opposition from Gov. Gavin Newsom, who signed a package of laws aimed at combating retail theft this summer. However, the Legislature's hopes of slowing Proposition 36's momentum have not paid off. A number of Democratic mayors, including those in San Francisco, San Diego and San Jose, have supported Proposition 36.

Opponents argue that the measure will undo the progress made by Proposition 47's funding of mental health and substance use disorder programs that deter crime. “Proposition 36 exploits Californians’ legitimate and understandable concerns that some problems have gotten worse in recent years … without offering any real solutions,” said Insha Rahman, director of Vera Action, which supports criminal justice reform efforts.

But voters appear to be in the mood to support a measure that promises to reduce crime. On Tuesday, voters in Arizona and Colorado will also decide on crime-fighting measures in the areas of sex trafficking, probation and police funding.

Several states are also considering more progressive measures, including legalizing recreational marijuana in Florida and the Dakotas and psychedelics in Massachusetts. California and Nevada could join seven states that recently voted to remove language from their constitutions that makes forced labor a punishment for crimes.

California's crime rates

Like other states, crime in California rose sharply at the height of the pandemic but has since declined. Some categories of crime continue to receive significant media attention. Public safety continues to place a strain on residents.

Retail theft declined in California after the passage of Proposition 47 in 2014 and continued until the pandemic. However, according to the Public Policy Institute of California (PPIC), retail thefts rose dramatically last year, ending up 11 percent higher than when Proposition 47 was passed. Although it no longer occurs in many smaller counties, Theft continues to be a significant problem in many of the most populous counties.

Totten said shoppers often see basic items like diapers in locked cabinets, and some stores are reducing their hours and inventory or even closing in response to repeated thefts. Mark Baldassare, who leads survey research for PPIC, says many Californians don't feel safe right now.

“Ultimately, this is more of a local public safety issue than a criminal conviction,” Baldassare said. Voters are saying, “Something has to happen to make me feel safer in my local community.”

Action in other states

Next door in Arizona, Proposition 313 would sentence anyone convicted of trafficking minors to life in prison without the possibility of release. In contrast, under the current approach, anyone who acts with a child under 15 is punished with a prison sentence of at least 13 years for the first offense.

The measure was brought to a vote by the Legislature, where it passed with overwhelming Republican support. Opponents warn that Prop 313 lacks judicial discretion, such as establishing exceptions for sex trafficking victims that are used to recruit more victims.

Arizona voters could also create a new crime called “sale of fatal fentanyl,” which would create penalties for people who knowingly sell fentanyl to people who then suffer a fatal overdose.

In Colorado, a measure known as Proposition 128 requires people incarcerated for certain violent crimes to serve at least 85 percent of their sentence before being eligible for parole. (On average, convicts in Colorado are released before they have served half of their sentence.) Supporters of the measure say it would improve public safety by keeping more dangerous offenders incarcerated longer and provide more certainty over sentences. Opponents argue that allowing prisoners to take time off for good behavior promotes rehabilitation and successful reentry into society.

Advance Colorado, the same conservative nonprofit that supports the measure, also supports Proposition 130, which calls on the Legislature to allocate $350 million to recruit, train and retain local police officers. Opponents point to the low violent crime rate and the availability of alternative approaches to public safety and worry that the measure would force lawmakers to prioritize this high level of law enforcement funding over meeting other budget needs.

Overall, this year's ballot measures, which are largely anti-crime, may indicate that voters are taking a conservative stance on the issue. But the reality of these voting questions is that voters often face the binary choice of whether to impose a harsher punishment or maintain the status quo.

In 2022, an attempt to repeal Proposition 47 failed in the California Assembly. This year, voters will be offered no alternative to a partial rollback measure. “If none of that is offered and the only thing that is offered is longer prison sentences, more fines and more money for the police,” says Vera Action’s Rahman, “then they will go for it.”