Above photo: Incarcerated people are seen through bars on the front of a cell on the main line at the jail at the Hall of Justice on December 1, 2015, in San Francisco, California. Lea Suzuki / The San Francisco Chronicle / Getty Images.
Funded By Retail Giants.
Incarceration rates may soon rise in California due to a ballot initiative that passed on November 5.
Amid the onslaught of dismal news on Election Day, Californians passed a “tough-on-crime” ballot initiative that will lengthen sentences for some theft and drug crimes — a policy that equity-focused advocates warn will vastly increase incarceration rates in the state. Proposition 36 — also known as the Homelessness, Drug Addiction, and Theft Reduction Act — passed overwhelmingly 70-30 at the ballot box.
The measure, which was funded and supported by big box stores, prosecutors and law enforcement groups, is a response to what many perceive as triple crises. Overdose deaths have skyrocketed since 2019, largely driven by the rise in fentanyl, a synthetic opioid. Meanwhile, housing shortages and unaffordable rents have contributed to record-high homelessness, leading to controversy over unhoused encampments in cities. And all the while, the public is inundated with a constant march of overblown, panic-inducing news stories about retail theft.
The language of Prop 36 blames overdoses, homelessness and retail theft in California on reforms enacted by a 2014 ballot initiative, Proposition 47. Prop 47 downgraded a number of charges involving drug possession or theft below $950 from felonies to misdemeanors. It also diverted the money saved by reduced incarceration into grants for community-based programs.
A September report from the Center on Juvenile and Criminal Justice calculated that, since 2014, Prop 47 has saved $816 million in prison spending, which was redirected to community-based programs focusing on mental health, education, crime prevention, victim support and drug treatment. The California Board of State and Community Corrections found that people who participated in Prop 47-funded programming had a recidivism rate of 15.3 percent, compared to average state recidivism rates of 35 to 45 percent.
Now, Prop 36 will re-upgrade some of these shoplifting and drug misdemeanors back into felonies, lengthening sentences and sending people to prison instead of jail.
Opponents point to data showing that harsher punishments do not deter crime. Studies consistently show that while people are deterred by a high probability of being caught, the potential punishment’s harshness does not make much of a difference. They also note that by increasing incarceration rates, Prop 36 will reduce the funds available for community programs through Prop 47.
“Those of us who work in the communities where these things are happening, where we see people ODing off of fentanyl, we know that what’s really going to happen is that there’s going to be an increase in incarceration,” said J. Vasquez, policy and legal services manager at the California-based Communities United for Restorative Youth Justice. “Because we’ve seen this before. We’ve seen this play out with other laws. Whenever they do sentence enhancements, the ones who are primarily targeted are young Black and Brown people.”
One Texas study found that, when arrested for similar instances of low-level shoplifting, Black people are twice as likely to face harsher “organized retail theft” charges than white people.
Vasquez’s organization trains and supports young leaders working to end youth criminalization and mass incarceration. “We try to support them with job opportunities, and mental health support, and healing, and community support, and community-based services,” he explained. “We see that that is a better investment than just saying, ‘Well, let’s just lock them up.’”
“Incarceration is not a very effective solution,” he continued. “And it’s a very costly ‘solution.’ We’re talking about nearly $133,000 just to incarcerate one person here in California for one year.” And since prisons fail to provide needed services and programming, people often return to the community more traumatized than ever. “No one wins in that scenario,” he said. “The community doesn’t win. The person that’s being charged and criminalized and incarcerated doesn’t win.”
Fentanyl And Homelessness
Prop 36 will create a “three-strikes” rule for drug possession, allowing courts to order people to drug treatment on a third offense. If someone refuses or fails to complete treatment, they can be sentenced to up to three years in prison.
Evidence suggests that compulsory drug treatment is not effective. “When you force someone to do treatment when they’re not ready, they’re less likely to do it,” said Vasquez. “And then the alternative is, ‘Okay, if you don’t complete that, then we’re going to incarcerate you.’ So really, it leads to incarceration. We know that. We know that there are more effective ways, by investing in outpatient drug programs, mental health treatment, job training, education and community-based interventions.”
What’s more, Prop 36 does not provide funding for the mandated treatment programs, and many California counties are already struggling to meet existing demand for treatment beds and behavioral health treatment resources. “We simply don’t have enough capacity right now to take on a whole new population of folks that are getting mandated into treatment,” Dr. Ryan Quist, behavioral health director of Sacramento County, told CalMatters.
Prop 36 also increases sentences for drug dealing, and instructs courts to warn people that they could be charged with murder if they sell drugs to someone who dies of an overdose.
The Prop 36 text claims it will lead to reductions in homelessness, asserting that, “Our homelessness problem is directly connected to these unintended consequences of Proposition 47.” The Vera Institute of Justice warned that, conversely, the changes put more people at risk of homelessness by increasing incarceration and slashing Prop 47-funded community programming.
Organized Shoplifting Rings Barely Exist
The biggest funder in support of Prop 36 was Walmart, according to a Los Angeles Times investigation tracking the money on both sides. Other major donors included Home Depot, Target, 7-Eleven, and In-N-Out Burger alongside business and law enforcement groups.
Prop 36 targets a major concern of large chain stores: organized retail theft, in which coordinated groups of people steal and sell products on the black market. In recent years, retail groups like the National Retail Federation (NRF) have insisted that organized theft is rampant and rising — and many media outlets have unquestioningly parroted these claims.
In an April 2023 report, the NRF made the shocking claim that fully half of the $94.5 billion of merchandise that went missing in 2021 was stolen through “organized” theft rings. The allegation was reported widely in the media, and prompted a June 2023 hearing of the House Judiciary Subcommittee on Crime and Federal Government Surveillance. The committee claimed on its website: “Criminals who engage in organized retail crime are emboldened by leftist rogue prosecutors, progressive bail reform laws, and other soft-on-crime policies in Democrat-run cities.”
Yet in testimony before the committee, Trevor Wagener, chief economist at the Computer & Communications Industry Association, explained that organized shoplifting rings actually account for about 5 percent of missing merchandise.
As it turns out, the NRF’s widely incorrect number was the result of sloppy and false research. It had based its calculation on 2021 congressional testimony from Ben Dugan, then-president of the Coalition of Law Enforcement and Retail, who had asserted that organized retail crime “accounts for $45 billion in annual losses for retailers.” But Dugan had completely misstated his organization’s data: $45 billion represented the industry’s total merchandise loss in 2015 — including external and employee theft, damage and inventory tracking errors — not the amount stolen by organized crime. Instead, the Council on Criminal Justice found that 0.1 percent of shoplifting incidents in 2020 and 2021 involved more than six people, while more than 95 percent involved one or two.
In fact, California analyses by both the Little Hoover Commission and the California Budget & Policy Center found that while retail theft ticked up slightly since the COVID-19 pandemic, it remained consistent with rates from earlier in the 2010s, and far below historic peaks. FBI data shows similar trends nationwide. The Budget & Policy Center warned: “Voters should be skeptical of efforts to use the ballot box to roll back justice system reforms by reinstating the costly and ineffective mass incarceration policies of the past.”
Despite the NRF ultimately retracting its initial claim, the image of coordinated theft rings remained in people’s minds. Last year, the NRF lobbied Congress to adopt the Combating Organized Retail Crime Act, which would make it easier to prosecute retail theft as a federal crime. At least 14 states passed laws increasing penalties for theft in 2022 and 2023, often citing the alleged rise in organized theft rings.
In September 2023, Donald Trump promised that, if reelected, “We will immediately stop all of the pillaging and theft. Very simply: If you rob a store, you can fully expect to be shot as you are leaving that store.”
A Step Backward
Prop 36 explicitly undoes reforms put into place by Prop 47. But Prop 47 did not happen in a vacuum: it passed as part of a wider effort to ease prison overcrowding. In 2011, the Supreme Court ordered California to reduce its prison population by about 33,000, to 137 percent of capacity, ruling that chronic overcrowding was causing inhumane conditions and deaths.
Although California achieved most of its mandated prison reduction by shifting tens of thousands of people from state-run prisons into local city and county jails, further reduction was accomplished by the reduced penalties in Prop 47.
Now, as Prop 47 is rolled back, some worry prison populations will creep back up. “We’re really going backwards,” said Vasquez. “California was trending in the right direction, but Prop 36 is going to take us back at least a decade.”
“I just know, on the inside, that people are not going to get the support they need, and they’re likely to come out worse than when they went in,” continued Vasquez, who spent 25 years in California prisons. “You’re likely to see not only wasteful tax dollar spending going to a failed carceral system — but also people being incarcerated in an environment where now their medical needs are not going to be met, because of the capacity limitations.”
Vasquez sees the public’s support for Prop 36 as a misguided reaction to the problems around them.
“People’s perception is that … everybody’s doing all these mass theft rings,” he said. “And then also the fentanyl crisis — that is something that I’ve seen firsthand. That is a very real issue. And I think that Proposition 36 was pitched as a way to solve those issues.”
“So I think Prop 36 was more of a reactionary measure to the feeling that something has to be done. And incarceration, in a lot of people’s minds, is the easiest fix.”