Proposition 36, a state ballot measure promising to throttle back changes made to several criminal laws back in 2014 to reduce incarceration rates, and which some say has caused certain crimes to surge as an unintended consequence, is likely set for a lively discussion at the San Francisco Board of Supervisors in the coming weeks. District 6 Supervisor Matt Dorsey introduced a resolution calling on the body to support the measure at an Oct. 8 Board of Supervisors meeting.
“While I understand and share the perspective that the measure isn’t perfect, I do feel strongly that its treatment-mandated felony provisions will enable drug courts to make the positive difference they have made in years past and to do so at a time when our fentanyl-fueled drug crisis is more potently addictive and more deadly than ever before in our history,” Dorsey told colleagues in a roll call speech at the Oct. 8 meeting. “As [San Jose] Mayor [Matt] Mahan said in expressing his support for Prop 36, ‘this is not because we want to go back to an era of mass incarceration, but because we want to go forward to an era of mass treatment.’”
Dorsey and Mahan were among several leaders and drug policy activists who attended a press conference in support of Proposition 36 at the Delancey Street Foundation in San Francisco on Oct 3. Other Bay Area elected officials supporting Proposition 36 include Mayor London Breed and former San Mateo Congresswoman and recently elected Supervisor Jackie Speier.
The measure, if approved by voters, would increase sentences for certain property and drug crimes and allow felony charges for a third offense of possession of certain drugs, including fentanyl, or a third offense of petty theft. Those found guilty of felony drug possession can have their charges dismissed upon completion of a treatment program.
Proposition 36 represents a turnaround of some criminal justice reforms incorporated in Proposition 47, a measure approved by voters in 2014.
Proposition 47 reclassified some nonviolent felonies involving theft, forgery, fraud, or drug possession as misdemeanors — minor offenses where the maximum sentence is not more than one year in jail. It was placed on the ballot with the support of the American Civil Liberties Union and other criminal justice reform groups to reduce overcrowding in California prisons and redirect part of the prison budget to community services.
Proposition 47 passed in the November 2014 election with 58 percent of the vote, capitalizing on concerns around mass incarceration. Between 1977 and 2006, California’s prison population climbed to over 173,000. Support for Proposition 47 was portrayed as bipartisan, with even Republican former House Speaker Newt Gingrich coauthoring an editorial favoring the measure. In the wake of Proposition 47’s passage and pandemic-related early releases of nonviolent inmates, the state prison population decreased dramatically to under 95,000 in 2023.
But many say there have been unintended consequences to California’s wave of decarceration.
The passage of Proposition 47, combined with socioeconomic effects of the Covid-19 pandemic and a nationwide staffing shortage in police departments, has coincided with a surge in property crimes, along with an associated drop in the case closure rate for such crimes.
Proposition 36 would increase sentences for certain property and drug crimes and allow felony charges for a third offense of possession of certain drugs (including fentanyl), or a third offense of petty theft.
In San Francisco, increasingly visible and spectacular crimes such as “flash mob” thefts in Union Square stores and other businesses, combined with the increased visibility of public drug use and the fentanyl overdose epidemic, have driven voter opinion against justice reforms and public officials who supported them, such as former District Attorney Chesa Boudin, who was recalled from office in 2022.
Polls are showing strong voter support for Proposition 36. Seventy percent of more than 1,650 registered voters in five Bay Area counties, including San Francisco, supported Proposition 36 in a recent telephone poll by the Bay Area News Group, and 60 percent of likely voters supported the measure in a Los Angeles Times/UC Berkeley Institute of Governmental Studies poll.
While there is significant support for Proposition 36, there is also a vocal opposition. Opponents argue that it’s a step backward that will return to increased incarceration costs at the expense of community crime prevention programs that were funded by the savings, while the “treatment-dismissible” drug felonies will create another unfunded mandate.
Earlier this year, Gov. Gavin Newsom, who opposes Proposition 36, worked with some Democratic lawmakers to pass several bills to crack down on property crime in an offer of compromise to the alliance of large retailers and prosecutors behind the measure. The negotiations around those bills included some hardball tactics, such as an attempt to include clauses that would void them if Proposition 36 were passed that were ultimately withdrawn. That may have mollified some retailer groups, but core supporters continue to be all in on Proposition 36, and its momentum hasn’t stalled in the polls.
Controller Malia Cohen and Senator Alex Padilla are among those who oppose the measure. Most state-level Democratic officials have chosen to remain silent. The League of California Cities and several city councils and municipal officials publicly support Proposition 36. Still, a resolution backing the measure faced strong opposition from members of the San Mateo County Board of Supervisors, leading to its tabling there.
In addition to Mayor Breed, many of her opponents in the race for mayor also support Proposition 36, including former Interim Mayor Mark Farrell; philanthropist Daniel Lurie; and perhaps surprisingly, Board of Supervisors President Aaron Peskin, who told the Los Angeles Times he supports the measure. Meanwhile, at least three San Francisco Supervisors — Dean Preston, Hillary Ronen, and Shamann Walton — have publicly opposed Proposition 36.
Dorsey told The Voice in a text that his primary reason for supporting Proposition 36 is his belief that treatment-mandated felonies are necessary to address the city’s drug crisis.
“While I think the resolution to support Prop 36 is important, I think it’s much more important that San Francisco does everything in its power to expand our use of treatment-mandated felonies to compel drug treatment and start making real progress to end the phenomenon of public drug use citywide.”
