Last November Californians overwhelmingly approved Proposition 36, a ballot initiative bringing stiffer penalties for some theft offenses and mandating treatment for certain repeat drug crimes. Data from the early months of Prop 36 implementation shows that prosecutors have filed thousands of new felony drug and theft charges—and that counties vary substantially in using the new approach.
Passage of Prop 36 came in the midst of rising concerns over crime and ten years after an earlier measure, Prop 47, had significantly reduced penalties for a range of nonserious, nonviolent drug and property crimes. Prop 36 provides prosecutors the discretion to charge some drug and property offenses as felonies. It includes two key elements: first, a treatment-mandated felony option may be offered to individuals with two or more previous convictions for various drug offenses. Second, a felony charge may be brought against individuals with two or more prior convictions for certain theft offenses, even if the value of the stolen items is below the felony threshold of $950.
Data covering the first few months of Prop 36 indicate that prosecutors are applying these new elements. A recent survey by California’s Judicial Council of the courts—conducted in the second half of February and covering the vast majority of counties—indicates that about 1,500 theft and 1,900 drug cases have been filed by prosecutors applying the new law’s felony charges.
Prosecutor data point toward possibly greater numbers, according to some analysts. For example, at a recent event organized by the California District Attorneys Association, Greg DeAngelo of Sicuro Data Analytics presented estimates of Prop 36-related felony filings in the first 90 days of implementation: 3,500 theft and 4,500 drug cases.
These early estimates add up to about 1,700 to 2,600 Prop 36 felony cases filed per month, representing a 10%–15% share of the roughly 15,000 felony cases filed in an average month. While it’s possible that some of these cases would have been filed as misdemeanors and/or as part of other charges—regardless of the new Prop 36 provisions—this is still a sizeable share of felony cases.
These filings vary across the state. The number per 100,000 residents ranges from 24 and 19 in Kern and Orange Counties, respectively, to about 2 in both Fresno and San Francisco Counties.
A breakdown by drug and theft offenses shows that counties also differ in how they are applying the law. For example, in San Diego and Orange Counties, and in small counties with less than 100,000 residents, more than 80% of Prop 36-related felony offenses are for drugs. By contrast, in Alameda, Sacramento, and Contra Costa, the emphasis so far is on theft, with less than 20% related to felony drug offenses.
What might be driving these differences? Surprisingly, public support of Prop 36 is not necessarily a strong contributor. While some counties with the highest share of voter approval of Prop 36—like Kern and Orange County—have the highest rates of Prop 36 felony filings, others with strong support—such as Fresno and Riverside—have filed relatively few cases.
Types of crime in certain areas may explain some of the variation. The focus on theft in counties such as Alameda, Contra Costa, Sacramento, and Los Angeles may partly be driven by pronounced increases in retail theft in these areas.
Because Prop 36 did not include a dedicated funding stream for related costs, capacity differences across counties may also be a factor. Prosecutors, public defenders, courts, and county jails are all likely impacted by the new law. The availability of effective drug treatment programs in any given county may be an especially critical factor.
To address funding, state legislators who supported the measure recently requested between $250 million and $400 million annually in budget appropriations to implement Prop 36. In addition, recent legislation would support mandated drug treatment with funding from Prop 47 savings grants given out by the Board of State and Community Corrections. The BSCC has already included individuals charged with a treatment-mandated felony in their most recent round of grant funding, with an estimated $127 million in available funding for this round. It should be noted that state savings from Prop 47 are estimated to decrease significantly in the next few years, as Prop 36 reversed some punishment reductions contributing to state savings.
California’s most recent criminal justice reform is likely to have broad and significant impacts. Detailed data and better coordination from the range of agencies and stakeholders involved will be needed to monitor and understand implementation of Prop 36—and to identify effective approaches, unintended consequences, and ongoing challenges. Stay tuned as PPIC continues to track this issue.
