Will it stay or will it go? California voters decide fate of ‘momentous’ criminal justice law

The state capitol in Sacramento, California, on 25 June 2019. Photograph: Salgu Wissmath/The Guardian

California voters will get to decide whether a law that was heralded as a breakthrough in criminal justice reform will remain intact, the latest signal that anxieties and fear around crime has risen to the top of the state’s political agenda in this election year.

A measure to undo much of Proposition 47, the landmark 2014 law that downgraded several non-violent felonies to misdemeanors, officially made it onto the ballot on Friday.

Support for the measure, which is backed by many law enforcement groups, major business groups, conservative lawmakers and some mayors, including San Francisco’s London Breed and San Jose’s Matt Mahan, is another signal of the growing willingness to walk away from sweeping reforms in policing and prosecution toward a more conservative approach to crime that relies on putting more law enforcement officers on the street and imparting harsher sentences.

That shift has come as the state faces high-profile struggles with homelessness, open-air drug use and retail theft, with residents and politicians alike divided over solutions.

“Prop 47 was a lie from day one. Its deliberately misleading title was designed to trick voters,” Mike Gatto, a former state assembly member, said during a press conference announcing that the measure will be on the state’s ticket. “A decade later things, are worse than they have ever been.”

While this act is supported by elected officials like district attorneys and sheriffs, the governor, the state’s attorney general and a number of state legislators say retail theft should be addressed in new legislation, rather than the undoing of the proposition.

“I don’t think there’s a need to have it on the ballot. Why have something on the ballot that doesn’t actually achieve the goals that are intended?” the California governor, Gavin Newsom, who has long supported Prop 47, told KCRA, Sacramento’s NBC affiliate. “Why do something that can’t be done legislatively with more flexibility? I think it’s a better approach to governing.”

‘An unexpected win’

Prop 47 changed drug possession and thefts of items worth less than $950 from felonies to misdemeanors, and proved a momentous change in California’s criminal justice approach.

The measure came 20 years after the state’s notorious “three strikes” policy that requires a minimum sentence of 25 years to life for someone’s third felony offense, as well as the 1994 federal crime bill, which upped sentences and created grants for states to build more prisons. By 1994, California’s prison population had already been rising, going from about 50,000 people in 1985 to more than 120,000 by 1994, according to California’s legislative analyst’s office. The population reached a peak of 173,000 in 2006, forcing then governor Arnold Schwarzenegger to declare a state of emergency due to overcrowding.

“It was the first time that voters were willing to change multiple sections of the penal code to reduce incarceration,” said Lenore Anderson, the co-author of Prop 47. “California voters want a balanced approach to public safety. We don’t want our budgets to be burdened by crowded and costly prisons.”

“When we initially crafted the measure, many people said: ‘Voters would never support that,’ so I think it was a bit of an unexpected win,” said Anderson, who also founded two groups, Alliance for Safety and Justice, and Californians for Safety and Justice, that advocate for victims and criminal justice reform.

“Before, it was political suicide to say you are in favor of criminal justice reform. It was seen as anti-victim, so it was nearly impossible to move reform forward because of that political fear that you’re gonna lose your job.”

Since it was signed into law by then governor Jerry Brown, the bill’s champions have argued that it has kept out of prison people who commit crimes of desperation or who are in need of drug treatment, thus saving the state money that can be used to bolster drug-treatment and diversion programs that ultimately keep people away from crime.

Prop 47 and subsequent policies marked a sea change in California politics, they say, and made the state a leader in the effort to decrease prison populations and address racial disparities in arrests, prosecution and sentencing.

Prosecuting fewer people also saved the state millions, they argue, funds that were then distributed to cities and counties in the form of grants that fund re-entry and behavioral health services. These programs, Kent Mendoza from the Anti-recidivism coalition (ARC) says, ensure that formerly incarcerated people can adhere to their parole and probation directives and stay out of prison.

“It’s one of those monumental pieces of legislation, and it got us over the hill for something we’ve been fighting for for so long. It gives counties an opportunity to be bold and approach these things differently. This is what allows us to maybe save 10 people who wouldn’t have this support.”

Undoing Prop 47

But the measure has also long had its detractors. Each year since its signing, Prop 47 has faced legal and political challenges, with law enforcement arguing that it left officers and prosecutors hamstrung and unable to deal with lower-level theft and drug offenses.

Since the pandemic and protests that followed George Floyd’s murder, these claims have only increased as homeless encampments have expanded, fentanyl has torn through unhoused communities across the state, and videos of car break-ins and groups of people running into stores and leaving with armfuls of merchandise became local and national news fodder.

Moderate and conservative officials joined the chorus arguing Prop 47 was a driver of chaos that needs to be addressed through new legislation.

“This proposition will fix some of the definite wrongs, the unintended consequences that we have with Prop 47,” said Chad Bianco, the outspoken sheriff for Riverside county, in an interview on Los Angeles’s Fox affiliate.

“The state, we are dying. Our businesses are fleeing the state, our small-business mom and pops are closing up, our homes are being burglarized, our garages, our cars, everything is being stolen,” he continued. “Criminals are running this state. We don’t have to go so far to put every single criminal in jail. But if we don’t start having consequences like we had 15 years ago, we are never coming out of this.”

The ballot measure to amend the proposition wouldn’t necessarily repeal Prop 47, but it would undo key components of it by increasing penalties for people repeatedly caught stealing and creating a new class of offense – called “treatment-mandated felony” – to charge those in possession of hard drugs like cocaine, meth and fentanyl.

Experts on homelessness and housing policy have argued that the bill and the felony charges it promises would do little to address the triplet crises of homelessness, drug addiction and poor access to mental healthcare. “Felonies often lead to homelessness. In the past, punitive measures such as zero-tolerance policies increased incarceration rates and homelessness, creating significant financial and social burdens,” Meghan Morris, an associate professor of epidemiology at the University of California, San Francisco, wrote in an op-ed for the Los Angeles Times.

Still, district attorneys, sheriffs and mayors have announced their support, describing it as the best way to address theft, overdoses and homelessness without fully returning to the tough-on-crime days of yore.

Newsom has fought off challenges to Prop 47 for years, and a majority of Democrats in the legislature have argued that it is working and should remain completely functional. In April, they announced their own package of sevens bills aimed at addressing homelessness, drug addiction and theft without hampering Prop 47.

Now that the future of Prop 47 is in the hands of voters, Anderson and Mendoza say that their respective groups will likely begin education campaigns for voters to shift perceptions about what causes people to commit crimes and the best ways to keep them out of the cycle.

“The most important strategy is voter education,” said Anderson. “When voters get a chance to hear the facts, voters take the side of a balanced approach to safety and reject tough-on-crime measures.”

“It’s probably gonna be a communications strategy: sharing success stories,” Mendoza echoed. “Uplifting the success of people who have been in prison to show that people can do good. We might do town halls in communities that need more education, in communities who may not see these things the way we tend to say we see it.””