☆ Local experts dispute Ellenberg's confused Proposition 36 invective
Image from Karate Kid's (1984) climactic scene, in which amateur Daniel LaRusso faces off against his bully—and reigning champ—Johnny Lawrence. Thanks to Mr. Miyagi's special crane kick, Daniel wins the All-Valley Championship.
Supe Ellenberg recently slapped Prop 36 (reinstating felony charges for repeat theft/drug crimes and mandating drug treatment for certain offenders) with labels “draconian, expensive, and misleading.” Below, Tom Wolf—founder of Recovery Education Coalition—and Greg Totten—CEO of CA District Attorneys Ass'n—daylight the misinformation in her strange accusations, and why they believe Prop 36 will restore safety to the Bay. An Opp Now exclusive.
1. Draconian
Tom Wolf: There's some fearmongering going on with the “draconian” label. When it comes to Prop 36, you'll also hear that it's a return to the war on drugs, which it isn't. It's a very modest reform that focuses on repeat offenders. During the 1990s and the war on drugs, if you were caught with $5 worth of cocaine and it was your first offense, you got a mandatory sentence of three years in prison; that was draconian.
Prop 36, on the other hand, only charges individuals with a felony if they have two existing prior offenses. Upon the third conviction, it can be a felony. And if it was illegal drug possession, they get charged with a “treatment-mandated felony”—meaning that if they complete treatment, their record is expunged.
Also, Prop 36 isn't a complete rollback of Prop 47. It's measured. Criminal justice reforms will still be in place. After all, the goal isn't to get people in prison, but to get them treatment if they need it and to hold repeat offenders accountable. Who wouldn't want that? I don't see how any of this meets the definition of “draconian.”
Greg Totten: Prop 36 is a bipartisan and compassionate measure intended to improve safety in every community and neighborhood in California—focusing on accountability measures for repeat offenders of theft and drug traffickers of serious drugs like fentanyl while incentivizing and encouraging more individuals to participate in and complete drug treatment programs.
The measure creates a deterrent for repeat offenders and redirects some towards treatment rather than incarceration. Prop 36 also builds on reforms that are already underway in California to provide services for substance abuse and mental health, including with funding from Medi-Cal, Cal-AIM, and Prop 1.
2. Expensive
Tom Wolf: We've reduced incarceration in California by about 90,000 inmates since the implementation of Prop 57 and AB 109. That's great. However, in that same time period spanning from 2012 to 2014 to now, homelessness in the state increased by 80,000–90,000 people. Not all of the people released from prison ended up homeless, but some did.
Reducing the prison population to save money is a good thing. Yet, the supposed money they saved wasn't applied adequately or appropriately to build infrastructure to support those people exiting the criminal justice system; so many of them end up reoffending. In 2021, the California Policy Lab (a nonpartisan data think tank) released a study about crime recidivism in San Francisco. Their conclusion was that 55% of everyone arrested and then released into some type of diversion or custody pending trial reoffended within the lifetime of their case. Clearly, the infrastructure wasn't properly built out to support the changes in the criminal justice reform space.
To people who call Prop 36 “expensive,” I ask this: what's more expensive? Dealing with retail theft, repeat crime, and cycling people through the justice system over and over because their offenses are reduced to low-level misdemeanors—or incarcerating a few thousand habitual repeat offenders, and getting needed treatment for the rest?
Two weeks ago in San Francisco, the federal court sentenced an organized drug dealer to four years in prison for felony drug dealing. This individual had been arrested 12 times in SF since 2020. Each time, he was charged with felony possession, was released from custody, and then reoffended. All 12 of those times, he was put through the criminal justice system again. That's far more expensive and time-consuming and straining on our system than actually holding him accountable after the third offense, making him eligible to go to jail.
Greg Totten: Prop 36 leverages programs within Medi-Cal–which receives the majority of its funding from the federal government–to keep costs affordable to the state while providing incentives so individuals with addictions have the necessary accountability to complete their treatment.
3. Misleading
Tom Wolf: In the 1990s in the U.S., people predominantly in the African American community were adversely affected by cocaine. Many folks resorted to selling drugs because of socioeconomic and systemic racial issues, as they could make money and support themselves that way due to supply and demand.
But the market isn't like that anymore. Today's drug market consists of organized drug dealers, many backed by cartels. They're not allowed to use their own product as a condition of being part of that organization. And they're selling the most lethal drug ever to hit the streets in our history. Fentanyl is the leading cause of death in people aged 18–55 in the U.S.; last year, it killed more people than car accidents and gun violence combined. So we need to consider who's selling the drugs, and why it makes sense to increase penalties for these individuals.
People think the argument for Prop 36 is all hypothetical or hyperbole, but it's not. The data backs it up. And I think it speaks for itself that Prop 36 has a lot of bipartisan support across the state, including from San Jose's mayor.
People also think thieves and drug dealers aren't smart and act in ignorance of the law. On the contrary, they're extremely smart. They know the law and their limitations. That's why, once they figured out with Prop 47 that certain crimes only get a misdemeanor, it became like open season in California. That's why everything's locked up now when you go to the store.
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