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Editor’s note: The resolution to support Proposition 36 was pulled from the Aug. 27 Board of Supervisors meeting agenda due to the absence of Supervisor Dave Pine. The item will be on the agenda at the next Board of Supervisors meeting on Sept. 10.
At its Tuesday, Aug. 27, meeting, the San Mateo County Board of Supervisors will consider an endorsement of Proposition 36, a ballot measure which, if passed by voters during the Nov. 5 election, would increase sentences for certain drug and theft crimes, and reclassify them as felonies. The endorsement was proposed by District 3 Supervisor Ray Mueller, who gathered a group of regional leaders at a press conference on Monday, Aug. 26, to express support for the proposition.
At the press conference, Mueller said that he is supporting Proposition 36 to stem the tide of retail theft and drug overdoses in San Mateo County. However, opponents of the ballot measure say that it will increase state criminal justice costs, increase the state prison population, increase racial disparities in incarceration and not substantially prevent fentanyl deaths and retail theft. Several representatives from the Coalition for a Safer San Mateo County (Fixin’ San Mateo County) attended the press conference, holding up signs that said “No on Prop 36.”
Proposition 36 aims to roll back some of the changes to sentencing that were enacted by Proposition 47, which was approved by voters in 2014. Proposition 47 reclassified certain drug and nonviolent property crimes, such as shoplifting items worth less than $950 and simple drug possession, from felonies to misdemeanors. The 2014 ballot measure also raised the threshold for felony theft from $400 to $950.
Regional leaders present at the press conference in support of Proposition 36 included Steve Wagstaffe, San Mateo County district attorney; Jackie Speier, former U.S. representative and District 1 supervisor-elect; Matt Mahan, San Jose mayor; Dan Perea, San Mateo County undersheriff; Ken Binder, Santa Clara County undersheriff; Ryan Johansen, San Mateo County Police Chiefs and Sheriff Association president and Robert and Elizabeth Walker, the parents of a Carlmont High School student who died of an accidental fentanyl overdose.
“Going back to 2014, the late Senator Dianne Feinstein warned us in an editorial she penned … that Proposition 47 would make California less safe,” said Supervisor Ray Mueller. “She warned that, simply put, the reduction in sentences proposed by Proposition 47 would ultimately lead to the release of thousands of dangerous criminals.”
Mueller said that all of the largest cities in the county have seen increases in retail theft in the last couple of years, with Daly City experiencing a 240% increase from 2019-2023, and Redwood City seeing an increase of about 50% in the same time period.
San Francisco Mayor London Breed and San Jose Mayor Matt Mahan have already endorsed the ballot measure, and Mueller says he hopes that San Mateo County will join them.
“I believe that by voting tomorrow to endorse Proposition 36 the San Mateo County Board of Supervisors can send a clear message that the San Mateo County Board of Supervisors join San Francisco’s mayor and San Jose’s mayor in supporting a brighter and safer future for this region,” said Mueller.
Speier, who originally supported Proposition 47 in 2014, said that she now supports Proposition 36 because it is “necessary, and a common sense adjustment to our current law.”
In addition to reclassifying certain drug and theft crimes as felonies, Proposition 36 would lengthen certain felony sentences, and require that some felonies, such as dealing certain drugs (fentanyl, heroine, cocaine or methamphetamine), be served in state prison rather than county jail.
Proposition 36 also proposes to create a new court process for certain drug possession crimes. People who possess certain drugs could be charged with a “treatment-mandated felony” instead of a misdemeanor. These people would have the option of getting mental health or drug treatment instead of jail time. Those who finish the treatment could have their drug charges dismissed, although if they do not finish treatment they could be required to serve up to three years in state prison.
The ballot measure would also require that courts warn people that they could be charged with murder if they sell or provide illegal drugs that end up killing someone.
Mueller said at the press conference that in the years since Proposition 47 was passed, fentanyl deaths in San Mateo County have “(risen) at an exponential rate.”
Elizabeth Walker, whose son Colin Walker died of a fentanyl overdose in 2021, said she supports Proposition 36 because it would help discourage drug dealers who may be selling laced pills.
“Had Proposition 36 been in effect, perhaps the person who sold this and killed my son, even if they did not know fentanyl was in it, they would have been told ‘now, you know, if you sell anything and someone dies, then you will be in jail,'” she said. “Unfortunately, my son’s death was treated like an overdose and not a crime. … Now you know next time you’re caught and the drugs that you sell kill someone … then there is a consequence.”
According to analysis by the California Legislative Analyst’s Office, Proposition 36 would increase state criminal justice costs by increasing the state prison population and by increasing state court workload, and increase local criminal justice costs by increasing workload for local prosecutors and public defenders, and by increasing county jail populations. The Legislative Analyst’s Office estimates that these costs could range from “several tens of millions of dollars to the low hundreds of millions of dollars” annually.
Speier said that the criminal justice costs that the state is likely to incur if Proposition 36 is passed is the price that California residents will have to pay for safety.
“The bottom line is that there is a cost to safety,” said Speier. “California went overboard (with incarceration) starting in the 1980s, and our prison population peaked at 176,000 in 2006. With many reforms, the population is now at 90,000. It’s time to right the ship and accept the fact that we will have to pay millions that this measure may likely cost. We’re already paying for it in so many hidden ways, and in a general sense of danger felt in the community.”
Wagstaffe said that Proposition 36 will give district attorneys and judges more tools to deal with theft and drug crimes
“(Proposition 36) deals with two of the most horrific problems in the state of California today, the fentanyl problem in the state as well as the theft problem,” said Wagstaffe. “We need to give the discretion to the judges, to give discretion to prosecutors to pick the cases.”
In addition to changing sentencing for certain drug crimes, Proposition 36 would also add nonprescription fentanyl to a state list of “hard drugs,” such as heroin, cocaine and methamphetamine. Dealing drugs included on this list “authorizes greater consequences for drug dealers,” and the drugs on this list are illegal to possess while armed with a loaded firearm — even a legally owned firearm — according to the text of the proposition.
Major donors to Yes on Prop 36 include Walmart ($2.5 million), Home Depot ($1 million), Target, ($1 million) and In-N-Out Burger ($500,000).
A 2020 ballot measure, Proposition 20, which also aimed to reverse certain parts of Proposition 47, failed after only receiving 40% of the vote.
Opponents of Proposition 36
Proposition 36 has split California democrats, with Gov. Gavin Newsom, Assembly Speaker Robert Rivas and State Sen. President Pro Tempore Mike McGuire opposing the ballot measure.
Newsom and other leaders attempted to put forth a softer alternative to Proposition 36 this summer, which they said would increase safety without returning the state to mass incarceration. However, they ultimately ran out of time to add the proposition to the ballot and withdrew it on July 2.
“This debate has become partisan at times, particularly up in Sacramento, but it should not be,” said Mahan. “Our job, especially those of us at the local level, … is to solve problems, not promote partisanship. And to solve the problems of unsheltered homelessness, drug overdoses and retail theft, we need to make sure those who need treatment get that treatment.”
The ACLU of Northern California, the California Democratic Party and the Alliance for Safety and Justice are among the organizations that oppose the ballot measure.
Opponents of Proposition 36 contend that the increased sentences and harsher penalties on drug and theft crimes that would be imposed by the ballot measure will not actually help slow opioid deaths or prevent retail theft. Instead they say it would increase the state’s prison population, and divert money away from rehabilitation programs as prisons would require more staffing and more funding for increased populations.
Representatives from Fixin’ San Mateo County say that Proposition 36 would only increase the racial disparities in the county’s jail populations
“I wanted to bring another viewpoint to the problem, because I see it through the lens of the Black and Brown segment of my community,” said Jim Lawrence, chair of Fixin’ San Mateo County after the press conference. “When I look in the jails, I see 90% Black and brown (inmates), and in our communities, less than 25% are Black and brown.”
“Black people are nine times more likely in this county to be arrested compared to white people, and hispanic people twice as likely,” said Nancy Goodban, executive director of Fixin’ San Mateo County. “If you have two strikes, the third strike so to speak could be stealing a candy bar. Because shoplifting will be the third crime that makes it a felony.”
According to 2020 demographic data from San Mateo County, 28% of people arrested that year were white, while 41% arrested were hispanic, 15% were black and 15% were of another race or ethnicity. In the same year, 41% of the county’s population was estimated to be white, 25% were hispanic, 2.5% were black and 31% were another race.
Lawrence says that he thinks the root problem is the high cost of living in the county and the state, and that Proposition 36 does not address the root cause of drug and theft problems.
“When (Proposition) 47 was passed, think of the price of gas. Today it’s more than doubled — same thing with rents,” he said. “That’s the root cause when people go into stores and steal diapers and aspirin and things they can’t afford.”
Goodban says she is worried that though Proposition 36 provides treatment options for drug offenders, the cost of housing additional inmates will draw funds away from drug treatment programs.
“This is just going to make it worse, there’s no money for treatment,” she said. “Where are we going to get the additional staff for the jail? Where are we going to get the treatment? … this is going to take some of the money away … the estimated savings from Proposition 47, that were coming to the county and private services.”
Deacon Lauren McCombs, who works with Fixin’ San Mateo and the Peninsula Solidarity Cohort said that she believes Proposition 36 will add to understaffing issues at the San Mateo County Sheriff’s Office, even while increasing prison and jail populations.
Wagstaffe says that he disagrees that Proposition 36 will lead to mass incarceration, as district attorneys and judges will have discretion over which cases they will prosecute.
Major donors to No on Prop 36 include the ACLU of Northern California ($100,000), Patty Quillin, wife of Netflix co-founder Reed Hastings ($500,000) and Stacy Schusterman ($300,000).
The San Mateo County Board of Supervisors will vote on whether or not to endorse the proposition at its regular meeting on Tuesday, Aug. 27, which begins at 9 a.m.
The voters will consider the proposition at the Nov. 5 election.
