The Case for Prop 36

And against Scott Alexander Social Policy, again

Over at

Astral Codex Ten

, Scott Alexander has a guest post by Asterisk’s Clara Collier¹ making the case against California’s Proposition 36.

For those not read in on the minutiae of California ballot initiatives, Proposition 36 would modify the regime imposed by 2014’s Proposition 47, which reduced certain property and drug offenses from felonies (prison-eligible) to misdemeanors (jail-eligible). Prop. 47 was in part passed as part of a broader program of reducing overcrowding in California’s prisons, as mandated by SCOTUS in Brown v. Plata.

Proposition 47 has been hugely controversial since passage, and Proposition 36 amends certain components of this arrangement. Advocates have argued it’s necessary to curb property crime and drug problems in California. But Collier argues that this is not the case: Prop. 36, in her view, will not actually reduce crime or overdose death, even as it increases incarceration.

Unsurprisingly, I think this is wrong. While people tend to overstate the impact of Prop. 47 as a contributor to California’s problems, I think the evidence is decent that it’s a contributor. And the approach proposed by Prop. 36 is, in my view, an exemplar of how to handle low-level offending. Let’s talk about why.

What Prop. 47 Did

As glossed briefly above, Proposition 47 changed certain offenses in California’s criminal code from felonies to misdemeanors. Specifically, it affects small possession of drugs, as well as six kinds of property offenses (shoplifting, grand theft, receiving stolen property, forgery, fraud, and passing bad checks) where the value at question is not in excess of $950.

What were the impacts of these changes? Collier relies on a Public Policy Institute of California analysis of Prop. 47’s effects, arguing that it shows some increase in specific categories of offending, but downplaying the impact of the change after the first few years. Notably, we actually have a more expansive literature on Prop. 47, and it basically all points to meaningful increases in property crime:

• Bartos and Kubrin 2016 use a synthetic control method to find “moderate” but specification-sensitive increases in larceny and motor vehicle thefts;

• An older PPIC report, Bird et al. 2018, also uses SCM to estimate a 9 percent increase in larceny theft, driven by an increase in theft from motor vehicles;

• Dominguez-Rivera, Lofstrom, and Raphael 2019 use a variety of approaches to conclude that there is “evidence from all methods tried that property crime increased with, a ballpark summary of five to seven percent roughly consistent with the totality of our analysis”

• Crodelle et al. 2021, who look specifically at the micro-effects in Santa Monica, and find that reclassified crime increased 15% citywide after enactment, while non-reclassified crime fell 9%.²

• LaPrade, Riddell, and Elliott 2023, who find “higher rates of motor vehicle theft, shoplifting, robbery, and aggravated assault after Proposition 47 went into effect.”

I could make arguments against all of these papers if I wanted to, but I think the general direction of the signal is clear—relative to the counterfactual, Proposition 47 increased property crime, particularly the kinds of property crime that were reclassified as misdemeanor.

Relying on the PPIC report, Collier implies that these effects were temporary. It’s possible that this is true, but if it is, it may have to do with system adaptation to the new level of property offending. Crodelle et al., for example, note that community-based policing measures implemented in Santa Monica in 2018 seem to have reduced crime. But such measures may not have been necessary relative to the counterfactual in which California did not reduce penalties for certain property offenses. Observing that there may be some “root cause” other than Prop. 47 to the post-pandemic surge in petty theft, as Collier does, misses the point—the question is what the property offending level is relative to the world in which there is no Prop. 47.

How Prop. 36 Addresses Property Crime

So I disagree with Collier that undoing Prop. 47 would not meaningfully impact crime. It’s just very hard to argue that reducing the penalty for property offending did not increase property offending at the margin. But I also think that Collier glosses part of what makes Prop. 36 smart: it is more targeted than just repealing Prop. 47.

You can read the text of Proposition 36 here. A lot of it is sentencing enhancements unrelated to Prop. 47, e.g. §4-6 impose harsher sentences on dealers. But there are also some changes to the rules around petty property offending, most relevantly:

• §9: Makes petty theft or shoplifting eligible for longer sentences if the offender has two or more prior property theft convictions.

• §11: longer sentences for high values of property stolen.

• §12: longer sentences for conspiracy to commit property offenses.

These changes do not repeal Prop. 47 wholesale. Instead, they establish specific conditions under which offenders who commit Prop. 47-eligible crimes can receive longer terms: if they are repeat offenders, if they steal property worth in excess of $50,000, or if they are part of a “retail theft” ring or other organized group of property offenders.

I think these changes are not only obviously reasonable; they’re a humane approach to property crime enforcement.

One of the basic challenges of criminal justice policy is that very different offenders can be said to have committed the same crime. “Shoplifting” can cover the teenager who steals an eraser, the guy who hits the same store ten times a week, and the group of guys who seize hundreds of thousands of dollars in a single smash-and-grab. We want the system to be able to discriminate among these. This is in part for reasons of justice. Additional penalties create additional dimensions along which judges can rationally discriminate, letting them treat the truly petty offender more leniently than the more serious one.

In addition, these changes mean that offenders who are less likely to desist are more likely to be incapacitated, and vice-versa, better balancing the costs and benefits of incarceration. This is in part because it’s plausible to believe that laws like Prop. 47 affect different kinds of offenders differently. One-off petty theft offenders may be relatively insensitive to the state of the law, while frequent or large-scale offenders interact more frequently with the criminal justice system, and otherwise have an incentive to be aware of changes in the law.

Collier claims that supporters of Prop. 36 “admit that California’s shoplifting crisis isn’t about recidivism - ie shoplifters getting arrested, serving short sentences, getting out of jail, and shoplifting again.” I’m not sure where she’s getting that from: both prosecutors and legislators have emphasized the role of repeat offenders and theft rings in driving increasing property offending.

But normatively, we ought to want laws that treat less serious offenders less seriously and more serious offenders more seriously. I think Prop. 36 does that, which is a big mark in its favor.

What About Drugs?

The other controversial component of Prop. 36 is §7, which creates a category of “treatment-mandated felony” (TMF). These allow individuals convicted of drug possession to avoid prison if they “elect treatment by pleading guilty or no contest” and undergo a court-approved drug treatment plan, where plan is defined expansively to include “drug treatment, mental health treatment, job training, and any other conditions related to treatment or a successful outcome for the defendant that the court finds appropriate.”

Collier has two arguments about drugs. One is that Prop. 47 did not cause the overdose death crisis in California; the spread of fentanyl did. It’s probably true that fentanyl’s arrival is mostly exogenous to Prop. 47, but it’s not unreasonable to believe that the latter contributed to the former. For example, much property crime is motivated by addiction—people steal to buy drugs. If the costs of property offending are reduced, people steal more, yielding more disposable cash to buy drugs with, in turn creating a more attractive market for fentanyl, and in general increasing all the harms of drug use. (There’s frustratingly little empirical work here, but Kevin Schnepel has an unpublished working paper that, as of the most recent public-facing abstract, suggested raising felony theft thresholds has such an effect.)

But debating whether or not Prop. 47 caused the current crisis is less important than whether or not TMFs are good. Collier’s argument here is, basically, that California lacks adequate treatment capacity to sustain increased demand for court-ordered treatment. As she puts it, “The most likely outcome in many of these drug cases is that an offender will be willing to go into treatment, but there are no treatment beds available. What happens then?”

Three points here. One: as with the longer sentences discussed in the last section, introducing the TMF system is more rational than either sending possession offenders to prison or letting them off with a warning. Even if it is only applied in a few cases, that seems like a general improvement over the law both before and after Prop. 47.

Point two: Prop. 36 is extremely broad in what it allows judges to identify as treatment—as long as there’s a “detailed treatment program developed by a drug addiction expert and approved by the court,” it’s fair game.³ And while some people need long-term inpatient treatment, other people don’t. Putting people in outpatient treatment with daily drug tests (following the HOPE model), ideally with medication assistance, is a bed-free approach to addressing the addiction-related causes of people’s drug and property offending.

Sure, Do Both Prop. 36 and Build Out Resources

Which brings me to point three: if the problem with TMFs is not enough treatment beds, then the state needs to build more treatment beds. “We don’t have enough capacity to effectively enforce the law” is not actually a justification for letting people suffer on the streets. It’s an argument for doing more.

Which, I would not find Collier’s argument against TMFs so objectionable if she were not making a similar argument about the state of the criminal justice system. Rather than pass Prop. 36, she writes,

Instead, we should give police departments the resources they need to do their jobs. Yes, this means more cops -  California is under-policed for its size, and our police staffing rate has been declining since 2008. But we should also expect officers to do their best to enforce the law using the resources they have – even if it means changing a department policy or two. Instead of longer sentences, we should ask our police departments for smarter, more targeted interventions.

Great! Similarly, instead of voting against TMFs, we should give California’s substance use treatment infrastructure the resources it needs to do its job.

At the same time, the opposition between Prop. 36 and expanding funding for/effectiveness of California’s police is a transparently false one.⁴ If we believe that Prop. 47 increased theft offending, particularly among high-intensity offenders, then adding police capacity is one solution. But another one is to pass Prop. 36. Or, even better, do both!

I suppose I should be glad that at least some people are embracing my “capacity view” arguments about the criminal justice system. But the reality is that smart and serious sentencing is an important part of the criminal justice system too. Californians are dealing with majors problems with property crime, and they are rightfully unhappy about that. Yes, sure, dedicate more policing resources to the problem. But that’s no reason not to fix the biggest problems imposed by Prop. 47, in sane and sensible ways.⁵

1. I’m not sure it’s strictly necessary, but I feel like I should disclaim that I knew/ran in similar circles to Clara in college. She’s a perfectly nice person! Just think she’s wrong here.

2. My colleague Hannah Meyers has a similar finding for Riverside, Calif., in a recent MI report.

3. Frankly, I think there’s a moderate likelihood that the way this works is the courts find “drug addiction experts” who are anti-recovery harm reduction types and the whole thing turns into a revolving door. Which would be bad!

4. As a commenter over at AC10 put it in response to Collier’s alternative, “which ballot measure is this, and when will it happen?”

5. Disclaimer that any political views here are my own, and do not represent those of my employer.