California may take a big step backwards towards more incarceration with Proposition 36

The measure would defund prevention and reentry services, and is projected to grow the state prison population by 35% over the next 5 years.

by Sarah Staudt, October 17, 2024

Update: Californians approved Proposition 36 in the November 2024 elections.

This November, Californians will see an initiative on their ballots proposing a way to curb retail theft and drug use. In reality, this measure would undo a decade of progress towards unraveling mass incarceration without any public safety benefit. Bankrolled primarily by major retail brands like Walmart and Target, the ballot initiative known as Proposition 36 would cut millions of dollars from reentry and prevention services in favor of more prison sentences for theft and drug charges. It would punish people with substance use disorder who relapse, increase penalties for many people who use and sell drugs by increasing penalties and makes some small scale thefts eligible for felony charges. Overall, by 2029, Prop 36 is projected to fully undo hard fought progress made in reducing California’s prison population.

Prop 36 is part of a wave of recent measures across the country attempting to resurrect “tough-on-crime” policies. But this one is particularly concerning because it directly repeals decade-old reforms that have been proven to reduce both prison populations and recidivism. Californians who are interested in basing their criminal legal system policy on facts, not fear, should reject the measure — and other states should be on the lookout for similar efforts in their legislatures and on their ballots.

Prop 36 defunds critical prevention and reentry services

The text of Prop 36 doesn’t say it defunds prevention and reentry services, but that’s exactly what it does. In order to understand Prop 36, it’s important to examine another ballot initiative from a decade ago: Proposition 47 in 2014. Sixty percent of Californians voted for Prop 47 that year, a transformative initiative that reduced certain drug possession and theft crimes from felonies into misdemeanors. Lowering charges to misdemeanors decreases the long-term impact of criminal convictions on people’s housing and employment, and misdemeanors have shorter sentences than felonies. Changing these common low-level charges from felonies to misdemeanors dramatically lowered the prison population over time.

The most innovative part of Prop 47, however, was its re-investment provision. It required that the money saved by incarcerating fewer people be calculated by the state and then re-invested in a grant program for local reentry, diversion, substance and mental health treatment and crime prevention programs. So far, Prop 47 has saved the state almost a billion dollars, which has been funneled directly into local programs.

Now, Prop 36 will grow prison populations by reversing the sentencing policy changes of Prop 47. However, because Prop 36 has no funding stream of its own, it will cut into those same Prop 47 savings that fund essential local programs. This will leave local communities without the resources they need to reduce recidivism, house people, treat mental health and substance use disorders, and help people reenter society successfully after incarceration. In other words, it will stoke many of the problems that have fueled tough-on-crime narratives in the first place: fewer reentry programs mean higher recidivism rates, higher homelessness rates, and lower employment rates. Re-conviction rates for participants in Prop 47 reentry programs were 15.3% — 2-3 times lower than the average for people who have served prison sentences. The proportion of Prop 47 reentry participants who were homeless decreased by 60%, and the proportion of people who were unemployed dropped by 50%. These programs are demonstrably effective and essential public safety measures that address homelessness and poverty while reducing crime.

Prop 36 will directly harm Californians, especially those who use drugs

Prop 36 would raise the prison population by filling jails and prisons mostly with people charged with low-level theft and drug possession, while also draining resources from local community programs, and providing less effective treatment for people with substance use disorders and lengthening prison terms.

Draining resources: Prop 36’s proponents claim that they are promoting treatment for drug use even though the proposition drains funding from substance use programs. Instead of helping increase the availability of desperately-needed substance use disorder treatment, Prop 36 is an unfunded mandate, allowing prosecutors to seek “treatment mandated felonies” for people who are charged for a third time with drug possession without providing the funding to make that treatment possible. People who successfully complete these treatment mandates could have their charges dismissed, but people who do not successfully complete these programs would be convicted of a felony and potentially sentenced to prison or jail. And remember, Prop 36 does not do anything to fund these mandatory programs, so cash-strapped county governments will be left to pick up the slack.

Less effective treatment: One concerning feature of drug courts and similar mandatory treatment programs is that they put the rules and regulations of treatment programs in the hands of the courts, not medical professionals. People in community-based voluntary programs work with medical professionals who understand that relapse is part of recovery, while people in court-mandated programs may be labeled as a failure for one relapse and incarcerated. The proposition’s language allows courts and prosecutors to declare that the person has “failed” the program for incredibly broad reasons, including, “If at any time, it appears that the defendant is performing unsatisfactorily in the program, is not benefitting from treatment [or] is not amenable to treatment.”

Mandatory treatment programs are significantly less effective than voluntary treatment programs, and they have higher rates of relapse and overdose deaths. A recent review of 45 studies linking incarceration records with overdose deaths found that, in the first two weeks of release from mandatory treatment programs, opioid overdose deaths were 27 times higher than the general population. People in mandatory treatment programs often spend time in jail, either while awaiting evaluation or as a sanction for relapse and other violations. Even one day in jail can trigger a cascade of problems that are particularly acute for drug users — including heightened risk of death and suicide. Jail also disconnects them from effective treatment: only 24% of jails provide medication assisted treatment (considered the “gold standard” for opioid use disorder care).

Longer sentences: Prop 36 also increases penalties for many people who use and sell drugs by implementing sentencing enhancements for distribution and possession with intent to distribute fentanyl. The impact of expanding these excessively long sentencing enhancements to fentanyl could be disastrous, because fentanyl is so prevalent in the drug supply that most people who buy, use, and sell drugs do not know whether their drugs contain fentanyl. In one recent study, 83% of the study cohort tested positive for fentanyl — but only 18% reported that they intended to use fentanyl. This means that these sentencing enhancements will not just target the people putting fentanyl into the drug supply — they will target the majority of drug users. Prop 36 is likely to simply increase drug offense penalties across the board for Californians, rather than aiming policy at “the worst of the worst”.

Prop 36 would make California’s already-punitive theft laws harsher, locking up more people for low-level theft.

Prop 36 claims to be a response to rising retail theft, and two of the biggest donors supporting the initiative are Walmart and Target. Although retailers have worked hard to claim they are losing large amounts of money and goods from retail theft, it is far from clear that this is true.

What Prop 36 would actually do is make thefts of less than $950 dollars — with no minimum — a “strike” for the purposes of future felony charges. In other words, stealing a candy bar at some point would be enough to enhance someone’s later charge to a felony. Incarcerating more people for retail theft is likely to have notably disproportionate impacts, since people arrested for retail theft are disproportionately young and Black despite white people being more likely to engage in shoplifting. Turning more theft and drug charges into felonies instead of misdemeanors also specifically harms immigrant communities by making more people deportable for minor crimes — even people who are legally in the United States.

These changes aren’t necessary, even according to their own logic. California already has one of the lowest thresholds for felony theft in the nation, and just last month, Governor Gavin Newsom signed a series of “tough on crime” retail theft bills that allow businesses to aggregate the total amount stolen in multiple thefts to reach felony charging thresholds. Prop 36’s draconian punishment for a non-violent crime — crime that is driven most often by poverty and need — is neither needed nor helpful.

Conclusion

Prop 36 is not an isolated policy effort. It is part of a wave of measures across the country that are trying to resurrect “tough on crime” policies that claim to improve public safety or combat drug use or homelessness. But those approaches didn’t work in the past and won’t work now. What communities all over the United States need is more investment in communities, treatment, and reentry — the exact kind of investment that Prop 47 provides in California today, and the exact kind of investment that Prop 36 would undo. If you are interested in learning more about the efforts to defeat Prop 36, California United for a Responsible Budget has compiled a set of resources and ways to get involved. Californians — and people around the country — should reject punitive policies that will simply reboot mass incarceration instead of investing in proven solutions.

Highlights from a bustling year at Prison Policy Initiative

In our new annual report, we share examples of how we empower the reform movement with the data it needs to counter “tough on crime” narratives

by Danielle Squillante, October 16, 2024

We wrapped up another busy year at the Prison Policy Initiative, and are thrilled to share our 2023-2024 Annual Report with you. We released 7 major reports, 32 research briefings, and two guides for journalists to support further investigative work on issues related to mass incarceration. We also provided technical support to advocates at the state and local levels working on issues such as ending prison gerrymandering, parole reform and fighting jail expansion. Here are a handful of accomplishments we’re particularly proud of:

• Publishing updates to our bedrock reports detailing the scale of mass incarceration in the U.S. and globally, including Mass Incarceration: The Whole Pie, Women’s Mass Incarceration: The Whole Pie, and States of Incarceration: The Global Context
• Releasing a report on how jails and prisons misuse money from “inmate welfare funds” on staff perks or to cover budgetary gaps, rather than use those funds on services that benefit incarcerated people. We released a companion guide for press to encourage journalists to further investigate welfare funds in state prisons and particularly in local jails.
• Discrediting the argument that jails and prisons are rehabilitative by spotlighting how they fail to provide evidence-based voluntary treatment for people with substance use disorders and refuse to release elderly people who pose no safety risk to their communities.
• Keeping the need for jail reform front and center through multiple publications that challenge the efficacy of detaining people pretrial, show how pretrial detention has a warehousing effect, and debunk common arguments used to justify jail expansion.
• Helping Minnesota join the growing list of states that have ended prison gerrymandering. Progress on this issue has been so rapid that the National Conference of State Legislatures recently called state efforts to end prison gerrymandering “the fastest-growing trend in redistricting.”

This is only a snapshot of what we produced this past year. We are proud of our accomplishments and look forward to sharing new projects with you in the year to come.

New report, One Size Fits None, explores counterproductive and difficult conditions of probation in all 50 states

October 15, 2024

Easthampton, Mass. — A new report from the Prison Policy Initiative provides one of the most comprehensive 50-state compilations of “standard” conditions of probation to date, shining a light on the burdensome rules that govern the lives of nearly 3 million people and that doom many to inevitable further punishments. The report, One Size Fits None, and accompanying data organize probation rules from 76 jurisdictions into topical categories — allowing readers to compare rules in their state to other states, and exposing how these systems turn even everyday behaviors into acceptable reasons for re-incarceration.

For those unfamiliar with probation, the report serves as an accessible introduction to “standard conditions,” the rules that everyone under supervision in a given jurisdiction must follow. One Size Fits None answers questions like:

• What aspects of people’s lives do probation rules typically address?
• In which states are standard conditions of probation set at the state versus the local level?
• What types of probation rules are at the discretion of probation officers to define?
• How do standard conditions intersect with the life circumstances of people most likely to be on probation, including low-income people and people with mental health conditions or substance use disorders?

“Our analysis of 76 jurisdictions finds that people on probation must abide by 12 standard conditions every day, on average, plus any special conditions that a judge or an officer imposes,” said report author Emily Widra. “These rules are rigidly applied across the board, and have serious consequences for people who are already marginalized along lines of race, class, and disability.”

The report dives into the most common themes that standard conditions of probation fall under, including:

• Financial requirements: In 64 out of 76 jurisdictions analyzed by the Prison Policy Initiative, probation rules require people to make regular payments, including monthly fees, drug testing or other treatment fees, or mandated support of legal dependents.
• Rules impacting employment: Despite more than 60 jurisdictions requiring people on probation to maintain full-time employment or the pursuit of “a course of study or vocational training,” most jurisdictions also impose rules that make it harder for people to get and keep a job.
• Movement restrictions: Almost all of the 76 jurisdictions studied restrict where people on probation can go, and 21 jurisdictions restrict people’s movements to within a county or district.
• Association restrictions: At least 31 jurisdictions in the sample have rules restricting social relationships with categories of people. Only one — Arkansas — clarifies that unavoidable associations via work or treatment programs are not prohibited.
• Other, vague conditions that expand criminalization, including stipulations to “be good,” “be truthful,” and “devote yourself” to work or education.

One Size Fits None issues sweeping recommendations to state and local lawmakers who wish to ensure that probation rules work toward, rather than against, the goals of probation. The recommendations urge states to reduce their use of probation overall, change how rule violations are treated, and pare down standard conditions to the essentials — eliminating those that are unnecessary and ineffective. The report also includes a sidebar highlighting jurisdictions that are working to reduce probation revocations.

“Probation conditions today are not only burdensome; they are often in conflict with one another, which puts people in impossible situations where violations are unavoidable,” said Widra. “Rather than continue with this counterproductive system, states and counties must rethink their standard conditions so that people are allowed to succeed.”

Access the full report at https://www.prisonpolicy.org/reports/probation_conditions.html.

New, expanded data on Indian country jails show concerning trends extend to tribal lands

In Indian country jails, populations have rebounded from pandemic lows, the detention of women and older adults is increasing, and new offense type data raise questions about why so many people are incarcerated on tribal lands.

by Emily Widra, October 8, 2024

Native people are consistently overrepresented in the criminal legal system, accounting for only 1% of the total U.S. population but 3% of the incarcerated population.¹ More specifically, the national incarceration rate of Native people is between two and four times higher than that of white people. Now, newly released data on jails in Indian country in 2023 provide more detail on this disturbing disparity: the Bureau of Justice Statistics (BJS) reports that, much like other jails across the country, Indian country jail populations are quickly bouncing back from the lows of the COVID-19 pandemic, and this growth has disproportionately impacted women and older adults.²

Native incarcerationSee more data and graphics on our profile page.

The Bureau of Justice Statistics (BJS) collects and publishes data about jail facilities on Native land separately — and with differing kinds of details — from other locally-operated jails across the country.³ In this iteration of the BJS survey on Indian country jails, the bureau collected new, more detailed information about offense types that are crucial to understanding the role of jails on Native land. They also reveal the troubling overuse of jails in response to non-criminal behaviors for youth and adults.

Jail populations in Indian country — like in jails across the country — were generally trending upward before a sharp decrease during 2020, which was the result of fewer arrests and slowed court processes during the pandemic; they have quickly resumed their upward trajectories in the years since.

Indian country jail populations continue to rise after COVID-19

Jail populations across the country — including local and Indian country jails — dropped dramatically during the first year of the COVID-19 pandemic (30% from 2019 to 2020). This temporary decline was primarily explained by fewer people being arrested and booked into jails, as well as slowed court processes. In 2020, Indian country jails saw their first decline in total jail populations since 2013.⁴ But jail populations on Native land and across the country quickly surged after the first year of the pandemic: from 2020 to 2023, the Indian country jail population grew by 19%, consistent with the 21% growth seen in local jail populations nationwide over the same time period. However, from 2022 to 2023, other local jail populations only ticked up by 0.2%, while the Indian country jail population rose by 7% over that single-year period. In other words, while rebounds in local jail populations are slowing, Indian country jail populations are rising more dramatically.

Women and older adults increasingly incarcerated in Indian country jails

Much like other parts of the criminal legal system, the growth of the women’s and older adult populations in Indian country jails has outpaced the growth among men and younger adults.

Women: Native women are disproportionately affected by almost every part of the criminal legal system. They are incarcerated at higher rates than women of any other racial or ethnic group. Additionally, women account for a larger portion of the Indian country jail population than they do in other local jails across the nation: in 2023, women represented over a quarter (26%) of adults incarcerated in Indian country jails, but only 14% of people incarcerated in other local jails. In the last three years, the number of adult women in Indian country jails has grown 37%, compared to only 15% for men. Prior to the COVID-19 pandemic, however, we saw this dynamic in reverse: from 2016-2019, the number of women in Indian country jails only rose by 5%, while the number of men rose by 19%. This suggests an alarming shift in the incarceration trends of women in Indian country since the pandemic began, in line with the escalating incarceration rates of women throughout the nation.

Older adults: There are limited historical data on the age of people incarcerated in Indian country jails: the Bureau of Justice Statistics only began collecting and publishing this information in 2021. But over this three-year period, the rise in the number of older adults incarcerated in Indian country jails has been consistent with national trends: between 2021 and 2023, the number of people 55 and older in Indian country jails grew by 38%, while the number of adults under 55 years old only grew by 9%. To be sure, these populations are fairly small in scale — the overall population increase from 2021 to 2023 was 220 people — but any upward trend in the incarceration of older people is worth examining.

Jailing increasing numbers of older adults is part of a terrible national trend of policing unhoused people, poor people, people who use drugs and alcohol, and people with cognitive disabilities. Housing instability, chronic diseases, poverty, and substance use all disproportionately impact Native people, and older Native adults are particularly vulnerable to arrest, detention, and the serious and harmful consequences of incarceration.

New offense data reveals troubling trends on the overuse of jails in Indian country

This iteration of the Jails in Indian Country series provides more data than previous years, including more specific categorizations of the offenses for which people have been detained. These additional details are welcome, especially in light of the limited offense data among jail populations in general.⁵ In previous years, large portions of the Indian country jail population were lumped together in an “other unspecified” offense category. In 2022, for example, 29% of offenses reported to the BJS were “other unspecified,” and this catchall category has been as high as 37% of offenses in 2015. The inclusion of additional offense categories⁶ in the most recent survey significantly reduced “other unspecified” offenses to only 8% of the total. Additionally, this is the first iteration of the survey to include mental health and civil commitment holds, unspecified warrants, and status offenses for youth. These additions clarify what’s driving population growth in Indian country jails, while illuminating troubling trends about the overuse of these jails at the same time:

• Holds: The addition of the mental health and civil commitment holds⁷ in Indian country jails offers new insight into how often jails are used for questionable reasons. As we’ve argued before, detainers and “holds” contribute to unnecessary jailing, often keeping people in detention longer than necessary while awaiting psychiatric treatment or substance use treatment. Given the heightened prevalence of substance use disorders among Native people,⁸ the fact that people are in jail for mental health and civil commitment holds instead of receiving crucial healthcare reflects a serious dearth of treatment access on Native land.
• Unspecified warrants: About 20% of people in Indian country jails are detained for warrants without a specified offense. Many of these detentions are likely for bench warrants related to a “failure to appear” in court given the lack of specific offense data. We know that many court responses to “failure to appear” — including jailing — do not actually promote public safety and are often a misuse of resources. That’s because most people who “fail to appear” are not actually evading justice or threatening public safety: nationally, 87% of people who miss criminal court dates are facing “nonviolent” charges for property, drug, and public order offenses. Considering around a quarter of all cases are eventually dismissed, many people who miss court face punishment even though they would likely not be convicted of the alleged crime that brought them into contact with the system in the first place.
• Youth status offenses: More than 1 in 10 youth in Indian country jails are held for a status offense, or a “noncriminal act that is considered a law violation only because of a youth’s status as a minor.” This can include missing school, underage drinking, violating curfew, or running away. Native youth are disproportionately represented in status offenses across the country: in 2021, Native youth accounted for 4% of all status offense cases in juvenile court, while only 1.3% of the total U.S. population is Native. Status offenses carry serious consequences beyond jail detention: in 2021, 1,400 youth with status offenses were ordered to out-of-home placements including youth prisons, residential treatment, or group homes, separating them from family and community support systems.
• “Crimes against vulnerable populations:” In this iteration of the survey, a sample of jails in Indian country were asked to report if they had any admissions (but not the actual number of admissions) for “crimes against vulnerable populations,” including human trafficking, kidnapping, or elder abuse over the course of a single month (June 2023). The Bureau of Justice Statistics (BJS) characterizes these additional questions as responsive to the “interest expressed by Congress, tribal leaders, and federal agencies” to illuminate “the types of persons being held.” At least 17% of all Indian country jails report admitting at least one person for elder abuse and at least 6% of Indian country jails reported admitting someone for kidnapping, while no facilities reported admissions for human trafficking in that month.⁹ We hope to see further innovations in future iterations and in the larger national BJS surveys as well. For now, it’s hard to put these findings in any kind of context as there is little data on the prevalence of these types of victimization, nor any detail about the people held on these charges in Indian country facilities.

Conclusion

The inclusion of new, more detailed data on jails in Indian country offers the public important insights into the incarceration of Native people on tribal lands. While these trends mirror what’s happening in jails elsewhere across the country, having this level of detail is nonetheless crucial to understanding how the criminal legal system impacts Native people and communities.

More transparency must be provided in the coming years to better inform and target advocacy that reduces Native incarceration and confronts glaring racial disparities in the criminal legal system. This is especially true considering much of this data has only become available in recent years, unfortunately limiting the historical record of Native incarceration.

Ultimately, we hope the Bureau of Justice Statistics will continue and expand the collection and dissemination of such detailed information — including detailed offense and demographic data — for people in Indian country jails and jails across the nation.