California is set to become the latest state to pull back on past drug decriminalization efforts, as an outcry over the fentanyl epidemic has forced lawmakers in even the most progressive states to call for a tougher approach.
Voters there Tuesday are expected to overwhelmingly approve increased punishments for people convicted of certain drug or theft crimes, such as longer prison sentences or mandated treatment, rolling back reforms approved a decade ago to reduce the state’s prison population.
The citizen-initiated Proposition 36 will be decided months after Oregon legislators voted in March to scrap key provisions of the state’s four-year-old Measure 110, a first-in-the nation program that reclassified personal possession of drugs to result in a fine and treatment rather than a criminal charge.
Decriminalization bills have faltered elsewhere, including in Maine, Massachusetts, New York, Rhode Island and Vermont. Efforts to get decriminalization measures on ballots in Washington and California in 2022 and 2024 never came to fruition.
“People will argue forever over whether it succeeded, but politically it has failed because everyone who was for it suffered at the ballot box,” said Keith Humphreys, a Stanford professor who advised the Bush and Obama administrations on drug policy.
California’s Proposition 36 — known as the Homelessness, Drug Addiction and Theft Reduction Act — traces increases in homelessness, drug addiction, mental illness and property crimes to 2014, when the voter-approved Proposition 47 reduced the legal consequences of many drug and property offenses.
In response, the proposed law would create a new felony charge for hard drug possession after two previous convictions, which would require treatment or prison. It also would reclassify non-prescription fentanyl as a hard drug, in the same category as heroin, cocaine, and methamphetamine; allow tougher sentences for dealers; and allow for enhanced penalties for people convicted of multiple thefts in an effort to combat what its authors call “an explosion of retail and cargo theft.”
Polls have shown overwhelming popular support for the proposal. An October survey from the Public Policy Institute of California found support from 73% of likely voters. A Berkeley IGS Poll found 60% of likely voters in favor. Supporters, including major retailers Walmart, Target and Home Depot, have raised more than $8 million, while opponents have brought in less than $200,000, according to OpenSecrets.
Gov. Gavin Newsom (D) has worked to chip away at the support or negotiate the measure off the ballot. But he said last month he would not try to get in the way if voters approve it.
“I just hope folks take the time to read it and recognize what it is, it’s drug policy reform and good people can disagree on that, but it’s clear the direction,” he said at a press conference. “It’s unfunded and unfortunately it may impact some existing drug treatment and services and the redirection of existing grant funds under a previous initiative. Beyond that, we absolutely will implement the will of the voters.”
Groups opposing the measure say it is a misguided return to drug war policies that led to mass incarceration in previous decades.
“The way we see these laws, is they are a new spin on an old idea that the criminal justice system has already tried and failed to protect public safety,” said Wanda Bertram, a spokesperson at the Prison Policy Initiative.
Kellen Russoniello, of Drug Policy Alliance and Drug Policy Action, which has backed several state decriminalization bills, a return to more punitive policies would be a mistake.
“Evidence has shown, over the past 50 plus years, that those approaches just don’t work,” he said. “And in fact, they make things much worse.”
National protests over police brutality after the 2020 murder of George Floyd opened a window of opportunity for so-called harm reduction theories that had percolated in public policy circles for decades.
Advocates say decoupling the personal possession of most drugs from the criminal justice system allows for a health-based approach that prioritizes treatment and reduces the harms that accompany incarceration.
But the most ambitious efforts to put those ideas into practice were hamstrung by a lack of accompanying investment in treatment facilities and a spike in overdose deaths from the introduction of fentanyl into the drug supply.
At the same time, communities emerging from the Covid-19 pandemic were grappling with steep rises in homelessness and reports of a wave of retail thefts that fed perceptions of lawlessness that were exacerbated by public drug use.
“These policies were not just snuck in at midnight into a bill; they were popular,” Humphreys said. “But once people got robbed enough times, or once people stepped on enough needles, or once they realized the kids couldn’t go to the park or a playground or even walk to school safely, it’s understandable that people got frustrated.”
In Oregon, 58% of voters backed Measure 110 in 2020. Under the law, police gave drug users citations and pointed them toward treatment instead of arresting them. It also funneled hundreds of millions of dollars in cannabis tax revenue to fund drug recovery programs.
But the law’s launch was marred by delays in the rollout of the treatment and recovery systems. Critics say it gave drug users little incentive to seek help. And majorities of Oregon voters said in polls that they blamed it for making their communities less safe.
Oregon Gov. Tina Kotek (D) signed a bill in March that created a new misdemeanor charge for possessing hard drugs including meth, heroin and fentanyl, punishable by up to six months in jail. It was designed to encourage treatment over penalties such as jail time or probation and make it easier for prosecutors to charge drug dealers.
Drug decriminalization efforts in other states ran out of steam around the same time. The Maine legislature voted in April to establish a task force to study the issue, a significantly watered down version of a decriminalization bill that Gov. Janet Mills (D) said she would oppose.
A Vermont bill that would have changed the penalties for possession of a personal use supply of drugs from a misdemeanor to a civil offense subject to a $50 penalty ran afoul of Gov. Phil Scott’s (R) calls for tougher drug penalties. The Democrat-controlled legislature last year instead passed bills creating new drug penalties for illegally dispensing or selling xylazine, an animal sedative found in some illicit drugs, increasing some drug penalties for juveniles, and creating new retail theft crimes.
Other states have introduced mandatory minimum sentences for fentanyl possession or “reckless homicide” laws, which allow people who give drugs to someone who has a fatal overdose to be charged with murder.
Policy experts said there are signs that some states haven’t completely reversed their position.
In Oregon, counties are launching the first “deflection programs” that aim to connect drug offenders to treatment under the law that replaced Measure 110. But those programs will only work if they are properly funded, advocates caution. And mandating treatment will only put more strain on an already overloaded system, said Bertram, of the Prison Policy Initiative.
“Looking at the number of treatment beds available, there’s no way that criminalizing possession of these substances is somehow magically going to create the resources the state doesn’t already have,” Bertram said.
Rhode Island and Vermont both moved toward opening the country’s first state-sanctioned safe injection sites, where people can use heroin and other drugs and be revived if they overdose.
Vermont Sen. Tanya Vyhovsky (D), the sponsor of the failed decriminalization bill there, said in April that advancing the proposal would likely take years.
“A lot of people in the building are grappling with conflicting experiences and conflicting values and beliefs, and trying to thread the needle that makes the most sense to them,” she said.