Proposition 36, a California ballot initiative that would make some retail theft and drug crimes felonies, is winning overwhelming on the ballot and is expected to pass easily on November 5.
A poll from the Public Policy Institute of California showed that 73% of voters support the initiative while only 25% oppose it. The measure would also make it easier to deport some immigrants who are in the state illegally.
“It is not an understatement to say that if Prop. 36 passes, more Californians, including green-card holders, including refugees, will be deported,” said Grisel Ruiz, a supervising attorney with the Immigrant Legal Resource Center. “The impacts will be pretty disastrous.”
Indeed, it's an unintended consequence of the ballot initiative that illegal aliens with prior convictions will be deported if they are convicted under the new law.
Under this new system, a simple drug possession charge with prior convictions could be considered an “aggravated felony” conviction in immigration court, which triggers the most severe penalties possible. In almost all cases, a person in immigration court with an “aggravated felony” on their record faces mandated deportation for life and loses all chances of immigration relief, Ruiz said.
“The immigration argument to me is just a red herring because DAs already have a proven track record of working to mitigate unreasonable immigration consequences,” Reisig said.
Yolo County District Attorney Jeff Reisig, a Prop. 36 supporter, said the measure does not enhance the risks for immigrants any more than a retail and property crime package of bills the Legislature recently passed and the governor signed.
Prosecutors are not going to deport someone for a minor drug charge. They will plead it down to a misdemeanor and send the illegal on his way. That's the system as it is now, and it's not likely to change with the passage of Prop 36.
Opponents are trying to muddy the waters further by claiming that immigration judges are harsher than state judges.
“Even if the criminal judge exercises some lenience or exercises some discretion, that discretion is not carried into the immigration proceedings,” she said. “That is all well and good for criminal court. But the immigration courts do not recognize a whole host of rehabilitative and relief-based things such as dismissal in state court.”
The measure will increase penalties for repeat offenders. It's hard to argue that allowing offenders to skate just because their crime doesn't pass some arbitrary threshold doesn't make sense to most voters.
Supporters of Prop. 36 say the measure will rectify some of the shortcomings of an earlier ballot initiative, Proposition 47. Approved by voters ten years ago, Prop. 47 sought to reduce California’s severe prison overcrowding by reclassifying as misdemeanors six felony theft and drug crimes, including shoplifting and simple drug possession. It funneled the resulting cost savings into drug and mental health treatment and services for victims of crime and at-risk students. Since then, participation fell sharply in California’s optional drug courts, which offer treatment as an alternative to a conviction. Meanwhile, prosecutors, police, and big box retailers like Walmart and Target blamed the law for an increase in property crimes and homelessness.
"The state’s nonpartisan Legislative Analyst’s Office predicts the initiative would increase California’s prison population of 90,000 inmates by a few thousand," according to CalMatters.
The goal of the changes in law is to send drug offenders into rehab facilities, not prison. Rehabbing from an addiction does not have a good track record in getting people off of drugs. But cracking down on open-air drug markets at the same time could offer some help to addicts and prevent some crime.
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