Why Voters Changed Their Tune On Criminal Justice Reform In California

In the past decade, California’s incarceration rate has dropped about 30%. The hundreds of millions of dollars the state saved by incarcerating fewer people was reallocated into community programs for at-risk kids, mental health, drug treatment and victim services. Locking up fewer people had a minimal impact on crime, the Public Policy Institute of California found earlier this year.
These changes were made possible by Proposition 47, a ballot measure passed in 2014 that recategorized certain drug offenses and thefts below $950 as misdemeanors, rather than felonies. It was passed in the aftermath of severe cuts to social welfare programs and a scathing state Supreme Court ruling demanding the state reduce its prison population in order to alleviate violence and the spread of infectious diseases within its prison system.
Despite those successes, California voters chose to overturn Prop 47′s reforms earlier this month.
Prop 36, which effectively undid Prop 47, passed by nearly 40 points this month — a stunning reversal from even a few years ago, when a similar effort failed. At the same time, voters in Los Angeles County and Alameda County, home to the cities of Oakland and Berkeley, voted their progressive district attorneys out of office. Even a ballot measure to end the use of forced prison labor in California — a seemingly modest reform effort that has passed easily in more conservative states — failed.
In the rush to make sense of those results, several headlines have posited that California is backing away from criminal justice reform and returning to the tough-on-crime policies of the 1990s.
But the advocates who have spent decades pushing for criminal justice reform caution against viewing the election results as a sign the public has changed its mind.
“We need to be careful not to overgeneralize and not to presume that this is somehow a death sentence vis a vis criminal justice reform,” Miriam Krinsky, a former federal prosecutor and the founder of advocacy group Fair and Just Prosecution, said in an interview.
“These issues are cyclical and often progress is made in spurts with two steps forward, one step back. … We find ourselves at a moment in time where there’s a lot of anger and discontent with the status quo, and where a fear narrative was used to propel that anger.”
The failed 2020 effort to overturn Prop 47 lost by 23 points. But in the four years since, the political landscape has shifted. After promising sweeping changes to the criminal legal system in response to the racial justice protests of 2020, Democrats have largely abandoned that platform in favor of a tougher-on-crime posture.
The anti-reform side shifted its rhetoric during that time, too. Misleadingly described as “The Homelessness, Drug Addiction, and Theft Reduction Act,” Prop 36 was deliberately sold to voters as an effort to treat, rather than criminalize, addiction. The Yes on 36 website claims it “incentivizes drug and mental health treatment,” when, in fact, it is likely to gut funding for drug treatment and mental health care.
“The other side co-opted reform messaging,” said Anne Irwin, the director of Smart Justice California, a progressive criminal justice reform group. “In Proposition 36, they started off their campaign using really traditional tough-on-crime rhetoric, and several months in, they took a big shift and began using a treatment framing, referring to this as a mass treatment initiative, not a mass incarceration initiative. They did that because their polling was showing that as much as voters in California want something to be done about what they’re seeing and feeling, they do not want that thing to be mass incarceration.”
Prop 36 leaned heavily on the public’s perception that crime was out of control, a notion not backed by crime data but reinforced by breathless media coverage of viral videos of organized theft rings.
“Those are an anomaly, they happen, they are part of the public consciousness, but going forward those aren’t necessarily the people who are going to be impacted by the changes in the law,” said Cyn Yamashiro, a former Los Angeles County public defender who now works at the Wren Collective, a criminal justice research and policy group.
He noted that prosecutors already had the power to prosecute organized retail theft rings and secure felony convictions for their members.
“The changes in the law [under Prop 36] are going to impact the most poor — people who will be prosecuted for stealing baby formula or toiletries,” Yamashiro said.
With millions of dollars in funding from retail giants — Walmart alone contributed $4 million — the Yes on 36 campaign had vastly more resources to get its message to voters. That message capitalized on voters’ sense that things aren’t working and claimed Prop 36 was an easy solution, couching it in rhetoric that made it seem like something other than a betrayal of criminal justice reform.
“That’s important for those of us who embrace the need for change, to understand and meet voters where they are,” Krinksy said. “Whether people are safe is just as important as whether people feel safe. While data tells us that many of the crime markers are more favorable than they were a decade or two decades ago, people don’t feel that improvement. We need to do a better job of making clear that many of the changes that have come about are making communities safer.”
The other criminal justice measure on the ballot was Prop 6, which would have eliminated a provision in California’s constitution that allows involuntary servitude as a punishment for people in prison. If Prop 6 had passed, incarcerated people could still choose to work for little or no pay, but would not be required to do so. This would allow them to pursue educational or rehabilitative programming, which is often required to be granted parole, instead of being disciplined for refusing work — something that can, in turn, damage a person’s prospects for release.
California is one of only 16 states that has yet to close the so-called slavery exemption loophole. In recent years, red states like Alabama, Nebraska and Tennessee have passed measures similar to Prop 6. There was no meaningful organized opposition campaign to Prop 6, and yet, as of Wednesday, it was down by 7 points. (That gap could narrow, but it does not stand a chance of passing.)
The formerly incarcerated organizers who ran the Yes on 6 campaign suspect that it suffered from being lumped in with Prop 36 at a time when voter appetite for reform had waned. With limited funding, the Yes on 6 campaign also struggled to correct incorrect assumptions about Prop 6, including that it would mark the end of prison labor entirely when, in fact, most prisoners would likely choose to continue working. They also point to the fact that the official summary in the voter guide used the phrase “involuntary servitude” rather than “slavery,” which may have been less resonant with voters.
The impact of Prop 36’s passage will come down to how aggressively individual prosecutors choose to enforce it.
As the measure goes into effect, California is losing two progressive prosecutors elected on promises to reduce incarceration. In Los Angeles, the state’s most populous county, District Attorney George Gascón lost his reelection campaign to Nathan Hochman, a former GOP state attorney general candidate who has pledged to reverse his predecessor’s reforms. In Alameda County, voters opted to recall District Attorney Pamela Price just two years into her first term.
Gascón, a former cop who has since become the godfather of the progressive prosecutor movement, spent eight years as San Francisco’s district attorney before moving to Los Angeles to mount a successful challenge against longtime incumbent Jackie Lacey. During his first week in office, Gascón unveiled a series of sweeping policy changes for the district attorney’s office: They would no longer seek the death penalty, charge kids as adults, seek life sentences without parole or use sentencing “enhancements.”
Gascón had the data to back up his decisions. Those policies did not reduce recidivism, they resulted in disproportionately harsh penalties for Black and brown defendants, and they failed to account for an individual’s capacity for rehabilitation, particularly among children. But he faced immediate pushback, and even litigation, from the prosecutors in his office. He survived two failed recall attempts before losing his reelection campaign.
When Price, who ran on similar reforms to Gascón, entered office in 2023, the anti-reform movement had recently notched a major victory in recalling San Francisco District Attorney Chesa Boudin. The playbook had been set. A handful of wealthy people in real estate, tech and finance bankrolled recalls and challenges to progressive prosecutors throughout the state.
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Even some of Gascón’s supporters say it was a strategic misstep to impose blanket policies on his first day on the job, many of which he ended up walking back in response to the internal revolt in his office. But it’s also unclear whether he would have been able to implement many of the reforms he ran on without the buy-in of his staff.
“I don’t think those in the office who were unhappy with his victory and unhappy with him having defeated a longtime incumbent were willing to be won over. I think that there were many who just didn’t align with his vision and were going to do everything within their power to try to derail that vision,” Krinsky said.
“I think it’s a mistake to conclude that there’s something wrong with policies that try to guide the office with clear, bright lines,” Krinksy continued. “It’s wholly within prosecutorial discretion’s exercise to say that certain things are not going to be prosecuted because it’s not a wise use of resources, or the use of the death penalty does not align with the values that we should perpetuate, or that young people, whose brains aren’t fully developed, should not be put in the adult system.”