California Proposition 36 Just Passed … Now What?
California voters overwhelmingly passed Proposition 36. As a result, there will be an increase in parent deportations and family separations due to convictions for minor offenses such as shoplifting and simple drug possession. Proposition 36 will not only overcrowd jails, divert funds from treatment programs, and impose financial burdens on taxpayers, but also facilitate the deportation of immigrants for low-level crimes. This is particularly significant in California, where 46% of children have at least one immigrant parent. Proposition 36 amended state law to escalate a person’s third theft and drug possession offenses from misdemeanors to felonies.
The implications for immigrants are particularly severe. Under immigration laws, a criminal record can directly impact an individual’s legal status. A conviction deemed an “aggravated felony” can eliminate numerous potential paths for relief. For instance, a single “aggravated felony” can result in a Lawful Permanent Resident losing their green card. Proposition 36 reclassified nonviolent theft and possession convictions as “aggravated felonies” under immigration statutes.
Consequently, long-term permanent residents could lose their green cards over minor offenses like shoplifting or drug possession, with immigration judges powerless to intervene. Additionally, such a designation makes individuals ineligible for Cancellation of Removal, a form of relief available to noncitizens facing exceptional circumstances. This means even a parent, who has lived in the U.S. for many years and has a child facing significant hardships, could be prevented from staying with their child due to an “aggravated felony” conviction.
Aggravated felony convictions also prevent individuals from seeking asylum. Even when someone presents undeniable evidence of facing persecution in their homeland, they are prohibited from having their case considered. Once a conviction is labeled as an “aggravated felony,” the consequences are final. Immigration laws make no distinction between violent and nonviolent aggravated felonies. Furthermore, immigration laws are indifferent to the duration of an individual’s residency in the U.S., whether it is one year or forty years. The law does not consider the motivations behind an offense, such as stealing to feed one’s family, nor does it differentiate between an offense committed by an 18-year-old and one committed by a middle-aged person. This designation restricts immigration judges from reviewing the specifics of a case to evaluate if there are compelling reasons for the individual’s continued residence in the country.
Californians have historically acknowledged the complex and harsh nature of immigration laws and have enacted policies to mitigate their adverse effects. Legislation has been passed to limit local law enforcement’s collaboration with ICE and to enable immigrants to overturn convictions if they were unaware of the potential outcomes. Proposition 36 regresses in these efforts.
Proposition 36 impacts immigration law in several additional ways. Increasing the number of individuals imprisoned leads to more detainees being transferred to ICE custody, resulting in longer stays in immigration detention facilities, all funded by taxpayers. Unlike traditional jails or prisons, immigration detention centers do not allow bail for those convicted of an “aggravated felony,” which can mean indefinite detention, sometimes in distant locations far from loved ones, with no guarantee of legal representation for those unable to afford it. This outcome is not only costly for taxpayers but also fails to enhance public safety or promote justice. These immigration consequences were absent from Proposition 36’s ballot language. Supporters of the measure aimed to focus voters’ attention on terms like “homelessness,” “drug addiction,” and “fentanyl,” encouraging a “yes” vote. They wanted the proposition’s wording to suggest it addresses “treatment,” despite offering no guaranteed or funded treatment solutions.
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