What California's Proposition 47 Changed and What Proposition 36 Undid

Nine hundred and fifty dollars. That is the number. For roughly a decade, in the most populous state in the union, it marked the line between a misdemeanor and a felony for most thefts, and an entire public argument about crime, retail and the meaning of enforcement has been conducted around it.

I want to do something unusual in this debate and read the measures before arguing about them. California's Proposition 47 of 2014 and Proposition 36 of 2024 are ballot initiatives, which means the voters wrote the law themselves and were told what it would do. That makes them the best available test of a conservative principle: that the people are entitled to know what a law says before they are told what it means. Let me define the terms, set out what each measure did, and then ask what the evidence of the two measures, taken together, teaches about the question of felony thresholds.

Terms

A felony in California is a crime punishable by imprisonment in state prison, generally for more than a year. A misdemeanor is punishable by up to a year in county jail. A wobbler is an offense that the prosecutor or the judge may treat as either. A theft threshold is a dollar value that divides the lesser offense from the greater: below the line the theft is petty, above it the theft is grand. An aggregation rule says when separate thefts may be added together to reach the threshold. A prior is an earlier conviction that can raise the charge.

Before 2014

Before Proposition 47, California law divided theft into petty theft and grand theft at a threshold of $400, a figure set decades earlier. A person who stole property worth more than that could be charged with grand theft, which was a wobbler. Shoplifting, in the sense of walking into a store during business hours to steal, could be charged as burglary, a felony or a misdemeanor, regardless of the amount, because the entry with intent to steal was the crime. Possession of most illegal drugs for personal use was likewise chargeable as a felony or a misdemeanor.

The state also had a significant problem with prison population. A federal three-judge panel had ordered California to reduce overcrowding in its prisons, and the Supreme Court affirmed that order in Brown v. Plata (2011). This is the background of the 2014 measure and one reason it drew support: the state was under court order to shrink its prison population.

What Proposition 47 did

Proposition 47, called the Safe Neighborhoods and Schools Act, was on the ballot on November 4, 2014, and passed. Its main changes were these.

1. It reclassified certain theft and fraud offenses as misdemeanors when the value was $950 or less. The offenses included shoplifting, grand theft, receiving stolen property, forgery, fraud and writing a bad check. The $950 figure replaced the $400 line.
2. It created a new offense of shoplifting in the Penal Code, defined as entering a commercial establishment during business hours with intent to steal property worth $950 or less, and it made that offense a misdemeanor. Prosecutors could no longer charge that conduct as burglary.
3. It reclassified the simple possession of most controlled substances for personal use from a wobbler to a misdemeanor.
4. It allowed people already serving sentences for those offenses to petition for resentencing, and it allowed people with past felony convictions for them to apply to have them reduced.
5. It directed the state's savings toward school truancy and dropout programs, victim services, and mental health and drug treatment.

Notice the framing. The ballot materials presented the measure as a way to stop spending prison money on low-level, nonviolent offenders and to redirect it toward programs the voters were told would reduce crime. That was the promise. I will state it neutrally, because the promise is part of the record and voters were entitled to rely on it. A measure's supporters said it would focus resources on serious and violent crime. Its opponents, including many district attorneys and sheriffs, said it would remove the leverage that a felony charge gave prosecutors to steer people into drug treatment and would make repeat theft harder to charge.

How theft is charged under the 47 rules, with an example

The arithmetic here is simple, and it is worth doing by hand. What follows is a hypothetical, not a case.

Suppose a person steals $900 of merchandise from a store. That is below $950, so the offense is misdemeanor shoplifting. Suppose instead that he takes $960. That is above the line, and the theft is grand theft, which can be charged as a felony. The difference between the two is $60, and the difference in the consequence is the difference between a county-jail ceiling of one year and a possible state prison sentence.

Now suppose the same person returns three more times and takes $300 each time. Each visit is $300, well below $950. Four visits come to $1,200 (4 x $300). Whether the four can be added together depends on the aggregation rule. California courts have long allowed thefts from the same victim to be aggregated when they are committed under a single general plan, and the question in many cases has been whether prosecutors could show the single plan. Three visits at $300 would come to $900, still under the line. The numbers show how sensitive the result is to a threshold and to the rule for adding. A person who knows the line can plan around it. I am not saying that every petty thief reads the Penal Code. I am saying that a bright line invites arbitrage, a point I come back to below.

What Proposition 36 did

Fast forward ten years. On November 5, 2024, California voters approved Proposition 36, titled the Homelessness, Drug Addiction, and Theft Reduction Act. It did not repeal Proposition 47 and it did not change the $950 line. Instead it added felony options for repeat offenders and for specific kinds of conduct, which is why the title of this post says "undid" in a narrow sense: it reversed part of what 47 had changed without restoring the old regime.

Its principal changes were these.

1. Theft with prior convictions. A person with two or more prior convictions for theft-related offenses who steals property worth $950 or less can now be charged with a felony or a misdemeanor, at the prosecutor's choice. The prior record is what raises the charge, not the dollar value of this theft.
2. Aggregation for organized retail theft. The measure broadened the rules for adding up the value of stolen property across incidents and across victims, so that a pattern of thefts that adds up above the threshold can be charged as a felony.
3. Drug offenses. It created a "treatment-mandated felony" for a person with two or more prior convictions for certain hard-drug possession offenses, who may be offered treatment in lieu of a prison sentence. It also added penalty enhancements for dealing fentanyl and similar substances.
4. Warnings. It required courts to warn people convicted of selling or providing hard drugs that they could be charged with murder if someone dies from the drugs they supply in the future.

I have summarized the measure's structure and not every provision. If you want the detail, the full text is on the California Secretary of State's website and in the state's official voter guide, and you should read it, not my summary. Reading the actual statute is a habit this blog recommends in every case.

What voters were told, and what they chose

Two measures, ten years apart, and the same electorate. In 2014 voters were told that reclassifying low-level offenses would reduce prison spending and redirect the savings. In 2024 voters were told that repeat offenders were not being deterred and that retail theft had become an organized business, and they approved a measure that restored felony options.

I will let the reader decide what this shows. A reasonable reading is that voters were willing to try one approach and then, seeing the results, to adjust. Self-government means being allowed to change your mind, and the initiative process worked as designed. A reasonable critic of the 2024 measure would say that it was a response to highly publicized incidents and that it may increase incarceration without clear gains. A reasonable critic of the 2014 measure would say that it removed consequences the system needed. Each has a point. What neither can say is that the voters were not informed or did not speak.

How other states set their thresholds

California's line is not unusual in kind, only in history. States set felony thresholds for theft in widely varying places, from a few hundred dollars to a few thousand. New York's fourth-degree grand larceny begins at property over $1,000. Texas draws its state-jail felony line at $2,500. I mention two examples only, and you should check your own state's statute, as the figures change when legislatures revisit them. Many states have raised their thresholds over the years to account for inflation, a point worth remembering: a dollar line set in 1982 buys less than it did, and a threshold that never moves quietly becomes harsher every year. That is an argument for adjusting thresholds with some care, not for abolishing them.

Notice, too, that these are legislative choices. A threshold is a policy judgment about how much a society wants to punish a given quantity of loss, and a policy judgment belongs to the legislature and, in California, to the voters.

The argument that matters more than the number

Now to the question the title promises. Does the dollar line matter? I would argue that it matters less than a different variable: whether anyone is charged at all.

Here is the reasoning, in numbered points.

1. A threshold sets the maximum, not the practice. A statute that allows a felony charge for a $1,000 theft does nothing if the prosecutor will not file it. A statute that makes a $900 theft a misdemeanor does nothing if the misdemeanor is never filed either.
2. Enforcement is a chain, and every link has to hold. A store must report. A police department must respond and document. A prosecutor must file. A court must impose a consequence. Weakness anywhere defeats the rest, regardless of the line the legislature drew. See Prosecutorial Discretion Has Limits, and Blanket Non-Prosecution Crosses Them for the limits on one of those links, and They Say Shoplifting Is a Victimless Crime, So Ask the Clerk and the Block for why the end of the chain matters to the person at the register.
3. A misdemeanor, enforced, is better than a felony, ignored. A consistent consequence for petty theft, even a modest one, does more to alter behavior than a severe one that is rarely imposed. The old lesson of criminology is that certainty of consequence deters more than severity does. I state it as a general principle, and I would not attach a figure to it.
4. The threshold decides who has discretion. A high threshold gives the thief more room before the felony category applies. A low one gives the prosecutor more tools. Prop 36 tried to keep the line and add tools in the form of priors and aggregation. Whether it works will depend on whether prosecutors use them.
5. The real test is observable. Anyone who wants to know whether either measure worked can ask a short list of questions. How many theft reports led to arrests? How many arrests led to charges? How many charges led to convictions and consequences? Without those numbers, the argument over thresholds is a fight over a proxy.

None of this says the threshold is irrelevant. I think the 2014 line was set where it invited repeat offending and that the 2024 repair was warranted. But I would rather have a modest line, consistently enforced, than a harsh one on paper. A thought experiment that follows this idea to its extreme is in A Thought Experiment Where Shoplifting Is Enforced Like a Parking Ticket, and the business side of the problem is in Organized Retail Theft Is a Business Model, Not a Cry for Help. For what happened when another state tried decriminalization and reversed course, see Oregon Decriminalized Hard Drugs in 2020 and Reversed Course in 2024.

The Founding frame

The framers of the Constitution did not set a dollar threshold for theft, and the federal Constitution has nothing to say about California's line. This is a matter reserved to the states, and the Tenth Amendment says so. The states are, in Justice Brandeis's phrase from a different case, laboratories. California ran an experiment in 2014 and a correction in 2024, and the rest of us have been able to watch.

What the Founders did care about is the rule of law, which depends on the regular enforcement of known rules. John Adams's formulation, in the Massachusetts Constitution of 1780, was a government of laws and not of men. A law that is on the books and not enforced is a government of discretion, and a government of discretion is the thing the Founders feared most. The question to ask about any threshold is whether the law it draws will be applied.

The case in brief

1. Proposition 47 (2014) reclassified many theft and fraud offenses of $950 or less, and most personal drug possession, as misdemeanors, and created a misdemeanor shoplifting offense.
2. Proposition 36 (2024) kept the $950 line but added felony options for thefts by people with two or more prior theft convictions, broader aggregation of stolen value, a treatment-mandated felony and fentanyl enhancements.
3. Voters were told different things in 2014 and 2024, and they chose to adjust the policy, which is how self-government is supposed to work.
4. Felony thresholds vary across the states, and a line that does not move with inflation becomes harsher over time.
5. Whether a theft is charged at all matters more than where the line sits, so the real measure of either proposition is how many reports become charges and consequences.

What you can do: read the text of Proposition 36 and your own county district attorney's published charging policy, and if you live elsewhere, find your state's felony theft threshold and ask your legislator when it was last reviewed.