Proposition 36 Will Increase California’s Jail Population and In-Custody Deaths, Advocates Warn

According to Orange County Sheriff Don Barnes, California doesn’t have a crisis in its jails, where record numbers of people have died even as the state’s jail population shrank.

“Saying people died in jails is a little bit of a misnomer,” said Barnes, who is also the president of the California State Sheriffs’ Association. “People who are dying in our care, and I can’t say this any other way; they’re not dying because they’re in jail. They are dying from things that are life choices, narcotics issues, poor health, cancer, other things.

“It’s not that the numbers are going up because they’re just dying from issues that are related to the jail.”

So Barnes said he’s not concerned that Proposition 36, a newly passed crime measure, is expected to reverse the trend of declining jail populations and put more people in jail, and he does not believe that the increase in headcount will lead to more in-custody deaths.

Outside observers, academics and the families of people who died in jail argue the opposite: that California is about to witness a wave of jail deaths even worse than the last four years.

Proposition 36, passed overwhelmingly by voters in November, will likely increase county jail populations by stiffening penalties for certain crimes and allowing district attorneys to charge some misdemeanors as felonies, according to the Legislative Analyst’s Office.

Yusef Miller, who leads a group of families whose relatives died in San Diego jails, said more incarcerated people will put pressure on jail systems that are already ill-equipped to handle more inmates.

“We’ve been claiming that Proposition 36 is going to increase the jail population, of course, but they’re increasing it into an already failed and broken system where people’s lives are lost from neglect. If you put more pressure and more activity on this, it’s gonna fail even more,” Miller said.

According to Justice Department statistics, a surge in overdoses drove the trend of increasing jail deaths. The other leading causes were suicide and the catch-all term “natural causes.”

Jails are responsible for inmates’ health care, but former jail medical staff have complained of overwork and burnout, especially since the pandemic. Many jail prisoners require complex care. More than half of them have mental health needs, according to a 2023 study by the Public Policy Institute of California.

In 2019, when 156 people died in the custody of California jails, Gov. Gavin Newsom pledged that the state would take a stronger hand to prevent deaths in the 57 jail systems run by California county sheriffs.

In each of the following four years, more people died in California jails than when Newsom made that pledge — hitting a high of 215 in 2022. Tulare, San Diego, Kern, Riverside and San Bernardino counties’ jails set records.

As of July, 68 people had died in California jails this year, according to the most recent data available from the Justice Department, which declined to provide CalMatters with updated numbers.

Californians for Safety and Justice, a nonprofit that seeks to reduce prison and jail spending, estimated that Proposition 36 will add 130,000 more people to California jails each year, about 100,000 of them held in jail before trial and about 30,000 serving one-year sentences after their convictions.

Not all of those people would be held at the same time. In June 2024, the average daily jail population statewide was 56,795 people.

Michele Deitch, director of the Prison and Jail Innovation Lab at the University of Texas at Austin, said it’s likely, if not a certainty, that more people will die in jails as jail populations grow. And, she said, there will be cumulative effects on counties as the expenses pile up from additional inmates.

“Having more people means a more overcrowded situation, which means that the dynamics inside change,” Deitch said. “It could lead to more deaths. And the counties are going to very quickly realize how expensive it is to keep that number of people in jail. They’re going to have to develop strategies like (pre-trial diversion programs) to keep overcrowding down.”

Why voters backed Proposition 36

Proposition 36 was a rightward swing of the California political pendulum – a decade ago, voters eased criminal penalties for certain crimes under 2014’s Proposition 47, which was pitched as both a cost-saving measure and a more effective way to combat crime by focusing dollars on treatment instead of incarceration.

Then, during the pandemic, the rate of shoplifting and commercial burglaries skyrocketed, especially in Los Angeles, Alameda, San Mateo and Sacramento counties. Statewide, reported shoplifting of merchandise worth up to $950 soared 28% over the past five years, according to the Public Policy Institute of California. That’s the highest observed level since 2000.

Combining shoplifting with commercial burglaries, the institute’s researchers found that total reported thefts were 18% higher than in 2019.

Prosecutors, law enforcement and big-box retailers blamed Proposition 47 and successfully urged the public to vote for Proposition 36.

Barnes’ jail system in Orange County had a record 18 people die inside in 2021. In 2023, that number was down to six. This year, so far, eight people have died in Orange County jails.

“In Orange County, we have several thousand available (jail) beds,” Barnes said. “Other counties may be impacted because they may not have capacity. They may just have to release people earlier because they don’t have the space for an incoming population to change.

“So it’s not as simple as saying that populations go up and, I guess (given) the law of averages, that more people will die. I don’t think that’s true.”

California gradually increases jail oversight

In 2011, California — as it thinned severely overcrowded state prisons by sending tens of thousands of recently convicted offenders to county-run jails — created an oversight board for prisons and jails. This 13-member Board of State and Community Corrections is composed mostly of people with law enforcement and probation experience.

CalMatters reported earlier this year that a civilian member of the oversight board felt that their work amounted to little more than a rubber stamp sanctioning the actions of sheriffs and their deputies when people died in their custody.

The board has responded to public and legislative pressure by conducting more unannounced jail inspections, a change from past practice when it would visit jails just once every two years and tell jail authorities in advance when inspectors were coming.

A new law that went into effect this year adds a staff position to review in-custody deaths. That staffer is hosting listening sessions with the public in at least two cities.

A spokesperson for the oversight board said the board had not talked to local law enforcement about a potential increase in county jail populations as a result of Proposition 36, nor has it done a “formal analysis for impact.” But the board will make in-custody death data statewide available to the public next year, the spokesperson said.

Miller, who works with the San Diego families whose relatives died in jails, doubts that the state oversight board or the counties will raise the alarm if people continue to die in jails at the rate they have been since the pandemic.

“As it’s rolling out in their big promises that it’s not gonna be as terrible as we know it’s going to be, we still have to hold them accountable and make sure that a microscopic eye is on what they do,” Miller said. “That’s the only hope I see.”