Crime, punishment and public opinion: Lessons from the 2024 election

In 2024, we witnessed how public sentiment profoundly shapes the criminal justice system, including the development of criminal justice policy and the strategies employed by prosecutors. Media narratives and high-profile cases also continue to fuel public perceptions, steering the direction of policy decisions. As a result of these influences, voters sometimes vote contrary to the values they profess to uphold. Such was the case with the overwhelming passage of California's Proposition 36.

Proposition 36 significantly shifted California's criminal justice policy and enforcement. For the first time since the era of criminal justice realignment under AB 109 and Proposition 47 enacted by the voters in 2014, harsher penalties will now be imposed for repeat drug offenses and petty thefts. This represents a marked departure from the reform-oriented policies of the past decade, signaling growing public frustration over perceived increases in property crime and rampant drug use.

Despite these concerns, reform advocates question the efficacy of Proposition 36. History offers a cautionary tale: in 2011, the U.S. Supreme Court ruled in Brown v. Plata (2011) 563 U.S. 493 that California's prison system violated prisoners' Eighth Amendment rights due to overcrowding and ordered California to reduce its prison population by 137.5% of its design capacity within two years. Since then, California's incarceration rate has decreased by 36%, even as crime impacts remain limited. Brennan Center for Justice, "Myths and Realities: Prosecutors and Criminal Justice Reform," published October 23, 2024; California Department of Corrections and Rehabilitation, "2023 Data Review," published June 2023. For example, while auto theft rose by 3.9% following Proposition 47, other crimes showed minimal increases. Public Policy Institute of California, Crime after Proposition 47 and the Pandemic, published March 2023.

Public attitudes toward criminal justice--and the laws they inspire--shape prosecutorial priorities. Over the past decade, a wave of reform-minded prosecutors emerged, focusing on systemic inequalities, racial disparities, and the criminalization of poverty. These so-called progressive prosecutors championed diversion programs, reduced reliance on cash bail, and focused on overturning wrongful convictions to balance public safety with restorative justice. However, public sentiment has shifted. Critics link rising property crime to progressive policies, though data often fails to substantiate these claims. An analysis by the Council on Criminal Justice found no clear correlation between progressive prosecutorial practices and increased crime rates when comparing cities with and without reform-oriented prosecutors. Brennan Center for Justice.

Public opinion does not form in a vacuum. Sensationalized media reporting continues to shape perceptions of crime and justice. The "if it bleeds, it leads" mentality amplifies public fears, even as crime rates remain historically low compared to the 1980s and 1990s. For example, proponents of Proposition 36 leveraged high-profile retail theft incidents to galvanize support despite evidence showing only a 2.2% decrease in shoplifting following Proposition 47. Public Policy Institute of California; Nigel Duara, "California Voters Get Tough on Crime, Pass Prop. 36," CalMatters, November 5, 2024.

The amplification of high-profile smash-and-grab robberies creates a public perception that retail theft has spiraled out of control, constantly putting the public at risk. Legislators, eager to demonstrate their responsiveness to public fears, have responded with Proposition 36. Yet, Proposition 36 does little, if anything, to address the root causes of theft, including economic inequality and other social issues.

Similarly, the tragic case of Matthew Perry's death, linked to a ketamine overdose, was covered by the press and framed as an urgent public safety issue. Drugs like ketamine and fentanyl, which are lawfully available and frequently prescribed, do pose a danger when used unlawfully. Yet Proposition 36 fails to address the barriers to mental health care in the United States, how modern healthcare fails people with chronic pain, and how overprescribing is a major contributor to the opioid crisis.

While the United States continues to try to solve the problems of addiction through the criminal justice system, Portugal has focused instead on providing high-quality addiction care through its national health care system and cut its number of fatal drug overdoses by 80%. Eyder Peralta, "Portugal's approach to the opioid epidemic is a flashpoint in U.S. fentanyl debate," NPR, published February 13, 2024. Elected officials are particularly susceptible to pressure from constituents, advocacy organizations, and law enforcement groups to respond swiftly to public concerns by enacting new criminal laws, even when the problems are not criminal justice problems. This can create a feedback loop that can result in reactionary policies.

Criminal justice requires nuance. Policymakers must engage with communities to address underlying concerns, prioritizing the public's interests. Fear-based tactics ultimately serve no one. Investments in preventive measures--such as mental health services, affordable housing, and substance abuse treatment--offer more sustainable solutions. Without addressing the root causes of crime, the cycle will persist. Prosecutors and lawmakers must collaborate to educate the public about the complexities of the criminal justice system. Only with accurate, transparent information can communities develop trust in the system they encounter.

Evidence-based policymaking remains essential in California. When effectively implemented, alternatives to incarceration can yield positive outcomes. Collaborative courts, prosecutor-initiated diversion, and judicial diversion exemplify successful reform efforts. Prosecutors, judges, and lawmakers owe it to their communities to address criminal justice challenges honestly and use the tools available to create meaningful change. The public's concerns about safety are valid, but justice and equity demand a collaborative approach that addresses crime's root causes without inflaming bias, prejudice, or fear.