, the tough-on-crime ballot measure that would increase punishment for certain drug and theft offenses, appears likely to pass with polls showing .
has behavioral health leaders across California trying to figure out how they鈥檇 actually implement a part of the measure that pledges 鈥渁 new era of mass treatment for those who need it the most.鈥�
As far as they can tell, California counties don鈥檛 have the resources to provide what Prop. 36 envisions: behavioral health treatment for people convicted for a third-time drug offense.
鈥淲e simply don鈥檛 have enough capacity right now to take on a whole new population of folks that are getting mandated into treatment,鈥� said Dr. Ryan Quist, behavioral health director of Sacramento County.
Their concerns center on an that would create a new kind of felony, also known as a treatment-mandated felony. It would allow prosecutors to charge a person arrested for possession of certain drugs, such as fentanyl or heroin, and who have two or more previous convictions for certain drug crimes with the new felony.
After pleading guilty or no contest, they鈥檇 be able to choose: undergo substance use disorder or mental health treatment, or serve up to three years in jail or prison.
鈥淏y requiring treatment for those with a pattern of repeat drug convictions, we can save lives and help bring everyone indoors,鈥� say proponents on the campaign website. 鈥淧rop. 36 represents a tool to help us address the crisis of homelessness because people who receive treatment have a much greater chance of staying housed.鈥�
There鈥檚 one big catch: Most counties don鈥檛 have nearly enough behavioral health treatment facilities, services or workforce to accomplish what the measure aims to achieve, according to a wide range of behavioral health experts and studies on the state鈥檚 behavioral health workforce.
Seven experts told CalMatters that counties will have the hardest time supporting a new population of people needing residential treatment, which provides live-in care.
Finding outpatient care, such as individual or group therapy, would also be challenging depending upon where a person lives.
鈥淚 think it鈥檚 irresponsible to tell voters that people will get treatment when you know they will not, because there is no treatment available,鈥� said Cristine Soto DeBerry, executive director of the Prosecutors Alliance of California, a nonprofit organization opposed to Prop. 36. 鈥淭hey鈥檝e wrapped the pill in baloney. The only way to get voters to vote for their prison initiative is to tell them it鈥檚 about treatment.鈥�
California doesn鈥檛 have enough treatment beds to meet the existing demand for supply, from earlier this year. Researchers found that substance use disorder treatment facilities, in particular, 鈥渄id not accept patients with prior involvement in the criminal justice system, those with co-occurring health issues, and those enrolled in Medicaid.鈥�
If treatment is not available, opponents say, there would be no choice. The only option would be incarceration. Supporters of Prop. 36 said that won鈥檛 be the case.
Prop. 36 would partially reverse a different initiative voters approved a decade ago, which reduced penalties for certain lower-level drug and petty theft offenses from felonies to misdemeanors. The measure, Proposition 47, was intended to develop new public safety strategies and reduce incarceration after the state鈥檚 prison population exploded due to tough-on-crime policies dating back to the 1980s.
San Jos茅 Mayor Matt Mahan, a prominent Prop. 36 supporter, has acknowledged the available in his own community, Santa Clara County.
鈥淚t鈥檚 why I think Prop. 36 ultimately will be a great forcing function for the state and all of our counties to invest in inpatient treatment systems at scale, which is something we鈥檝e desperately needed for years,鈥� Mahan said.
The measure鈥檚 critics, such as Contra Costa County Chief Public Defender Ellen McDonnell, said Prop. 36 would criminalize poverty and increase the existing over-incarceration of Black and brown people.
McDonnell called the mandated treatment a 鈥渇antasy鈥� given the lack of resources currently available in her county, where people have had to spend months in jail waiting for a treatment bed.
鈥淪addling individuals who are suffering from a behavioral health disorder with a felony is going to result in really poor outcomes where their ability to find and obtain housing, education and employment cannot be understated,鈥� McDonnell said. 鈥淲e need to look at substance use disorders as public health issues and not as criminal issues.鈥�
Gov. Gavin Newsom tried to keep Prop. 36 off of the fall ballot and for a time considered putting a competing crime measure before voters. He hasn鈥檛 put any money into fighting Prop. 36, but he has referred to the initiative as an 鈥渦nfunded mandate鈥� that would take California back to the War on Drugs.
What is a treatment-mandated felony?
Under the proposed treatment-mandated felony, someone convicted of a qualifying crime who opts for treatment would be assigned 鈥渁 detailed treatment program developed by a drug addiction expert and approved by the court.鈥� Alongside treatment, people 鈥渨ould be offered shelter, job training, and other services designed to break the cycle of addiction and homelessness.鈥�
Those who finish treatment would have their charges dismissed.
According to the measure, a treatment program could entail drug treatment, mental health treatment, job training, 鈥渁nd any other conditions related to treatment or a successful outcome for the defendant that the court finds appropriate.鈥�
Prop. 36 supporters, such as Yolo County District Attorney Jeff Reisig, say that the treatment-mandated felony is intended to 鈥渞eactivate the drug court path鈥� and give leverage back to judges.
鈥淚f (people) don鈥檛 go, there鈥檚 a stick hanging over them,鈥� Reisig said. 鈥淣one of that exists right now. We don鈥檛 have a stick and there鈥檚 no core compulsion, which is why these beds are empty and why the drug courts are gone. It鈥檚 not rocket science.鈥�
It鈥檚 true that drug court participation passed, according to a 2020 .
According to the report, drug courts have historically focused on felony cases. After the sentencing reforms of Prop. 47, many of the felony offenses that once led people to drug courts were reclassified to misdemeanors.
In its review of drug court participation, the report stated, 鈥淥ne way for drug courts to continue serving defendants in need of treatment is to begin accepting these lower-level charges鈥 variety of changes can help courts to rethink their eligibility criteria and incentivize lower-level defendants to participate.鈥�
Notably, the report found that participation increased among the drug courts that expanded eligibility criteria after Prop. 47.
When asked whether counties will be able to keep their promise of effectively implementing what鈥檚 outlined in the measure, Reisig said 鈥渢he language in the initiative doesn鈥檛 say 鈥榩romise鈥� and it doesn鈥檛 say 鈥榯his is a guarantee.鈥欌��
According to Reisig, there鈥檚 鈥渘o risk鈥� a person will sit in jail because treatment is unavailable.
For Mahan, treatment under a treatment-mandated felony starts with counseling and building trust.
鈥淭here鈥檚 healthy practices like meditation and yoga and diet and a lot of things you can do to try to help people create healthier habits, which is nearly impossible to do if you鈥檙e living on the streets,鈥� he said. 鈥淢uch easier to do if you鈥檙e in an inpatient setting of some sort 鈥� you have some kind of housing that鈥檚 stable. And then, look 鈥� for some folks, it鈥檚 medication.鈥�
Above all, Mahan said that residential treatment is the 鈥済reatest need鈥� and would have the 鈥済reatest positive impact鈥� since a high percentage of people who end up in drug court need a place to live.
鈥淚 don鈥檛 think the primary goal should be to lock people up,鈥� Mahan said. 鈥淚 don鈥檛 think that鈥檚 a great solution. But I do think the reality is, if you are deep in the throes of an addiction to the point where you鈥檝e been arrested multiple times, there may be other co-occurring crimes committed and you are unwilling to engage in treatment, we then have a choice.鈥�
鈥楾hey鈥檙e scrambling鈥�
California鈥檚 shortage of treatment beds is well documented. A 2022 by California鈥檚 Department of Health Care Services found that 70% of the state鈥檚 58 counties reported 鈥渦rgently needing鈥� residential addiction treatment services. Nearly two dozen counties reported having no residential treatment at all.
One of those counties is Plumas County, where the nearest residential treatment facility is roughly two hours outside of the county.
Plumas County Undersheriff Chad Hermann is supporting Prop. 36 but acknowledged that there will be major challenges in its implementation for his small Northern California community.
鈥淲hen you鈥檙e looking at small counties such as mine, we could have a person that needs mental health treatment or it鈥檚 court-ordered to get treatment, you can鈥檛 find a bed for them for weeks,鈥� said Hermann. 鈥淪o it鈥檚 very problematic. You鈥檙e just kind of manifesting the problem rather than addressing it.鈥�
Larger counties have also expressed concern over capacity for treatment. Quist of Sacramento County, said he 鈥渨ishes it was easy to set up鈥� treatment beds.
According to Quist, creating beds can take two years or longer.
鈥淚t takes a significant amount of organizational complexity and staffing in order to get to the point where (residential homes) can offer additional beds,鈥� Quist said. 鈥淐urrently, they鈥檙e scrambling in order to staff their existing beds and maintain their existing capacity.鈥�
California faces historic constraints in its mental health and substance use disorder workforce across the state, according to the Healthforce Center at the University of California San Francisco. A 2023 report found Californians鈥� are rapidly outpacing its workforce.
鈥淵ou can mandate all you want, but if you don鈥檛 have the people, then the folks who the courts have directed to get mandated treatment may not get it or they may have to wait a long time,鈥� said Janet Coffman, Professor of Health Policy at UCSF, who co-authored the report. 鈥淚 don鈥檛 see where there really is much in the way of excess capacity for outpatient treatment to absorb additional people.鈥�
Roughly 30% of the state鈥檚 58 counties reported the need for additional outpatient mental health treatment services and substance use disorder providers, according to the Department of Health Care Services.
鈥淲ithout actually having a workforce big enough to treat and really take on this new population, how effective will it be?鈥� said Kevin O鈥機onnell, a criminal justice and behavioral health researcher who has not taken a stance on Prop 36. 鈥淚f there isn鈥檛 capacity, then you risk jail being where people go back to.鈥�
No new funds through Prop. 36
Sentencing reforms under Prop. 47 helped to significantly reduce the population in extremely overcrowded state prisons and jails. The incarceration rate has dropped by 30%, according to the Public Policy Institute of California, and Newsom has moved to .
The initiative freed up roughly $800 million of savings for the state to reinvest into mental health and substance use disorder treatment, crime prevention programs and victim services, . If passed, Prop. 36 is likely to reduce funding from those programs 鈥渋n the low tens of millions of dollars annually,鈥� according to .
The measure would 鈥渋ncrease local criminal justice costs, likely by tens of millions of dollars annually鈥� and 鈥渋ncrease state criminal justice costs, likely ranging from several tens of millions of dollars to the low hundreds of millions of dollars each year,鈥� according to the Legislative Analyst鈥檚 Office.
Supporters of Prop. 36, including Reisig, have said the state has ample revenue to expand capacity with $6.4 billion from the voters approved in March and settlements from opioid lawsuits, as well as revenue from Medicaid, Medi-Cal and grants administered by an agency that oversees California jails. Newsom said that the mental health bond 鈥渨as not designed鈥� for Prop. 36.
Reisig said, 鈥淚f the money鈥檚 there, it鈥檚 not impossible to get treatment on demand pretty much anywhere in California. That鈥檚 the part that many people are simply overlooking 鈥� as if creating a treatment bed is some complex project. It鈥檚 not.鈥�
Soto DeBerry said that if money was available for treatment, counties would already be using it. Californians, she said, deserve real solutions to their concerns.
鈥淲e spent decades obsessed with using jails and prisons to solve problems that they weren鈥檛 well-situated to solve,鈥� she said. 鈥淪o we鈥檝e spent the last 10 years moving money away from building prisons and paying prison guards, and toward investing in community-based treatment and residential treatment that work at much higher rates and are much more cost effective.鈥�
Cayla Mihalovich is a California Local News fellow.
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