Lack of funds is weakening Prop. 36 tough-on-crime law, counties tell California lawmakers
A little over two months in, the treatment portion of California’s new tough-on-crime law has been applied unevenly. Proposition 36 introduced a treatment option for certain repeat drug offenders in lieu of jail time.
In an example of the disparate impact, Alameda County prosecutors have filed just one such case. In much-smaller Stanislaus County, 140 cases have been filed.
Prop. 36 went into effect in December, after voters approved it 68% to 32% one month earlier. It increases penalties for certain drug and theft related offenses, including adding a ‘treatment-mandated felony’ for people who have received two prior drug offenses. However, there was no funding attached to the measure, and some smaller counties say they don’t have a drug treatment program to offer people.
Lawmakers heard Tuesday from local law enforcement, court officials and behavioral health providers about the myriad challenges of implementing the law.
“The voters spoke on Proposition 36. It is the law of the land,” said Sen. Scott Wiener, D-San Francisco. “Since the proponents were so insistent that this was about treatment and not about incarceration, it does make sense to me for us to take a really hard look at what supports we can provide the counties to provide that effective behavioral health treatment.”
Gov. Gavin Newsom, who was against the measure, did not allocate funding for it in his January budget proposal. During Tuesday’s joint Senate public safety and budget subcommittee hearing, the Legislative Analyst’s Office said providing money for counties to administer drug and mental health treatment would likely come at the expense of other state programs. The LAO recommended the Legislature ask counties how they plan to treat people, and whether they have enough staff to provide services.
Nowhere to go
During the hearing, local-level officials familiar with Prop. 36’s implementation spoke about their approach and the problems they face.
“Stanislaus County doesn’t have the resources, the treatment, the housing or the shelter beds to accommodate these cases,” said Stanislaus County Public Defender Jennifer Jennison during the hearing.
Jennison said over 140 treatment-mandated felonies have been filed in the county since Jan. 1, but no assessments have been made and no treatment plans have been established.
“Individuals who are charged with felonies under Proposition 36 are sitting in jail, unable to afford bail,” she said.
Her sentiment was echoed by San Benito County Sheriff Eric Taylor.
“It’s a huge problem when you have people that are captive in our custody that want treatment and want help, and there’s nowhere for us to send them, so they do end up sitting in our jail for extended periods of time waiting,” said Taylor.
In other areas, like Napa, treatment exists but people aren’t accepting it. Napa County District Attorney Allison Haley said that out of about 20 eligible felony cases, no one has yet agreed to treatment.
Senate Budget vice-chair Roger Niello, R-Fair Oaks, said he still believes drug treatment will be an effective alternative to jail time if it is fully funded. He pointed to the success of drug courts in California before the passage of Proposition 47 in 2014, which reduced penalties for drug crimes.
Niello says he believes it will cost some hundreds of millions of dollars to help counties increase their treatment capacity.
But, he said, “in the context of a $300 billion general fund, it truly is an insignificant percentage.”
California’s Legislative Analyst’s Office estimated it would cost several tens of millions of dollars to the low hundreds of millions of dollars annually to handle increased state prison and state court workloads, but did not estimate how much it would cost the state to assist counties with local treatment costs.
The Legislature and Governor’s Office have until mid-June to determine a budget for the next fiscal year.
This story was originally published February 26, 2025 at 5:00 AM.
CORRECTION: A previous version of this story characterized the implementation of Proposition 36 in some California counties. The story also incorrectly said when the law went into effect.
