Implementation Struggles After Prop. 36 Becomes Law
Three months after California voters approved Proposition 36, which promised to provide treatment instead of incarceration for certain drug offenses, some counties are struggling to meet the mandate. The law, which took effect on December 18, allows prosecutors to charge repeat drug offenders with a new “treatment-mandated felony,” directing them to mental health and substance use disorder treatment rather than up to three years in jail or prison.
However, the ambitious promise of mass treatment has hit a roadblock. Many counties lack the resources or funding to provide adequate treatment, leaving people charged under the new law without a clear path to rehabilitation.
In counties that have started enforcing the law, the numbers are rising quickly. As of early February, Orange County has charged over 500 people with the new felony, while Stanislaus County has charged about 140, and Yolo County nearly 30. Yet, only a small number have actually been placed in treatment.
While enthusiasm for the law remains high among prosecutors and law enforcement, the lack of guidance on implementation has left court officials scrambling.
Lack of Treatment Resources
Santa Clara County Superior Court Judge Stephen Manley, who helped create the county’s drug court, said the biggest hurdle is treatment access.
“We simply do not have the treatment in this state,” Manley said. “When you can’t place people in treatment, what is the alternative?”
The law does not come with state funding, a key reason why Governor Gavin Newsom opposed it.
“It’s about mass incarceration, not mass treatment,” Newsom said in September. “What an actual insult it is to say it’s about mass treatment when there’s not a dollar attached to it.”
The Legislative Analyst’s Office estimated that implementing the measure would cost the state between tens to hundreds of millions of dollars annually. In December, Republican lawmakers urged Newsom to allocate more funding, emphasizing that treatment is essential to breaking cycles of addiction and reducing recidivism.
Democratic State Senator Tom Umberg has introduced legislation aimed at facilitating the rollout of Prop. 36, stating, “Every Californian should be treated equally under the law.”
How the Treatment-Mandated Felony Works
Under the new law, after an arrest, a judge reviews the charges. If the defendant expresses interest in treatment, they are assigned a drug addiction expert to assess their needs. The recommended treatment can include mental health services, job training, or other court-approved programs.
If the defendant agrees, they enter a guilty or no contest plea and begin treatment. Completing treatment leads to dismissal of charges, while those who decline or fail to complete the program face jail or prison time.
However, across multiple counties, identifying and funding drug addiction experts to conduct these evaluations has been another challenge.
Counties Struggle to Implement the Law
Yolo County, which has a population of about 220,000, has yet to conduct any treatment evaluations for defendants as of February 5. County Health & Human Services Director Nolan Sullivan said no agency currently has the capacity to handle the workload.
“They created an expectation for this really robust position to do work that, frankly, would be great, but it doesn’t exist today,” Sullivan said. “That is the biggest implementation gap we have in Yolo today.”
Some counties are integrating treatment-mandated felony cases into their existing drug courts, while others are creating separate courts for Prop. 36 cases.
Orange County has already set up a dedicated Prop. 36 court and is using opioid settlement funds to support staff. As of January 30, the county’s health agency had received 111 referrals for treatment. However, only seven people accepted treatment, and three have since fled.
“You have to be ready, and treatment is hard,” said Veronica Kelley, director of the Orange County Health Care Agency. “Addiction is a complicated disease.”
In smaller counties, the lack of treatment resources is even more pronounced.
“If we had a rush of dozens of folks being referred to us through this process, frankly, I don’t know how we would handle that load today,” Sullivan said. “If folks are asking for treatment and there’s none available, what ownership do they have? I think it could be a pretty big barrier.”
Public Defenders Raise Concerns Over ‘Reckless’ Charges
In Stanislaus County, District Attorney Jeff Laugero insists the county has enough treatment capacity, but Chief Deputy Public Defender Jennifer Jennison strongly disagrees.
“The county had a major shortage of treatment even before voters approved Prop. 36,” she said. “It’s reckless. And people in need of treatment are sitting in jail without any end in sight, making their situation much worse.”
For now, as counties attempt to navigate the challenges of implementing Prop. 36, the promise of “mass treatment” remains far from reality.
