Proposition 36, the tough-on-crime ballot measure that would increase punishment for certain drug and theft offenses, appears likely to pass with polls showing voter support by large margins.

Its momentum has behavioral health leaders across California trying to figure out how they’d actually implement a part of the measure that pledges “a new era of mass treatment for those who need it the most.”

As far as they can tell, California counties don’t have the resources to provide what Prop. 36 envisions: behavioral health treatment for people convicted for a third-time drug offense.

“We simply don’t have enough capacity right now to take on a whole new population of folks that are getting mandated into treatment,” said Dr. Ryan Quist, behavioral health director of Sacramento County.

Their concerns center on an element of Prop. 36 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’d be able to choose: undergo substance use disorder or mental health treatment, or serve up to three years in jail or prison.

“By requiring treatment for those with a pattern of repeat drug convictions, we can save lives and help bring everyone indoors,” say proponents on the campaign website. “Prop. 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.”

There’s one big catch: Most counties don’t 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’s behavioral health workforce.

A guard tower at the California Health Care Facility prison in Stockton on March 2, 2022. Miguel Gutierrez Jr., CalMatters

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.

“I think it’s irresponsible to tell voters that people will get treatment when you know they will not, because there is no treatment available,” said Cristine Soto DeBerry, executive director of the Prosecutors Alliance of California, a nonprofit organization opposed to Prop. 36. “They’ve wrapped the pill in baloney. The only way to get voters to vote for their prison initiative is to tell them it’s about treatment.”

California doesn’t have enough treatment beds to meet the existing demand for supply, according to a RAND study from earlier this year. Researchers found that substance use disorder treatment facilities, in particular, “did not accept patients with prior involvement in the criminal justice system, those with co-occurring health issues, and those enrolled in Medicaid.”

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’t 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’s prison population exploded due to tough-on-crime policies dating back to the 1980s.

San José Mayor Matt Mahan, a prominent Prop. 36 supporter, has acknowledged the lack of treatment options available in his own community, Santa Clara County.

“It’s 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’ve desperately needed for years,” Mahan said.

San Jose Mayor Matt Mahan speaks during a press conference at Cal Expo in Sacramento on March 16, 2023. He is one of the leading proponents of Prop. 36, a 2024 ballot measure that would lengthen criminal sentences for certain drug crimes. Photo by Miguel Gutierrez Jr., CalMatters

The measure’s 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 “fantasy” given the lack of resources currently available in her county, where people have had to spend months in jail waiting for a treatment bed.

“Saddling 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,” McDonnell said. “We need to look at substance use disorders as public health issues and not as criminal issues.”

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’t put any money into fighting Prop. 36, but he has referred to the initiative as an “unfunded mandate” 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 “a detailed treatment program developed by a drug addiction expert and approved by the court.” Alongside treatment, people “would be offered shelter, job training, and other services designed to break the cycle of addiction and homelessness.”

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, “and any other conditions related to treatment or a successful outcome for the defendant that the court finds appropriate.”

Prop. 36 supporters, such as Yolo County District Attorney Jeff Reisig, say that the treatment-mandated felony is intended to “reactivate the drug court path” and give leverage back to judges.

“If (people) don’t go, there’s a stick hanging over them,” Reisig said. “None of that exists right now. We don’t have a stick and there’s no core compulsion, which is why these beds are empty and why the drug courts are gone. It’s not rocket science.”

It’s true that drug court participation decreased after Prop. 47 passed, according to a 2020 report by the Center for Court Innovation, a nonprofit organization.

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, “One way for drug courts to continue serving defendants in need of treatment is to begin accepting these lower-level charges…a variety of changes can help courts to rethink their eligibility criteria and incentivize lower-level defendants to participate.”

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’s outlined in the measure, Reisig said “the language in the initiative doesn’t say ‘promise’ and it doesn’t say ‘this is a guarantee.’”

According to Reisig, there’s “no risk” a person will sit in jail because treatment is unavailable.

For Mahan, treatment under a treatment-mandated felony starts with counseling and building trust.

“There’s 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’re living on the streets,” he said. “Much easier to do if you’re in an inpatient setting of some sort – you have some kind of housing that’s stable. And then, look – for some folks, it’s medication.”

Above all, Mahan said that residential treatment is the “greatest need” and would have the “greatest positive impact” since a high percentage of people who end up in drug court need a place to live.

“I don’t think the primary goal should be to lock people up,” Mahan said. “I don’t think that’s 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’ve 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.”

‘They’re scrambling’

California’s shortage of treatment beds is well documented. A 2022 report by California’s Department of Health Care Services found that 70% of the state’s 58 counties reported “urgently needing” 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.

“When you’re looking at small counties such as mine, we could have a person that needs mental health treatment or it’s court-ordered to get treatment, you can’t find a bed for them for weeks,” said Hermann. “So it’s very problematic. You’re just kind of manifesting the problem rather than addressing it.”

Larger counties have also expressed concern over capacity for treatment. Quist of Sacramento County, said he “wishes it was easy to set up” treatment beds.

According to Quist, creating beds can take two years or longer.

“It takes a significant amount of organizational complexity and staffing in order to get to the point where (residential homes) can offer additional beds,” Quist said. “Currently, they’re scrambling in order to staff their existing beds and maintain their existing capacity.”

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’ needs for behavioral health providers are rapidly outpacing its workforce.

“You can mandate all you want, but if you don’t 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,” said Janet Coffman, Professor of Health Policy at UCSF, who co-authored the report. “I don’t see where there really is much in the way of excess capacity for outpatient treatment to absorb additional people.”

Roughly 30% of the state’s 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.

“Without actually having a workforce big enough to treat and really take on this new population, how effective will it be?” said Kevin O’Connell, a criminal justice and behavioral health researcher who has not taken a stance on Prop 36. “If there isn’t capacity, then you risk jail being where people go back to.”

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 close four state prisons.

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, according to the Public Policy Institute of California. If passed, Prop. 36 is likely to reduce funding from those programs “in the low tens of millions of dollars annually,” according to an estimate from the Legislative Analyst’s Office.

The measure would “increase local criminal justice costs, likely by tens of millions of dollars annually” and “increase state criminal justice costs, likely ranging from several tens of millions of dollars to the low hundreds of millions of dollars each year,” according to the Legislative Analyst’s Office.

Supporters of Prop. 36, including Reisig, have said the state has ample revenue to expand capacity with $6.4 billion from the mental health bond 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 “was not designed” for Prop. 36.

Reisig said, “If the money’s there, it’s not impossible to get treatment on demand pretty much anywhere in California. That’s the part that many people are simply overlooking – as if creating a treatment bed is some complex project. It’s not.”

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.

“We spent decades obsessed with using jails and prisons to solve problems that they weren’t well-situated to solve,” she said. “So we’ve 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.”

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Cayla Mihalovich is a California Local News fellow.

CalMatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics.