It’s been three months since California voters overwhelmingly approved Proposition 36, a new law that pledged to provide “mass treatment” for those facing certain drug charges. But since the law took effect on Dec. 18, some counties are scrambling to fulfill that promise.

Now, prosecutors have the ability to charge people convicted of various third-time drug offenses with a so-called treatment-mandated felony, which would direct them to substance use disorder or mental health treatment in lieu of up to three years in jail or prison.

But as some counties struggle to implement the mandate without new funding or, according to people involved in enforcing the law, sufficient resources, more and more people are being charged without a clear path to the treatment that the law was supposed to offer.

CalMatters spoke with judges, district attorneys, public defenders and behavioral health experts in counties of various sizes that have started enforcing the new law. As of Feb. 4, nearly 30 people have been charged with the treatment-mandated felony in Yolo County. In Stanislaus County, roughly 140 people have been charged with the new felony as of Feb. 10. And in Orange County, that number has passed 500 as of Feb. 7.

At an early glance, CalMatters learned of a handful of people who have been placed in treatment since the law took effect. That number could increase in the weeks ahead as people move through their court process and the law is further implemented. A person can accept treatment at any point between their arraignment and jury trial.

While enthusiasm for the new law runs high from prosecutors and law enforcement, the machinery of government hasn’t quite caught up. The text of the measure did not spell out the details of how courts would implement Prop. 36, forcing court administrators, judges, district attorneys, behavioral health experts, probation officers and public defenders to quickly stand up new processes as many people are charged and incarcerated.

Treatment is “the greatest obstacle,” said Santa Clara County Superior Court Judge, Stephen Manley, who founded the county’s mental health treatment court and co-founded its drug court.

“We simply do not have the treatment in this state,” he said. “When you can’t place people in treatment, what is the alternative?”

The measure came with no funding. That’s one of the reasons why Gov. Gavin Newsom opposed the initiative.

“It’s about mass incarceration, not mass treatment,” Newsom said at a press conference 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 the measure would cost tens to hundreds of millions of dollars a year in increased criminal justice costs. Republican state lawmakers who backed Prop. 36 wrote a letter to Newsom in December urging him to commit more funding.

“The success of Proposition 36’s treatment-focused approach depends heavily on the availability of well-funded mental health and substance abuse services, which are critical for breaking cycles of addiction and reducing recidivism,” the GOP legislators wrote.

And Sen. Tom Umberg, a Democrat from Santa Ana, introduced legislation to help facilitate the implementation of Prop. 36.

“Every Californian should be treated equally under the law,” said Umberg. “It is my intent to make sure we fulfill the mandate of Prop. 36.”

What is a treatment-mandated felony?

An arrest is made. A judge reviews the charges at an initial hearing. But then what?

Under a treatment-mandated felony, someone who expresses interest in treatment will be assigned a “drug addiction expert” who will assess them and decide what kind of treatment they need. That treatment can involve mental health treatment, job training, and “any other conditions related to treatment or a successful outcome for the defendant that the court finds appropriate,” the measure said.

If they accept, they would enter a guilty or no contest plea and begin treatment. If they don’t agree to it, they would go to jail or prison if convicted. Those who finish treatment will have their charges dismissed.

Yolo County District Attorney Jeff Reisig, a prominent supporter of Prop. 36, said it’s OK that counties are taking different approaches to carrying out the law.

“Everybody’s going to do it a little bit differently,” he said. “But it’s moving along. There are no surprises right now.”

A courtroom where CARE Court hearings take place at the San Diego County Superior Court in San Diego on Oct. 9, 2023. Photo by Adriana Heldiz, CalMatters

Evaluations under Prop. 36

While the statute calls for a drug addiction expert to perform evaluations, it remains an “open question” in many counties as to who will take on that role, said Sacramento Superior Court Judge Lawrence Brown, who is the chairperson of the Collaborative Justice Courts Advisory Committee within the state court system’s policymaking body, the Judicial Council.

“In our county, (the behavioral health department) receives a high volume of requests for drug treatment and mental treatment pre-Prop. 36 so it’s adding onto their already considerable workload without any specific funding,” he said.

None of the three people who have requested treatment evaluations in Yolo County, a community of about 220,000 people near Sacramento, has received one as of Feb. 5. According to the county’s director of Health & Human Services Agency, Nolan Sullivan, that’s because no agency has the resources. The county is working on a temporary plan.

“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.”

How will treatment-mandated felonies be processed?

Most of California’s 58 counties have adult drug courts, which vary from court to court but generally provide treatment to offenders struggling with substance use disorders, often alongside reduced charges. But 10 counties lack such courts, according to a recent tally by state officials, and people in the California justice system say that, even when the courts exist, treatment options are lacking.

“The best drug court in the world can’t do a thing without treatment in place,” said Manley.

Some counties are planning to fold treatment-mandated felony cases into existing collaborative justice programs, such as drug courts. Others plan to create a standalone court.

Orange County, for example, has already set up its own Prop. 36 court. For now, its behavioral health care agency has used existing resources and leveraged opioid settlement money to help pay for staff. Orange County Health Care Agency Director Veronica Kelley said they know how to stretch a dollar but the long-term plan remains a work in progress.

“There are unintended consequences with lots of our legislation and our propositions. I don’t want the unintended consequence to be that I have to cut another needed program to support this,” said Kelley.

As of Jan. 30, the Orange County Health Care Agency has received 111 referrals for the new felony, according to Kelley. Seven people accepted treatment, three of whom have since absconded. Warrants have been issued for their arrests.

“You have to be ready and treatment is hard,” she said. “Addiction is a complicated disease.”

Compared to others, her community has an abundance of treatment options for people who want it. That’s not always the case in smaller counties.

“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 of Yolo County said. “If folks are asking for treatment and there’s none available for a variety of reasons, what ownership do they have? I think it could be a pretty big barrier.”

In Stanislaus County, a community of about half a million people in the northern San Joaquin Valley, District Attorney Jeff Laugero wants to funnel people through its drug court.

“We want the treatment to be successful so that’s why we’re working with all of our justice partners to try and figure out what the best practices are and how it’s going to work,” he said. “I absolutely believe there is sufficient treatment, at least currently.”

But Stanislaus County Chief Deputy Public Defender Jennifer Jennison said the county had a major shortage of treatment even before voters approved Prop. 36. In her view, the district attorney is wrong to charge people with treatment-mandated felonies because often that treatment simply isn’t available.

“It’s reckless,” she said. “And people in need of treatment are sitting in jail without any end in sight, making their situation much worse.”

###

Cayla Mihalovich is a California Local News fellow.

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