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.
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.
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.”
This story originally appeared in CalMatters.