Proposition 36 – also known as the Homelessness, Drug Addiction, and Theft Reduction Act – aims to revive drug court participation and increase penalties for certain thefts and drug crimes in California.
Proponents of Proposition 36 say it will force people into treatment and get them off the streets. Opponents, including Governor Gavin Newsom, argue it will fill prisons and mark a return to the 1980s war on drugs.
CBS News California took a closer look at the drug component of the high-profile ballot measure to fact-check these claims and analyze the concerns.
Will Proposition 36 Revive Drug Treatment Courts?
To understand this debate, we have to go back a decade to November 2014, when California voters approved another ballot measure: Proposition 47.
Proposition 47 made possession of hard drugs a misdemeanor instead of a misdemeanor and, along with other reforms like Assembly Bill 109 and Proposition 57, helped reduce the state’s prison population. Year-end data from the state Department of Corrections and Rehabilitation shows that California’s prison population fell by more than 40,000 between December 2014 and December 2023.
However, court records show that there were also unintended consequences. CBS News California analyzed county data from across the state and found a consistent decline in drug court participation after Proposition 47 was passed.
For example, Sacramento County saw a more than 80% drop in drug court participation between 2015 and 2023. However, much of that decline came after the pandemic.
Yolo County drug court cases dropped from 270 cases in 2015 to just three in 2023.
In Santa Clara County, drug court participation fell so low that the county stopped tracking drug court cases and merged drug court and mental health court.
While there is no reliable data on statewide drug courts, a 2020 study from the Center for Court Innovation examined 67 drug courts in California. The average participation rate in these drug courts dropped from 51% to 39%.
Research cited by the California justice system shows that drug courts ultimately save money and lead to fewer arrests. The National Institute of Justice said a study found that the rate of felony rearrests among people participating in drug courts fell by 28% in one U.S. county and by 15% in another.
Sacramento County District Attorney Thien Ho and San Jose Mayor Matt Mahan are among a growing number of high-profile elected Democrats who are going against Newsom and supporting the new treatment-mandated crimes for hard drug possession under Proposition 36.
Mahan and Ho say that when California lowered penalties for drug possession, it also reduced the incentive for people to choose court-supervised treatment instead of prison time.
“If you get arrested, it’s a citation for drug possession. It’s a crime,” Ho said. “And if the judge tells you, ‘You can get two or three days in jail or you can go into a treatment program that lasts a year,’ what are you going to take?”
Under Proposition 36, the first two drug possession convictions would still be felonies. The third is a treatment-mandated offense, meaning the charge is dismissed once treatment is completed.
For a fourth conviction, a judge can impose a prison sentence of up to three years, but only if a person is ineligible for treatment.
“It targets repeat offenders, and it allows a judge to give someone the choice between undergoing treatment or detoxing in prison,” Mahan said.
However, opponents like Governor and former San Francisco prosecutor Cristine Soto DeBerry — who wrote the opposition argument for Proposition 36 — say there simply aren’t enough treatment beds.
“No county in the state has enough treatment to address the people struggling with addiction issues,” Soto DeBerry said. ‘No. Not one.’
A Rand Corporation survey of five California counties – Sacramento, San Joaquin, Stanislaus, Merced and Santa Clara – found earlier this year that the availability of treatment beds varies and that in some cases facilities with available beds do not accept people with criminal records.
In a statement to CBS News California, the No on Proposition 36 campaign claimed that “22 counties have no residential treatment facilities,” echoing a statement from Newsom in August.
We reached out to the governor’s office for clarification on the 22 counties he was talking about. They couldn’t tell us, and instead we received a link to California Department of Health Care Services (DHCS) webinar slides from January 2022, based on information collected during the pandemic, which the state said referred to 22 counties that were not participated in a specific drug delivery program.
The DHCS said it can confirm that “all but 15 counties (Alpine, Colusa, Del Norte, Glenn, Imperial, Inyo, Lassen, Madera, Mariposa, Modoc, Mono, Plumas, Sierra, Siskiyou, Trinity)” currently have a state license residential treatment facilities, and in those counties “clinics, health facilities, community and residential care facilities, jails and prisons may also offer these services.”
“I also think voters should hold the state and the county accountable for building the treatment capacity we need,” Mahan said.
The DHCS also said every county except Madera offers state-certified outpatient services, but Madera County representatives say it does offer outpatient services and makes referrals to nearby inpatient services when necessary.
Soto DeBerry’s criticisms of Proposition 36 include that there is no funding attached to the ballot measure or a mandate to create sufficient treatment options.
Proponents of Proposition 36 point to a variety of funding sources ranging from Proposition 1’s mental health bonds to opioid settlement funds, but critics say that still won’t be enough.
Soto DeBerry also said that it often takes multiple attempts to successfully get treatment from an offender, claiming that “under Prop 36 they won’t get a second chance; they will be sent to prison.”
Proponents of Proposition 36 say this is not true, noting that the proposal specifically states:
“A person shall not be sentenced to imprisonment under this section unless a court determines that the person is not eligible or appropriate for treatment….”
Which brings us back to the governor’s argument that Proposition 36 is about mass incarceration.
The nonpartisan California Legislative Analyst’s Office estimates that under Proposition 36 the “prison population could increase by about a few thousand people.”
For context, there are currently approximately 90,000 people in state prisons. At its peak in 2006, more than 170,000 people were incarcerated, according to CDCR data.
Being arrested saved his life
On the day of the graduation ceremony in the mental health court of Sacramento County Superior Court Judge Larry Brown, Cesar, whose last name we are omitting, had plenty to smile about.
Cesar was arrested in Sacramento County, which has a robust system of Collaborative Courts – including drug and mental health courts – and related treatment programs. During his treatment, his caseworker helped him find housing and work.
“I was homeless,” he said. “Nothing would stop me from getting high.”
Cesar attended all of his court-ordered treatment appointments. Completing his program resulted in his conviction being expunged.
“I was given a second chance at life,” he said.
Cesar’s story is a powerful example of the potential of California’s treatment courts.
“I didn’t know any other life until I was arrested,” Cesar said. “And I quit cold turkey. Now I’m sober. Now I see how a real man feels.’
Proponents of Proposition 36 point to stories like Cesar’s in arguing that it will lead to more people getting treatment and off the streets.
“My arrest saved my life,” Cesar said.
