Yesterday, California passed Proposition 36, the “Drug and Theft Crime Penalties and Treatment-Mandated Felonies Initiative.” The measure, which rolls back some of Proposition 47’s soft-on-crime provisions, represents decisive progress toward a less dystopian Golden State. Voters fed up with rampant street homelessness, drug use, and retail theft sent lawmakers a strong signal that they want the criminal-justice system to be more involved in addressing the consequences of addiction and other behavioral-health disorders.
One controversial element of Prop. 36 is its creation of a “treatment-mandated felony,” which applies to alleged hard-drug-possession offenders with two or more prior drug convictions. Defendants so charged cannot be sentenced to jail or prison unless the court determines that they are ineligible or unsuitable for treatment. In effect, then, such defendants are considered eligible for treatment by default prior to a drug-addiction or mental-health evaluation.
Critics claimed that offering “mass treatment,” instead of incarceration, would prove impractical. Given the scale of the state’s drug problem, that is a fair point. Around one quarter of all misdemeanor arrests in California were for drug offenses in 2022; more than 60 percent of the state’s drug offenders have committed three or more such crimes. Two-thirds of Los Angeles County’s jailed mental-health population could be considered appropriate or potentially appropriate candidates for diversion programs, per a 2020 RAND study.
The state doesn’t have a similarly scaled range of treatment options. Wait times for treatment beds are long, and funding requirements impose stay limits too short to benefit those in the throes of advanced addiction. Treatment courts, which have traditionally handled some addiction-related cases, have maintained their integrity by operating at a small scale and at the discretion of judges and prosecutors, who permit defendants to participate. Most California drug courts’ caseloads average between 75 and 100 participants.
If there aren’t enough good treatment options to serve all of the addicts referred under the “treatment-mandated felony” charge, low-quality options may proliferate. The measure’s text gives courts wide latitude to define what counts as a “treatment program,” so long as it leads toward “a successful outcome for the defendant that the court finds appropriate.” That could be job training, periodic urine tests, or just showing up at court for regular check-ins. While Prop. 36 assumes that all defendants facing a “treatment-mandated felony” charge have a drug addiction and offended in order “to support their addiction,” not every crime committed by people with a mental-health or addiction disorder was necessarily caused by that disorder. If, in the wake of Prop. 36, California sees more offenders participating in meaningless social programs to avoid jail time, the net effect could be less, not more, accountability.
In behavioral-health policymaking, fiscal and legal reform must be coordinated. Laura’s Law, California’s assisted outpatient treatment program, is a useful example. The program, which made it legally possible for courts to order outpatient treatment for serious mental illness, has long been grossly underutilized, as lawmakers never provided the resources to make the program functional.
The idea that California should have declined to enact Prop. 36 because of inadequate treatment resources, however, is ultimately unpersuasive. This is a wealthy state with a strong appetite for taxation. Why isn’t treatment already more readily available? Indeed, the argument that sanctions for drug-related offenses should not be enforced until mass treatment exists resembles, in the homelessness context, the argument that street camping should be allowed until affordable housing is available for every homeless person.
Prop. 36’s proponents should heed their critics and focus on building a stronger behavioral-health system. They should work with progressives to invest in evidence-based programs for offenders whose criminal activity is caused by untreated mental-health disorders. California will be safer and healthier as a result.
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