Prop. 36 has a funding problem, say experts and lawmakers

Although lawmakers affirmed their commitment to implement Prop. 36, the Governor’s budget proposal lacks adequate funding

By Zack Cefalu, legislative affairs analyst, and Jolena Voorhis, legislative affairs lobbyist

This Tuesday, Senate committees held a joint informational session on Proposition 36. The hearing comes weeks after Gov. Gavin Newsom’s proposed budget, which notably lacked any major investments for Prop. 36 implementation.

Voters approved the public safety measure by wide margins thanks to a strong local government coalition. Cal Cities is working with the California District Attorneys Association and the California Police Chiefs Association to ensure the Legislature implements and funds the measure. During yesterday’s hearing, Cal Cities reiterated its support of the measure and the importance of implementing it.

The measure faced intense opposition from the Governor and Legislature last year. Despite this, senators clearly stated their intent to fully implement the measure and uphold the will of the voters. Several members, including Senate Budget Chair Scott Wiener, noted the need for adequate funding for county behavioral health and other services.

What happened during the hearing?

The hearing included four panels of subject matter experts. The first panel provided an overview of the measure’s effect on California’s criminal laws. The measure made several changes, such as a new felony offense mandating treatment for repeat drug possession, increased penalties and sentencing enhancements for drug sale offenses (specifically fentanyl), and increased penalties for certain thefts, with a focus on targeting repeat theft offenses.

The Legislative Analyst’s Office expects the state will need to shell out between tens to hundreds of millions of dollars annually for criminal justice activities. Counties are also projected to spend tens of millions of dollars each year for people incarcerated in county jails and under county supervision.

In the second panel, the San Benito County Sheriff said that some jails have become de-facto mental and behavioral health treatment facilities due to the lack of available treatment options and resources. He emphasized that Prop. 36 will lead to increased arrests and stays in county jails — especially for people with behavioral health needs if treatment services are unavailable. The promises of Prop. 36 can only be achieved with increased major investments.

The Napa County District Attorney said that Prop. 36 has given prosecutors the tools and flexibility to address serial theft and leverage treatment programs for those struggling with substance use. The district attorney felt treatment-mandated felonies will be a useful way for prosecutors to divert people away from the criminal justice system.

However, public defenders in Alameda County cautioned that the change could result in racial disparities in bookings. Some individuals in Alameda County are now facing felony theft charges under the new petty theft with a prior offense, due to the inclusion of prior petty theft convictions that date back 30 years.

A panel of county judges, researchers, and probation officers warned that the court and supervision systems do not have the staffing or funding for successful statewide implementation.

Not all courts have the resources or programming needed to support a heavy caseload that requires intensive supervision. In some counties, Prop. 36 has already had a significant impact on pretrial programs, creating a greater need for treatment assessments and county probation programs. Resources and staffing vary greatly across the state, which will lead to patchwork levels of implementation.

A final panel of behavioral and mental health treatment providers said they were having trouble securing beds in treatment programs for the expected expanded caseloads. Housing space in residential in-patient treatment facilities is critical to successful treatment, especially for people facing housing insecurity. 

Implementing and securing funding for Prop. 36 is a major priority for Cal Cities this year.