California ballot measure promises ‘mass treatment’ for drug crimes. Can counties provide it?

Proposition 36, a tougher crime ballot measure that would increase penalties for certain drug and theft crimes, appears likely to pass with polls showing strong voter support.

Because of this dynamic, behavioral health leaders across California are trying to figure out how to actually implement part of the measure, which “promises a new era of mass treatment for those who need it most.”

As far as they know, California counties do not have the resources to provide what Prop. 36 calls for: behavioral health treatment for people convicted of a third drug offense.

“We simply don’t have enough capacity right now to accommodate a whole new group of people entering treatment,” Dr. Ryan Quist, Sacramento County behavioral health director.

Their concerns center on an element of Prop. 36 that would create a new type of offense, also known as a treatment offense. It would allow prosecutors to charge a person who has been arrested for possession of certain drugs, such as fentanyl or heroin, and who has already been convicted of certain drug offenses two or more times with the new crime.

After pleading guilty or pleading no contest, they could choose: undergo substance use disorder or mental health treatment or spend up to three years in jail or prison.

“By demanding treatment for those with regular drug convictions, we can save lives and help bring everyone indoors,” advocates say on the campaign website. “Prop. 36 represents a tool to help us address the homelessness crisis because people who receive treatment have a much greater chance of being housed.”

There’s one big catch: Most counties don’t have nearly enough behavioral health facilities, services or workforce to accomplish what the measure seeks. This is according to a variety of behavioral health experts and studies of the state’s behavioral health workforce.

Seven experts told CalMatters that counties will have the hardest time supporting a new population of people who need residential treatment that home care provides.

Finding outpatient care, such as individual or group therapy, would also be a challenge depending on where you live.

“I think it’s irresponsible to tell voters that people are being treated when you know they’re not getting treatment because there’s no treatment,” said Cristine Soto DeBerry, executive director of the Prosecutors Alliance of California, a nonprofit organization, which is against Prop. 36 “They wrapped the pill in nonsense. The only way to get voters to vote for your prison initiative is to tell them it’s about treatment.”

According to a RAND study earlier this year, California does not have enough treatment beds to meet existing demand. The researchers found that substance use disorder treatment facilities in particular “did not admit patients with prior criminal justice involvement, those with co-occurring health conditions, and those enrolled in Medicaid.”

If there was no treatment, opponents say, there would be no choice. The only option would be imprisonment. Proponents of Prop. 36 said that wasn’t the case.

Prop. 36 would partially reverse another initiative voters approved a decade ago, reducing penalties from felonies to misdemeanors for certain lesser drug crimes and petty thefts. 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 from the 1980s.

San Jose Mayor Matt Mahan, a prominent supporter of Prop. 36, has acknowledged the lack of treatment options in his own community, Santa Clara County.

“That’s why I think Prop. 36 will ultimately be a great push for the state and all of our counties to invest heavily in residential treatment systems, something we’ve desperately needed for years,” Mahan said.

The measure’s critics, such as Contra Costa County Public Defender Ellen McDonnell, said Prop. 36 would criminalize poverty and increase existing over-incarceration of black and brown people.

McDonnell called the ordered treatment a “fantasy” because of the current lack of resources in her county, where people have had to wait months in jail for a treatment bed.

“Putting crime on people who suffer from a behavioral disorder will lead to really poor outcomes because their ability to find and maintain housing, education and employment cannot be underestimated,” McDonnell said. “We need to look at substance use disorders as public health problems, not criminal problems.”

Gov. Gavin Newsom tried to keep Prop. 36 off 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 called the initiative an “unfunded mandate” that would lead California back into the war on drugs.

What is a crime requiring treatment?

Under the proposed treatment-requiring crime, someone convicted of a qualifying offense who elects treatment would be assigned “a detailed treatment program developed by a drug addiction professional and approved by the court.” In addition to treatment, people would be offered “housing, job training and other services designed to break the cycle of addiction and homelessness.”

Those who complete treatment will have their charges dismissed.

According to the measure, a treatment program could include drug treatment, mental health treatment, vocational training “and any other conditions relating to treatment or a successful outcome for the defendant that the court deems appropriate.”

This story originally appeared in CalMatters.