Prop 36 aims to force drug offenders into treatment. Would it help solve homelessness?

San Jose Mayor Matt Mahan wants you to know that Proposition 36 is about more than just fighting retail crime.

Mahan – one of the most vocal supporters of the statewide ballot measure – argues that passing the initiative to increase penalties for petty theft and drug crimes would also help resolve California's interconnected homelessness and addiction crises by making it easier for judges to Order treatment for drug offenders.

“When someone repeatedly violates drug laws, uses meth and fentanyl in public parks and passes out on the sidewalk on hard drugs, we have a duty to intervene,” he said.

But opponents point out that the measure would cut funding for some of the state's already stretched drug and mental health programs, whose mission would be to accommodate more patients to come into their care. Some also question the effectiveness of court-ordered treatment and argue that the proposal is a punitive solution that does not address the root causes of homelessness.

Proposition 36 aims to roll back parts of a landmark crime reform measure to relieve overcrowded state prisons that was approved by voters in 2014. That law, Proposition 47, reduced penalties for drug possession and theft under $950 to misdemeanors. Millions of dollars were also saved by locking up fewer people in treatment programs.

But after videos of brazen retail thefts flooded social media — reflecting a rise in crime in some cities — and opioid deaths nationwide more than doubled since the start of the pandemic, many blamed the 2014 reform measure. In June, Proposition 36 qualified for the vote with the support of many prosecutors, law enforcement unions and lawmakers from both parties.

Mahan's Democratic colleague, San Francisco Mayor London Breed, also supports the proposal. Oakland Mayor Sheng Thao, a Democrat, declined to comment while signaling his support for tougher sentences.

Proposition 36 would authorize prosecutors to charge people caught stealing or possessing drugs of any value more than twice with a felony. It would also create a “treatment-requiring felony,” which would allow judges to place repeat drug offenders in a treatment program or impose jail or prison sentences.

Proponents of the measure argue that the new felony charges are necessary to address a dramatic decline in participation in drug courts, which refer offenders to treatment as an alternative to sentencing after Proposition 47 took effect. A report found that participation fell 67% nationwide between 2014 and 2018. Mahan linked the decline to a 60% increase in homelessness over the past decade, pushing the state's homeless population to more than 181,000.

“You're seeing a decline in participation in drug courts – as a result, you're seeing less commitment to treatment from the people who need it most,” he said.

However, a statewide survey by UCSF's Benioff Homelessness and Housing Initiative found that while regular drug users are most visible on the streets, they only make up about a third of California's homeless population. While researchers support expanded treatment, they generally agree that the most effective solution to ending homelessness is adding very low-income housing with supportive services.

One of the researchers behind the survey, Dr. Margot Kushel, pointed to studies that found no evidence that compulsory treatment resulted in better outcomes for patients. She said court-ordered programs sometimes fail to address patients' specific needs and argued that judges are generally incapable of making treatment decisions.

“We would never ask judges to decide who gets inpatient chemotherapy and who gets outpatient chemotherapy,” Kushel said.

Opponents of the proposal also contend that the state's treatment programs are already struggling to accommodate everyone who wants help and that funding cuts triggered by the measure would only make the situation worse. The nonpartisan Legislative Analyst Office found the proposal would reduce state spending on drug treatment and other services by tens of millions of dollars per year. Last year, estimated savings totaled $95 million.

Bay Area Community Services, which runs a prison diversion program in Alameda County for people with mental illness and substance abuse problems, could lose funding for the program if the proposal passes. The nonprofit doesn't comment on the measure, but said in a statement that incarceration and prosecution “are not effective methods for alleviating homelessness.”

Mahan responded to the funding concerns by pointing to Proposition 1, a $6.4 billion mental health bond that state voters narrowly approved in March. He said the bond is intended to offset the cuts while funding more than 10,000 new treatment beds and supportive housing units, although it will take several years for the money to be disbursed.