California voters think it's tough love for repeat drug offenders

California voters are considering whether to roll back some criminal justice reforms enacted a decade ago, as concerns about mass incarceration give way to public anger over property crime and a fentanyl crisis that has plagued the state since the onset of the Covid-19 pandemic.

Critics say that this allows crime to flourish and gives addicts little incentive to break the vicious circle. The law has also become a political weapon for former President Donald Trump and other Republican politicians who have tried to tie it to Vice President Kamala Harris to portray her as soft on crime. As California's attorney general, she took no position on the issue.

Much of the debate over Proposition 36 has focused on the increased penalties for shoplifting, but the changes in drug policy are even more dramatic. In addition to increasing penalties for some drug offenses, the measure would create a new “treatment-requiring felony” that could be imposed on people who illegally possess so-called “hard” drugs, including fentanyl, heroin, cocaine and methamphetamine, for certain crimes with two or more prior convictions have.

Those who admit to the new crime would be required to complete drug or mental health treatment, job training or other programs aimed at “breaking the cycle of addiction and homelessness.” Those who complete the treatment program would have their charges dismissed, while failure could result in a prison sentence of three years.

The measure has opponents, including Gov. Gavin Newsom, who is warning of a resumption of a “war on drugs” that once helped fuel California’s prison population.

Advocates counter that stricter penalties are necessary because fentanyl-related overdose deaths are occurring in morgues. They also point to studies showing that more than 75% of people experiencing chronic homelessness struggle with substance abuse or a serious mental illness.

“We designed this not to put people in any kind of detention, but to motivate them to get treatment,” said Greg Totten, executive director of the California District Attorneys Association and spokesman for the initiative’s supporters.

Totten and others viewed the measure as a way to revitalize drug courts, whose effectiveness they said waned after Proposition 47 removed the stick from what had been a carrot-and-stick approach.

Drug courts are led by a judge with a dedicated caseload, take a collaborative approach to promoting rehabilitation, and have proven effective in California and across the country. According to a 2006 study commissioned by the Judicial Council of California, participants in California had “significantly lower recidivism rates”: 29% were rearrested, compared to 41% in a group that did not receive treatment.

The Center for Justice Innovation, a statewide research and reform group that grew out of the New York state court system, found that the number of drug court cases across California declined after Proposition 47.

Still, advocates of decriminalization dispute the idea that the approach is effective and claim that forced treatment violates people's rights. Meanwhile, Lenore Anderson, a co-author of Proposition 47, said: “We can’t pretend that this feel-good idea that we arrest and incarcerate is going to work. She never has.”

Proposition 47 led to an increase in property crime, but there is no evidence that changes in drug arrests led to an increase in crime, a recent study by the nonprofit, nonpartisan Public Policy Institute of California found.

Recent reform efforts leave many questions unanswered, said Darren Urada of the Integrated Substance Abuse Programs at the University of California-Los Angeles. He was the principal investigator in evaluating an earlier attempt by UCLA to advance the treatment.

“If policies are implemented correctly, legal treatment can help people. However, many details are unclear here and therefore there is a possibility of things going wrong,” Urada said.

For example, the ballot measure does not say what would happen to someone who enters treatment but relapses, as is common; how long they would have to complete the program; or what would provide closure for someone undergoing long-term treatment for mental illness or substance abuse.

Those details were intentionally kept vague so that local experts such as Community Correction Partnerships, already established under current law, can decide what works best in their jurisdiction, Totten said.

Totten expects a range of approaches, including diversion programs and inpatient and outpatient treatment, and that judges follow the recommendations of treatment experts.

“I hope that this will help the people who are really struggling with addiction, who are living on the streets, who are committing petty theft and other crimes to maintain their addiction – that it will be a gateway for them into treatment,” said he Anna Lembke, an addiction expert at Stanford University.

The November ballot measure would also allow judges to send drug dealers to state prisons instead of county jails and increase penalties for possession of fentanyl. It would make it easier to charge someone with murder for supplying illegal drugs that kill someone.

The changes could increase California's prison population, currently about 90,000, and the number of county jails and community supervisors, currently about 250,000, by “several thousand people” each, the state's nonpartisan Legislative Analyst's Office predicts. Opponents of the measure believe the increase would be much higher: 65,000 people, most of them on drug charges and most of them people of color.

Newsom, one of the initiative's harshest critics, argues that the November ballot measure lacks any funding; would reduce the $800 million in savings in Proposition 47, much of which went to treatment and diversion programs; and would only increase the existing lack of treatment alternatives.

“Prop. 36 takes us back to the 1980s,” Newsom, a Democrat, said in August as he signed a package of 10 property crime bills that he and leading lawmakers touted as an alternative to the broader ballot measure.

But highlighting the controversial nature of the debate, the ballot measure has been endorsed by some Democratic leaders, including San Francisco Mayor London Breed, San Diego Mayor Todd Gloria and San Jose Mayor Matt Mahan, who have often cited the need highlight a treatment.

This article was produced by KFF Health News, which publishes California Healthline, an editorially independent service of the California Health Care Foundation.