California’s Proposition 36 is a compelling story about how Californians respond when feeling unsafe and ignored by their elected representatives. It is also a near-perfect example of how Californians have repeatedly responded to crime via initiative.
This started with the strict Three Strikes initiative passed in 1994, was followed by the more lenient Proposition 47 in 2014, and most recently by the more-balanced approach of Proposition 36. As fentanyl poisoning deaths exploded, news footage of smash and grabs became routine, and deodorant was shelved under lock and key – Californians again reacted strongly this November.
Proposition 36 was approved in every California county and had the highest percentage of support for all ballot measures. To prove that voters meant what they said, they also unelected several progressive district attorneys.
Those of us charged with the duty to keep our constituents safe now have a choice to make. We can assume that nearly 70% of voters were wrong-headed about their support of Proposition 36 or we can look to the mandate and spirit of the measure and answer the call to protect Californians.
Prop. 36 has been falsely characterized as a return to the “lock’em up and throw away the key” approach to crime and a return to incarceration for drug offenses.
This mentality and characterization largely and deliberately ignores the preventative and rehabilitative components of Prop. 36. The first section of the proposition is entitled “Alexandra’s Law” and is named after Alexandra Capelouto, a 20-year-old Riverside woman who died from fentanyl poisoning shortly after ingesting what she thought was Percocet. The law simply requires a judge to warn an individual convicted of hard drug distribution that if a death results from a future sale, they could be charged with a homicide. (The original Alexandra’s Law which I authored, Senate Bill 44, failed to pass in the Legislature).
Patterned after a similar warning given to those convicted of drunk driving (the Watson Advisement), Alexandra’s Law should prevent further deaths by deterring a distributor from reoffending.
Prop. 36 also addresses the strong correlation between substance abuse, homelessness, and crime, with one condition often leading to another. It provides that certain people who possess illegal hard drugs are to be charged with a “treatment-mandated felony” instead of the current misdemeanor, which allows them to avoid jail time and have their case dismissed if they complete their rehabilitation plan.
As such, these people would be referred to treatment (mental health, substance abuse) and services (job training, housing) to help change their lives around. Those who finish treatment will have their charges dismissed.
Lawmakers may never agree upon what types of conduct deserve incarceration. But we should agree that there is a desperate need to reduce recidivism. Drug treatment courts, first established in California in 1991, proved to be successful in that regard. Unfortunately, our Prop. 47 and other laws in recent years have resulted in the demise of those courts.
With the arrival of “treatment mandated felonies” in Prop. 36 and elsewhere, a new era in drug courts can begin. Substance abuse is not a life sentence to one’s health, criminal record, or general wellbeing. Prop 36 calls upon us to create comprehensive policies and systems that parallel this belief.
In moving forward, we must keep in mind that treatment courts are not all equally effective and that not everyone has access to these services. My Senate Bill 910 from last year sets minimum standards for California’s drug courts and took effect on January 1 of this year coinciding with the implementation of Prop. 36.
It’s important that as drug courts are established across the state, they are stood up thoughtfully and as uniformly as possible. In that same vein, 15 of California’s 58 counties have no drug courts and will need to establish their programs from the ground up.
I am authoring Senate Bill 28 to ensure that the promise of the drug court system as envisioned by Prop. 36 can be met and that every Californian, regardless of their location, will have access to this program. Funding remains a large impediment and is currently being debated.
The legislature has the choice and challenge to fund these treatment courts or ignore the precepts of Prop. 36 and the will of California voters. Taxpayers have spent tens of billions of dollars on incarceration and reducing our homeless population in the last decade. Investing in drug treatment, as the voters have directed, will go a long way toward making voters feel heard and respected.
Tom Umberg represents California’s 34th Senate District.