California voters overwhelmingly approved a tough-on-crime ballot measure in the November election, but it still lacks hundreds of millions of dollars in funding as state legislators and Gov. Gavin Newsom battle over how to finance the new law.
Proposition 36, which passed with more than 68% of the vote statewide, gives prosecutors more authority to charge certain drug- and theft-related crimes as felonies and allows judges to mandate treatment for some offenders.
Those who backed the measure, including a bipartisan group of local and state lawmakers, sought somewhere between $250 million and $400 million in state funding this year to implement the law, which took effect in December.
Newsom rejected that request in his nearly $322 billion May budget proposal, arguing that it is up to local officials who supported the measure to find the money as the state grapples with a projected $12 billion deficit. Newsom’s refusal to fund Prop. 36 comes after he openly opposed the measure during the election over concerns that it would drive up incarceration rates.
“The state is not the only spigot,” Newsom said last month. “There were a lot of supervisors in the county that promoted it. So this is their opportunity to step up, fund it. There were city mayors that supported it. It’s their opportunity to step up, fund it.”
That put Newsom at odds with state lawmakers from both parties who for months have said it is necessary to include money in the budget for a law voters clearly wanted.
Last week, the Legislature announced its own budget proposal, ahead of a June 15 deadline, that includes roughly $110 million in one-time funding for costs related to Prop. 36. The nonpartisan Legislative Analyst’s Office last year estimated that carrying out the provisions of Prop. 36 would require “several tens of millions of dollars to the low hundreds of millions of dollars each year.”
In a statement, Senate President Pro Tem Mike McGuire (D-Healdsburg) said his chamber “has been committed to funding Prop. 36 implementation from day one.”
The Legislature’s budget includes $50 million for county-level behavioral health programs, $30 million for local courts, and $15 million for public defenders, along with funding for pre-trial programs.
“Whatever one’s view on Prop. 36, the voters spoke and overwhelmingly passed it,” state Sen. Scott Wiener, a San Francisco Democrat and chair of the budget committee, said in a statement. “The funding in the budget to implement Prop. 36 is a good example of the power of state/local collaboration to address challenges facing communities.”
Newsom has until June 30 to sign the budget. His office declined to comment on whether he would approve a budget that included money for Prop. 36.
Supporters of Prop. 36 said the $110 million in one-time funds falls far short of what’s needed to handle an influx of cases. Without millions more, they argue, counties will not be able to meet the demand for treatment programs that are intended under the law as an alternative to prison time.
“While we appreciate the funding included by lawmakers for Prop 36, we are very frustrated that the dollars allocated will not ensure the success of Prop. 36,” said Napa County District Attorney Allison Haley, who serves as president of the California District Attorneys Association. “We should be listening to the will of voters and ensure Prop. 36 is fully funded.”
State Sen. Tom Umberg, a moderate Democrat from Orange County and former federal prosecutor who lobbied for $250 million in funding for Prop. 36, specifically wants more money for probation departments. He said one-time funding means there will be a routine fight for Prop. 36 funds year after year.
“I don’t want to sound like $100 million isn’t of consequence. It is of consequence. But we need to do better,” he said.
The fight over Prop. 36 funding follows a heated campaign season that highlighted concerns over crime and a growing drug crisis — and how best to solve California’s most entrenched problems.
Proponents of Prop. 36 included prosecutors, local Democratic and Republican officials, and big-box retail giants who claimed more accountability is needed to battle crime.
But prison reform advocates and left-leaning Democrats blasted Prop. 36 as a return to California’s failed war on drugs, while warning voters that the state lacks enough treatment beds to meet demand.
“If our state’s treatment infrastructure is not scaled up substantially soon, we are going to see California’s prisons being repopulated with low-level drug offenders who are primarily suffering from addiction,” said Anne Irwin, founder and director of the advocacy organization Smart Justice California.
Prop. 36 effectively rolled back a controversial 2014 ballot measure, Proposition 47, that reclassified certain felony drug and theft crimes as misdemeanors. That law leveraged treatment programs as an alternative to prison or jail time for low-level crimes, using money saved from incarceration costs to finance the programs.
Critics have long claimed that Prop. 47 did not deter crime because people were not forced to complete the treatment and faced only misdemeanor charges as a consequence.
Now, under Prop. 36, prosecutors can file those former misdemeanors as felonies for individuals with multiple related convictions on their record. The law also created a new court process that allows certain offenders the choice between drug and mental health treatment or years in prison.
District attorneys have filed an average of 1,700 to 2,600 Prop. 36 felony cases per month since the law went into effect, according to an April analysis by the nonpartisan Public Policy Institute of California.
In San Francisco, where nearly 64% of voters approved the measure, District Attorney Brooke Jenkins had filed 169 Prop. 36 cases as of June 3, according to her office.
Newsom said his budget includes funding to accommodate an increase in the prison population as more people are convicted of Prop. 36 felonies. His office noted that there is more than $100 million in funding slotted for Prop. 47 programs that can be used for Prop. 36.
But Irwin said those funds will soon run out, because Prop. 47 programs used money that otherwise would have been spent on incarceration. As jail and prison rates increase, she said, there will be less money for services.
“There is a clear lesson here: Beware of passing an expensive ballot initiative without including a funding mechanism,” she said.