California’s tough on crime law promised treatment. Here’s why people are falling through the cracks

The tough-on-crime initiative California voters passed two years ago wasn’t supposed to be a draconian return to mass incarceration. Instead, it promised to help people get better by diverting drug offenders into addiction treatment instead of prison. 

To see if Proposition 36 was making good on that promise, CalMatters analyzed data from the 15 counties that have filed the most cases  under the new law.

We found that people the measure was supposed to help appear to be falling through the cracks in large numbers. In some counties, a small fraction of those arrested for drugs under the law’s new “treatment-mandated felony” are actually getting treatment through Prop. 36. Even fewer are graduating their programs and having their charges dropped. 

We found that counties are implementing the new law, which also increased penalties for certain shoplifting cases, in wildly different ways. The amount of time defendants must stay in treatment to have their drug charges dropped varies from three months to two years. Some counties, such as San Francisco, basically ignored the law altogether, making hardly any Prop. 36 drug arrests.

Many counties that are making arrests are having a hard time fulfilling Prop. 36’s promise of treatment for everyone. The ballot measure was passed with no funding for addiction programs, and though lawmakers later appropriated some, it wasn’t nearly as much as stakeholders said they needed. That strained a treatment system already struggling with a lack of beds and outpatient slots. 

Before they got it onto the ballot, proponents of Prop. 36 called it the “Homelessness, Drug Addiction, and Theft Reduction Act,” highlighting their promise that it would address California’s homelessness crisis. But that promise has run up against the state’s limited housing supply, meaning the program’s many homeless participants sometimes have to try and get sober without a long-term roof over their head. Some counties have no money for case managers that could help keep people on track with their recovery. 

“The statute basically said, ‘We will fix everything for you,’ right? ‘We’ll come up with a mental health plan, we’ll come up with a drug addiction plan, we’ll come up with a work plan and we’ll come up a housing plan,’” said Tracie Olson, chief public defender of the Yolo County Public Defender’s Office. “And none of that happened.” 

The most recent statewide data shows that of the 18,666 felony drug cases charged under Prop. 36 last year in counties that reported treatment data, 17% involved defendants who opted for treatment, and just 57 cases were dismissed after the defendant graduated. 

In Orange County, which had the most potential Prop. 36 treatment cases of any county we analyzed, 1,311 people were referred to Prop. 36 on drug charges as of February 2026, but only 314 agreed to treatment. Of those, fewer than half were actively receiving treatment, while just 15 graduated. 

Information on how Prop. 36 works is spotty, and the state has yet to release comprehensive, detailed data on treatment and outcomes. In addition to requesting data from 15 counties, CalMatters interviewed more than two dozen people who have experience with the program. The level of data counties provided varied. Los Angeles County doesn’t track how many people are referred to and accept treatment under Prop. 36, and Stanislaus County doesn’t track treatment data. 

San Jose Mayor Matt Mahan, who was one of Prop. 36’s most prominent Democratic supporters, said the policy itself isn’t to blame for people failing to receive treatment. Instead, he faults the administration of Gov. Gavin Newsom, who opposed the ballot measure, for refusing to provide meaningful funding or policy leadership.

“People are waiting and dying on the streets for lack of a proper treatment system,” Mahan said. “The fundamental problem remains, which is that the state has refused to take ownership of building a robust treatment system that is going to serve the needs of people.”

Ian Kemmer, director of behavioral health services in Orange County, wishes the program was treating more people. But he says the fact that it’s helping anyone is a win. As of February, no one in his Prop. 36 treatment program had sought addiction services from the county in the past.

“I think that these are folks that we would not have gotten into treatment any other way,” he said. 

How Prop. 36 works

Prop. 36, backed by district attorneys and sheriffs, pledged “a new era of mass treatment for those who need it the most.” Newsom tried to keep it off the ballot, referring to the initiative as an “unfunded mandate” that would take California back to the War on Drugs. It partially reversed a 2014 ballot measure that turned certain nonviolent felonies into misdemeanors in an effort to reduce incarceration after the prison population exploded thanks to tough-on-crime policies dating back to the 1980s. 

Now, prosecutors can charge people convicted of various third-time drug offenses with a felony, while also giving them the option of substance use or mental health treatment in lieu of up to three years in jail or prison. If a person chooses treatment, they are required to plead guilty or no contest to the felony charge. If they complete treatment to the court’s satisfaction, their charges are dropped. 

Courts typically refer those cases to their county behavioral health department, which then assesses the defendant to see if the person is eligible and what type of treatment they need. Then the court orders them into a residential or out-patient treatment program. A judge can order drug treatment, mental health treatment and job training, and also require the defendant to meet any other stipulations related to a “successful outcome” that the court finds appropriate.

When Californians voted on Prop. 36, the proposal specified that alongside drug and mental health treatment, defendants would be offered shelter, job training and other services “designed to break the cycle of addiction and homelessness.” 

Falling through the cracks

When people accept treatment through Prop. 36, sometimes they start the program and then fall off, which could happen because they don’t show up to their court hearings or meet other program requirements. As of February, 63 people in Orange County’s Prop. 36 program were considered not “active” and had warrants out for their arrest. 

Other defendants who could be eligible for Prop. 36 instead are referred for treatment to another county or program, and therefore don’t show up in the dataset CalMatters obtained.

Public defenders, district attorneys and behavioral health experts say even when treatment is available, the support needed for somebody to succeed is lacking. 

Those pains are being felt in San Diego County, where District Attorney Summer Stephan called the lack of case management support for Prop. 36 defendants a “missing piece.” 

Even so, her office touts its success with Prop. 36 and multiple politicians hold up San Diego as an example of what’s possible when a county commits to the new law. As of February, 71% of San Diego County defendants who pled guilty to a Prop. 36 drug felony allowed their case to be started on the path toward mandated treatment, according to Stephan’s office. Most of the rest were assigned to treatment through probation, and fewer than 5% were sentenced to jail or prison.

“I believe that it’s still a work in progress,” Stephan said. “But in the first year, I think we’ve demonstrated that Proposition 36 has made a big difference.”

But that data only captures part of the picture – it doesn’t show what happens later, after a defendant is referred to the county for evaluation and treatment. As of December, fewer than a third of the people referred had agreed to treatment and even fewer were actually being treated, according to the county’s department of behavioral health services. Two people had graduated.

While the stated goal of Prop. 36 is to get people into treatment, not prison, some people still end up behind bars. Between January 2025 and July 2026, there were 568 admissions to California prisons on Prop. 36 drug charges, according to an analysis by the University of California’s California Policy Lab and the Committee on Revision of the Penal Code. The average sentence was 28 months. 

Prop. 36 will likely increase the prison population by roughly 1,550 people once it has been fully implemented, according to the state department of finance. About 90,000 people are incarcerated in state prisons today. 

Old cases can prompt Prop. 36 charge

After getting arrested last year on a Prop. 36 drug charge in Orange County, Nicco Pierstorff’s overwhelming response was anger. The 40-year-old had already overcome his methamphetamine addiction and pulled himself out of homelessness. But after police found drugs in a backpack in the backseat of his car — a backpack Pierstorff said belonged to an acquaintance, not him — he wound up facing the choice of jail or mandatory treatment.

But after graduating Prop. 36 in April and having his charge dropped, Pierstorff now views his time in the program as a blessing. The counseling he received gave him a new perspective on his past drug abuse and tools he can use the next time he finds himself in a risky situation.

“At first I thought it would be a waste of time because I was already sober,” he said. “But being in Prop. 36 really did help me a lot because it recognized my past trauma and the reasons why I do the things that I do.”

During the six months he spent in the program, Pierstorff got drug tested twice a week, and once a week attended both a group counseling session and a one-on-one meeting with his clinician. He went to court twice a month for the first few months, and then once a month.

Before that arrest, Pierstorff’s last arrest had been nearly 10 years ago. Back then, he’d been homeless and using methamphetamines, and had racked up various drug-related arrests. But he hadn’t used drugs — or been arrested — since 2018, he said. Instead, he’d gotten a maintenance job, found an apartment in Buena Park and turned his life around.

But that didn’t matter under Prop. 36, which does not specify a statute of limitations on prior convictions. That means any two prior drug convictions, no matter how old, can qualify someone for a felony drug charge. Although some district attorneys have implemented a “washout period” — a period of time that washes out prior convictions so they cannot count against someone facing new charges — many have not. Public defenders who spoke with CalMatters have reported seeing Prop. 36 felony charges based on priors that date back as far as the 1980s. 

“It’s a very archaic approach when the priors are old,” said Contra Costa County Chief Public Defender Ellen McDonnell. “If you haven’t engaged in that same context for 15 to 20 years, that’s not who the voters were intending.” 

Greg Totten, chief executive officer of the California’s District Attorneys Association, said he would have likely implemented a washout period, but every district attorney has to reflect the values of their constituents.

Very different treatment requirements

Prop. 36 does not specify how long someone needs to remain in treatment before their charges are dropped. Program length varies widely — from three months in Ventura County to two years in San Luis Obispo County. The length of time someone is forced to remain in the program can have a significant impact on their lives.

Andre Nintcheff, a chief deputy public defender of the Ventura County Public Defender’s Office, said it’s not tenable for people to put their lives on hold as they complete a 12- or 18-month course of treatment.

“We want to make it palatable,” he said. “We want to invite people into treatment.”

In Sonoma County, treatment is required for at least one year. Aaron Kasper, who lives in Santa Rosa, was arrested on his birthday in March 2024 for allegedly possessing fentanyl. He pled guilty and took the treatment path, but said he felt like he signed a bad deal because nobody told him how long it would actually take to complete it.

After spending six months in jail, he finished a three-month residential treatment program. He thought his charges would be dropped as soon as he finished. But for the remainder of his year-long court-required time participating in Prop. 36, he was subjected to random drug testing and required to attend regular court appearances, outpatient treatment twice a week, and five self-help meetings a week. 

“I tried to make the best of a horrible situation,” he said.

But all of those obligations affected his ability to work. Since Kasper entered a plea deal, he knew it would be futile to apply for jobs with a felony conviction on his record. He lived off savings he received through a lawsuit settlement over the 2017 Tubbs fire and postponed his job search until two weeks before his year was up.  

After staying sober for more than a year, Kasper in July was one of two people in Sonoma County to graduate from treatment and have his charges dropped. According to the Sonoma County Department of Health Services, as of February 2026, 77 people were referred for an evaluation — 31 of whom agreed to treatment.

Lack of resources for treatment

When Prop. 36 supporters were campaigning, they promised to provide not only addiction treatment for people arrested on drug charges, but also shelter and mental health help – a trio of supports that ideally would help someone get off the street and turn their life around.

But access to all these resources remains an obstacle — a worry opponents brought up back in 2024 when the measure was on the ballot.

Prop. 36 is sending more people into Orange County’s residential drug treatment, which has fewer than 300 beds, Kemmer said. Before Prop. 36, patients generally waited up to a week for a bed. As of February, patients were waiting an average of two to three weeks, and sometimes as long as six weeks, Kemmer said. 

Kemmer said the county places people in sober living homes while they wait for a residential bed — they aren’t stuck in jail. 

But those sober homes don’t provide the treatment patients need. And it’s well-known in the addiction field that if someone says they want treatment, it’s crucial to act immediately – otherwise people are likely to get lured back into using.

It’s a similar story in Santa Clara County.

“We are simply out of treatment in my county,” said Santa Clara County Judge Stephen Manley, who handles drug and mental health cases. “So whether you’re Prop. 36 or probation or mental health diversion or misdemeanor diversion, you have to wait a long time to get into treatment. And that’s one of the big challenges with this proposition.”

A lack of housing also has been a challenge, as many of the people referred into Prop. 36 are homeless. In Santa Clara County, 61% of the people referred for evaluations were homeless. In Orange County, 62% of all completed evaluations were for homeless defendants. In Tulare County, homeless defendants accounted for roughly 30% of its 120 evaluations.

Most counties CalMatters asked don’t track how many people moved into housing while in the program. 

“That’s one of the huge problems with Prop. 36 in my view, is we don’t have housing,” said Santa Clara County drug court Judge Manley. “You put people back on the streets and they will continue to use drugs.”

In addition to housing, experts say mental health services can be critical to helping someone get sober, as co-occurring mental health and substance use disorders are common. Last year, about two-fifths of the 42.7 million adult Americans who had a substance use disorder also had a mental illness, according to the 2025 National Survey on Drug Use and Health. 

Prop. 36 requires courts to order a substance abuse and mental health evaluation of each defendant charged with a Prop. 36 drug felony. The court then orders a treatment program that may include mental health care, but doesn’t have to.

Whether and to what extent mental health treatment is being provided varies county by county. While some counties said mental health treatment may be included in their addiction programs, most weren’t tracking how many defendants received any type of mental health services. Those that were, reported that the vast majority of Prop. 36 defendants in treatment were receiving addiction services, while just a handful were receiving mental health treatment. 

Santa Clara County was the one outlier, with 13 defendants in mental health treatment and three in addiction treatment (including two receiving both services). The county uses a “whole-person approach” to treatment, because many people need and request both mental health and addiction support, the county’s behavioral health department said.

Alfredo Caballero, who has been in Prop. 36 in San Mateo County for more than a year, said he has severe posttraumatic stress disorder and bipolar disorder. But while he received treatment for his methamphetamine addiction and is now sober, he says he wasn’t offered any mental health care through Prop. 36.

“As far as mental health help there, I don’t see it,” Caballero said.

Potential fixes to Prop. 36 problems

Some politicians and local leaders have been pushing for more money to help close the gaps in services Prop. 36 participants can access. Sen. Catherine Blakespear, a Democrat from Encinitas, is part of a group that called for $400 million in this year’s state budget for addiction treatment. 

“The path is right and the voters voted for it,” Blakespear said, “and it’s our mandate to do more to fund it.”

But the budget, which was enacted in June, allocated just $50 million for pretrial services, behavioral health services and court workloads, according to the department of finance. It was another blow to lawmakers who last year requested $650 million for Prop. 36 implementation, but according to the finance department received $100 million. 

The Board of Community and State Corrections, which oversees California jails, distributed some funding for Prop. 36.  Since September 2025, nine grantees have been awarded roughly $72 million to include or create substance abuse and mental health treatment for Prop. 36 participants. 

Totten of California’s District Attorneys Association said district attorneys, probation departments and behavioral health departments are trying to put everyone in treatment who needs it.

“We’re somewhat challenged by the lack of funding, but I think the law is working as it was intended — with the exception of the availability of treatment resources at the local level,” he said.

Despite the road blocks that have impeded the rollout of Prop. 36, Gustavo Meza believes he would have died if he hadn’t been arrested last year on a Prop. 36 drug charge in San Mateo County. He’d already overdosed several times at that point, including once just days before the arrest. A friend had to revive him with Narcan.

Back then, Meza was homeless and his life was spiraling – his use of alcohol, methamphetamines, heroin and other substances had derailed his ambitions to become a commercial truck driver and gotten him evicted from his Foster City apartment.

Last year’s arrest was the catalyst that inspired him to turn his life around, but Meza did most of the work himself. After his June 2025 arrest, it was another 10 months before the court processed his case and enrolled him Prop. 36. By then, Meza had already found an addiction treatment program on his own, had been enrolled for eight months, and was sober. 

His life is much different now. Meza is working at a restaurant and Goodwill, going to group counseling, getting drug tested and taking classes in anger management and job skills. He wants to become a drug counselor and reconnect with his estranged 11-year-old daughter. 

“I’m sober, clear minded, not doing the stuff I used to be doing,” he said. “I just want to start nice and slow. I just want to establish communication with her.” 

Natasha Uzcátegui-Liggett contributed to this story.

This story was reported with support from the Rosalynn Carter Fellowship for Mental Health Journalism.