California courts lack data, resources to measure Proposition 36 impact

California courts still lack the tools to fully evaluate how Proposition 36 is working, judicial officials told lawmakers late Monday. The update came during an Assembly Budget Subcommittee hearing examining early implementation of the 2024 voter-approved measure that increases penalties for certain drug and theft offenses while expanding treatment options.

Francine Byrne, director of criminal justice services at the Judicial Council of California, began by telling lawmakers what her branch does not yet know about how the initiative is playing out.

"We do not have information related to the impact of Proposition 36 on specific demographic groups," Byrne said. "That is not a data element that courts can collect with consistency. We hope to have a little bit more of that information next year when we get data from the Department of Health Care Services."

She added that data is starting to come in from county behavioral health departments. But she also urged lawmakers to look to "the research community or local justice system partners, such as public defenders, prosecutors, and jails and county treatment" to help get more information about the law.

The hearing came in the wake of a recent Judicial Council report showing that Proposition 36 led to almost 35,000 additional felony charges for drug and theft crimes last year. The report also showed that very few offenders had completed drug treatment, which was a key promise of the initiative.

She also noted that many defendants enter the system with a variety of charges, sometimes making them ineligible for diversion. Meanwhile, she said, drug crime offenders can choose to enter treatment "at nearly any time in the predisposition process," and some of them are taking "a long time" to decide to enter programs that can then take up to a year.

"We don't have any statewide information on sentencing, so we don't know exactly what happened to those cases," Byrne said. "We do know that some of the theft cases ended up in our collaborative justice courts, either pre- or post-conviction, or in diversion programs. There's a variety of reasons why these numbers appear to be relatively low."

Finally, Byrne focused on the impact the law has had on courts.

"It takes about three times the amount of time to process a felony case as it does a misdemeanor case," she said.

She added that defendants realize how even misdemeanor convictions could affect them under the law if they face new charges in the future. The result is that more defendants want to go to trial, because they do not want to plead guilty to a charge that could result in a tougher sentence down the line.

Kate Bieker, executive officer for Ventura County Superior Court and the chair of the Judicial Council's Court Executives Advisory Committee, said the law has created "operational demands" across courts, including more hearings, compliance reviews and probation proceedings. She added that courts need updated case management systems to track outcomes and measure success.

"Courts must invest in technology and administrative systems to track these outcomes," Bieker said.

They joined a chorus of other court leaders who have said Proposition 36 is already straining the system in ways that go beyond initial expectations. Meanwhile, Gov. Gavin Newsom's administration defended his decision not to propose new funding for the program in his latest budget. Department of Finance analyst Henry Ng said the state is still drawing from $130 million allocated in last year's budget, which remains available through mid-2028.

However, the Legislative Analyst's Office raised concerns about how the administration is calculating costs. Principal Analyst Caitlin O'Neill took issue with the assumption that the cost of Proposition 36 could be accounted for easily from the 2014 criminal law initiative it sought to adjust.

"The department subtracted the entire Proposition 36 impact on the prison population from its baseline Proposition 47 estimate," O'Neill said. "So, in other words, it assumes that all components of Proposition 36 interact with the sentencing provisions of Prop. 47, when actually only a portion of the Prop. 36 sentencing changes had the effect of reversing or partially reversing Prop. 47. We would recommend that the Legislature direct the Department of Finance to correct this."

Assemblymember Tom Lackey, R-Palmdale, urged his colleagues to allocate more money for Proposition 36, referencing $400 million currently before the Legislature. He also cited some of the costs of criminal justice law changes from the last decade, including a retail crime wave that led to more goods at large stores being locked away.

"Just because you're jailing less people doesn't mean there's no other costs," he said.