District attorney and public defender outline early data on Prop 36; few cases have reached treatment so far

Assistant District Attorney David Angel and Assistant Public Defender Sarah McCarthy briefed the Public Safety & Justice Committee on early implementation of Proposition 36, the state ballot measure that created new treatment‑oriented charging options for some theft and drug offenses.

Angel said the county has had modest volumes so far. He reported approximately 51 petty‑theft filings under the statute and about 63 cases under Health and Safety Code section 11395 (the Prop 36 drug charge) through the first six months of operation; extrapolated roughly, that equates to about 120 such cases per year but Angel stressed the total is small relative to the county’s roughly 25,000 filings annually. Most Prop 36 drug filings in the county are not new arrests: Angel said 42 of the 63 cases he reviewed were charged alongside another, more serious offense, and 60 of the 63 defendants already had outstanding warrants from prior matters. He noted many defendants charged under the new statute are already enrolled in other courts, including specialty mental‑health courts.

Assistant Public Defender Sarah McCarthy said the office is not yet seeing clients go into treatment under Prop 36 for several reasons. First, Prop 36’s mechanism typically requires a guilty plea (or plea equivalent) before treatment can begin; if treatment fails, the guilty plea remains and the case proceeds to sentencing. That framework, McCarthy said, is punitive and can deter clients from using the program plus it limits post‑treatment options available in other diversion models. McCarthy provided larger case counts for the office’s caseload: since the law took effect Dec. 18, the defender’s office has logged 260 new felony cases with a Prop 36 charge and 99 misdemeanor cases with a Prop 36 charge; the defender’s office projects roughly 800 felony filings and 300 misdemeanors with Prop 36 charges over a full year.

Both prosecutors and defenders said the most important barrier is not charging language alone but a lack of available treatment slots — particularly for clients with complex mental‑health needs — and delays from waiting lists. Angel said the law’s text requires multiple legal steps before someone can get into treatment and that the county has not yet seen any completed treatment adjudications under the statute. Both speakers recommended more time and data before drawing firm conclusions.

Supervisors asked staff to return with a legislative file and a fuller data report in six months so the committee can assess whether Prop 36 is getting people into treatment or merely creating new processing steps without sufficient treatment capacity. The committee voted to receive the verbal report; Vice Chair Lee and Chair Ellenberg voted in favor.

Why it matters: Prop 36 was intended to increase access to treatment through the criminal‑justice system. County officials told the committee that the law’s requirement of a guilty plea, combined with limited treatment capacity and procedural steps, are preventing early, widespread use of the statute as a treatment pathway.

What’s next: Staff will prepare a follow‑up data report and a legislative file in about six months to show whether individuals are getting into treatment, how many cases proceed to adjudication, and whether additional local resources are needed to realize the law’s aims.