Courts say Prop 36 creates treatment option but strains judges, staff and treatment capacity

The Assembly Budget Subcommittee heard detailed testimony from courts and judicial advisers about early implementation of Proposition 36, which created a treatment‑mandated offense for repeat drug possession and altered penalties for certain drug and theft crimes.

Rick Owen, senior staff counsel for the Committee on Revision of the Penal Code, summarized the law and its core features, saying Prop 36 “created a treatment mandated felony offense for drug possession” that applies when a person arrested for possession has two or more prior drug convictions and that the charge is a “wobbler” a prosecutor may file as a misdemeanor or felony. Owen explained that defendants who accept treatment must plead guilty or no contest, undergo court‑ordered assessment by a drug addiction expert, and may have their case dismissed on successful completion of a court‑ and prosecutor‑approved program.

Francine Byrne, director of Criminal Justice Services for the Judicial Council, told the subcommittee the Judicial Council surveyed 49 counties (representing roughly 98% of the state population) and estimates courts will receive about 25,000 Prop 36 cases annually. Byrne cautioned the subcommittee that courts are only a few months into implementation and that felony filing and processing times are substantially longer than for misdemeanors.

Presiding Judge Lisa Rogan of San Bernardino Superior Court said the measure is producing large, varied impacts across counties. “Some counties have been seeing filings as much as 500 within the first three weeks,” Rogan told the committee, and in places that moved cautiously, filings have been lower while counties worked to put treatment capacity in place. Rogan said the program’s no‑bail, no‑OR prearraignment requirement for specified offenses adds pressure on pretrial calendars and local detention facilities, and that many courts lack judicial officers, courtroom space and treatment beds to manage the new calendars.

Orange County supervising judge Scott Cooper described an immediate spike of about 1,100 filings in 11–12 weeks and said Prop 36 filings accounted for roughly 30% of felony filings in his county during that period. Cooper said his office has used centralized evaluations and some shared drug‑court resources, but cautioned that Prop 36 participants cannot simply be placed into existing drug courts because drug courts typically require formal probation and manage higher‑risk populations. Cooper added that most evaluated defendants are eligible for residential placement and that insufficient residential beds and housing options make scheduling and treatment acceptance difficult.

Daryl Parker, chair of the Court Executive Advisory Committee and court executive officer in Santa Barbara County, highlighted staffing and facility costs, noting the branch still absorbs recent reductions and that restoring operations requires hiring, training and cybersecurity investments in addition to courtroom staffing.

Members pressed whether counties can rely on collaborative (drug) courts to absorb the population. Judges and Judicial Council speakers agreed collaborative‑court teams can be used as resources but not easily merged with the new Prop 36 population because of differences in supervision status and risk profiles; several witnesses said supervision (probation) plays a central role in collaborative courts’ success and that Prop 36 cases are generally not placed on formal probation.

Caitlin O’Neil and Anita Lee of the Legislative Analyst’s Office briefed members about the interaction between Prop 36 and prior Proposition 47 savings set aside for treatment. O’Neil said Prop 36 will reduce Prop 47 savings available for grant programs and that the governor’s budget projected roughly $88 million in Prop 47 savings available in 2025‑26 — about $6 million less than before Prop 36 — but that the LAO believes the administration’s prison‑population assumptions understate near‑term savings and recommended methodological clarification.

Why it matters: Prop 36 provides courts a treatment pathway that can result in dismissal, but successful outcomes depend on access to evaluations, treatment beds, housing, and judicial capacity to manage ongoing progress hearings. Judicial witnesses told the subcommittee that the law’s public‑safety aims could be undermined if treatment and supervision resources are not funded and expanded.

Key details and uncertainties: Judicial Council and courts reported early caseload projections (about 25,000 cases per year) and county variance in filings; the LAO and Judicial Council said the effect on Prop 47 treatment grant funding will grow over time and that delays mean most impacts appear in later budget years. Court officials also warned that treatment programs under Prop 36 have no statutory duration limit, so cases may remain on court calendars for years.