Few Prop 36 offenders in treatment

The county has seen more than 600 retail theft cases as of mid-October, making the number of Proposition 36 cases, from both retail theft and drug possession, around 1,000 altogether.

But since the law went into effect, there have been very few who have opted for treatment over jail, between nine to 15 in total, according to data from the San Mateo County Superior Court and Behavioral Health and Recovery Services. Bookings at Maguire Correctional Facility increased by 10% from last year — between January and October — and drug possession-related arrests are trending higher than the last couple years in some of the county’s largest cities, such as Redwood City and San Mateo, according to public records.

Low treatment participation is not unique to San Mateo County. In a report by the Judicial Council of California, between mid-December 2024 and June 30, 2025, there were only nine cases throughout the entire nine-county Bay Area in which defendants elected treatment. Only 25 cases across the entire state were dismissed after successful treatment completion, according to the report.

The state ended up allocating funds to Proposition 36 as part of its 2025-26 Budget Act several months ago, but that was well after the measure’s passage, and many say the amount is not nearly enough to cover critical service gaps.

Unlike other counties, however, District Attorney Steve Wagstaffe said the county’s drug treatment centers have plenty of availability right now, and the reason offenders aren’t taking advantage of it isn’t due to lack of bed space.

“We’ve got treatment space,” he said. “We want to get more people in it.”

According to data from the county’s Behavioral Health and Recovery Services Division, residential treatment and detox centers are running at about 60% capacity — though there is still a critical assessment component to ensure clients enroll in the right program, which is not necessarily the first facility that has an open bed.

Maurice Friera, intake coordinator at the addiction treatment center Our Common Ground, said their facility still usually has some availability, though the number of clients has started to increase since the beginning of the year.

Some leaders like Wagstaffe and other Proposition 36 supporters are scratching their heads at the low participation rate. While there is bed capacity, more funding for the Probation Department would allow officers to connect with offenders while they’re incarcerated and educate them about treatment, he said.

“While the case is slowly working its way through the system, they're in there talking about and engaging with clients to join the treatment program," Wagstaffe said. “And once they do, the probation officers will be there making sure they’re going to the program, to make sure they’re getting the resources they need.”

He added that the sentences imposed by judges are longer now than pre-Proposition 36 — and could include time in state prison rather than county jail — which was supposed to be the main driver getting people into treatment. After all, the supporters claimed that more offenders would choose treatment if the jail or prison sentence is longer, or at least comparable, to the length of their treatment program.

“The natural way is to take the easy way out for the vast majority of addicts, so we really need the help of the courts to make sure that there is a stick on the other side of the carrot,” Wagstaffe said.

Possible reasons

But many offenders decide to wait for a preliminary hearing to potentially fight their case — rather than immediately plead guilty and begin treatment — so the process could take months, at which point, they’ve already served out much of their jail sentence and subsequently reject treatment, Wagstaffe said.

While it may be a “cynical” view, he added that defense attorneys get paid by the preliminary hearing and don’t view getting clients into treatment as the main objective.

“To me, if I were a defense attorney, I’d ask, ‘What can we do to help this defendant avoid culpability, and what can I do to help him or her so they don’t come back?’” he said. “I view that as the role of the defense attorney, but I don’t know if they do.”

Since its implementation, defense attorneys, prosecutors and judges have either accused or been accused of failing to uphold the spirit of Proposition 36, that is, to crack down on crime like theft and drug use. Earlier this year, some district attorneys, including San Francisco’s Brooke Jenkins, criticized judges for continuing to impose lenient sentences on offenders.

Lisa Maguire, chief defender of the San Mateo County Private Defender Program, called Wagstaffe’s conflict-of-interest accusation “offensive,” adding there are many reasons why it may not be in the best interest of the client to go through treatment. One of the biggest reasons is that they must first plead guilty to a felony. With other court programs, however, like mental health diversion, clients don’t have to enter a plea before undergoing treatment, which is often the more preferable option.

“We have an ethical obligation to do the best we can for the client and see what’s available to them, in terms of fighting their case and trying to pursue other collaborative courts that don’t require a conviction," Maguire said. “If you can avoid a felony conviction for your client, then by all means, you should pursue that. Just entering a plea to get into treatment can have serious consequences for a lot of our clients.”

And for non-citizens, the stakes are even higher.

“For those clients, Prop. 36 is a horrible option,” she said.

Path to sobriety isn’t easy

Clara Boyden, deputy director of alcohol and drug services at BHRS, added that the path to long-term sobriety usually involves repeated rehabilitation attempts.

“Treatment is hard work, so if somebody is not sure they want to stop using, and if they plead to Prop. 36 and then they don't complete the program … there may be more severe penalties, and then they’ve already at that point entered their plea,” Boyden said.

Maguire said she’s also seen instances when clients completed treatment but judges still require additional follow-ups before they drop the charges.

“The court has been delaying declaring it successfully completed, even though we have had clients successfully complete their treatment, and the judge is continuing it, having them come back and check in,” she added.

While most treatment facilities aren’t at capacity, that doesn’t mean accessing help is seamless. Other types of recovery residences, such as sober living homes, are at more than 90% capacity, according to BHRS data, and Maguire said she and other attorneys haven’t found it easy for clients to secure a spot.

“People are on waiting lists. Everybody is vying for the same beds,” she said. “All the collaborative courts use the same treatment facilities.”

Friera said he’s noticed an improvement in how courts are handling substance abuse disorders compared to years past. But if the county is even mildly more successful at getting people into treatment, it could quickly lead to substantial back-ups and delays. Even with only a few of Proposition 36 clients, Friera said OCG will soon need more resources to accommodate even modest growth.

“Prop. 36 is still in the beginning stages, and so I just foresee more bed spaces being needed in general for the county,” he said.

Pressure on system

To date, the county has relied on about $400,000 of allocated funds from opioid settlement cases to help with Proposition 36 implementation — which is going toward two new full-time positions — but that money is finite. The county has also been grappling with the loss of several behavioral health services over the last couple years, including detox facilities, residential treatment and counseling centers for Medi-Cal patients. A couple months ago, one of the county’s largest behavioral health providers StarVista abruptly shuttered, which ran numerous programs for those with substance use disorders. The number of Medi-Cal clients receiving substance abuse services in the county has increased by 14% over the last three years, however, continuing to put pressure on an already tenuous system.

With federal Medicaid cuts, the county anticipates it could lose almost one quarter, or about $28 million, in Medi-Cal revenue based on state projections. Boyden said one the county’s main concerns is patients losing their coverage due to stricter requirements, mostly bureaucratic, such as re-registration every six months.

“If you’re already someone struggling with addiction, and if every six months you have to re-register for the program, and you have to provide documentation, they could fall off the program, and it will make it harder for them to access the care when they need it,” Boyden said.

Friera said he is still optimistic that demand for treatment will pick up. Wagstaffe hopes the county can soon start to mirror other counties in the state that have higher participation.

“It just saddens me,” he said. “My goal is to get people suffering from addiction into treatment. So far in San Mateo County that’s not happening.”