Post Prop 36, drug treatment participation remains low

The assumption was that, after the ballot measure’s passage, shoplifters would no longer spend just a few days at jail — if that — after their fifth or sixth theft charge. And the hope for many Proposition 36 advocates was that, if given the option between a lengthy jail sentence or treatment, drug users would seek treatment, especially since the latter meant the charge would be dropped.

But as of March 10, out of San Mateo County’s 62 Proposition 36 drug-related cases, no defendants have participated in the treatment alternative. Only two referrals to treatment have been made, but their participation is still uncertain, and the court has yet to adopt a treatment plan for the Proposition 36 offenders. 

Many of the cases are still active and may take a while to go through the system, said District Attorney Steve Wagstaffe, so the full impacts may not be seen for at least six months. But the low participation rate so far still indicates a lack of interest.

“Most, if not all, are sitting in custody and not being rushed through. In other words, the defendants are not saying to their attorneys, ‘I hear if I do a program, I can get this done with,’” Wagstaffe said. “That's not happening. It seems to be following the same pace as a felony would have previously, which means months.”

Judges’ discretion in play

The lack of drug court participants points to an issue that was often lost in many discussions leading up to the election, which was that the effectiveness of the proposition critically hinges on whether judges would apply the new law in their cases. The proposition allows the judiciary to be more punitive, but it doesn’t mean they have to be.

Prior to Proposition 36, judges still had the ability to sentence defendants up to a year in jail for drug possession or retail theft, and they always had discretion to drop the charges if drug treatment was successfully completed. But with the DA’s Office filing roughly 15,000 misdemeanors a year and a controversial statewide history of jail overcrowding, judges hardly sentenced offenders to more than a week. When choosing between spending a few days in jail or completing a 60- to 90-day treatment program, most chose the former, and drug court participation subsequently dropped.

The county saw 30 new intakes for drug court in 2016, which dropped to five in 2023.

“If [Judge Kevin Dunleavy] approaches it and says, ‘yes they're felonies, but I’m not going to try to convince them to go to drug treatment … you can just have 30 days [in jail],’ then it will fail, because people will take the 30 days,” Wagstaffe said. “The whole point behind [Proposition] 36 was that the judiciary throughout the state would provide that motivation so that we can help people.”

Dunleavy did not return a request for comment.

There have been about 226 Proposition 36 cases total in the county, about 70% from theft-related charges and the rest from drug-related charges. Nine of the drug cases have been closed, as of March 10. In one case, the defendant was given the option to complete 60 days in jail or treatment and chose the former.

Many district attorney offices throughout California, including San Mateo County, supported Proposition 36, saying they needed to bolster judges’ ability to impose stronger punishments. But recently, after a few San Francisco judges still offered lenient sentences for defendants with criminal histories, San Francisco District Attorney Brooke Jenkins took the unusual step of publicly criticizing the judges, stating they contradicted what voters asked for when passing Proposition 36.

One case involved a man with previous felony convictions who was issued a misdemeanor — rather than a felony — after being convicted of theft.

Mandate for help

Proposition 36 advocates not only included district attorneys and retail industry groups, but also some elected officials in the county, who said the measure would be an effective way to compel people into treatment, where they have a higher chance of recovery than living in jail or prison.

The stance gets to a controversial question over whether mandated treatment can fix the county or state’s drug crisis.

Helen Marlo, dean of Notre Dame de Namur University’s School of Psychology — where she is also a professor and clinical psychologist — has worked with addicts in both voluntary and court-ordered settings, and said mandated treatment can certainly be effective when administered appropriately, as some clients become more receptive to recovery as they go through the process, even if they wouldn’t have checked themselves into rehab initially. Other times, it backfires.

“It would be great if people could come to treatment on their own accord if they have that big of a problem, but oftentimes people don’t … so sometimes the mandated approach can be the most humane option,” Marlo said. “Other times if it’s done without considering the whole person and all their issues and is done as a mechanical legal response, it may not be so helpful.”

It’s also important to keep in mind that for those with additional mental health challenges, from post-traumatic stress disorder to schizophrenia, recovery can be a longer and non-linear process, she added.

“If they’re mandated for a certain kind of treatment but their psychological problems are getting in the way, then they're not able to make use of the treatment because of all the other issues going on as well,” Marlo said.

For drug possession charges, Proposition 36 has a guaranteed option to drop jail time and the felony conviction if treatment is successfully completed. Repeat theft offenders can also enter treatment if they suffer from a substance abuse disorder, potentially improving their chances at lighter sentences, though that still remains at the judge’s discretion. But despite Proposition 36’s tougher penalties on theft, it’s not clear if it’s pushing more people into treatment either.

Police activity

Largely on account of Hillsdale and Bridgepointe shopping centers, San Mateo has had one of the highest shoplifting rates in the county, along with Daly City and San Bruno, which also have malls. Between Dec. 18, 2024 — when Proposition 36 went into effect — and Feb. 11, 2025, there have been about 61 retail theft arrests in San Mateo. During the same time last year, there were 41.

Rather than interpreting that as an increase in retail theft, Jeanine Ovalle, community relations officer for the San Mateo Police Department, said that the organized retail theft task force — which began in August 2023 between the Daly City, San Bruno and San Mateo police departments — has gradually improved its performance, with enhanced technology and collaboration with retailers’ loss prevention officers.

The hope is that the arrests start to taper off in the next several months as offenders understand the harsher consequences in place — but it’s still unclear if the repercussions will in fact deter crime.

“Prop. 36 is new to everyone, but they're still looking at what it actually looks like, and how many of these cases are we prosecuting based on Prop. 36? The more often that happens and the more often that these people start getting charged with those violations is when you’ll start to see it taper off,” Ovalle said.

Many shoplifters are part of an organized group, often coming from the East Bay or San Francisco, Wagstaffe said. Shoplifters residing in San Mateo County are in many cases not part of a theft network but instead supporting drug habits, making it that much more critical for them to access these services, he said.

“Generally, defendants will look for the easiest way out,” he said. “The addiction of drugs is so powerful that we have to provide that help and that motivation. But if we don't, and we say, ‘Just do four weeks [in jail], and then you can get out,’ then I’m not sure they’ll go for the [treatment] program.’”