San Mateo County officials consider impacts of Proposition 36

Retail theft has also grown significantly over the last several years, with the county’s largest cities — Daly City, San Mateo, Redwood City — all seeing increases. Daly City saw a 240% increase in retail theft between 2019 and 2023, from about 116 to 398, and it is on pace to surpass last year’s figures based on the first few months of 2024. San Mateo has seen a roughly 75% increase in retail theft arrests since 2020 and is also on pace to surpass last year’s figures based on its arrest numbers in the first three months of 2024.

Similar trends have occurred throughout the region and state, which has led many to seek stiffer penalties for criminals and fault Proposition 47 for the increase in crimes that typically don’t result in jail time.

As part of a broader effort to reverse unsustainably high incarceration rates, Proposition 47 was passed in 2014 and classified several crimes as misdemeanors, even for repeat offenders. Many nonviolent instances of drug possession under a certain amount or retail theft of goods valued at $950 or less would never escalate to a felony, even if it was the fifth or sixth offense.

But if Proposition 36 is passed, repeat drug offenders would be able to complete a treatment program and have the charges dismissed. If not, they could receive a felony conviction and up to three years in jail or state prison. The same is true for those who have two or more prior theft convictions — though, like misdemeanors, jail sentences are always at the judge’s discretion for such crimes.

Drug treatment

Currently, judges have the ability to sentence up to a year for the misdemeanors, but San Mateo County District Attorney Steve Wagstaffe said offenders typically aren’t sentenced to more than a week.

Proposition 36 would compel users into treatment with a combination of carrots and sticks, he said, adding that the county’s drug treatment courts now see drastically lower number of participants since Proposition 47, because the incentives have been taken away — offenders know they will either not face any jail time or perhaps a week or two at most, so entering a 60- or 90-day program is less appealing.

“In San Mateo County, our drug court was running between 300, 350 to 400 people in drug court at a time,” he said. “As of two weeks ago, the last time I asked, there were eight, and that’s true in other counties. … We’re hopeful the drug court can come back, and people will be motivated to go to drug court.”

Difference of opinion

San Mateo County Supervisor Ray Mueller is also in support of the ballot measure. He said the benefit of the statewide approach is that shoplifters cannot hop from county to county based on how lenient the judges in that area are, and it will also compel drug offenders into treatment.

“We just need to get people into treatment and successfully get them out of their addiction,” Mueller said. “There is a tremendous cost to the taxpayer by letting crime and addiction exist in our streets and not taking the steps to address it. … [Proposition 36] allows you to mandate treatment and then not have any criminal conviction attached to you should you [complete it].”

But other leaders, like Supervisor Noelia Corzo, said the ballot measure is not well thought out — both ethically and logistically.

“I don’t think there is enough understanding of the unintended consequences and the fact that there are many unknown fiscal impacts,” Corzo said. “For mandated treatment where there is not a diagnosed substance abuse disorder, there is no funding from Medi-Cal, and so that’s an unknown in terms of what the cost would be to the county, but it would be a cost to the county. … The other concern that most people aren’t aware of is related to the drug treatment programs.”

She added that it’s been difficult enough to secure more funding and investment for effective treatment and rehabilitation programs, and overwhelming already under-resourced and understaffed behavioral health programs with haphazardly-implemented changes won’t necessarily yield positive results. Proposition 47 funds that are currently allocated for mental health services would also be left in a precarious position, leading to further funding challenges coupled with increased demand, she said.

Uncertainty with judges

Even Wagstaffe said there is some uncertainty with Proposition 36. One of the reasons judges don’t sentence jail time for misdemeanors is because county jails are filled largely with inmates who, up until a decade ago, would have been housed in state prisons due to committing more serious crimes. Right now, judges won’t dole out lengthy jail sentences for misdemeanors but they will likely take it more seriously if it’s a felony, he said.

But if courts get overwhelmed with more felony charges as a result of Proposition 36, judges might still be left with a similar dilemma; that is, only reserving jail sentences for those convicted of more serious, violent felonies, rather than nonviolent felonies.

“Now, it all fails if all our judges, or most of our judges, get together and say, ‘I’m not going to send anybody to jail for six months,’ then it doesn’t accomplish the goal,” Wagstaffe said. “All we’re doing is giving tools to the prosecutor to elevate the charges and tools to the judge to say, ‘Listen, go to a program, Mr. Defendant, or here’s what you’re going to face.”