Judge warns of 'train wreck' as courts struggle with Prop. 36

A prominent judge warned lawmakers of "a train wreck coming" as courts try to cope with the demands of Proposition 36. Meanwhile, Democrats pushed back against Republicans who have criticized them for failing to fund the tough-on-crime initiative.

"When you're talking about adding thousands of cases, this is a train wreck coming because there are not sufficient resources to give those people the treatment that has been promised," San Bernardino County Superior Court Presiding Judge Lisa M. Rogan told the Assembly Budget Subcommittee on Public Safety on Monday. "There's not the judicial resources to oversee those cases."

Rogan, who chairs the Trial Court Presiding Judges Advisory Committee, said Proposition 36 will not just mean more cases per judge. Each case could take longer, she said, and the required drug treatment facilities may not be available.

"Cases that typically would have in the past taken us perhaps four to six months to resolve will now take two years," Rogan said. "It does impact our cases. Our caseloads are already overextended. We have funding issues."

Committee Vice-Chair Tom Lackey, R-Palmdale, joined the chorus of other Republicans calling for the Democratic majority to allocate more money to fund Proposition 36.

"It's a mess, that's all I can say," Lackey said. "There was a very clear message that was sent by our public that we need to do a better job. In order to do a better job, you have to fund it. That's what we're failing to do."

Assemblymember Nick Schultz, D-Burbank, replied that the initiative's proponents chose to move forward without a funding mechanism.

"With all due respect, sir, I think that when we look back in history, the proponents of Prop 36 also failed to answer that critical question of how we actually pay for the treatment programs that many people voted for," Schultz said.

He added, "I think it's also a good reminder of sometimes the deficiencies of our proposition system. Just because you have an idea, if you haven't answered the question of how you actually pay for it, we now land in hot water."

Caitlin O'Neil, a principal fiscal & policy analyst with the non-partisan Legislative Analyst's Office, said her agency's projections for the costs of Proposition 36 were not as dire as some of those being shared by Gov. Gavin Newsom's administration. Her colleague Anita Lee, who holds the same title, warned that different counties are implementing the law in varied ways and that these approaches will change over time. These factors, she said, make it difficult to project the ultimate impact of Proposition 36.

But in its written analysis, the office made two conclusions clear. First, the impact will be enormous. Second, the state is "not required to pay for increased county costs" incurred by Proposition 36.

"When ballot measures generate increased costs for local governments, the state is not required to cover them," stated an analysis quoted in the hearing agenda. "The state could choose to provide additional funding, such as to help support the behavioral health system. Doing so, however, would likely come at the cost of other existing state programs, given the multiyear deficits facing the state."

Passed by a wide margin in November about concerns over growing property crime, Proposition 36 rolled back some of the changes to sentencing law voters made with Proposition 47 in 2014. The latest findings drew heavily on a more detailed analysis of the fiscal effects of the changes released on Feb. 26. That report found Proposition 47 led to savings of $94.8 million during the 2023-2024 state budget year. Two-thirds of this money went to the "Board of State and Community Corrections for substance use disorder treatment and mental health programs."

But under Proposition 36's new sentencing rules, those savings would be reduced by over two-thirds, to just $30.5 million, during the 2025-26 budget Newsom and lawmakers are now negotiating. Savings will fall by 74%, to just $24.7 million, by the 2026-27 budget year--a net higher costs of $70 million, according to the report. While the new initiative will not be as expensive as the pre-Proposition 47 sentencing rules, it continued, it will create significant costs via incarceration, court processes and oversight.

The wording of Proposition 36--and the dearth of state funds to pay for it--could mean the law is enforced very differently around the state. The initiative gives prosecutors a great deal of discretion about how to file charges under the law.

People who are held for longer periods under Proposition 36 will be more likely to spend that time in a county jail than they might have been a decade ago. Gov. Jerry Brown pushed through a series of changes under the banner of realignment when he was in office from 2011 to 2019. These were intended to reduce the growing prison population and to address the fact that some more conservative counties were incarcerating a disproportionate number of people compared to the statewide average.

Proponents of Proposition 36 touted this flexibility as a positive feature. But Schultz, a former deputy attorney general, raised concerns about disparate sentencing.

"One thing I am concerned about is what we're seeing across California right now, as some of you have testified, I would describe as justice by geography," Schultz said. "It is really tied to where you live."