Across the country, criminal justice policy is undergoing yet another pendulum swing. After over a decade of reform efforts focused on decarceration and diversion, states are now reembracing the all-too-familiar tough-on-crime approaches.

California’s Proposition 36 (2024), which reclassifies certain repeat theft and drug offenses as felonies with mandated treatment pathways, has been promoted as a balance between accountability and rehabilitation. But in practice, compliance with treatment mandates often depends not on willingness but on access. Treatment availability, transportation, stable housing and mental health support are not guaranteed; they are simply assumed to exist. When they don’t, public defenders, not policy architects, are the ones left holding the bag and trying to bridge the gap.

In my day-to-day work as a public defender, I routinely represent clients who want to comply with court orders but cannot clear structural barriers to do so. Probation conditions commonly require immediate entry into treatment programs, regular reporting and strict address stability.

These expectations presume a level of predictability few indigent clients possess. When treatment programs are full or shelters eject people for time limits, a client’s inability to comply is treated as defiance, rather than lack of access. This systemic failure turns rehabilitation into a test of survival and a cycle of recidivism.

Our attorneys collaborate with licensed social work professionals who independently prepare alternative sentencing reports and assist with treatment placement. Their work reflects what the U.S. Sentencing Commission has noted: that alternatives to custody provide opportunities for treatment and life skill necessary to become law abiding citizen and productive members of society.

This reinforces what defenders see daily that rehabilitation succeeds only when decision-makers are provided with a person’s social and clinical context not just their criminal history. But even with that assistance, the gap between mandate and reality remains wide.

I have represented clients who were labeled “noncompliant” when “unplaceable” would be more accurate. Take, for example, a man with a long history of mental illness. To cope with this mental illness, this man turned to self-medicating and, while suffering from delusion, burned a trash can (committed arson). As a term of probation, he was ordered to complete treatment, yet every residential program rejected him from treatment because he was on the arson registry.

His designation as an arson registrant is directly tied to conduct related to that same mental illness and chemical dependency that caused him to commit the offense. He was willing to comply with treatment terms as imposed by probation, but the system offered him no place to go. The single program in the jurisdiction that he was eligible for due to his status would not accept him because he has to take prescribed medication.

In another case, a homeless client was sentenced to two years in prison for petty theft with priors. His offense was stealing a loaf of bread and a bottle of water because he was starving. Neither man was attempting to evade responsibility. Each was navigating survival.

These scenarios are not anomalies. They illustrate the friction between “tough-on-crime” enforcement and stated rehabilitation goals. Proposition 36 may divert some individuals from incarceration. But without proportional investment in treatment capacity and basic infrastructure, that diversion becomes conditional leniency that is also revocable at the first logistical failure.

The result is not reform but a costly revolving door. Public defenders then find themselves serving simultaneously as lawyers, housing navigators, treatment coordinators, transportation brokers and crisis managers.

Basically, the consequences are as predictable as they are frustrating, and they are twofold.

First, public defenders face overwhelming workloads that extend far beyond litigation. Even with support from licensed professionals, a significant portion of our advocacy involves coordinating services. The system assumes those services already exist. Sometimes they don’t, and even where the services do exist, public defenders serve as the first point of connection.

Second, clients are punished not for criminal intent but for systemic barriers. When statutes elevate misdemeanors to felonies while tying relief to treatment attendance, noncompliance becomes inevitable for those least equipped to comply.

The solution is not to abandon reform but to support it realistically. Public defender offices across the country should have access to licensed professionals who can prepare independent alternative sentencing reports, assess treatment needs and secure program placements. This staffing should be treated as essential, not supplemental. Courts should verify treatment availability before imposing strict reporting deadlines. Probation terms must reflect realistic access to transportation and allow flexibility for people experiencing homelessness or unstable housing.

Finally, funding attached to Proposition 36 should be channeled not only toward supervision and enforcement but toward expanding treatment beds, supportive housing and community infrastructure because it is these very resources that make rehabilitation possible.

Public defenders do not seek to replace social workers. We seek to practice law effectively. But until the justice system acknowledges the distance between legal directives and lived conditions, defenders will continue serving roles beyond our mandate because if we don’t, no one else will.

The integrity of reform cannot rest on individual improvisation. Rehabilitation cannot exist only on paper. Until access is treated as seriously as accountability, the burden of “compliance” will continue to fall heaviest on those least able to achieve it and on the public defenders tasked with helping them try.

The views expressed here are my own and do not reflect the official position of any public agency or employer.

Whitney Jenkins is a trial lawyer and a felony defense attorney with the Fresno County public defender’s office in California. She advocates for fairness in the criminal justice system and writes from her front-line perspective on the intersection of criminal law, poverty, race and systemic reform.

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