The California Legislature — particularly its Democrats — will face a political litmus test next week that will reveal how serious they are about respecting the will of voters who overwhelmingly passed Proposition 36 last November, the initiative that strengthened penalties for some theft and drug crimes.

There was no funding mechanism for the provisions of Prop. 36 that were opposed by key Democrats led by Gov. Gavin Newsom. To his credit, a veteran Democratic is trying to bridge that gap by writing a bill to be heard next week that is based on a premise that all parties should agree upon:

That repeat fentanyl users should get treatment rather than jail — if that’s their choice. This is the crux of Senate Bill 28 by Tom Umberg, D-Santa Ana.

“Treatment court programs shall be available to all eligible California defendants,” reads the first line of Umberg’s legislation. It’s hard to find a weakness in this sentence in terms of social or criminal justice. But this is simply not the reality in our state today. Democrats are big on performative acts that graze the surface of entrenched problems plaguing California. This effort demands more.

We hope a bipartisan Legislature will address an unacceptable status quo in our state by improving Umberg’s bill, which also currently lacks a funding mechanism. Voters want tougher penalties for certain repeat drug users and serial petty thieves and increased drug treatment options for these offenders. Achieving this is hard, making the proverbial sausage is ugly, but the Legislature owes it to voters to make it happen.

The challenge of stiffer sentences

Californians wisely softened a harsh “war” on drugs in 2014 when it passed sentencing reforms in 2014 via Proposition 47, turning many common drug possession crimes from felonies to misdemeanors. As a consequence of this initiative, some local drug treatment programs, that were alternatives to these excessive felonies, lost funding to other needs as their caseloads diminished.

Moderate Democrats like Umberg joined California Republicans and district attorneys throughout the state last year in supporting Proposition 36, believing that some of Prop. 47’s sentencing reductions had gone too far and only voters could change that.

Prop. 36 posed stiffer sentences for repeat petty theft offenses and for certain drug offenses such as fentanyl possession. For defendants who had related drug dependencies, Prop. 36 created a clear path for treatment (usually outpatient) as an alternative to incarceration.

McClatchy editorial boards in Sacramento, Modesto, Fresno and San Luis Obispo opposed Prop. 36 due to concerns about spending more precious tax dollars on prisons and the practicality of sufficiently expanding the inadequate local treatment programs that now exist in many counties throughout the state. But voters fed up with images of rampant retail theft, homelessness and the fentanyl epidemic, chose Prop. 36 as a better alternative than the status quo.

Umberg’s SB 28 is the right vehicle to advance implementation of this measure, for it centers on a need for treatment that every lawmaker in principle can embrace. What was missing in Prop. 36, and is currently missing in SB 28, is how to fund the additional treatment amid a growing budget crisis in Sacramento. Umberg said he was “working with various stakeholders to identify a funding mechanism.”

But time is ticking: SB 28’s first hearing is Tuesday before the Senate’s Public Safety Committee.

The legislation deserves to clear the committee as a bona fide work in progress, even if its funding scheme remains unidentified. SB 28 would head to the Senate’s Appropriations Committee, the money watchdog in the legislative process. By then, SB 28 should only pass if its supporters identify the necessary money.

Will Democrats heed the will of voters and the law?

Prop. 36 supporters like Umberg and Yolo District Attorney Jeff Reisig are concerned about what may happen when defendants qualifying for treatment begin requesting an option that — in some cases — doesn’t exist. That option is now the law.

“If an offender wants treatment, they should be able to get free and appropriate treatment,” Reisig said.

Those left of the mainstream Democratic Party that controls Sacramento opposed Prop. 36 for its stiffer sentences for perfectly sound reasons. We agreed with them. But that was then. And now the issue is whether California’s sentencing system can make Prop. 36 work by offering treatment in some instances as an option over jail.

More broadly, there is something even bigger at stake.

SB 28 poses an important question of California democracy, whether lawmakers in Sacramento will follow the clear direction of voters who passed an initiative in a free and fair election.

Amid all the turmoil embroiling Washington these days, Gov. Gavin Newsom and his fellow Democrats can show what it looks like in this troubled day and age to obey the rule of law and the people’s will.

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