Updated: May 7
With fentanyl deaths surging, some California lawmakers and prosecutors argue that illegal sale and trafficking of the drug should be subject to stricter punishments because of its destructiveness
Fentanyl was blamed in a majority of 713 fatal overdoses in San Francisco last year, with this year's overdose count on track to well exceed that count, according to the Medical Examiner
Fentanyl cases make up a significant chunk of felony drug cases at San Francisco Superior Court, but there is little sign that they are handled differently compared to other, less deadly drugs
In 2020, individuals booked for felony drug sales were released the same day or the next day 84% of the time; in about one-third of bookings, the individual was also found in violation of a court order
In 2019, a San Francisco budget analyst published a report estimating that open-air drug markets, heavily concentrated in the Tenderloin neighborhood, cost the City more than $12 million per year in enforcement expenses. Accounting for the human toll, the true costs of San Francisco’s open-air drug markets are far greater.
Residents and merchants confront a relentless gauntlet of smoke, syringes, sirens and threats by sometimes-hostile drug dealers, who loiter by the dozens on sidewalks, in doorways and in the street. Their customers slump nearby, disoriented or unconscious. Overdoses in San Francisco are on track to exceed last year's historic high of 713, nearly three-quarters of which were attributed to fentanyl.
"It feels like we can't escape the negative: the suffering, the misery, the constant reminder that bad things are happening outside and no one seems to give a damn about it," wrote Kristen Villalobos, a Tenderloin resident of 13 years, in a recent letter to the Street Level Drug Dealing Task Force. ”The Tenderloin is a beautiful community, and we deserve safety. Please help us get back to where we were before.”
Tenderloin locals, along with a chorus of public health, law enforcement and policy experts, blame deteriorating conditions in the neighborhood on fentanyl. Up to 50 times more potent than heroin, fentanyl triggered a larger spike in overdoses per capita in San Francisco than in any other Western city between 2016 and 2019, according to the National Institutes of Health. The San Francisco Police Department says it confiscated 5.5 kilos of fentanyl in the Tenderloin in 2020, along with 2.8 kilos in the first three months of this year. As those cases proceed, however, there's little evidence that the drug's destructiveness makes a meaningful difference in court.
"This strikes me as a matter of public safety," said San Francisco Superior Court Judge Brian Ferrall at a March 1 hearing for a defendant accused of selling 170g of fentanyl, a quantity equivalent to about 85,000 doses.
Fentanyl is commonly sold either in the form of powder or pressed pills that can be marketed as something else, according to Wade Shannon, special agent in charge of the Drug Enforcement Administration’s San Francisco division. The drug is cheap, relatively easy to manufacture and transport, and costs around $100 wholesale for 2.5 grams, he said. Depending on one’s tolerance level, as little as 2mg of fentanyl can trigger a fatal overdose.
At the Superior Court hearing in March, attorneys for both the Public Defender and the District Attorney asserted that the defendant, purportedly an addict, was merely holding the fentanyl for others and therefore should not be subject to court supervision or detainment.
"There's lots we don't know about these cases...but what we do know is that a whole lot of fentanyl was found," Ferrall responded. He ultimately imposed a stay-away order and electronic ankle monitoring, a higher level of oversight than either attorney had requested. That defendant is due for second hearing on May 4.
The District Attorney’s office says it prosecutes around 80% of felony drug cases presented by SFPD, though prosecution can refer to a range of different outcomes. The office says it does not keep detailed records on sentencing or other dispositions.
Public Comment reviewed the court records of a dozen felony drug cases initiated last year for which the initial charge was violation of 11351HS, or possession for sale of a controlled substance. Of those cases, which took place between May and October 2020, six involved fentanyl, and seven also included a violation of 11352HS, or transportation for sale. Three were dismissed; four resulted in no-shows, with defendants declared fugitives; and five were pled down to a misdemeanor charge, resulting in four unsupervised probations ranging from one to two years and one supervised release.
All five defendants convicted of misdemeanors also received orders to stay away from certain blocks in the Tenderloin or South of Market, though records show that these court orders are frequently ignored.
Records from the Sheriff's Department show that last year, there were 587 individuals booked and 872 total bookings for felony drug sales, indicating that there were many individuals booked multiple times. In roughly 300 of those jail bookings, the person booked was also found in violation of a stay-away order, conditions of parole or probation, or were booked during an “own recognizance” release, meaning they were rearrested while other charges were pending. The individual had a warrant in 275 of the bookings, indicating that they may have failed to appear or to comply with some other court order.
Jail time appears to be a rare outcome in felony drug cases: In 2020, individuals booked for violation of 11351HS or 11352HS, absent other serious charges, were released the same day or the following day 84% of the time.
"We review all cases that are presented to us based on the strength of the evidence and our ability to prove the case beyond a reasonable doubt," said a spokesperson for the District Attorney's office, saying that the law does not distinguish fentanyl from other categories of opiates. "That said, we consider when making charging decisions that fentanyl is addictive and deadly in far smaller amounts and is often mixed in other substances that can be extraordinarily harmful as well."
Having requested $2.3 million in funding, the District Attorney plans to establish a Fentanyl Task Force that aims to prioritize higher-level cases while also "promoting housing, treatment on-demand and improved social conditions," as well as exploring other ”policy and legislative strategies” to the deadly crisis.
California lawmakers are expected to consider two bills this spring, AB 1351 and SB 75, that seek to reclassify fentanyl and authorize stricter penalties on illegal trafficking and sale. Under current law, the maximum penalty for possession for sale of a controlled substance is 4 years in jail and a $20,000 fine; in cases of transportation for sale, the maximum term is 9 years.
In the meantime, some prosecutors in jurisdictions outside of San Francisco are making the case that selling fentanyl—at least in some circumstances—is akin to an act of violence.
Last month, Riverside County District Attorney Mike Hestrin filed a second-degree murder charge against a man accused of selling fentanyl to someone who later suffered a fatal overdose. Hestrin likened fentanyl sales to drunk driving that results in death, suggesting that fentanyl sales may be viewed similarly under the law: Upon their first conviction, drunk drivers can be made to sign statements, called Watson Advisements, acknowledging the dangers of driving impaired and that further DUIs resulting in death could trigger second-degree murder charges. Such admonishments can be used to prove "implied malice," or proof that a defendant was aware of the serious dangers but committed the act anyway.
"That's where we're headed now with fentanyl," Hestrin said.
Christopher Lamiero, a former Alameda County prosecutor who now works as a defense attorney, said that proving murder liability in drug cases is difficult and “very, very fact-specific.” If prosecutors secure murder convictions in cases of fentanyl dealing, they would likely be appealed and tested in higher courts, he said.
"In the meantime, any prosecutor would be free to build into a plea agreement the equivalent of a Watson advisement," Lamiero said. "There's absolutely nothing at all that prevents that from being done now, but sometimes what it takes is someone in the DA's office to have an 'aha' moment: Why do we need to wait for Sacramento? We can do this now."
In San Francisco, the most aggressive drug enforcement in recent years has taken place at the federal level. In 2019, the Department of Justice launched the Federal Initiative for the Tenderloin to combat widespread drug trafficking, firearms offenses, robberies and other crimes in the neighborhood. The Department of Justice has charged at least 244 defendants for a range of crimes as part of the initiative, and secured convictions in several high-level drug trafficking cases.
David Anderson, former U.S. Attorney who led the Tenderloin initiative between August 2019 and March 2021, said that the local drug market has grown increasingly dominated by non-residents who travel into San Francisco to sell drugs to addicted users. A lax environment for prosecution lowers the cost of doing business for drug organizations, making San Francisco a regional destination for unusually cheap drugs. According to Anderson, the broad manner in which San Francisco’s sanctuary city ordinance is applied also plays a role in how drug organizations, which are staffed predominantly by Honduran nationals, operate locally.
"I don't think we intended to create a drug or gun sanctuary, but if you prosecute people who are here without immigration status differently and more leniently for the same behavior, then you give them a competitive advantage, and the size of their operation will be advanced by that competitive advantage,” Anderson said. "The relative lack of prosecution pressure has some nuanced features, which have also influenced who it is that's trafficking the drugs."
The Street Level Drug Dealing Task Force, a group of Tenderloin community leaders, health experts, and other stakeholders convened by the Board of Supervisors last year, plans to issue a set of policy ideas later this spring aimed at controlling the harms of street-level drug dealing. Over a year of meetings, members of the group have proposed everything from street outreach towards dealers to establishing "amnesty" zones where drug sales are permitted. The group plans to compile a set of recommendations by June.
Members of the group agree that, above all, the crisis calls for dramatically expanded treatment options, such as 24/7 drop-in treatment centers, that could save lives and stem demand for deadly opiates. A state bill, SB 57, seeks to approve pilots of safe injection sites that may help bring users off the street and into controlled environments. But establishing any such facilities would likely take years, and there appears to be no consensus—at least on the Task Force, which also includes representatives from the Public Defender and District Attorney—on what role law enforcement should play in controlling street-level dealing.
In interviews, District Attorney Chesa Boudin has said that he believes prosecution of street-level dealing is not productive, nor an effective deterrent for dealers who are trafficked and employed by cartels.
“The [dealers] who come in to sell are exploited—there may be some truth to that—but the fact is now they’re exploiting others,” said Tom Wolf, a recovery advocate and former heroin addict who serves on the Street Level Dealing Task Force. “The impunity comes from the prosecutorial process.”
There is little time to waste, in the eyes of Tenderloin locals who say the drug trade has laid siege on their lives and inflicted trauma on their community, including violence, death and grinding squalor tied to drugs. The dense, diverse neighborhood is home to roughly 2,300 children, the highest concentration of children in the city, along with many immigrants, seniors and people with disabilities.
Fatal overdoses continue to climb: The Medical Examiner reported 203 overdose deaths in January through March 2021, a 54% increase over the same period last year, with 141 of those deaths attributed to fentanyl.
"I hate the idea of giving up and letting the dealers win,” added Villalobos. “I am continually inspired by the people I see fighting to make the neighborhood better, and then I'm furious when I think about how hard we have to fight for what almost every other neighborhood in this city gets to enjoy: cleanliness, peace, the presence of law and order."