Some D.A.s are fighting fentanyl with murder charges. Why San Francisco will join them

SAN FRANCISCO —  County by county in California, as fentanyl overdoses escalate, local prosecutors are turning to a novel legal strategy to stem the spiraling death toll: charging drug dealers with murder.

In July, Placer County reached a landmark plea deal that sent a man to prison for 15 years-to-life on charges of second-degree murder after he provided a Roseville teenager with a fentanyl-contaminated pill that proved lethal.

A month later, a Riverside County jury issued a first-of-its-kind verdict against another man who supplied a lethal dose of a fentanyl-laced pill to a 26-year-old woman. He also was found guilty of second-degree murder and sentenced to at least 15 years in prison.

District attorneys in Sacramento, Fresno, San Joaquin, San Bernardino and San Diego counties are using similar blueprints: going after alleged fentanyl dealers for homicide rather than drug sales, in hopes that the threat of harsher criminal penalties will ease an opioid crisis that killed more than 7,300 Californians in 2022.

Many of the counties adopting the aggressive legal strategy are in “purple” or “red” areas of California, where more conservative law enforcement leaders have long embraced a tough-on-crime philosophy. Now, San Francisco city leaders — famous for their ultraliberal politics — are preparing to follow suit.

Mayor London Breed, police officials and Dist. Atty. Brooke Jenkins are in the final stages of forming a law enforcement task force charged with investigating opioid deaths and illicit drug dealing in the city as potential homicide cases. The effort is set to launch this spring.

In an October statement announcing the initiative, Breed said people selling the synthetic opioid are “on notice that pushing this drug could lead to homicide charges.” Jenkins said the effort would make it easier to hold dealers “accountable for the true dangerousness of their conduct.”

It’s a remarkable shift in rhetoric and strategy for a city regularly lambasted by right-wing pundits as an anything-goes sanctuary for drug dealers and users. The new approach marks a decided bow to mounting pressure from residents and business leaders for the city to rein in an illicit drug culture that has fed the ranks of homelessness and transformed some downtown neighborhoods into squalid open-air drug markets where people are using — and dying — in the streets.

The move toward tougher penalties for dealers comes after other high-profile public initiatives have failed to turn the tide in San Francisco’s drug deaths. In late 2021, Breed declared a state of emergency in the Tenderloin area that in theory made it easier to expand and connect users with treatment and detox services.

In May of last year, Democratic Gov. Gavin Newsom deployed the California National Guard and California Highway Patrol to San Francisco to assist with investigations and prosecution of drug trafficking networks supplying the Tenderloin and South of Market neighborhoods. As of late January, the operation had resulted in 460 arrests and the confiscation of 18,000 grams of fentanyl and 5,000 grams of methamphetamine, according to the governor’s office.

Breed also is sponsoring a controversial March ballot measure to require drug screening for certain people receiving welfare benefits, which she says will push more people into treatment.

Despite the attention, accidental overdose deaths have increased over the last year, surging to a record high of 806 in 2023. Most of those cases — at least 653 — involved fentanyl, according to preliminary data from the San Francisco chief medical examiner’s office.

“The reason why I’ve given clear direction to be much more aggressive in tackling this problem has a lot to do with the loss of life, and also the violence surrounding the drug market,” said Breed, who has shared her story of losing a sister to a drug overdose nearly 20 years ago.

“Because of the number of overdoses, and because it’s directly linked to the drugs, there needs to be a link to the people who are selling this poison that is actually killing people,” she said.

That doesn’t mean every overdose case will be prosecuted as a murder. Instead, investigators will take a “very targeted approach,” Jenkins said. Investigators will work closely with the medical examiner’s office and police to respond quickly to reported deaths and collect evidence that could tie the overdose to a specific drug sale.

Counties leading the charge on the new approach have found such cases tricky to prosecute. Prosecutors have to convince a jury that the person who provided the drug bears responsibility for the overdose, and knew the sale could result in death. District attorneys are treading cautiously and so far have filed only a handful of cases — even as some of these counties record hundreds of overdose deaths each year.

Riverside County has been among the most aggressive in employing the tactic, having filed 34 cases against alleged dealers. Still, that’s a fraction of the 572 opioid overdose deaths the county recorded in 2022, according to California Department of Public Health data. Dist. Atty. Michael Hestrin said his office targets cases where attorneys believe they can show that a dealer is clearly aware of the deadly risks associated with fentanyl and chose to “disregard that danger” in pursuit of profit.

By comparison, Placer County has filed five fentanyl-related homicide cases; Sacramento and San Bernardino, four; San Diego, eight; and Fresno, one.

“This should be used sparingly, and only in those instances where it’s warranted,” said Placer County Dist. Atty. Morgan Gire. “But when it’s warranted, we will do it.”

The tactic has not gained much traction in Los Angeles County, where Dist. Atty. George Gascón has focused resources on addiction prevention efforts and targeting high-level manufacturers and traffickers for prosecution. But some of the candidates running against him in the March primary appear to support the approach.

Such cases hinge on time-consuming investigations, district attorneys employing the strategy said. Investigators dig through cellphone records, text messages, social media accounts and other communications in search of evidence that a dealer knew the product was dangerous.

Gire said his office reviews a defendant’s background, sales history and communications with customers. How did they obtain the fentanyl? Have they been around people who died from an overdose? Have they experimented with the drug or overdosed themselves?

“To prove someone knows something, we have to prove what they’re thinking. We have to get inside their head,” Gire said. “And the best way for us to do that is through things they say and things they do.”

That model could be hard to replicate in San Francisco.

Many of the county prosecutors interviewed said they started filing murder charges after noticing an uptick in the number of seemingly healthy young people dying of overdoses in their community, usually after purchasing a drug online. Often, the cases involve teens experimenting with pills — who might not know the drug they bought was laced with fentanyl — rather than hard-core addicts.

San Francisco’s crisis, in comparison, is most visible and visceral within the homeless population, whose ranks include longtime addicts who obtain drugs from multiple sources.

“Many of the deaths, particularly on the street, are not going to lend themselves to us being able to track down who the seller was,” Jenkins said.

Jenkins’ team is seeking training from San Diego County, which shares some of San Francisco’s struggles with homeless drug deaths. The county has charged eight defendants with homicide in fentanyl-related deaths since 2017, said San Diego County Dist. Atty. Summer Stephan.

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Opponents to San Francisco’s task force are quick to point out the lack of empirical data showing that prosecuting street dealers for homicide and sending them to prison for longer terms is proving an effective deterrent. Several of the prosecutors interviewed by The Times said they could point to only anecdotal evidence that the strategy is intimidating would-be dealers.

Keith Humphreys, a professor of psychiatry at Stanford who studies addiction, was skeptical that dangling murder charges over low-level dealers would cause a disruption in the drug supply chain.

“They’re very low-skilled labor. You can spend your half a million, million dollars per, to put them in a state prison system, but they’ll be replaced almost instantly,” Humphreys said. “It’s not out of sympathy that I say we can’t just continually arrest people on the corner. ... It’s just futile.”

Instead, Humphreys advocates for more widespread availability of the overdose-reversing nasal spray known as Narcan and for insurance companies to cover substantive mental health and addiction treatment.

Several critics of the new effort say the city won’t make real headway until its leaders deal with the root causes of addiction, including a shortage of affordable housing and effective treatment options and a faltering social safety net.

“A purely punitive approach, it just doesn’t work. If it would have worked, it would have worked over the past 100 years,” said San Francisco Supervisor Hillary Ronen, whose district includes the Mission, another neighborhood struggling with open drug use.

And some speculated, cynically, that the task force is a calculated attempt to build goodwill among voters during an election year in which both Breed and Jenkins are up for reelection. Breed faces a particularly tough reelection bid against at least three other contenders.

Breed has held firm against the criticism. She agrees that encouraging more people to seek treatment is a laudable goal. But, she said, city leaders also have to be “willing to make the hard decisions to make change” and hold people accountable.

“Selling poison should not be protected,” Breed said. “I am frustrated with the criticism for taking too hard of a stance and saying that people have no other way, or no other option. I don’t agree with that.”

Jenkins also insists the initiative isn’t about politics or criminalizing drug users in the throes of addiction.

“I think that is an elementary argument that’s easy for them to make,” she said. “They aren’t responsible for saving the lives of the people that are dying on their streets. I am.”