As fentanyl overdoses escalate in California, local prosecutors are turning to a new legal strategy to halt the rising death toll: charging drug dealers with murder.
In July, Placer County reached a landmark plea deal that sent a man to prison 15 years to life in prison on manslaughter charges after giving a Roseville teen a fentanyl-tainted pill that proved fatal.
A month later, a Riverside County jury returned the first verdict of its kind against another man who provided a fatal dose of a fentanyl pill to a 26-year-old woman. He was also found guilty of second-degree murder and sentenced to at least 15 years in prison.
Subdistrict judges in Sacramento, Fresno, San Joaquin, San Bernardino And San Diego counties are using similar blueprints: They're going after alleged fentanyl dealers for murder rather than drug sales, hoping the threat of harsher criminal penalties will ease an opioid crisis that has cost more than lives 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 ultra-liberal politics – are preparing to follow suit.
Mayor London Breed, police officers and Dist. Atty. Brooke Jenkins is in the final stages of forming one law enforcement task force tasked with investigating opioid deaths and illegal drug trafficking in the city as possible homicide cases. The effort will start this spring.
In an October statement announcing the initiative, Breed said people selling the synthetic opioid “are aware that promoting this drug may lead to murder charges.” Jenkins said this effort would make it easier to hold dealers “accountable for the actual dangerousness of their behavior.”
It's a notable shift in rhetoric and strategy for a city regularly labeled by right-wing pundits as a haven for drug dealers and users. The new approach marks a decisive bow to mounting pressure from residents and business leaders to rein in the city against an illegal drug culture that has fueled the homeless and transformed some city neighborhoods into squalid open-air drug markets where people use drugs — and die — on the streets.
The move toward tougher penalties for dealers comes after other high-profile public initiatives have failed to stem the tide in drug deaths in San Francisco. In late 2021, Breed declared a state of emergency in the Tenderloin area, theoretically making it easier to expand and connect users to treatment and detox services.
In May of last year, Democratic Gov. Gavin Newsom sent the California National Guard and California Highway Patrol to San Francisco to assist investigation and prosecution of drug trafficking networks supplying the Tenderloin and South of Market neighborhoods. By the end of January, the operation had resulted in 460 arrests and the seizure of 18,000 grams of fentanyl and 5,000 grams of methamphetamine, according to the governor's office.
Breed is also sponsoring a controversial ballot measure in March require drug research for certain people who receive benefits, which she believes will result in more people receiving treatment.
Despite the attention, the number of accidental overdose deaths has risen in the past year to a record high of 806 in 2023. Most of these cases — at least 653 — involved fentanyl, according to preliminary data from San Francisco's chief medical examiner's office.
“The reason why I have given clear direction to address this issue much more aggressively has a lot to do with the loss of life, and also the violence around the drug market,” said Breed, who shared her. story about the loss of a sister from a drug overdose almost twenty years ago.
“Because of the number of overdoses, and because it is directly related to the drugs, there must be a connection to the people who are selling this poison, which is actually killing people,” she said.
That doesn't mean every overdose case will be prosecuted as a homicide. Instead, investigators will take a “very targeted approach,” Jenkins said. Investigators will work closely with the medical examiner's office and police to quickly respond to reported deaths and gather evidence that could link the overdose to a specific drug sale.
Provinces leading the charge against the new approach are finding it difficult to prosecute such cases. Prosecutors must convince a jury that the person who supplied the drug is responsible for the overdose and knew the sale could lead to death. District attorneys are being cautious and have filed only a handful of cases so far — even as some of these counties record hundreds of overdose deaths each year.
Riverside County is among the most aggressive in using this tactic, with 34 cases against alleged dealers. Still, that's just a fraction of the 572 opioid overdose deaths the county recorded in 2022, according to data from the California Department of Public Health. Dist. Atty. Michael Hestrin said his firm focuses on cases in which attorneys believe they can show that a dealer is clearly aware of the deadly risks associated with fentanyl and has chosen to “ignore 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 cases where it is warranted,” said Placer County Dist. Atty. Morgan Gire. “But if it is justified, we will do it.”
The tactic has not gained much traction in Los Angeles County, where Dist. Atty. George Gascón has focused his resources on addiction prevention efforts and targeting high-profile manufacturers and traffickers for prosecution. But some candidates who ran against him in the March primaries appear to support the approach.
Such cases depend on time-consuming investigations, according to prosecutors who employ this strategy. Investigators are digging through cell phone records, text messages, social media accounts and other communications looking for 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 get the fentanyl? Have there been people who have died from an overdose? Did they experiment with the drug or overdose themselves?
“To prove that someone knows something, we have to prove what he thinks. We have to get inside their heads,” Gire said. “And the best way for us to do that is through the things they say and the things they do.”
That model may be difficult to replicate in San Francisco.
Many of the prosecutors interviewed said they began filing murder charges after noticing a rise in the number of apparently healthy young people dying of overdoses in their communities, usually after purchasing a drug online. Often the cases involve teenagers experimenting with pills — who may not know the drug they bought was laced with fentanyl — rather than hardcore addicts.
In contrast, San Francisco's crisis is most visible and entrenched among its homeless population, which includes long-term addicts who obtain drugs from multiple sources.
“Many of the deaths, especially on the street, do not lend themselves to identifying who the seller was,” Jenkins said.
Jenkins' team is looking for training in San Diego County, which shares some of San Francisco's problems homeless drug deaths. The county has charged eight defendants with murder in fentanyl-related deaths since 2017, said San Diego County Dist. Atty. Summer Stephen.
Opponents of the San Francisco task force are quick to point out the lack of empirical data showing that prosecuting street dealers for murder and sending them to prison for extended periods of time proves to be an effective deterrent. Several prosecutors interviewed by The Times said they could point to only anecdotal evidence that the strategy intimidates potential dealers.
Keith Humphreys, a Stanford psychiatry professor who researches addiction, was skeptical that pending murder charges against low-level dealers would disrupt the drug supply chain.
“They are very low-skilled workers. You can spend half a million, a million dollars each to put them in a state prison system, but they will be replaced almost immediately,” Humphreys said. “It's not out of sympathy that I say we can't arrest people on the corner all the time. … It's just pointless.”
Instead, Humphreys is calling for broader 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 progress unless leaders address 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 simply doesn't work. If it would have worked, it would have worked for the last hundred years,” said San Francisco Supervisor Hillary Ronen, whose district includes the Mission, another neighborhood struggling with overt drug use.
And some cynically speculated that the task force is a calculated attempt to build goodwill among voters during an election year when both Breed and Jenkins are up for re-election. Breed is confronted with a special situation tough re-election bid against at least three other contenders.
Breed has stood up to the criticism. She agrees that encouraging more people to seek treatment is a laudable goal. But, she said, city leaders must also be “willing to make the tough decisions to effect change” and hold people accountable.
“Selling poison should not be protected,” Breed said. “I am frustrated by the criticism because they take too hard a position and say that people have no other path or no other option. I tend to disagree.”
Jenkins also emphasizes that the initiative is not about politics or criminalizing drug users in the grip of addiction.
“I think this is a basic argument that they can easily make,” she said. “They are not responsible for saving the lives of the people dying on the streets. I am.”
