Anna Tong and Josh Koehn, San Francisco Standard, May 17, 2022
Despite a surging fentanyl crisis that killed nearly 500 people last year in San Francisco, the office of District Attorney Chesa Boudin did not secure a single conviction for dealing the deadly opioid for cases filed during 2021, according to a review of court data.
Case information The Standard obtained from San Francisco Superior Court shows Boudin’s office secured just three total convictions for “possession with intent to sell” drugs in 2021: two for methamphetamine and one for a case including heroin and cocaine. By comparison, Boudin’s predecessor, George Gascón, oversaw over 90 drug-dealing convictions by the DA’s Office in 2018.
Boudin’s office is still obtaining convictions in fentanyl drug sales cases, but the actual convictions are not for the crime of drug dealing. About 80% of the cases in a type of charge category that included fentanyl dealing—44 in total—involved a defendant ultimately pleading guilty to a crime called “accessory after the fact,” meaning the accused was convicted of helping another person commit a crime. In a handful of cases, people arrested on multiple charges including fentanyl dealing end up being convicted of other serious felonies.
The explanation for the surprising absence of drug-dealing convictions is multi-faceted. The DA’s office has put an emphasis on diversion programs—partly out of a commitment to reducing incarceration for lower-level crimes and partly due to efforts to keep the jail population down during Covid.
Another big factor is the DA’s attention to offenders’ immigration status, which by law they are required to consider. Prosecutors and criminal defense attorneys point out that drug dealing convictions are grounds for deportation, and a substantial number of drug dealers in the city are Honduran nationals who could face deadly consequences if deported. The accessory charge still gives them and their families a path toward eventual citizenship.
But critics of Boudin’s policies argue that the practice has gone too far. They accuse Boudin of creating a revolving door where the drug dealers fueling San Francisco’s overdose epidemic are receiving slaps on the wrist while hundreds are dying on the streets. In 2020 and 2021, about 1,350 people died from overdoses in San Francisco, many of them from fentanyl.
Boudin’s approach to drug prosecutions is among the top issues going into the June 7 recall election. Critics say the district attorney has prioritized the well-being of drug dealers in the Tenderloin and SoMa districts over the concerns of residents and small businesses whose neighborhoods are under siege.
The city’s top prosecutor has repeatedly emphasized how seriously he takes the fentanyl crisis, but says he can only file charges in cases his office receives.
Conviction on the accessory charge that is used in most of those cases, known as Penal Code 32, carries probation and potential jail time but protects an undocumented offender from being deported. The court data does not show how much time people served.
The data show Boudin has aggressively expanded the deportation-conscious conviction process. When looking at a subset of narcotics cases that encompass dealing of fentanyl, heroin, cocaine and other narcotics, about 80% of Boudin’s convicted cases were convicted of “accessory after the fact,” compared to about a third under Gascón. The 56 cases that led to a conviction under Boudin represented about a quarter of Gascón’s convictions in 2018 for the same category of crimes.
The DA’s approach is not winning many fans in the most-affected neighborhoods. “I know the horrors of being undocumented and selling drugs, but we can’t let our people continue to die,” said Rene Colorado, executive director of the Tenderloin Merchants Association.
The deportation-safe convictions are not just going to first-time offenders. In one example of using the “accessory after the fact” conviction for fentanyl dealing, a defendant was arrested and charged five different times from July 2020 through December 2021 for dealing fentanyl, heroin, meth and crack cocaine. According to court documents, evidence included a backpack with cash and “numerous” colorful plastic baggies of drugs. All five cases were consolidated for a January 2022 sentencing where he received two “accessory after the fact” felonies and served several months in jail.
Another example in San Francisco involved a man with four separate drug dealing arrests last year between June and December. He was charged with selling fentanyl, crack, more than an ounce of meth and over 14 grams of heroin. His ultimate conviction was for two misdemeanors for “accessory after the fact,” and his sentence was two days in county jail, which he had already served.