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S.F. D.A. Brooke Jenkins says she’ll consider murder charges for fentanyl dealers

San Francisco Chronicle 9/28/2022 By Megan Cassidy and Rachel Swan
District Attorney Brooke Jenkins in San Francisco, Calif. Jenkins said she would consider murder charges for fentanyl dealers. © Brontë Wittpenn, Photographer / The Chronicle

District Attorney Brooke Jenkins in San Francisco, Calif. Jenkins said she would consider murder charges for fentanyl dealers.

San Francisco District Attorney Brooke Jenkins said Wednesday that she may seek to convict accused drug traffickers with murder if their product is linked to an overdose death — a seismic escalation of the city’s handling of criminal drug cases.

“Since 2020, nearly 1,700 people (in San Francisco) have died of drug overdose, mostly from fentanyl, in part because dealers have been allowed to operate with impunity for over two years,” Jenkins said in a statement, noting that her staff began warning suspected dealers at their court arraignments in August.

The move marks a dramatic shift for San Francisco, where defendants charged with dealing often receive little or no jail time and are placed in diversion programs. Second-degree murder defendants, by comparison, face up to 15 years to life in prison.

Jenkins, who has made fentanyl a centerpiece of her administration since Mayor London Breed appointed her in July to replace ousted District Attorney Chesa Boudin, said the extreme potency of the readily available opioid has forced her office to react.

By contemplating potential murder charges, which she discussed in a Wednesday email to the Chronicle, Jenkins follows on the heels of rural and suburban counties throughout California that have already revived tough-on-crime policies of the past, including harsh prison sentences.

Prosecutors in several of those counties are pursuing murder charges for drug overdoses, treating these cases as a new front in the battle against fentanyl, and an unequivocal message to would-be dealers. In her statement, Jenkins echoed those sentiments.

“The lethality of fentanyl presents new and unprecedented risks to our community, and we must do everything in our power to hold dealers accountable to help save lives,” Jenkins said. “We have to send a strong message in the community and in the courtroom that we will not stand by and allow dealers to kill innocent people and those suffering from addiction.”

Jenkins said in a Wednesday interview that there are no pending drug cases that could face murder charges, and it won’t always be easy or possible for police to trace a overdose back to a seller.

“My hope is that it will be investigated in more cases going forward,” she said.

To prove murder, prosecutors need to present convincing evidence of malice, or “implied malice,” meaning the defendant either deliberately killed a person or exhibited a conscious disregard for human life. The legal strategy resembles that used to prosecute a drunk driver who kills someone.

Gina McDonald, co-founder of the group Mothers Against Drug Addiction and Deaths, said she’s excited by this more aggressive approach.

“Do I believe these fentanyl dealers should be charged with murder? Absolutely,” McDonald said, adding that she supports Jenkins’ approach of warning alleged traffickers in court during an arraignment hearing, establishing a record that can be used to prove intent.

Mothers Against Drug Addiction and Deaths has become increasingly visible and influential in San Francisco’s wrenching debates about drug policy. The group, known for protesting amid open-air drug markets in the Tenderloin, comprises family members of people who are addicted to drugs, or recovering from addiction, as well as those who have died.

At least one San Francisco judge have so far has not allowed prosecutors to issue the warning of murder charges in court, which could have been used to help build a future case, said Anita Nabha, a felony unit manager at the Office of the San Francisco Public Defender. This does not prevent Jenkins from filing murder charges for an overdose death at some point in the future.

Nabha blasted Jenkins’ drug policies as a “continuation of the failed war on drugs,” and a misguided attempt to solve a public health crisis with jails and prisons.

“It’s not a solution,” Nabha said, arguing that the tough talk could also have unintended consequences. She painted a scenario in which someone gives a friend a drug that causes an overdose.

“What if your friend needed medical attention? Are you going to go to the hospital and risk being held criminally responsible?” Nabha said. “I think it may have a real chilling effect on people’s desire to help each other.”

Jenkins’ threat to accused traffickers comes as her office begins to test a slate of fentanyl-related policy changes in court.

Since announcing last month that her office would move to deny bail to alleged drug dealers in “extreme cases,” Jenkins’ o ffice has filed seven motions to detain accused dealers ahead of their trials. Two of those motions were temporarily granted, but all seven were ultimately denied by judges, according to a spokesperson for the District Attorney’s Office.

In a recent hearing, one San Francisco judge expressed confusion over the policy changes, saying it was “hard for me to understand how (prosecutors) are making decisions about detention motions.”

The judge, Christine Van Aken, also seemed to doubt that pre-trial custody would have much impact, and said she was bound by the Supreme Court to impose the least restrictive pre-trial terms that will be effective.

“It does protect people from the risk that the defendant will re-offend in the short-term,” Van Aken said at a Sept. 15 hearing.

But “it does very little to help them sort of build the kind of job skills that they need to be able to work in an industry other than the drug trade.”

Jenkins said her office would continue to seek the motions to detain in some cases, despite the judges’ initial rulings.

“This is new legal territory for our judges. ... Fentanyl is something that is relatively new on the market,” she said. “But I do absolutely believe that as judges educate themselves about its dangers and the harm being done, that we will gain traction as time goes on.”

Megan Cassidy and Rachel Swan are San Francisco Chronicle staff writers Email:, Twitter: @meganrcassidy, @rachelswan

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