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Why doesn’t San Francisco prosecute open drug use like other cities?

Officers on the street
San Francisco Police Department officers attend to a matter along Seventh Street in San Francisco on Dec. 14, 2022. | Jason Henry for The Standard

San Francisco has arrested 58 people for public intoxication and drug possession since May 30, part of a crackdown on drugs in the city’s troubled Tenderloin and South of Market neighborhoods, Sheriff Paul Miyamoto announced last week.

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That news, which would be unsurprising in many other cities, was noteworthy in San Francisco: Despite its significant addiction problems, the city largely does not prosecute public drug use. Many residents wonder why.

The answer to that question is not straightforward. Rather, it comes down to a mixture of California laws, political preferences and police priorities. That combination gives us the city’s current minimal intervention approach. 

The center of the counterculture movement in the 1960s, San Francisco has long been known for its permissive social mores. But state law also restricts the prosecution of drug use.

In 2000, Californians passed Proposition 36, which allowed people convicted on nonviolent drug possession charges to receive a probationary sentence in return for completing a drug treatment program. In 2014, the state passed Prop. 47, which re-classified the personal usage of most drugs as a misdemeanor.

A man using drugs on the street
Anthony Torriente smokes a pipe in the Tenderloin District of San Francisco on Monday, July 4, 2022. Homelessness and public drug use continue to be major public health issues in the neighborhood. | Source: Benjamin Fanjoy for The Standard

Both these changes made simple possession less serious of a crime. But it remains a misdemeanor punishable with up to a year behind bars, so clearly, the law isn’t the only obstacle.

The Standard asked two experts from the criminal justice system for their views on how San Francisco’s approach to drug use evolved. Both believe it is the result of a growing sentiment that the criminal justice system alone cannot solve problems like addiction and the government should take a public health approach that focuses on mitigating the harmful consequences of drug use, including the transmission of infectious disease and prevention of overdose, by providing care that is intended to be free of stigma. That approach, called “harm reduction,” is sharply debated today in San Francisco and elsewhere.

Where the two experts differ is in their assessments of whether harm reduction has worked.

James Dudley, SFPD Veteran

James Dudley is a 32-year veteran of the San Francisco Police Department who now teaches at San Francisco State University. He says the city’s shift to harm reduction took place over two decades.

While the intentions behind it were good, Dudley feels the strategy has failed.

When he was a young officer, police would regularly seize instruments for consuming drugs as evidence. Otherwise, a public defender would be able to argue there was not enough evidence to back the allegations.

At some point, Dudley says, the police, public defender, district attorney and courts decided that they no longer needed this evidence and would be satisfied with what the police officer said. 

That allowed needle exchanges to come out of the shadows. During the peak of the HIV/AIDS epidemic, these policies helped. But, today, he believes they have gotten out of hand.

“Now, fast-forward 20 years, and we’re not prosecuting for drug use,” he said.

He argues that prosecuting drug offenses—both usage and low-level dealing—is difficult. It requires a large number of officers and labor. And it often does not result in significant charges.

In fact, in 2016, the San Francisco Superior Court eliminated around 66,000 warrants for quality-of-life violations—a category that includes public intoxication—on the basis that the defendants were poor and would be unable to pay fines.

“What is the message to the line officer in the street?” Dudley said. “These citations are going nowhere. Any arrests are going nowhere.”

Pigeons and people on the street
Police hold a briefing before a Board of Supervisors meeting at United Nations Plaza in San Francisco on May 23, 2023. The meeting, which was called off early, was intended to focus on the fentanyl epidemic. | Benjamin Fanjoy for The Standard

Additionally, members of the Board of Supervisors, the police commission and even district attorneys have deemphasized drug enforcement. Politicians have also changed their positions as public attitudes have shifted.

“It’s hard to blame police offers on the street who are sometimes confused by different directives,” Dudley said.

According to Dudley, the city needs clear messaging that it will target drug use, it needs police to implement that policy, and it needs the court system to follow through when people are repeatedly picked up for drug offenses.

“Without that, we’re just chasing our tails,” he said.

Cristine Soto DeBerry, Chief of Staff to DAs

Cristine Soto DeBerry, executive director of the progressive Prosecutors Alliance of California and former chief of staff to San Francisco DAs George Gascón and Chesa Boudin, believes that San Francisco changed its tactic because the old enforcement model failed.

She says San Francisco’s approach to drugs has evolved and fluctuated over time—as we’re seeing right now—but the trend has been away from prosecuting drug use. 

“I think, in our clearest moments in San Francisco, it’s because we understand that criminal consequences haven’t been effective in solving the health challenge of drug addiction,” Soto DeBerry said.

Because drug possession can still be punished by a year in prison, she believes that the law and the different propositions aren’t obstacles to prosecuting drug crimes. Instead, she said 50 years of experience have shown cities can’t prosecute their way out of an addiction problem.

That’s not to say the criminal justice system has no role.

“I think police can be helpful in getting people into treatment and into breaking up activity on the street when it's happening and gets too aggressive or too widespread. I think they have a role there,” Soto DeBerry said. “What I think is not as effective as suggesting that there should be prosecution that results in a prison sentence and, in some sense, that that will solve the problem.”

Much of the anger over drug use in San Francisco stems from the fact that many people experiencing addiction are homeless and members of the public see usage every day on the streets—often in deeply grim circumstances.

“The very simplest thing we could do—and not in terms of cost—would be to house people so that you don’t have to observe drug use,” Soto DeBerry said. “That would relieve a lot of that distress that people experience.”

A man using drugs on the street
Ken Reigenborn smokes drugs using tinfoil in the Tenderloin District in San Francisco. | Source: Benjamin Fanjoy for The Standard

To her, the problem in San Francisco is not too much harm reduction; it’s not enough. She believes the city needs to follow the approach of Portugal. In 2001, the country decriminalized drugs and implemented harm-reduction policies in response to a serious opioid epidemic.

“I would hope San Francisco would do is look to the successful example of Portugal and go full tilt on providing the services and support and housing and everything that people need in that situation to start making better decisions and improve their lives,” she said. “It has worked somewhere else, and there's no reason it couldn't work here.”

But with the San Francisco Sheriff’s Department unveiling plans to arrest dealers and force drug users to accept treatment, it appears the pendulum is swinging in the opposite direction.

“While it’s an unpopular stance to take—arresting and putting people in jail—it can be a critical gateway to help the needs and needs to be a part of the multipronged approach,” Miyamoto said.