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.
“We’re not talking about folks that are dealing in kilos, we’re talking about folks that are dealing in grams,” said Marshall Khine, the office’s chief assistant district attorney. “Many times, because they are low-level offenders on non-violent offenses, we also take into consideration some of the stressors, particularly because some of the individuals that we see are trafficked themselves.”
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.
“When police bring us cases where people are selling (drugs), we file charges in about 80% of cases,” Boudin told The Standard this month. “It’s critical that we hold people who sell drugs accountable.”
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.
Boudin’s office did not dispute the data but defended his record: “Since DA Boudin took office, 322 felony narcotics cases, which included a total of 1401 narcotics charges, have resulted in a criminal conviction,” spokesperson Rachel Marshall said. She noted that the 56 cases cited above represent only one of many different kinds of felony drug charges but that they “nonetheless affirm that our office is holding accountable and securing convictions against those who commit drug sales 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.
“My best friend died of a heroin overdose here in San Francisco, because I couldn’t help him. There have to be limits,” he said. “If you’re undocumented and selling fentanyl, guess what, you have to face the consequences. You have to do your time here in the States and you’re probably going to be deported.”
Colorado said he is in a unique position to empathize. He says he was an undocumented immigrant from Mexico who was incarcerated for a year in South Dakota on drug possession charges and then went on to experience homelessness in the Tenderloin.
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.
“Even I’m flabbergasted when I look at the court calendar these days and I see somebody with five open drug sales cases and they’re out of custody,” said Randy Knox, a Boudin supporter who has been a San Francisco criminal defense attorney for more than 30 years. “I don’t know how much of that is because we don’t want to keep people in jail because of Covid.”
Marshall said most cases are resolved through plea deals and the pandemic required an increase in this practice due to a court case backlog.
Since taking office, Boudin has repeatedly cited Honduran nationals as a key group contributing to the organized drug trafficking taking place in the Tenderloin. In many cases, these individuals are allegedly being forced into the drug trade against their will.
“A significant percentage of people selling drugs in San Francisco, perhaps as many as half, are here from Honduras,” Boudin said in a video posted to Twitter late last year. “And many of them have been trafficked from Honduras.”
In August 2019, the U.S. Attorney’s Office in San Francisco announced charges against 13 people—almost all of whom were from Honduras—as part of a drug trafficking ring that involved carpooling from homes in the East Bay to make drop-offs in downtown San Francisco and other cities in the region.
Both federal and San Francisco prosecutors are required to take an offender’s immigration status into account. However, federal cases usually involve large-scale drug rings, and often result in much longer sentences for similar crimes than cases prosecuted locally.
Francisco Ugarte, a manager for the Immigration Defense Unit in the San Francisco Public Defender’s Office, said he had worked with individuals from many different nationalities, Honduras included. “I don’t know what the stats are in terms of nationality of people accused of selling drugs, but I can tell you that I have represented young kids from Honduras, and … many of the kids are victims of trafficking.”
However, Ugarte said, singling out Honduran nationals misses the larger point that the war on drugs is a revolving door that will never be solved without decriminalizing drugs and channeling people into housing, jobs and social services.
“(Feds) will say, ‘We’ve confiscated this many drugs, arrested this many people, and it’s a great day.’ And what happens within a few days? There’s a new cell, a new operation and the cycle continues and nothing changes,” Ugarte said.
Criminal defense attorneys in the city also told The Standard that they are extremely supportive of Boudin’s approach to giving pleas that protect from deportation.
Neil Hallinan, a criminal defense attorney and nephew of the fabled, left-wing former District Attorney Terence Hallinan, noted that San Francisco’s top prosecutors often have a different view on how to charge cases compared to more conservative parts of the state.
“Different DAs have different priorities,” he said.”In San Francisco, obviously, go figure, the prosecutors in San Francisco generally are not going to be as hostile to immigration consequences as Tulare County.”
But for people like Colorado and others in the Tenderloin, where drug sales and overdose deaths outnumber any other part of the city, San Francisco’s criminal justice system has moved too far to the side of protecting drug dealers.
“There are people that work for the cartels whose families will be killed if they fail, but those are upper-echelon people,” Colorado said. “I’m speaking from my own life experience. This does not apply to the street-level drug dealers—that’s ridiculous. These people are literally nobody to the cartels. Something that’s technically true has been taken and exaggerated to defend a point.”
Patrick Freeman contributed data reporting and analysis to this article.