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DA Boudin and Fentanyl: Court Data Shows Just 3 Drug Dealing Convictions in 2021 as Immigration Concerns Shaped Policy
Monday, July 04, 2022

DA Boudin and Fentanyl: Court Data Shows Just 3 Drug Dealing Convictions in 2021 as Immigration Concerns Shaped Policy

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.

San Francisco District Attorney Chesa Boudin at a press conference on November 23, 2021 in San Francisco. | Camille Cohen

“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.” 

Rene Colorado, left, the head of the Tenderloin Merchants Association, and his colleague Malik Ali are seen chatting with someone in front of the Phoenix Hotel on the corner of Larkin and Eddy in San Francisco on Monday, May 16, 2022. | Nick Otto

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.”

See Also
San Francisco District Attorney Chesa Boudin at a press conference on November 23, 2021 in San Francisco. | Camille Cohen

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.”

Rene Colorado the head of the Tenderloin Merchants Association poses for a photograph on Willow Street in San Francisco on Monday, May 16, 2022. | Nick Otto

Patrick Freeman contributed data reporting and analysis to this article.

Anna Tong can be reached at [email protected].
Josh Koehn can be reached at [email protected].
  • The rights of undocumented immigrants trumps the lives of Americans that are getting murdered, robbed and raped. This is madness from Democrats. When did they become the guardians of foreign criminals? Clearly someone is getting cartel money here. Who is it ?

  • Cluelessly placing the blame for drug-related crimes ignores the same epidemics taking place in republican cities with hard line DAs. The drug dealing/consuming/prison-industry machine is impossible to halt as long as our failed “war on drugs” policies are in place. Didn’t we learn from history that prohibition never works? Go ahead, blame Undocumented immigrants because everyone knows that if they didn’t deal, the problem would just evaporate, right?
    It also ignores the hundreds of thousands of covid deaths that lie on the shoulders of the republican regime. Talk about madness.

  • “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.

    There you go fellow San Franciscans — more gaslighting from the Office of the District Attorney; simply despicable.

    Given that it only requires 1 milligram (i.e.,1000 micrograms) of fentanyl to kill even the most heavy heroin user, “folks that are dealing in grams” — are dealing in a poison that can kill 1000 people per single gram.

    YES ON H — RECALL BOUDIN …. and, thereby, fire his despicable chief assistant Marshall Khine as well.

  • I work in criminal defense mitigation. The trafficking stuff is something everyone making a buck on the side is “told to say” when they’re caught. And everyone in the PD office knows this.The issue is that locking people up ALONE doesn’t work. We need to go after users, not sellers. And we need to mandate them not to jails but to multi year treatment. If you dry up the market, the merchants disappear.

  • Laughably dishonest article. After hyping up how Boudin “hasn’t obtained a single conviction for fentanyl sales,” the third paragraph begins with the sentence, “Boudin’s office is still obtaining convictions in fentanyl drug sales cases…” The authors are abusing semantics to insinuate that Boudin is letting drug dealers run free, when the opposite is true; they are simply being prosecuted under crimes of different names, with equal punishments. There is no comparative data with “tough on crime” DAs. This is purposefully misleading and sensationalist nonsense.

  • I appreciate journalists but I think these writers can do better. The premise seems to be that if more low-level drug dealers were locked up (like they were under Gascon!), drug overdoses would be prevented. Where is the evidence for that in the entire history of the War on Drugs started in the Nixon administration and continuing to this very day? It has been clear that prohibition always, always, always results in more harm and more crime. Did alcohol related harms go down after the US banned it? For a recent example of what success might look like, check out Portugal:

    https://substanceabusepolicy.biomedcentral.com/articles/10.1186/s13011-021-00394-7#:~:text=Portugal%20decriminalized%20the%20public%20and,rather%20than%20public%2Dorder%20priorities.

    I challenge the writers here to do two things: 1. show us some evidence of the lock-em-up approach working somewhere similar to SF to reduce drug overdoses 2. find out and inform us of who is likely to replace Boudin if the recall is successful and let us know their specific proposals for reducing the harms from substance use.

    I think the Standard could better serve their readers and the voters of San Francisco by giving us more actionable information and less inflammatory venting of old and tired tropes.

    Do better, please.

  • The issue is the trafficking argument is impossible to prove. When I asked directly in the drug dealing task force meets (where I served for 1.5 years) for a percentage, any number, guess, or estimate neither the DA or the Public defender would give a number to back up the argument.

    It’s a false flag that’s being abused that allows drug dealing to prosper and the DA hides behind a cloud. There is no evidence that the dealers in SF are forced to sell against their will. While this might be the case in a few extreme instances, no one believes it’s the majority.

    I’ve interacted with the dealers and have talked to users and ppl in the community who know what’s up and this argument just isn’t true.

    And it takes away from those who truly should be protected by sanctuary city laws. Those who are working in labor force and earning a living without selling drugs that are killing an avg of 50 ppl a month in SF (49 in April 2022).

    Allowing the open air drug markets to flourish and destroy a community is shameful and unacceptable. Hiding behind a cloud of “but maybe some have been trafficked” is an excuse to avoid a difficult task of protecting the Tenderloin and SF from organized drug cartel that is preying on the most vulnerable.

  • Max,

    And your proposed solution is…….WHAT?

    And that solution worked……WHERE?

    And you expect the Mayor to appoint……WHO to implement that solution?

  • Sorry, but if you are given sanctuary here from the dangers of your home country and you respond by dealing drugs, you should be shown the door.

  • Those of you bringing up Nixon or Reagan or Republicans drug on war to justify the violence in our streets need to wake the F up. Americans in SF are being killed. This is wrong and has to stop. I believe in reforming the justice system but Chesa’s policies do not work. I don’t know of a better way but this way isn’t the way because innocent people are dying.
    Plain and simple !

    Yes on H
    No on C

  • The fentanyl epidemic is happening nationwide, Standard. Even if this article showed any correlation between immigration and fentanyl deaths-data not conjecture- I really doubt that voting in different politician or deporting some drug mules is gonna change a problem this complex. It’s clear you’re just trying to make people scared.

  • ‘ “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. ‘

    Given that just 1 gram of fentanyl is capable of killing 1000 people, I’d say that those “folks that are dealing in grams” are a real/murderous problem.

    The cavalier dismissiveness and gas lighting emanating from the Office of the District Attorney is infuriating and unacceptable — and the rot definitely starts at the top.

    YES on H — Recall Boudin.

  • Fentanyl is deadly. Of course it should be a felony to deal it and cause for immediate deportation. They should be deported anyway, but that’s another discussion. Although drug use should be decriminalized, if drug addicts can’t stop on their own, they need to forced into free treatment for their own safety. No one should be allowed to die on the street. 500+ preventable overdose deaths a year in San Francisco. Absolute insanity.

    The above policies are not “Republican talking points”. These are the policies of any civilized nation, including two of my favorites, Portugal and the Netherlands.

    – A frustrated liberal

  • You’re already here illegally and shouldn’t be here in the first place, but if you have been given that free gift you have the obligation to be a model citizen to prove that it does cost society anything to allow people to come here illegally. My view is that if you sneaked into a country illegally and the people in that country tolerate it, you will lose respect for that country and take advantage of it. If you go through legal channels to immigrate and put in the time and effort you will have respect for the country you are trying to become a citizen of and realize the gift that has been given to you. Using that free illegal immigration to turn around and become a drug dealer shows you have nothing but contempt for this country and its citizens. Not only should there not be a special clause that helps you stay in the country, but there should be automatic deportation.

  • Chesa Boudin is a crime lover. Everyday 2 people in SF die from drug overdose. We can not wait one more day!
    People death from overdose 300 miles away because of Chesa as well.
    Yes on H
    No on C

  • Don’t know why so many progressive people want to save Chesa Boudin. Actually Chesa Boudin is hurting progressive movement. Because Chesa Boudin did the criminal justice reform in WRONG way, and made crime rate surge to the level no one can tolerant!

  • Recallers,

    Anything to say except “look at all the crime” and to express your personal dislike of the current DA?

    What is the positive vision for the changes you seek? What specifically will the new DA (and who will that be, by the way?) do that will make crime instantly go down? I think crime might be a little more complex and involve more than just the DA. Do the police have anything to do with it? Judges, the courts, etc.?

    I hear a lot of venting of frustration and anger which I sympathize and empathize with but no specific solutions to compare to the choice we, the voters, made 2 years ago. In that election, we got to see and understand the various candidates. In this election, we are supposed to say “Chesa sucks so let’s have the mayor make our decision for us. That will work for sure”.

    We all know you don’t like Chesa and you think crime is out of control in SF because he’s been our DA for 2 years. Let’s hear what the new magical DA will do specifically and the evidence that those things will reduce crime. I want crime to go down as much as you do and am ready to use my vote to make it happen. Show me the way and you will have another vote on your side.

  • Recall Chesa and bring in the National guards to patrol our streets. The violence is beyond anyones imagination. People are dying on the streets. If Chesa is not recalled, exercise your 2nd amendment rights especially if you are Asians. Your lives are worthless when compared to illegal immigrant drug dealers.

  • I’ve already voted to recall Boudin. He is one of the most significant officials failing our city that we need to be proud about again. He’s a criminal for SF being in such a dire& scary place to live and I have lived here since 1982; own property here and I’m seriously thinking about leaving because of government officials like Chesa Boudin!!!!

  • Good for you. We need to fight back – if only to defend our jobs, families, and property values. I’m sick of these out of town commies coming here and ruining the city with their stupid “progressive values”. Go experiment on someone else’s city!

  • Hard to believe anyone would defend this. If you died after using poisoned fentanyl, if you were mugged, if you were executed on the street, very little effort would be made to bring the perpetrator to justice. If he was caught and arrested, the DA would insist no charges be filed, especially if the person who harmed or killed you already had a record or is in the country illegally. As far as the DA is concerned, the criminal has a right to poison and murder you. Supporting Chess Boudin is a statement that the lives of ordinary people don’t matter

  • Well, why not get to the source of whee does harmful drugs are produced, and shut down the one’s in charge.
    Whay I mean is until the cartels and other big fish can be controlled. Arresting low level dealers is the same as putting a band aide on a gushing wound.

  • A couple of miligrams of fentanyl mixed with other narcotics in a baggie are enough to kill the drug addict who buys them. A few pounds of fentanyl is enough to kill the entire population of San Francisco. This is not some minor victimless crime. The drug dealers intentionally selling this highly toxic poison are as guilty of homicide as they would be if they shot the buyer dead in a drug deal gone bad. And these killers are to be excused and allowed to to continue selling their poison because they’ve also broken our immigration laws? This is madness.

  • Oh, by de-criminalising drugs you mean make drugs legal. The same drugs that kill so you’re wanting to de-criminalize murder. Oh, you’re advocating to make murder legal. Another Democratic concept!

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