Prosecutors are threatening to pursue murder charges against fentanyl dealers as part of a new approach to San Francisco’s drug epidemic under District Attorney Brooke Jenkins.
Jenkins’ policy is already playing out in court as part of a broader effort by her office to hold serious drug dealers accountable, including by jailing them without bail.
But San Francisco judges are shooting down the efforts.
Prosecutors have been making such warnings since Aug. 4, but no one has yet been charged with murder in such a case. It was only today that the office publicly announced the strategy.
“I am committed to seeking relief for communities ravaged by open-air drug markets and holding repeat offenders accountable,” Jenkins said in a prepared statement Wednesday. “Where our individualized review reveals an extreme public safety threat to San Franciscans, I have authorized my office to use every legal means to seek detention. We are hopeful our partners at the courts will respond favorably to our arguments as they acknowledge the level of death and misery on our streets is unacceptable.”
As of this week, judges have denied seven requests by the district attorney to jail dealers without bail and ruled in several instances that prosecutors cannot threaten to pursue murder charges against defendants who sold drugs that caused a fatal overdose.
In San Francisco Superior Court Wednesday, Judge Christine Van Aiken did just that in two such cases, saying that while fentanyl is a major public safety issue in San Francisco, it does not justify putting suspected dealers behind bars without bail since there are other remedies such as stay-away orders, GPS monitoring and search conditions.
“Letting people know of the dangers of this conduct and that they stop engaging in it is very important but creating evidence for a future prosecution is not at all germane,” the judge said before ordering GPS monitoring and a stay-away order instead of jail without bail.
Deputy Public Defender Elizabeth Hilton, who represents Nicole Palma—one of the seven alleged dealers implicated under the policy—painted the prosecution’s warnings of a murder charge as out of line in court Wednesday.
“They are giving her admonitions so that they can use it against her in the future if anything should happen,” Hilton said, adding that while fentanyl deaths are bad, setting people up for potential future murder charges linked to overdoses is a bridge too far.
The position of the DA’s office was made clear in court on Wednesday when prosecutor Nicholas Hunt laid out why his office sought to warn such defendants of the potential legal outcomes of their crimes.
Hunt said that more people have died of drug overdose since 2020 than Covid-19 in San Francisco, which saw more than 1,300 fatal drug deaths in 2020 and 2021 combined. He added that dealers need to be notified of the danger of their illegal products. Releasing such alleged dealers back into the public could be called a dangerous threat to public safety.
Although the office announced the new policy to the media Wednesday, attorneys have already been filing such motions in court.
The prosecutorial strategy comes after a review of such cases was announced soon after Jenkins took office. Since then she has pointed out that her new policies are aimed at dealers, not users, whom she wants to continue sending to diversion courts.
Soon after Mayor London Breed appointed Jenkins as the city’s new DA, she restored cash bail, allowing prosecutors to request bond in certain less serious cases.
But detention motions, in which prosecutors request jail time without bail, continue to be a tool they use for defendants charged with more serious crimes, especially if less punitive measures seem to have failed.
When requesting a detention motion, prosecutors must convince a judge that the risk to public safety outweighs other factors. As for charging drug dealers with murder, that appears to be unprecedented in San Francisco, though prosecutors have tried that approach elsewhere in California and in other states.
In the case heard Wednesday against Palma, her attorney pointed out that her client had been participating in diversion through the Community Justice Court since her first drug case in December 2021. Since then, Palma has been arrested two times.
One arrest was in July for selling drugs—although another person was holding them, Hilton said. She was again arrested on a warrant earlier this month and police found fentanyl in her purse.
Hilton pointed out that although Palma has been arrested repeatedly, she has not missed a check-in at her Community Justice Court hearings, and has gotten a job as a babysitter—all of which indicates she is trying to find a legitimate way to make money.
Both prosecutors and public defenders—for different reasons—point to these kinds of cases as examples of how the status quo doesn’t work.
Advocates of tougher prosecution say diversion enables offenders to keep racking up charges. Advocates of alternatives to incarceration, meanwhile, say even diversionary tactics are doing too little to reduce recidivism.
Cesia Medina-Zuniga—who’s being accused in federal court of selling fentanyl in the Tenderloin—was allegedly witnessed selling the powerful opioid in five undercover operations earlier this year after facing similar charges in state court since 2019. Such repeated offenses show she is a flight risk and an “extreme danger to the community,” a U.S. Attorney's Office detention motion argued.
Court records say that she, too, took part in San Francisco alternative justice programs, was put on probation and given a stay-away order from where she had sold drugs. She then allegedly violated that order and has been arrested a number of times since.