Editor’s note: The statement below is in response to “San Francisco district attorney has filed just one treatment-mandated drug possession case under Proposition 36,” published on Aug. 26, 2025. It has been lightly edited to conform to the editorial style of The Voice.
The San Francisco district attorney’s office is committed to doing everything we can to combat open-air drug dealing, hold drug dealers accountable and getting users off of our streets and into treatment. Since District Attorney Jenkins took office, we have witnessed a sea change in how San Francisco responds to and addresses narcotics cases.
The passage of Proposition 36 in December 2024 gave the office some new tools to bear in the fight to close open-air drug markets and getting users off the streets, but it did not provide a silver bullet.
We began using some of the new tools immediately and filed the first case with a new weight enhancement for suspected drug dealers on Dec. 20, 2024. This new enhancement adds more custody time for drug dealers convicted of possessing more than one ounce of fentanyl and even more for those convicted of having one hundred grams or more.
We knew that using the new treatment-mandated felony law would be difficult in San Francisco because it required two or more previous narcotics convictions, many of which are diversion-eligible, and had been effectively decriminalized by the previous administration.
Nevertheless, we worked to craft a sensible policy that we could use to target drug users with previous convictions to help get them into treatment in tandem with the new and existing laws targeting drug dealers. We wanted to ensure that scarce treatment resources were targeted at users and not dealers. That has been a central part of District Attorney Jenkins strategy since she took office.
Given the inherent limitations of the treatment mandated felony law, we use this new tool in addition to the other legal tools available to us to help get users off the street, namely charging provable possession cases as they are presented to begin building the framework for potential 11395 usage later. Over the last two years, we have dramatically increased the number of misdemeanor narcotics cases filed. To be clear, every case presented to us is individually assessed, and although we may decline to file 11395 charges, we regularly file 11364, 11377 and any other charges. We chose to only consider possession convictions in the last five years, as many counties have, as we sought to balance the treatment needs of individuals with current drug problems as opposed to those with older drug problems. Regardless of the 11395 charge, we would still move to file any and other provable charges, ensuring that they would be held accountable for the current conduct.
In some cases, adding an 11395 charge would not make a difference, and simply be performative, as other charges filed would be more significant. For example, if you are charged with felony possession of fentanyl for purposes of sale, charging an 11395 in addition would not result in any meaningful change to the resolution of the case. Or if you are charged with, say, petty theft and possession of drug paraphernalia, again adding the 11395 charge would not result in any appreciable difference to the resolution of the case. We use our discretion to charge a crime other than HS 11395 if the crime applies to the case. 11395 is not intended to change the way the other crimes are prosecuted, nor is it the only or best way to hold offenders accountable.
Nevertheless, our 11395 charging policy, which only considers qualifying prior convictions in the past five years, is subject to review and update as was done with District Attorney Jenkins’ bundling policy. Initially, the possession bundling policy was to wait to charge several possession charges at once to demonstrate to the courts that the suspect was in dire need of treatment and that the criminal justice system needed to intervene; however, that policy was changed over time, and now we do not bundle cases and charge provable drug possession cases as they are presented. District Attorney Jenkins is closely monitoring the effectiveness of the 11395 charging policy and may update it as we continue to do everything we can to close open-air drug markets and get users off the streets.
To only consider the filing of a particular charge does not take into consideration the totality of what is necessary to actually fulfil the promise of Proposition 36, which is to hold drug dealers accountable and get users off the streets and into treatment. Counties across the state, even those that have managed to file numerous cases with 11395 charges, are grappling with the limited availability of treatment beds. To think of 11395 as a silver bullet, especially in our local context, is naïve. We are doing everything we can to hold drug dealers accountable and get users off the street using every legal tool available to us. We exercise our discretion and never lose sight of the big picture. We charge cases we can prove and do not waver from our mission.