By Rory Fleming
Despite claims at being a “reformer,” Jeff Reisig, the Yolo County, California, district attorney since 2003, is jumping on the drug-induced homicide bandwagon. In a summer press release, DA Reisig announced that defendants accused of selling drugs will now receive a warning that the substances “could very well contain lethal fentanyl.”
By way of explanation, he noted that “When people get a DUI, we give a warning that DUIs can cause death, which becomes evidence if they later kill someone in a DUI.”
Reisig just said the quiet part out loud. The operative function of such warnings is not deterrence, but to shore up potential criminal cases against people in the future.
Drug-induced homicide prosecutions are usually a bad idea for prosecutors who care about their conviction rates, as most do, including Reisig himself. They are hard to prove, both in terms of causation and the defendant’s intent, and thus hard to win. At least in the federal context, even the Supreme Court has green-lit making these convictions harder to obtain.
But by giving a person the warning, Reisig can now use the fact that they were warned to “prove” that they had a necessary intent to commit a drug-induced homicide, if a buyer later overdoses.
Where specific drug-induced homicide statutes don’t exist, like in California, prosecutors can choose to use preexisting murder or manslaughter statutes in these cases. It is almost unheard of for prosecutors to use first-degree murder statutes, because fatal overdoses are virtually never the result of someone’s “willlful and premeditated” plot to kill. So they use second-degree murder and manslaughter charges, for which a person’s recklessness or negligence is enough proof.
If using one of those statutes, Reisig’s introduction of evidence that the defendant received one of his notes could make the case a slam dunk, since the defendant would be presumed on notice of the risk of a potential buyer’s death.
Despite Reisig reportedly hoping that this initiative will help put an end to the overdose crisis, he seems oblivious to the harm reduction saying, “Every overdose death is a policy failure.”
A recent training slideshow made by the Yolo County Health and Human Services Agency and DA Reisig’s office shows the names and photos of 16 local fatal overdose victims, then ominously states, “There will be more”—as if it’s an inevitability over which these departments have no control. The experiences of Portugal, for example, show that if Reisig declined to prosecute drug possession and if Yolo County beefed up its public health response with harm reduction resources, deaths could be drastically reduced.
We don’t know how Yolo County residents collectively feel about drug-induced homicide prosecutions, but it’s unlikely that Reisig would care one way or the other. According to information from the ACLU of California, he did not stand united with his voters on any of the state’s major criminal justice reform ballot initiatives in the 2010s.
While locals approved measures to reform the state’s draconian “three strikes” sentencing law, reduce some crimes to misdemeanors, legalize cannabis, and increase parole access for some prisoners, Reisig supported none of these and actively opposed the latter three.
More recently, he called the state’s death penalty moratorium a “leniency for mass murderers,” despite a majority of his voters supporting its abolition.
What’s more, back in 2005, DA Reisig was the first prosecutor in Northern California to obtain a “gang injunction”—a type of civil legal action that in effect criminally bans loitering in certain areas and fraternizing with certain people because of supposed gang membership. Not only have these injunctions been generally condemned as racist in recent years, but Reisig also failed to notify people they could be placed on this list. By doing so, he violated people’s constitutional rights, leading to the injunction’s reversal in court.
Astonishingly, none of this has stopped local power players from falling for Reisig’s rhetoric that he is some sort of reasonable moderate. In 2018, when deputy public defender Dean Johansson challenged Reisig as part of the progressive prosecutor movement, the Sacramento Bee’s editorial board backed Reisig.
The publication specifically cited Reisig’s promises to “double the size of mental health court and add more beds to the county’s addiction intervention court.” But as many advocates have pointed out, those “reforms” hurt just as many as they help, often leading to jailing people in the name of supposedly ”saving” them.
The Bee also favorably marked Reisig’s supporting “a push at the state Capitol to require the California Attorney General’s Office to investigate all officer-involved shootings,” and requiring his deputies do implicit bias training. But both reforms do more to shield the DA from political criticism than to reduce incarceration rates or police impunity. If the state’s AG is the one who decides not to indict a killer cop, it will be the AG’s office that angry protesters will travel to, not Reisig’s.
National criminal justice reform organizations also flock to Reisig to engage in partnerships. Earlier this year, Measures for Justice, a prominent nonprofit dedicated to collecting local criminal justice data nationwide, launched a first-of-its-kind criminal justice data portal, called Commons, with the Yolo County DA Office. According to Reisig’s campaign website, this collaboration means that “all criminal case data from the office is validated and published by a neutral third party and available for public inspection, media review and research.” Currently, Commons is helping Reisig keep accountable to his stated goal of increasing the office’s felony diversion rate to 10 percent by September 2022.
The fact that Reisig notes his collaboration with Measures for Justice not just on a governmental page, but on his own campaign website, shows he understands the political capital the link will earn him amongst his liberal, college town constituency. (Yolo County is home to the massive UC-Davis campus.)
It begs the question of whether Measures for Justice knew about Reisig’s record when it entered this collaboration, and if the organization considered how a ”tough-on-crime” conservative could use this as a campaign tool. Many will give Measures for Justice the benefit of the doubt: The project perhaps shows that just about any prosecutor can make incremental reforms if praised enough for doing so.
Still, a broken clock is right twice a day only. DA Reisig’s drug-induced homicide policy is just one of many times when he is badly wrong.
Rory is a writer and licensed attorney. Article originally appeared in Filtermag.
What would the author suggest we should do to stem the tide of deaths from fentanyl overdoses? Sixteen deaths from fentanyl in Yolo County alone is a lot of deaths. This is a major problem.
DPA cited 20 years of data that murder for drug dealers has zero impact on drug use.
I’m for it, if you want to sell illegal drugs then one should also face the consequences if someone dies as a result of you selling them illegal drugs.
If anything it might take a few drug dealers off the streets or at least make them think twice about the possible consequences.
Go Reisig!
You’re for it even though it has been shown not to work. In fact, DPA noted that a big problem was it created a disincentive for people to go get help if someone overdoes. Moreover, you don’t end up getting the people who actually produce the drugs, you end up getting low people on the totem pole who are generally selling low quantities to support their own habits. It’s a useless gesture that punishes the wrong people. That’s what you’re supporting. Go Keith!
I don’t think anyone can say for certain that it doesn’t work. How can taking someone off the streets that has sold drugs that ended up killing someone not help relieve the problem? Sure you can always cite some study from some org that might say it doesn’t work but I don’t think there’s any way to know for sure.
BTW, this is from the DPA’s website, this is part of their mission:
We have studies that show: (a) drug usage rates pre and post law and (b) who gets prosecuted. So yes, we can show that policies are not effective. That’s why approaches should be evidence based.
Going back to Glick’s original point, the fentanyl crisis is a self-inflicted wound.
(A) For decades doctors handed out opioids like candy
(B) People got addicted to pain pills
(C) we can debate if there was a real problem at this point, but when they decided there was a problem, they cracked down pain pill prescriptions.
(D) In order to meet their addictions which was not resolved by that move, people turned to heroin and other illegal opioids
(E) fentanyl which is synthetic is more potent and much cheaper than heroin
(F) Because of that, they now will often cut these drugs with fentanyl
(G) there is no quality control which is why people are dying
But the key link in the chain was (C) and instead of solving the addiction problem, we just made it harder to get abused but safe drugs. We are not going to enforce our way out of this problem.
The problem might be worse if the drug dealers convicted of murder hadn’t been taken off the streets. No study can prove for certain that it hasn’t helped.
Because as long as there is a market for the drugs, someone else pops up. That’s why the war on drugs – attacking at the supply does not work. We’ve spent a lot of money and accomplished nothing. And most of the people who are going to be caught in the net are small time people. They aren’t going get higher ups in the death of a user – in part because they can’t trace supply and in part because of where cutting and alteration occurs.
Shown ‘not to work’ in what sense? Drug dealers get arrested, it works.
Hey I’m all against the war on drugs – which to me means the lopsided crack vs. cocaine sentencing laws, helicopters raiding pot farms, YONET, etc. NOT never arresting drug dealers or holding them responsible for deaths they cause. And YES, I’d extend that to certain pharmaceutical executives and doctors, like that’s ever gonna happen though.
By doesn’t work I mean doesn’t reduce the amount of drugs in circulation.