By Rory Fleming
After taking office in 2011, Santa Clara County District Attorney Jeffrey Rosen helped lead his jurisdiction to prosecute 177 minors as adults between 2010 and 2014—a total 35 percent higher than the county of Los Angeles, with five times the population, during that period.
DA Rosen does not prosecute kids as adults as often today. In fact, in a current drug-induced homicide case against an unnamed 16-year-old, Deputy DA Donald R. Shearer told Filter that his office would not be seeking to prosecute the boy as an adult.
But it’s unlikely that Rosen deserves credit, however limited that would be, for the fact that the boy will be charged as a juvenile.
In 2016, state voters passed Proposition 57. The ballot initiative changed the law so that DAs in California could no longer unilaterally decide to charge kids as adults, but must ask for permission from judges, who can deny the request. Rosen himself did not 
support Prop 57.
The updated law makes clear that when a defendant is 14 or 15 years old and accused of certain serious crimes, they can be transferred to adult court only when juvenile court discretion has expired due to a delay in the case being charged running up against the end of juvenile court jurisdiction (age 21 or 25, depending on the circumstances).
Local reports state that the 12-year-old girl who overdosed in the current case died in 2020. The boy would have been no older than 15 at the time, making him ineligible for juvenile transfer. Thus, Rosen seems simply to have been bound by the law.
The way that Rosen did use his discretion was to charge a tragic overdose as homicide in the first place. The draconian drug-war strategy of targeting the person who allegedly provided the drugs involved in an overdose is largely used by only the most hardline prosecutors. It has long been condemned by advocates as “counterproductive and inhumane.”
The case represents the second time Rosen has filed a murder charge against a person in such a case—the other death also occurred in 2020.
“After thousands of deaths, everyone should know that fentanyl is a deadly poison,” Rosen said, attempting to justify his latest decision.
Rosen is currently locked in a competitive primary race for his seat against progressive challenger Sajid Khan. In 2020, when Khan was a local public defender, he wrote a blog post about why anti-police violence protesters should direct their attention to district attorneys’ offices, too. Rosen responded by filing a county ethics complaint against Khan, claiming he was trying to stoke violence against prosecutors. The complaint was denounced as bigoted by a multiple civil rights groups, leading Rosen to retract it.
Rosen’s newfound interest in pursuing murder charges for overdoses fits with a problematic trend amongst certain top local prosecutors in big liberal cities: a shift to the “tough-on-crime” right when facing an electoral challenge from the left.
In Harris County (Houston), Texas, DA Kim Ogg was originally heralded as a progressive prosecutor when she took office in 2017. Her marijuana decriminalization approach caused a ripple effect of DAs in many of the state’s biggest cities issuing similar policies. However, by 2020, reformers were fed up with her continuing to seek the death penalty, supporting the cash bail system, and asking for funding for additional prosecutors.
That same year, Ogg earned a challenge from Audia Jones, a self-described democratic socialist who promised more sweeping change. Instead of Ogg reluctantly supporting reforms she hadn’t before, as logic might suggest, she dug her heels in—now more ideologically aligned with the bail bonds industry than any of the reform promises that first got her elected.
Similarly, when Nico LaHood first ran as a Democrat against former Bexar County DA Susan Reed in San Antonio, he promised more diversion and less jail for drug cases. He himself had benefited from a less harsh approach for his felony drug arrest when he was a young man.
However, by the time DA LaHood was defeated by Joe Gonzales, a Democrat who ran to his left in 2018, he had become the laughing-stock of the criminal justice reform community. Not only did he embrace particularly unjust punishments such as the death penalty, but he even once karate-chopped a city council table to express his vehement opposition to marijuana legalization.
By applying a particularly cruel charge to a 16-year-old, DA Rosen seems to want to outstrip them all.
Rory Fleming is a writer and licensed attorney.
