Commentary: CA Prosecutor’s Fentanyl Warnings Aren’t about Overdose Prevention 

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.