SAN JOSE, Calif. — As a push to clear open-air drug markets from city streets gains momentum across the Bay Area, it’s raising a crucial question — what happens to those arrested for dealing and using illegal substances?
The quagmire at the center of this highly contentious debate is being played out across California. City leaders are bombarded with quality-of-life and safety complaints from residents and businesses frustrated about public drug crimes — a dire situation that often overlaps with homelessness — but there is deep concern about a repeat of the failed policies of the nation’s decadeslong war on drugs.
In the South Bay, a pilot program for a small cohort of low-level drug dealers and users — which promises the dismissal of charges for those who meet certain requirements, such as going to treatment — is showing moderate success in Santa Clara County.
Started last year, 17 out of 26 people initially enrolled in the program have graduated — that’s 65% — with the remaining nine either terminated for noncompliance or wanted for arrest for not showing up to court. Another 59 people are currently enrolled, according to Deputy District Attorney David Angel.
“I think we have come up with a system,” Angel said. “It is not a return to the war on drugs. But it is keeping people accountable. Whether we’ve succeeded yet, that chapter hasn’t been written.”
The first person to enter the program, 45-year-old Robert Mitchum, was arrested in San Jose in 2021 on a charge of intent to sell methamphetamine. At the time, he said, he was addicted to the synthetic stimulant and facing homelessness.
“I really didn’t have any resources that could help me out,” Mitchum said. “I really felt alone in this case. I didn’t know what things could help me out in this situation.”
The city’s program — Accountability, Rehabilitation and Community (ARC) — was poised to help. Staff got Mitchum into a homeless shelter and a local outpatient program. He later landed in transitional housing in San Jose and has been sober for 15 months. By meeting the program’s requirements, Mitchum’s possession case was dismissed.
“When you’re in your addiction, there’s a lot of people that don’t have the understanding that you can’t go without,” Mitchum said. “You wake up and you’re already wanting it. Unless you really know what it is like, it is hard to know a user’s mind.”
Now he said he’s working toward reuniting with his three daughters — ages 17, 14 and 11 — whom he lost custody of because of his drug use. In letters to the girls, he reminds them that “I love them and I’m here for them,” he said.
Ben Stewart, an attorney in Santa Clara County’s Public Defender’s Office who has himself been sober from alcohol and drugs for 15 years, said that pure punishment simply doesn’t work.
“You can’t scare an addict,” he said. “The only thing that scares an addict is being sober. Punishment only works for people who have something to lose.”
With a greater understanding of drug addiction, the county’s attitude toward drug arrests has changed in recent years. Starting in 2019, District Attorney Jeff Rosen decided his office would no longer charge most people who were caught with small amounts of illicit drugs. Angel, Rosen’s deputy, explained that the county will only press charges for cases involving drugs under specific circumstances, such as if the individual has been arrested three or more times during a 12-month calendar year, is deemed a threat to public safety, has a violent felony conviction or if the situation involves fentanyl.
For those who don’t fall into any of those categories — and have two or fewer arrests — the DA refers them to treatment. The office is currently working with academics to understand the outcome of this policy change, and the results are expected within a year, Angel said.
Dr. Rachel Sussman, a primary care physician who works at San Jose’s O’Connor Hospital and specializes in addiction medicine, said she wasn’t surprised about the outcomes being reported by the ARC program.
“In general, treatment works,” she said. “But I think there’s this big question, how do we encourage more people to engage in treatment?”
Sussman said there are some small initiatives to proactively get drug users into recovery, including the county’s Backpack Homeless Healthcare Program, but described it as an “expensive and labor intensive” effort. In Alameda County, Oakland has created a unit devoted to helping those in crisis on the streets with an approach that isn’t centered on law enforcement.
In the case of the ARC program, drug recovery is offered — but only because the individuals have come into contact with law enforcement. In June, San Jose Mayor Matt Mahan pushed his police department to ramp up enforcement around open-air drug markets, stressing a “zero-tolerance policy” in the city.
Mahan’s push comes as San Francisco Mayor London Breed is also urging stricter drug regulations, though a recent spate of 53 arrests by police for public drug use within a three-week period in May and June resulted in not a single person accepting substance abuse treatment from the city’s Jail Health Services department, according to the San Francisco Chronicle. The city department that tracked the outcomes of the arrest did not respond to an email requesting additional information.
Other efforts to get drug users into treatment are also sparking debate, such as SB43, which would change California’s conservatorship laws and expand what it means for someone to be “gravely disabled,” a proposal San Jose’s mayor is championing.
In a recent Mercury News editorial co-authored with another doctor who practices addiction medicine, Sussman argued against SB43, asserting that forcing addiction treatment wouldn’t work and that the state’s current mental health and substance abuse treatment infrastructure isn’t equipped to handle the new law.
The proposed law is also ruffling feathers with Molly O’Neal, who heads the Santa Clara County Public Defender’s office. In late June, O’Neal penned a letter that said SB43 would “create vague and ill-defined standards susceptible to inconsistent application.”
“It is a dangerous road to go down,” said O’Neal in an interview. “I don’t think that’s the solution.”
