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Can San Jose’s Mayor Rid the City of Open-Air Drug Markets?

Mayor Matt Mahan recently held a press conference to further stress the city’s “zero tolerance policy” for public drug crimes and reinforced the need for arrests and treatments. But it remains unclear if the crackdown will make a meaningful impact.

San Jose, Calif., Mayor Matt Mahan is the Bay Area’s latest elected official to take a harder line against open-air drug use and dealing, urging city police to ramp up arrests and more seriously tackle a vexing problem that has exasperated residents and businesses.

Following calls for more enforcement around blight, homeless encampments and RV dwellers, Mahan held a recent impromptu press conference to stress San Jose’s “zero tolerance policy” for public drug crimes, saying “some people will need to be arrested and some people need treatment.”

“We will respond appropriately and we will respond immediately to prevent any congregation of drug use and sales,” Mahan said in front of a 7-Eleven in downtown. “We’re going to send a message that if you’re coming to San Jose to deal drugs, you will be arrested. If you are using drugs on the street, we will do everything in our power to get you into treatment.”

The mayor’s law-and-order-oriented proclamation comes amid a nationwide reckoning over how to respond to open-air drug markets — scenes often overlapping with homeless encampments and visible mental health issues exacerbated by an influx of fentanyl and other illicit drugs. The red-hot political issue has been felt most acutely in San Francisco, where Mayor London Breed has also been pushing for a tough response to rampant drug use in the face of major questions over the city’s post-pandemic future. Over in Oakland, while Mayor Sheng Thao hasn’t made curbing open-air drug markets one of her top priorities, the city has devoted resources to a non-law enforcement intervention unit to help those in crisis on the streets.

Mahan was flanked by San Jose Police Department’s Anthony Mata and Santa Clara County Undersheriff Ken Binder when he made the remarks Saturday in response to an NBC Bay Area report the night before showing open-air drug use at the convenience store on South Third Street.

It remains unclear, however, how the mayor’s requested crackdown would make a meaningful impact, given existing prosecutorial guidelines and resource-strained departments at both the city and county levels. When it comes to enforcement, the mayor’s power is limited to recommending priorities to San Jose’s police, while the county’s district attorney decides whether to file criminal charges. The mayor also is advocating for county and state-level efforts that could make treatment more accessible.

Police maintain their focus will be “proactive enforcement” under the city’s current laws. The department is encouraging residents to contact authorities through its non-emergency number if they witness public drug crimes. A police spokesperson said its department will be focusing officer resources on the enforcement of drug laws against the sale of methamphetamine, heroin, fentanyl and other illegal drugs.

“Proactive response means having specialized units conduct targeted enforcement,” police spokesperson Steve Aponte said in a statement this week. “This has happened on an ongoing basis in the past and will continue in the downtown corridor. It also means having a frequent uniformed presence in the area. This means Walking Beat Officers, Patrol Officers, and other available resources that will be in the area to enforce on-view crimes they observe.”

But when it comes to actually ramping up prosecutions for dealers or users, the existing policy at the county could make that a challenge, as South Bay courts are facing some of the worst backlogs in the entire Bay Area.

For nearly half a decade, Santa Clara County District Attorney Jeff Rosen has held to a policy of not charging those who have been arrested or cited for possessing a small number of drugs. In a statement, he said the response to “longstanding drug, mentally ill, and homeless problems” needs a revamping.

“Arresting low-level, mentally ill, homeless drug addicts and tossing them in jail is neither fresh nor effective,” he wrote. “The so-called ‘War on Drugs’ strategy is an antique, inhumane, ineffective idea that causes jail overcrowding and racial disproportionality. It didn’t work in the 1980s — and it won’t work now. For fentanyl dealers, drug traffickers, and addicts who commit numerous and/or serious crimes, then vigorous prosecution and jail applies – as it always has.”

There’s also the difficulty of getting people into drug rehabilitation, according to Santa Clara County’s Dr. Cheryl Ho, who specializes in helping unhoused residents with addiction issues.

“My big takeaway in general (is that) there are not enough services to meet the demand,” she said.

Survey results collected by the Santa Monica-based think tank RAND and presented to Santa Clara County supervisors this month found that vulnerable populations in particular have a hard time accessing beds in substance abuse facilities, however, the study was mixed on whether there is an actual lack of supply. The same study did find a major shortage of subacute psychiatric beds, which cater to patients who need increased care but aren’t facing an extreme emergency.

Keith Humphreys, a professor of psychiatry at Stanford University and a former senior drug policy adviser for the Obama administration, said the only way open-air drug markets can end is if the entire community is on board — from police to social services to the courts — all the way to the residents themselves.

“You need to have a complete alignment,” he said. “But it can be done.”

Humphreys offered the now-famous example of the city of High Point, N.C., where law enforcement and social services worked in tandem to abolish the open-air markets by first approaching dealers with a stack of evidence of their criminal activity and offering them alternatives to arrest. But in that case and in other successful attempts, Humphreys said the dealers were in many instances lifelong members of the community, allowing authorities to bring in friends and family as a pressure point. That isn’t the dynamic for the dealers in the Bay Area, he said.

“You’re trying to deter, you’re trying to care and you’re trying to work with the community and not be the invading army,” Humphreys said. “And so this takes a lot of organization upfront.”

In an interview, the mayor acknowledged the challenges that could create roadblocks to his effort — but said both forthcoming legislation, the creation of a new treatment facility and buy-in from the community could help fight back against the open-air drug scenes. Mahan referred to SB43, which would update the state’s conservatorship laws and expand the definition of someone being considered “gravely disabled.”

“I don’t think any one approach can solve the problem in a vacuum,” he said. “We’re going to need many partners and many solutions.”

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