No Breaks for Old Habits: The D.A. Is Pushing Leniency for Drug Users but Prison for One Homeless Addict

A police officer who later earned a law degree, George Gascón had never tried a case in court before becoming San Francisco's District Attorney. However, San Francisco's former police chief has made a national name for himself in the three years he's been the city's prosecutor.

Gascón earned headlines for shaming tech giants into installing kill switches on smartphones to stop a rash of iPhone thefts. After winning the “Apple picking” battle, he's set about reforming the city's role in the drug war.

During his 17 months as San Francisco's police chief, felony drug busts plummeted by nearly 50 percent, according to the California Attorney General's Office.

In his first two years as prosecutor, Gascón brought felony criminal charges against drug users, sellers, or possessors 2,904 times. Compare that to his predecessor, California Attorney General Kamala Harris, who filed felony drug charges 13,000 times between 2008 and 2009.

Drug cases still make up one-third of the District Attorney's caseload, but that's down from nearly two-thirds of charges filed during Harris' era.

After publicly decrying the war on drugs as a racist failed policy, Gascón has become one of drug reform's most-vocal supporters. In a TED talk he gave in June at Ironwood State Prison, a medium-security lockup near the Arizona and Mexican border, he called for peace. “We can no longer afford to incarcerate people at the levels that we have,” he said. “We have to end the war on drugs.”

This makes the case of Edward Ostrowsky, a 43-year-old homeless heroin addict Gascón's office is trying to send to state prison, all the more puzzling.

Ostrowsky's two decades of hard drug use have reduced him to a thin wisp of a man in a wheelchair. His front teeth are missing and his legs are infected, requiring near-daily draining.

He has no violent crimes on his record, but plenty of drug busts. Twice in 2008, he was picked up on “buy-busts,” where undercover cops pose as street-level dope fiends looking to score $10 or $20 worth. It sounds small-time, but the resulting sales charge is a felony. (The practice has since been almost entirely phased out, but not in time for Ostrowsky).

After the busts, he tried to clean up, he tells me in an interview at County Jail. He says he was doing fine, but relapsed with just days left on his sentence. On the day after Christmas last year, cops found him with four grams of heroin and an array of pills, including morphine, anti-anxiety benzodiazepines, and Naloxone, a drug used to counteract overdoses. He was charged with six felonies, including one for his own prescription pills (later dropped).

With his priors, he faced a maximum of more than a decade in prison. So the assistant district attorney offered Ostrowsky a deal: six-and-a-half years.

“I couldn't believe it,” he says. “I'd never even done a year in county before.”

He went to court 29 times from January, when he was released on his own recognizance, and August, when a jury found him guilty of possession and a judge sent him to jail.

Ostrowsky is about to enter a court-mandated rehab program for the possession charge. He'll be back in court on the sales charge this week, with a prison term still on the table.

Gascón is co-author of a ballot initiative, Prop. 47, that would allow low-level drug crimes to be charged as misdemeanors. That leniency is not for people like Ostrowsky, a Gascón spokesman says in an emailed statement. This is a case of an “alleged dealer,” he wrote, not “someone simply using drugs.”

Public Defender Jeff Adachi was unsuccessful at cajoling Gascón into dropping the case, which “makes absolutely no sense,” he says. Ostrowsky's stash was worth about $100, meaning if he was selling, he was selling to support a habit. “This is not Scarface trafficking drugs in the Tenderloin,” he adds.

In his TED talk, Gascón blasted statistics-minded prosecutors whose “definition of winning” is “to see how long they can lock you up regardless of whether that is going to fix the problem.”

The drug war is ending. But before it does, there are still battles to be won. Leniency, it appears, has its limits.

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