For opponents of mass incarceration, the recall of San Francisco District Attorney Chesa Boudin was one of the more disappointing political results of 2022. Glenn Greenwald reached out to me after the recall to see if I’d be interested in debating its merits with Leighton Woodhouse. Given the misinformation that drove the recall campaign, I was excited for the opportunity to explain the vision for a progressive prosecutor and engage in a substantive discussion about Boudin’s record. You can read Part 1 and Part 2 of my exchange with Leighton on Glenn’s Substack.
Glenn had planned to publish a Part 3 with a final entry from both Leighton and me. Since I wrote the initial entry, the plan was for Leighton to get the final word. I submitted my final entry in October. Leighton has not written a response, however, and since Glenn has now moved off of Substack, there is no longer an opportunity to close the exchange there.
Because what I wrote in October remains highly relevant not just to San Francisco but to discussions of crime and prosecution across the country, I am publishing my final entry in the debate here (updated only slightly to reference the most recent crime statistics and to acknowledge the election of Brooke Jenkins, who was previously appointed as Boudin’s replacement, in November). Like the first two parts of the exchange, I hope it can help elucidate why district attorneys who embrace restorative approaches to criminal prosecution and focus on holding powerful people accountable promote justice and increase public safety far more than their “tough-on-crime” counterparts.
Crime, Incarceration, and “Reform” Prosecutors Concluded: my final entry in a debate with Leighton Woodhouse about Chesa Boudin
The job of a district attorney (“DA”) is to seek justice and increase public safety generally, not to primarily pursue harsh punishments for drug-related crime.
Your claim that Chesa Boudin “acted on behalf of the Public Defender essentially by just not doing his job” reflects a fundamental misunderstanding of the responsibilities of a district attorney. Here’s what a prosecutor’s job is supposed to be, according to the American Bar Association:
“The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict. The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.”
Boudin’s approach – including his decision not to prosecute “crimes” like public camping and drug use, significant expansion of the Victim Services Unit, prosecution of police officers who abused their power, and creation of the Post-Conviction Unit, Innocence Commission, and Economic Crimes Against Workers Unit – was much more in line with that description than is the approach of most DAs. You don’t actually seem to contest my summary of his approach much except when it comes to drug dealing, which you incorrectly allege Boudin “refrained from prosecuting.” So I think many of our core disagreements stem from your misunderstanding of and/or opposition to certain aspects of a prosecutor’s – and hence a DA’s – responsibilities.
Decriminalizing homelessness, decriminalizing drug use, and embracing a restorative approach to criminal prosecution promote justice and increase public safety.
Your theoretical opposition to the criminalization of homelessness and drug use is contradicted in practice by the effects of the policies you support. When public camping and other “quality of life” crimes are illegal and the district attorney prosecutes them, people who are homeless are frequently targeted by the police, displaced, cited, fined, and incarcerated. If prosecutors pursue lengthy prison sentences for shoplifting – regardless of whether the ostensible purpose of pursuing such sentences is to pressure the minority of people caught shoplifting who are doing so to buy drugs into accepting drug treatment in lieu of the prison sentence – some of the people caught shoplifting will spend a lot of time in prison.
Boudin’s decisions not to prosecute people for being homeless or for drug possession cases arising from pretextual stops and to seek alternatives to incarceration for low-level crimes related to people’s economic circumstances reduced police harassment and jail time for thousands of San Franciscans. Even one negative police interaction and/or a few days in jail can have devastating impacts on people’s lives, so while it’s obviously true that Boudin did not solve homelessness or drug addiction – which you seem to acknowledge that no DA could possibly do – he did improve the safety of large numbers of people, families, and community members affected by these issues who would have suffered additional harms under other DAs.
To be clear, that is not an argument that arrest, incarceration, or the threat of incarceration never serve as a wakeup call for people who struggle with substance use issues. I just don’t share your view that the existence of such cases – which are a minority, as the evidence I’ve presented shows – justifies the serious harm that many more people suffer when the policies you want the DA to pursue funnel them and/or their loved ones into the criminal legal system.
We also disagree about forcing people into drug treatment, which I oppose both for moral reasons (you likened addiction to cancer in an earlier post and, as with my opposition to mandatory chemo, I tend to think people have the right to make fundamental decisions about their own bodies and health care) and because research shows, as I previously noted, that mandatory drug treatment programs are usually ineffective. But well-run restorative processes should accomplish much of what you’re seeking for people who commit addiction-related crimes. Given that people who have been harmed by crime tend to support treatment options for people who suffer from addiction, increased drug treatment services would have been a likely outcome of Boudin’s expanded Victim Services Unit over time.
Similarly, well-run diversion programs and/or restorative processes could generate ideas in the vein of the alternatives you suggest for some of the people who are caught dealing drugs. As the San Francisco Street-Level Drug Dealing Task Force (“Drug Dealing Task Force”) made clear in the report I mentioned previously, this group does not uniformly fit your description, but perhaps some of the “transnational entrepreneurs” you are concerned about could be assigned daily, supervised community service that would beautify the Tenderloin. Maybe the “upwards of $1,000 a day” they have made dealing could be placed in a fund that provides enrichment opportunities for neighborhood children, or used to expand drug treatment availability. Whatever the diversionary or restorative measures chosen, the key point is that nobody should conflate opposition to lengthy prison sentences and deportation with opposition to accountability, a point the Drug Dealing Task Force emphasized in its report (as I referenced in Part 1 of this exchange).
As I’ve repeatedly noted, Boudin’s office “filed charges when the police arrested people for dealing drugs at a higher rate than his predecessors; he just tried to take the circumstances of those arrested into account and speed up the conviction process, focused on the highest-level players who are behind drug dealing operations instead of on people selling small quantities of drugs on the street, and sought opportunities to divert people with mental health and substance abuse issues away from prison and into programs that are more likely to reduce recidivism than prison sentences.” Even if you contest the research showing that the diversion programs his office sought – which are the ultimate responsibility of judges rather than prosecutors – are more effective than harsh punishments at reducing recidivism, I think you’d actually be able to make a better case that Boudin was still too aggressive than that Boudin was too lax when it comes to the drug trade in the Tenderloin. Diversion rates were higher under Boudin than under the previous DA but diversion was still only used in approximately one-third of drug-related cases. Boudin’s restorative justice program was not used for drug dealing cases because it was restricted to cases in which restorative justice was specifically requested by someone individually harmed by a crime, and since most drug-dealing arrests are for small-scale sales, most of Boudin’s prosecutions were as well. Boudin was actually criticized by the Public Defender for trying to start a new fentanyl task force aimed at disrupting the drug trade (the task force was rejected by San Francisco Mayor London Breed).
So while I understand you’ve spent a lot of time talking to people who feel they benefited from a tougher-on-crime approach than the one Boudin embraced or think Boudin’s policies are responsible for the current state of the drug trade in the Tenderloin, I’ve yet to see any evidence that these experiences and opinions reflect general truths. I don’t think unsubstantiated assertions like “people just don’t bother reporting non-violent crimes” and “[t]here have been many, many games played with data” are any more compelling than “don’t trust your lying eyes,” which I agree would be a bad argument and is not one I’ve made. Instead, I’ve provided background on how the problems you discuss long predate Boudin and evidence that Boudin’s approach was more likely in most cases to accomplish most of your stated goals – improving the safety of people who are homeless, helping people who struggle with substance use get better, supporting people who have been harmed by crime, and deterring crime – than the more punitive approach embraced by DAs before Boudin or by Brooke Jenkins, Boudin’s successor.
Holding powerful people accountable for wrongdoing and freeing people whose imprisonment is demonstrably unjustifiable promote justice and increase public safety.
Both your dismissal of Boudin’s prosecutions of police officers who likely abused their power and your disinterest in discussing several other key Boudin initiatives disregard important ways a responsible DA can impact public safety.
San Francisco Police Department (SFPD) officers have killed dozens of people in the last two decades. During that time, the SFPD has also been “arresting Black people compared to non-Black people at the widest disparities of any jurisdiction” in California, according to a recent analysis by the Center on Juvenile and Criminal Justice. In fact, that analysis found that the number of times SFPD arrests someone Black in the city over an eight-year period exceeds the city’s entire Black population. Although a local measure to improve police accountability passed with 80% of the vote in 2016, consequences for even extreme police misconduct through San Francisco’s Department of Police Accountability (DPA) remain virtually nonexistent. Neither the DPA nor the Police Commission serve as effective deterrents.
That’s why it mattered that Boudin was the first DA in San Francisco history to charge a police officer for homicide and also brought criminal charges in an unprecedented number of other police misconduct cases. I really can’t fathom why you “don’t see the value” in this aspect of his record; while you’re right that there hasn’t been a conviction in the cases his office brought yet, the vast majority of them are still pending because his tenure was so short. It is notoriously difficult to secure a conviction for police misconduct because of the legal protections police officers enjoy and the pro-police biases of most judges and juries, who have the final say in convictions. Additionally, securing convictions is not the only thing that matters if you care about deterrence; getting prosecuted isn’t exactly fun even if you are ultimately acquitted. Boudin’s decision to break from prior DAs and prosecute police misconduct cases had the potential to prevent harm faced by significant numbers of San Franciscans, particularly those who are poor, Black, and/or Latino and consequently most likely to fear harassment and/or abuse at the hands of the SFPD.
I also think Boudin’s Economic Crimes Against Workers Unit is a much bigger deal than your one-sentence comment on it suggests. Nationwide, the value of wages stolen from workers through violations of minimum wage, overtime, and other labor laws is in the ballpark of three times as high as the value of money taken in robberies, burglaries, larcenies, and motor vehicle thefts combined. Studies suggest that this problem is no less prevalent in San Francisco than anywhere else; there have been estimates that San Francisco employers steal money from 1 in 2 day laborers and Chinatown restaurant workers and that minimum wage violations alone affect between 14% and 29% of San Francisco workers in a variety of industries including retail and food services. Employers’ failures to pay into state unemployment and workers’ compensation insurance systems, companies’ safety and health violations, and instances of workplace sexual assault also fall within a DAs purview. The fact that San Francisco DAs have not traditionally chosen to prosecute economic crimes against workers does not change the fact that economic crimes against workers dwarf the crimes like shoplifting and car break-ins that you’re focused on – even after factoring in a subset of those crimes’ connection to fencing operations – in both size and impact.
Unfortunately, the state and city departments tasked with enforcement of labor laws are often inadequately resourced and/or politically unmotivated to pursue these cases, and civil penalties for economic crimes against workers tend to be modest. Absent the possibility of criminal prosecution, it’s often a rational, profit-maximizing decision for unethical employers to violate labor laws. Evidence suggests that Boudin’s Economic Crimes Against Workers Unit, by increasing the likelihood and salience of consequences for employer lawbreaking, would have had an important impact in deterring such lawbreaking.
Lastly, while you say you “have no problem” with Boudin’s establishment of an Innocence Commission and Post-Conviction Unit to exonerate people who have been wrongfully convicted and reduce excessive sentences, I also don’t share your view that these initiatives and Boudin’s abolition of cash bail are of minor importance. Freeing people who have been caged for demonstrably unjust reasons and/or lengths of time has a huge impact on their and their families’ lives, allows people to trust the criminal legal system more by addressing one of the worst ways in which it actively harms people, and clearly fits within the American Bar Association’s description of a prosecutor’s role.
A comprehensive evaluation of Boudin’s tenure makes clear that, if seeking justice and increasing public safety are your goals, his recall was unwarranted.
One of your complaints about Boudin’s supporters, including me, is that we “tend to…shift the focus to huge macro-level issues like inequality and poverty.” That we emphasize these issues is true, but it’s not a shift in focus at all: as I’ve noted since the beginning of this exchange, economics is at the heart of most safety issues that most people face most of the time. Especially given that Boudin’s detractors, including you, tend to criticize progressive DAs for problems they did not cause and cannot solve while writing off areas in which DAs can make a real and meaningful impact on people’s safety, it’s essential to provide context and facts which clarify not only the causes and impact of various types of crime but also the DA’s role in addressing them. (The facts on these topics can be found by following the links I provided in parts 1 and 2 of this exchange, which go to the most relevant publicly available sources I’m aware of both nationally and in San Francisco.)
Relatedly, while you seem to believe that clarifying the facts is equivalent to accusing voters of being “dupes of nefarious right-wing propagandists, or suffering from false consciousness,” it’s widely recognized that biased media coverage and deceptive, multimillion-dollar advertising campaigns can create misleading public narratives. I certainly wish elections were always determined by comprehensive factual assessments of which political candidates will help people most, but the unfortunate reality is that they are not. Boudin getting recalled tells you as little about whether San Franciscans were safer during his tenure as George W. Bush’s reelection in 2004 tells you about whether the Iraq War was justified.
At the end of the day, Boudin is no longer San Francisco’s DA. Jenkins, the new DA, is – just like you – intensely focused on the drug trade in the Tenderloin. Consistent with what you recommend, Jenkins is prosecuting drug use with the stated goal of pushing people into drug treatment and seeking extreme penalties for drug dealing. She is urging people to “temper their expectations” about what the DA can accomplish regarding crime in the Tenderloin, however, trying to distance herself from recall campaign rhetoric in which she claimed the “[c]rime rate is directly linked to [Boudin’s] failed policies.” Considering the poor track record her tough-on-drug-crime approach has had all over the country and the fact that violent and property crime rates have been higher during her time in office than during Boudin’s tenure, Jenkins’s desire to establish such a double standard makes perfect sense. It is, after all, a double standard typical in DA races around the country: people who favor draconian criminal punishments blame progressive prosecutors for high crime rates while ignoring or excusing high crime rates under prosecutors who pursue draconian criminal punishments.
What wouldn’t make sense – even in the highly unlikely event that Jenkins’s drug policies end up significantly improving the lives of a substantial number of the people in the Tenderloin who are struggling most – is for someone who opposes mass incarceration, supports equality under the law, and recognizes the myriad problems with our criminal legal system to evaluate a DA on the Tenderloin above all else. Jenkins has lifted Boudin’s ban on cash bail and limits on pretrial detention, reversed Boudin’s decision to never try juveniles as adults, undermined police prosecutions, and raised concerns about whether she supports progressive goals like reducing excessive sentences, exonerating people who were wrongfully convicted, and shifting resources towards crimes committed by the rich and powerful. Based on an evaluation of all policy areas, Boudin’s approach was more just and better served the public interest than any other San Francisco DA past or present by making most of the San Franciscans who face most serious safety issues safer most of the time.
That is, according to the American Bar Association, a prosecutor’s job. It should also be the bottom line for judging Boudin’s brief tenure.