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Crime, Incarceration, and "Reform" Prosecutors: a Debate
The first in an exchange between two writers on the progressive San Francisco DA's fall from grace and what it reflects about broader national debates over crime.
Editor’s note from Glenn Greenwald:
One of the issues on which I have long focused — both as a journalist and, prior to that, as a lawyer — is the extraordinary rates of incarceration in the U.S. For years, the U.S. has imprisoned more of its citizens than any other country on the planet — both in absolute numbers (despite having a population far smaller than China and India) but also proportionally. An oft-cited statistic tells much of that story: roughly 25% of the world's prisoners are located on American soil, even though the U.S. has only 5% of the world's population.
The causes of these unique incarceration rates are varied and complex. In 2008, working in conjunction with the CATO Institute, I traveled to Portugal to research and produce the first-ever comprehensive report on the results of that country's 2001 law which decriminalized the possession of all drugs (trafficking remains a crime). The data demonstrating its success was so clear and overwhelming that even the political parties and factions which originally opposed its enactment had come to support it. But even if that success could be replicated in the U.S. — and I believe it could be, albeit with some greater difficulty — that would not come close to moving the U.S. into alignment with the rest of the world regarding incarceration rates.
The issue of crime and incarceration policy in the U.S. has always been hotly debated in American politics, but, for a variety of reasons, has received even greater attention over the last several years. In 2019, the Trump administration worked with numerous advocacy groups including the ACLU to engineer bipartisan enactment of the First Step Act, one of the most significant criminal justice reforms laws in years. That law — which applies only to the federal justice system — “allows thousands of people to earn an earlier release from prison and could cut many more prison sentences in the future.” Given that most prisoners are in the state system, that law will have only a modest effect on incarceration rates, yet was intended to serve as a model for providing greater sentencing discretion to judges and ensuring that prisoners are motivated to engage in good behavior and to rehabilitate by offering early release.
Another more controversial response to these strikingly high rates of incarceration has been to elect so-called “criminal justice reform” prosecutors in large liberal cities. These prosecutors vow to rely less on lengthy prison terms, particularly for non-violent crimes, and more on polices of rehabilitation and “root cause” solutions, particularly for drug addiction. But high rates of violent crimes and growing perceptions of a lack of public security have made these reform prosecutors the target of public ire, culminating in the failed attempt to thwart Philadelphia DA Larry Krasner's reelection last May, followed by the successful recall vote that removed from office San Francisco's DA Chesa Boudin in June of this year.
Whatever one's views are on these debates, it is hard to contest that America's exceptionally high rates of incarceration reflect multiple policy, social, and cultural failures. A healthy society does not imprison millions of its citizens. The question of why this is happening, and what the proper responses are, are far more vexing. Just as we aired a debate over Philadelphia DA Larry Krasner's reelection campaign last year, we asked two advocates on each side of this question to engage in an ongoing exchange about whether the fault lies with excessive punitive approaches to crimes or whether leniency is to blame. The following is an exchange between two writers, Ben Spielberg and Leighton Woodhouse, in the first of what will be a continued debate published here on Outside Voices between the two on the subject of San Francisco DA Chesa Boudin’s recent recall and what it reflects more broadly on the issue of crime policies.
Ben Spielberg is a progressive writer and activist who has lived for years in the Bay Area. Leighton Woodhouse is a journalist and documentary filmmaker who lives in Oakland, CA. Initially a supporter of Boudin, (he even produced a campaign ad for the former district attorney), Leighton grew to be a sharp critic of the San Francisco DA during his tenure, ultimately advocating for his recall and reporting on what he called Boudin's “legacy of failure." Woodhouse also recently worked with California gubernatorial candidate Michael Shellenberger, whose unsuccessful campaign to unseat California Gov. Gavin Newsom (D-CA) highlighted critiques of Boudin and reform polices generally. Spielberg opposed the recall of Boudin, and has written for this publication in defense of Philadelphia DA Larry Krasner and other district attorneys with similar progressive projects.
As is true of all “Outside Voices” contributions, our publishing of these articles does not signify my agreement with all or even any of what any writer expresses. It instead only reflects my assessment that this exchange will enable readers to form their own views in a more informed and less propagandized manner. We hope you find the first portion of the debate to be illuminating. As the debate continues, we will post the responses of each for as long as the debate remains illuminating.
(On a separate note: we have been working hard to develop a new and quite major project that we will unveil next month. That is what explains the lighter-than-usual output here over the last several weeks. I am very excited about what we are about to announce and believe it will significantly transform and augment all the work we have been doing here. We will try to produce as much high-quality content as we can during this development process, but it is sometimes all-consuming. I am confident our subscribers will be as excited as I am once we are able to announce it).
By Ben Spielberg
What will ensure that people feel and are safe? That, to me, is the key question underlying the debate about crime in San Francisco and the recent loss of San Francisco District Attorney Chesa Boudin in a recall election. It is also the key question behind discussions of crime and prosecutor races in other parts of the country in which attorneys with visions similar to Boudin have won recently, including Philadelphia, Iowa, and elsewhere in the San Francisco Bay Area.
Having read your recent pieces on the Boudin recall (“Chesa Boudin’s Legacy of Failure”) and crime in San Francisco’s infamous Tenderloin District (“The Order Beneath the Chaos”), I understand that you and I have different views on Boudin’s loss – what drove it, whether it was deserved, and what it means for San Francisco. Given your prior support for Boudin and your enduring belief in his “decarceration message,” however, I suspect we actually agree on a fair amount when it comes to issues of safety and the criminal legal system. Especially since opportunistic pundits and mainstream reporters have ignored or dismissed progressive prosecutorial victories while arguing that Boudin’s loss represents a rebuke of the vision for safety and the criminal legal system that Boudin stood for, I thought it would be helpful for us to flesh out that vision, the basis for it, and our perspectives on it before zeroing in on San Francisco and Boudin in particular.
I believe safety is a multifaceted concept. You certainly won’t feel safe if there’s a decent chance you’re going to be mugged or carjacked, which are the types of situations I’m sure many people imagine when they hear the word “safety.” But you also certainly won’t feel safe if you don’t have a roof to sleep under at night, if you work for an exploitative employer who knows you can’t quit because you need whatever money you can get, or if you know that a lot of people who look like you have been harassed, arrested, or even shot by police officers who are rarely held accountable for misconduct. Truly promoting safety, then, requires a broad range of policy interventions that address a broad range of safety-related issues. Since the safety issues most people face most of the time are economic issues at their core, we cannot ensure that people feel and are safe without substantial public investments in economic support for people.
The criminal legal system is a system of laws, arrests, prosecutions, and incarceration that does not proactively provide such economic support. Consequently, the criminal legal system does not directly address the root causes of most safety-related issues. The system has five commonly cited potential purposes: retribution, incapacitation, deterrence, rehabilitation, and restoration.
I believe retribution and incapacitation are inappropriate purposes. While I can understand the argument for incapacitation in circumstances in which a person is deemed impossible to rehabilitate and likely to put other people’s safety in jeopardy, I find using an inherently subjective and uncertain assessment of likely future behavior and risk to others to deprive someone of their liberty – or, in the extreme case, their life – to be unethical. So the three justifiable purposes of the criminal legal system, in my view, are deterrence, rehabilitation, and restoration. I believe all three of these aims have value but that restoration should be the primary focus. Restoration generally incorporates rehabilitation, addresses the needs of people who have been harmed, and overlaps with the aim of deterrence by reducing the possibility of future harm in a much more positive way.
Unfortunately, in the United States, retribution and incapacitation often appear to be the predominant philosophies guiding criminal legal systems. Exorbitant fines, fees and/or lengthy prison sentences for minor nonviolent offenses, life sentences or the death penalty for more serious offenses, and inhumane conditions in jails and prisons are ubiquitous. People who have been convicted of crimes rarely receive rehabilitative services, and attempts to achieve “justice” are often focused not on the remedies people who have been harmed tend to support, but on harshly punishing the people who have caused the harm.
If this approach was shown to effectively deter crime, that would at least be one thing in its favor. But available evidence indicates that it's an ineffective deterrent. In fact, the harshness of the criminal legal system in this country coupled with a paucity of rehabilitative and restorative options appears to produce a much higher recidivism rate than more humane systems elsewhere. In addition, the current system routinely ensnares people on false pretenses while providing limited avenues for those who have been wrongfully convicted to get their record cleared and their lives back.
On top of all that, while the rule of law is supposed to apply to everyone equally, the harshness described above predominantly applies to America’s poor (and disproportionately applies to people of color – Black people in particular). Steal $20 or some cold medicine and you may go to prison for years; cause a financial crisis by making illegal bets with other people’s money, on the other hand, and get rewarded with government bailouts and bonuses. What’s illegal in the first place also privileges the rich over people with fewer resources, as laws are generally written and “crime” defined by the rich; many commonplace business practices much more unfairly and harmfully redistribute resources than when an individual with very little money shoplifts at a pharmacy, for instance, but only the latter is against the law. In practice, the criminal legal system in the United States tends to preserve and advance the safety of people who are already well-off, actively harm a fairly large number of people who are not well-off, and do little if anything for the safety of everyone else.
That said, it is not enough to note that the current system of criminal laws, arrests, prosecutions, and incarceration is not effectively promoting safety for most people. Regular people naturally and understandably want to know who they can call for help and what next steps will be taken when they encounter a safety issue, particularly a violent one. People also want to know what is being done to prevent them from encountering safety issues in the first place. Even though the current criminal legal system provides a poor answer to those questions, a poor answer often makes people feel safer than no answer; it is the job of people who recognize the problems with our criminal legal system to provide a better, equally concrete answer.
An important role that can contribute to people’s safety and feelings of safety is the DA. As a jurisdiction’s top prosecutor, the DA does not control the root causes, mostly economic, of safety-related issues. The DA also does not control society’s initial response to most safety-related issues, which is generally the purview of police officers. But while their power to influence many aspects of safety is limited, DAs do decide how to prosecute and otherwise deal with cases that have come into contact with the criminal legal system.
Given the often-broad discretion they have in making those decisions, the vision of a progressive DA like Chesa Boudin is to help mitigate – or, ideally, contribute to reversing – a significant number of the criminal legal system’s wrongs. Doing so might include:
shifting the focus of the system away from retribution, incapacitation, and ineffective methods of deterrence and towards rehabilitation and restoration by refraining from prosecuting certain offenses, connecting people with needed support services instead of sending them to prison whenever possible, helping to facilitate productive dialogue, community-building, and solution development in response to harm, and helping people successfully transition from prison back into society;
shifting departmental resources away from targeting people for crimes rooted largely in economic struggles and more towards accountability for powerful people who have broken the law, including by prosecuting police officers and corporations and ending the practice of cash bail; and
helping to free people who have been wrongfully convicted.
My understanding of your critique of Boudin is that it is more about how you perceive his implementation of his vision than about the vision itself. But it would be helpful to know where, if at all, we diverge on how we think about safety, the criminal legal system, and the DA’s role in it. I think that would help facilitate our discussion of Boudin’s impact on the safety of San Francisco residents, the reasons the recall succeeded, and the recall’s national implications in a much more focused way.
Response by Leighton Woodhouse:
I agree that there’s much that we agree on when it comes to our broader vision of a just society — though not everything (for instance, I believe there’s an affirmative social purpose to retribution in our criminal justice system, and an indispensable practical value to incapacitation). However, I think it’s more useful to bring the conversation down to earth, and look at the specific problems San Francisco faces and what impact DA Chesa Boudin has made on them, rather than consider these questions from a God’s eye view. Doing so will help to focus us on the intractable realities of urban social policy and, I suspect, bring into relief where we differ.
Ask more or less any San Franciscan what the city’s most intractable problems are, and they’ll probably point to two things: homelessness and the Tenderloin. I would argue that these two problems are actually one. As Michael Shellenberger has shown in his exhaustive reporting, the problem of unsheltered homelessness in San Francisco is driven overwhelmingly not by the high cost of housing, but by the crisis of drug addiction. And the epicenter of the addiction crisis in Northern California is the open air drug market of the Tenderloin.
The existence of that open air drug market has countless victims. Foremost among them are the hundreds of addicts who die in the neighborhood each year from drug overdoses. It includes users who are raped and human trafficked, beaten and murdered. It includes the victims of the thousands upon thousands of property crimes that generate the cash that feeds addiction. It includes the many poor, immigrant families in the Tenderloin who are forced to live amidst dystopian blight and shield their children’s view from open drug use every time they leave their apartments. It includes the victims, including children, of violence that has emerged both from the drug trade and from the psychosis induced by drug use. It includes every San Franciscan who simply no longer goes to a sizable part of the downtown of their own city because it’s neither pleasant nor safe to be there anymore.
One can argue whether the District Attorney has an ethical obligation toward the criminals he prosecutes; Boudin clearly believes he does, and I’m willing to grant him that. But it’s indisputable that the DA’s primary obligation is to each and every one of the victims described above. It is the DA’s professional and moral responsibility to do something about the Tenderloin.
What can the DA do about the Tenderloin? Many progressives would have you believe that the addiction crisis is a mysterious force of nature, the consequence of deep sociological factors connected to big, abstract things like Capitalism, Inequality and Structural Racism that you couldn’t possibly expect a mere government official to solve.
The reality is more straightforward and less forgiving to the politicians who were elected to do something about it: The drug trade in the Tenderloin is a business. Like any business, it’s conducted by people who have chosen to exploit a consumer market in order to make a profit. They sell a cheap, deadly, addictive product whose ubiquity and easy availability, like fast food, attracts customers and kills them. They are organized into networks of suppliers and dealers whose behaviors are rational and predictable. You can disrupt and degrade those networks. While you might never entirely stamp out illegal drug use or drug sales, you can drive it underground and restrict its growth, mitigating the enormous human destruction it generates.
It mystifies me that so many progressives take for granted that the state can regulate massive global industries in fossil fuels, finance and technology but cannot or should not control deadly opiates being sold openly on the streets to kids. If you argue this point with certain progressives long enough, they start to sound like Milton Friedman: consumer demand for drugs is just part of the human condition, it’s inevitable that suppliers will emerge to fill that demand, and it’s a waste of time, energy and money for the government to enforce laws to make it as difficult as possible for the drug trade to function. It’s selective fatalism.
Those who disagree with my point of view will point out that there’s a humanitarian consideration here, as well: enforcing the law means sending people to prison, and incarceration does neither the imprisoned nor society any good. This is the position that Boudin, who has argued that the drug dealers in the Tenderloin are human trafficking victims, has taken. Because incarceration is a social evil, the argument seems to go, we should rely only on softer tools to turn people away from drug dealing and drug use: persuasion, housing, social services and job placement.
This Pollyannaish disposition stems from a wild misreading of the situation at hand. First of all, the drug dealers in the Tenderloin are not human trafficking victims, nor are their crimes, in your words, “rooted largely in economic struggles.” They’re transnational entrepreneurs who have gone into this line of work voluntarily and are making incomes that would be the envy of most American middle-class families. They’re not likely to exchange an easy, lucrative and, in San Francisco, practically consequence-free line of work for the kinds of grueling, poverty wage jobs available to low-skilled, undocumented immigrants like themselves. The only realistic way to push them out of that line of work is by driving up the costs of engaging in it while driving down the profits. We know how to do that: it’s called drug enforcement.
I have no objection to our choosing, as a society, to replace incarceration for those dealers with something we deem to be more humane. But the ills of our prison system cannot be used as an excuse to allow dealers to continue to destroy the lives of our neighbors and tear at the social fabric of our communities.
As for the addicts, I agree that incarceration is not the solution. But the threat of incarceration can be used as a tool to break through the fog of addiction. I’ve spoken to numerous recovered addicts who have told me that they never would have gotten clean if they hadn’t been arrested. I’ve spoken to parents of addicts who have pleaded with judges to lock up their children, knowing that releasing them back onto the streets is a death sentence. The separation of the user from the open air drug market, the forced detoxification, and the starkness of the choice to either go into drug treatment or face years in prison serves as a rare moment in which reality suddenly overwhelms the fugue state of addiction. That moment can change the course of an addict’s life.
These are the complicated conditions of the real world, where there are no perfect solutions and there are trade-offs to every choice. There’s nothing wrong with the agenda you suggest for progressive prosecutors like Boudin. There’s much to admire in a concern for the fate of the criminals one charges, or chooses not to charge. Had Boudin factored those concerns into an effective response to the chaos emanating from the Tenderloin, shutting down the open air drug market and the criminal networks that thrive in it while steering those he prosecuted toward more humane and constructive outcomes, he would have been a popular and respected San Francisco DA — perhaps even a legendary one.
But that’s not what he did. In his enthusiasm for decarceration, he simply allowed the status quo on the streets to persist. To those who see the merchants of death in the Tenderloin as society’s victims, that may appear to be “compassion.” But what about the thousands of victims those dealers prey on every day? Is it compassion to allow a Mexican drug cartel to enrich itself enslaving Americans to their poison? To let users wallow in misery and die on the sidewalk? To keep poor immigrant families cloistered in their apartments, afraid to step out their front door? To surrender an expanding swathe of public space to the drug trade? What’s progressive about that? Is this the left’s vision of a just society?
Response by Ben Spielberg:
Social justice advocates obviously oppose people dying on the sidewalk and being afraid to step outside their apartment. The relevant questions, however, are (1) how to create a society in which all serious safety issues are less common than they have been for a very long time in this country and (2) how to assess Chesa Boudin’s tenure.
Most serious safety-related issues stem from poverty and inequality. From a social justice perspective, the most pressing problem in San Francisco is that hundreds of thousands of people in the city struggle daily to survive while living only a short distance away from some of the wealthiest people and businesses on the planet. One in ten San Franciscans lives below the clearly inadequate federal poverty threshold, which in 2022 is only $13,880 in annual income for an individual, and since San Francisco has the highest rents and overall cost of living in the country, one in four San Franciscans cannot meet their basic needs. Studies consistently find that the San Francisco Bay Area has larger gaps in income between its most well-off residents and other people who live here than any other area in California.
You seem to concede the reality reflected in the statistics above when you note that many of the people in the Tenderloin are “poor, immigrant families” and that the only jobs available to many San Franciscans are “grueling, poverty-wage jobs” (a single adult in San Francisco would need to make $30.81 an hour in order to support themselves). The 25% of San Franciscans who cannot afford basic necessities must navigate constant safety concerns. They often face unsafe conditions at work, unsanitary conditions at home, and violence, pollution, and other hazards in their neighborhoods. They often lack heating or air conditioning and have a high risk of getting sick or even dying from extreme weather. They are often unable to get adequate medical treatment when they’re sick, let alone preventative care. There’s a dramatic difference in general between everyday safety for the rich and everyday safety for people who are struggling to get by, but this dichotomy is particularly pronounced in San Francisco.
Homelessness is one of the more extreme forms of poverty. It is not, as you and Shellenberger contend, an addiction problem. While it is certainly true that many people experiencing homelessness struggle with addiction, many people who are economically secure and have homes are addicted to drugs, many people experiencing homelessness who are addicted to drugs became addicted after becoming homeless, and most people experiencing homelessness are not addicted to drugs. What people experiencing homelessness all have in common is that they cannot afford homes, which is why there is a positive correlation between homelessness rates and rent costs. The problem of homelessness is, definitionally and empirically, an economic one.
It is true both that there are safety issues that are non-economic in nature and that some of the people who deal drugs in the Tenderloin are economically secure. But that doesn’t change the fact that most serious safety issues most people face most of the time – including in the Tenderloin – are economic at their core, as I pointed out previously.
Boudin had an important role as District Attorney, but his power to address serious safety-related issues, like any DA’s, was limited. As I tried to emphasize in my opener, there are many valuable things a DA can do. But a DA neither controls the root causes of most safety-related issues nor society’s initial response to those issues. Boudin was not in charge of San Francisco’s budget. He did not have the power to levy taxes, establish broad-based social services, enact a guaranteed income, strengthen labor and tenant protections, or build public housing. He did not write and did not have the power to rewrite criminal laws. He did not have the power to direct, oversee, or reform the San Francisco Police Department (“SFPD”), the institution currently tasked with responding to and addressing safety-related issues in the city.
The two issues you focused on illustrate the limits of the DA’s power. San Francisco’s Coalition on Homelessness, which conducts in-depth research on homelessness in the city, released policy recommendations in September of 2020 spanning five categories – prevention, shelter, substance use, mental health, and trans homelessness – that included specific proposals for case management services, temporary housing, permanent supportive housing, crisis support, protocols at drug treatment sites, and legal reforms, among many other topics. Most of these proposals, especially items having to do with shelter and support services that require funding, would need to be adopted by the San Francisco Board of Supervisors and/or implemented by San Francisco Mayor London Breed. Some require changes in police behavior. Others require changes to state or federal law. Only a handful touch even indirectly on the powers of the DA.
The issue of people with connections to drug cartels openly dealing highly addictive, illegal drugs on the street in the Tenderloin is more within the DA’s ambit than the issue of homelessness. But even here the DA does not have proximate control. SFPD, like other police departments around the country, is currently in charge of street-level drug enforcement. If you’re upset about people flagrantly flouting drug dealing laws on the street without consequence in the Tenderloin, your first complaint should be with SFPD for not arresting those people, not with Boudin.
Consider that the San Francisco Street-Level Drug Dealing Task Force (“Drug Dealing Task Force”), established by the Board of Supervisors before Boudin was elected, generated 23 potential ideas to address the situation in the Tenderloin. Fewer than half directly involved the DA. Three of the six recommendations the task force ultimately made in its report less than a year ago involved the DA, but operationalizing only one – a proposed prosecution approach for “individuals without substance use disorders who are convicted for dealing multiple times” – is within the DA’s full control.
Again, the DA absolutely can and should contribute to safety in these and other areas. It’s just factually wrong to attribute the existence of homelessness, open-air drug markets, or any other safety issue mostly to a DA. Any assessment of Boudin in a specific area must be properly contextualized.
Homelessness, drug use, and open-air drug dealing in the Tenderloin are problems that long predated Boudin. His approach to them as DA was mostly correct. Homelessness statistics are notoriously hard to gather with accuracy, but the official estimates actually show homelessness in San Francisco, which had been rising for many years through 2019, falling during Boudin’s tenure. The Tenderloin, as the Drug Dealing Task Force notes, “has been a hotbed for illegal drug activity for decades.” While the task force also notes that “community members report that these problems have intensified in recent years,” the trend in overdose deaths it cites clearly predates Boudin’s swearing-in ceremony in early 2020. These statistics present an obvious problem for the narrative that Boudin made either problem worse, especially given that the COVID-19 pandemic, which would be expected to exacerbate these issues, was raging during pretty much his entire time in office. Data on crime trends more broadly contradicts the anti-Boudin narrative as well.
Part of my confusion regarding your critique of Boudin in these areas stems from the alignment between Boudin’s approach to issues of homelessness, drug use, and drug dealing with his explicit campaign message, which you seemed to support. He openly said he wanted to effectively decriminalize homelessness, including by exercising the discretion not to prosecute certain offenses like “public camping.” He was clear in his opposition to aggressive prosecution for drug use and reflexively sending people to prison. It’s not apparent to me where what he tried to do while in office in these areas ostensibly diverged from what he ran on and promised.
The other part of my confusion regarding your critique lies in what specifically you are recommending. When it comes to drug use, you say you “agree that incarceration is not the solution,” but you also seem to contend that rehabilitation would be best accomplished by threatening to incarcerate people for drug use. Should Boudin have presented people with a fake “choice to either go into drug treatment or face years in prison” even though treatment was the only actual option? More importantly, while I don’t doubt that you have spoken with some people who say “they never would have gotten clean if they hadn’t been arrested” and with some families who “have pleaded with judges to lock up their children,” research indicates that arrests by the SFPD very rarely translate into new services and that jail or prison time for people experiencing homelessness leads to continued homelessness over 90% of the time. San Francisco and much of the rest of the nation have threatened people with substantial prison time for activities related to homelessness and drug use for decades; reams of evidence shows doing so to be much less likely than Boudin’s approach to help people get back on their feet.
Regarding drug dealing, it’s again unclear to me what exactly you would like to see in terms of consequences, but I agree that deterrence is an important goal, as I laid out previously. The Drug Dealing Task Force summarized the research on deterrence relatively well in their report: having salient, certain, and swift consequences can be an effective deterrent but severe consequences do not effectively deter crime. Effective consequences do not have to be prison time even for “individuals without substance use disorders who are convicted for dealing multiple times,” as the task force noted. The task force also recommended “services that are designed to reduce recidivism during and after any time in jail.”
That’s what Boudin was trying to do with people caught dealing drugs in the Tenderloin. He did not, contrary to your implication, cast everyone dealing drugs in the Tenderloin as victims of human trafficking. He said that possibly half of the people who deal drugs there are from Honduras, that a subset of that group have been trafficked to the United States, and that he represented someone in that situation as a public defender whose father had been killed in retaliation when the client cooperated with federal authorities in another state. Boudin 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.
Boudin fulfilled his “professional and moral responsibility” better than most DAs. Boudin actually agrees with the principle that “the DA’s primary obligation is to each and every one of the victims” more than the typical DA. “[M]aking the victim whole” and “giv[ing] victims a voice in the process” were ideas he campaigned on. While in office, he significantly expanded the DA’s Victim Services Unit and implemented a broad set of initiatives for people who have been harmed by crime.
Supporting people who have been harmed by crime is an admirable goal. Separating people into groups of “criminals” and “victims” as you did, however, dramatically oversimplifies human behavior while relying on definitions of crime and patterns of arrest that, as I mentioned in my opening to this exchange, tend to serve the rich and target the poor. You say a person who “no longer goes to a sizable part of the downtown” due to their perception that “it’s neither pleasant nor safe to be there” is a “victim,” but what if that person is a business owner who misclassifies his employees as independent contractors to avoid being subject to labor laws? That’s illegal and has very harmful impacts; shouldn’t that person also meet your definition of a “criminal?” What if another person who doesn’t want to go into the Tenderloin has driven recklessly on a highway? Even if they weren’t pulled over and charged for it, that’s a crime and it endangers others, so wouldn’t they be a “criminal” by your definition as well?
Or take someone who is dealing drugs in the Tenderloin but also grew up in one of the “poor, immigrant families” living there. This person would appear to meet your definition of both “criminal” and “victim.” Most of the time, in fact, people who have committed crimes have been on the other end of crimes as well. Instead of classifying people into groups of “criminals” and “victims,” we should focus on how people have been harmed by specific actions, how to repair the harm, and how to reduce the likelihood of future harm.
The DA’s first principle, similar to a doctor’s, should be to do no harm. When government fails to protect people’s safety, that’s a definite problem, but it’s a far worse problem when government actively harms people, which has been an enduring feature of our criminal legal system. Many people throughout the country, including a majority of Black and Hispanic Americans, live in fear of identity-based police harassment and potentially even murder when they go about their daily business, experiencing considerable stress whenever they see a police car or uniformed officer – that’s real and serious government-induced harm. Black San Franciscans have good reason to worry and, as the San Francisco Coalition on Homelessness has documented, police reduce feelings of safety for many people experiencing homelessness as well.
Another serious governmental harm involves large numbers of people being wrongfully arrested and convicted, torn from their families and locked in inhumane conditions under false pretenses. In fact, unduly long sentences in inhumane prison conditions can ruin not just the lives of the people imprisoned but the lives of those people’s family members as well. Families of people who committed minor crimes can also be ruined by systems of cash bail, fines, and fees, which can deplete people’s meager savings and consign them to perpetual poverty.
One of a DA’s primary obligations, in my view, is to work to end or at least mitigate these government-imposed safety issues. Boudin’s election was exciting, and his first two years in office promising, in large part because he prioritized that. Under Boudin, for the first time ever, SFPD officers needed to think twice about using excessive force, as they knew they might actually face prosecution for doing so. In addition, Boudin pledged not to prosecute drug possession cases arising from “pretextual stops” that disproportionately target Black and Brown Americans; San Franciscans who feared the police finally had someone in a position of power who had their back.
Boudin also started an Innocence Commission and Post-Conviction Unit during his first year in office to address wrongful convictions and reduce excessive sentences. The Post-Conviction Unit has successfully resentenced 68 people, and in April of 2022, the Innocence Commission’s work led to the release of Joaquin Ciria, a man who had been imprisoned for 32 years for a murder he didn’t commit. The work of the Innocence Commission and Post-Conviction Unit is a very big deal not just for those who have already been wrongfully convicted or have spent demonstrably unjustifiable time in prison and their families, but also for those who can now worry less that these things might one day happen to them.
Boudin’s abolition of cash bail, general push towards diversion rather than incarceration, and hesitancy to seek long prison sentences has proactively reduced harm for thousands more people and their families. You may argue that rectifying this type of harm to people and relatives of people who have committed crimes should take a backseat to getting justice for the people those crimes have harmed, but as I referenced in my original piece, punitive sentences aren’t just ineffective at deterring crime: they’re not generally desired by people who have been harmed, who tend to prefer the rehabilitative and restorative approaches that Boudin does.
Another important obligation of the DA, in my opinion, is to prioritize the safety of those who are least well-off. That absolutely includes people experiencing homelessness and families who are struggling to get by in the Tenderloin, but as noted previously, their economic situations are the primary cause of the safety issues they typically face. Many of them are mistreated by their employers. Far more money is illegally stolen from workers in wages across the United States each year than is stolen through robberies, yet the news media and criminal prosecutions have historically tended to focus almost exclusively on the latter.
Boudin, on the other hand, committed to use his power to prosecute corporate wrongdoing. He created an Economic Crimes Against Workers Unit to do so and went after companies like DoorDash and Handy for violations of labor law. I think the DA should be much more concerned with corporate crimes than with people who don’t have very much money shoplifting from highly profitable corporations like CVS or Walgreens. In general, I want the DA focused more on accountability for powerful people who live comfortable lives and whose lawbreaking harms hundreds or thousands of other people than on prison terms for people with less power whose crimes are more often than not borne largely of circumstance.
In short, Boudin had the right vision and had begun to implement elements of it in important ways. It’s unfortunate for San Franciscans’ safety that he didn’t get the chance to continue to do so.
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