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San Francisco's Recall Highlights Pushback Against Progressive Prosecutors

Conservatives have targeted District Attorney Chesa Boudin, blaming him for the city's theft and murder rates. It's a sign that a public weary of crime may be growing dubious about reform.

San Francisco elects an underdog as next DA
San Francisco District Attorney Chesa Boudin.
(Mark Z. Barabak/TNS)
Once again, a California Democrat complains that Republicans and big-money donors are trying to overturn the will of the voters by funding a multimillion-dollar recall campaign. That framing worked for Gov. Gavin Newsom last fall, when he survived a recall attempt. Things might play out differently for San Francisco District Attorney Chesa Boudin, who faces a recall vote on June 7.

Various groups — including a Republican billionaire, tech investors and realtors — have indeed poured millions of dollars into the effort to drive him from office. “We’re not dealing with a grass-roots movement,” Boudin complained earlier this year. “We’re dealing with a small number of wealthy individuals, many of whom are national Republican major donors.”

Boudin points out that crime overall has dropped on his watch and remains lower than most other major cities. Still, there are enough high-profile crimes — including dramatic rises in car theft, highly publicized shoplifting and, most importantly, homicides — to make him vulnerable. Polls suggest voters are ready to turn him out. It's not even close.

Boudin is part of a generation of progressive prosecutors who see their role not just as sending offenders to prison, but addressing the underlying roots of crime. As crime rates — particularly homicides — have shot up since the start of the pandemic, their approach has come under increasing attack. “The crime rate of course is going to increase when you’re not doing the basic blocking and tackling of prosecuting crimes," says Zack Smith, a legal fellow at the conservative Heritage Foundation. “It creates a culture of lawlessness in many of these cities, and the result is what we’re seeing, an increase in crime.”

There are still plenty of traditional prosecutors who measure success by the sheer number of rapists and murderers they put away. But an increasing number of counties have elected prosecutors who aim not only to fight crime but avoid contributing to mass incarceration, for instance by not prosecuting low-level drug offenses.

These progressive prosecutors, elected in recent years in jurisdictions including Boston, Chicago, Denver, Philadelphia and St. Louis, have all encountered pushback. Police unions invariably complain about their approach, while some have seen career prosecutors resign. In Boudin’s case, dozens of prosecutors have either quit or been fired, with some joining the recall campaign against him.

With crime rates going up nationally, the chorus of complaints against those Smith calls “rogue prosecutors” has grown. “For sure they create more crime,” says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a conservative public interest law organization. “You can’t tell people we’re not going to prosecute you if we have thefts, and not have thefts go up.”

But homicides are up all over the country, not just liberal cities. In fact, the pandemic-era murder rate has increased far more in red states that supported Donald Trump in 2020 than blue states that voted for Joe Biden. Crime has also increased in cities that are home to traditional “tough on crime” prosecutors, including Oakland, directly across the bay from San Francisco.

According to John Pfaff, a law professor at Fordham University, the dramatic rise in homicide rates between 2019 and 2020 was essentially uniform in 69 large jurisdictions, regardless of whether they were home to progressive prosecutors. “It’s really an attempt by opponents of reform to leverage the increase in crime and the fear that has generated, and to blame the wrong thing,” says Nicholas Turner, president of the Vera Institute of Justice, a progressive nonprofit that works to combat mass incarceration.

Given the fact that homicides are up, however, progressive ideas for criminal justice reform — policies such as elimination of cash bail or the election of reform-minded prosecutors — are now under political pressure. That will intensify if Boudin is recalled. Already, signatures are being collected for a potential recall election against Los Angeles District Attorney George Gascón. “One of the questions about the progressive prosecutors movement from the outset is what happens when crime goes back up, will they be defeated politically,” says David Alan Sklansky, a law professor at Stanford University.

Roots of Reform

The last time murder and violent crime rates increased markedly — increases were much more dramatic back in the 1970s and 1980s — it was reflected in the politics of the time. The death penalty was still in vogue. States passed three strikes and mandatory minimum sentencing laws designed to put bad guys away for longer periods of time, if not forever. The trend was exemplified by the 1994 federal crime law — sponsored by Biden, then a senator — which included funding for 100,000 more police officers and expanded the reach of the federal death penalty.

By the time that law passed, as it turned out, crime rates had already peaked. Prison populations, however, continued to expand. In the first decade of the 21st century, some states were spending more on corrections than they did on higher education. The U.S. had become the world leader in incarceration.

The prison population increased 800 percent between 1970 and 2008. That year, the Pew Center on the States found that “for the first time, more than one in every 100 adults is now confined in an American jail or prison.”

The prison population was disproportionately made up of Black and Hispanic Americans. It also included large shares of convicts who had been released but returned to prison on technical violations. The vast majority of prisoners are eventually released, so lawmakers began to think it would be a smart investment to offer them drug treatment, job training or other forms of assistance, to help them avoid reoffending and returning to prison.

It's been one of the biggest policy experiments of the century and a rare example of bipartisan collaboration. Some of the most ambitious justice reinvestment programs have taken place in deep-red states such as Texas and Mississippi. The change in tone was highlighted during a 2020 debate when Trump called out Biden for his sponsorship of the 1994 law, “which put tens of thousands of Black men, mostly, in jail.”

But even as criminal justice reform efforts progressed, prosecutors remained, mostly, a voice of opposition. Pfaff argues in his 2017 book Locked In that they were, in fact, the main drivers of mass incarceration. Between 1990 and 2007, the number of career prosecutors — all of whom had professional and political incentives for charging people — shot up by 50 percent.

A New Approach

The picture slowly started to change about a decade ago. Scattered district attorneys began innocence projects, re-examining old cases to see whether their predecessors had wrongly convicted individuals in the past.

A sizable cohort of progressive prosecutors were elected in 2016, and many more have taken office in the years since. Boudin, for example, was first elected in 2019. A number of them had financial support from George Soros, the liberal billionaire who has championed criminal justice reform efforts.

Their priorities haven’t all been exactly the same, but broadly speaking they have sought to avoid contributing to mass incarceration when they can, saving their prosecutorial zeal for the most violent offenders. They’ve sought to divert drug offenders into treatment programs, refused to prosecute small-dollar thefts and not asked for cash bail from many poor defendants. Some refuse to seek the death penalty.

The vast majority of prosecutions end in plea deals. District attorneys hold enormous power, with their essentially unchecked ability to pressure defendants by holding them in pre-trial detention. This new generation’s willingness to take a different approach has helped take some pressure off the carceral system. They argue that, over time, what they’re doing will also make cities safer.

“There’s broad support for a lot of what they’re championing,” says Sklansky, the Stanford law professor. “There’s broad support for greater scrutiny of police killings, to reverse wrongful convictions, for efforts to make the criminal justice system fairer and more just across lines of race.”

Vanguard members of the movement have already won re-election, including some who have become lightning rods for criticism in cities seeing rising crime, such as Philadelphia District Attorney Larry Krasner.

San Francisco’s Problems

Given the crime rate in Chicago, one Illinois legislator sought earlier this year to move legislation that would allow Cook County voters to recall State’s Attorney Kim Foxx, but that was a non-starter. It's a different story for Boudin. San Francisco is one of the most liberal cities in the country, but as a California city, it has lax recall rules.

There’s a measure on San Francisco’s June 7 ballot that would place new limitations on recalls, but of course its passage would come too late to help Boudin. Back in February, three members of the San Francisco school board were recalled. Some of the same donors who funded that fight are also bankrolling the effort targeting Boudin. “Very few people were defending the school board members,” says Jason McDaniel, a political scientist at San Francisco State University. “That’s not the case with Chesa. He’s not made himself toxic.”

Some peer cities would love to have San Francisco’s crime rates. The number of murders remains much lower than in many other sizable jurisdictions. Other types of violent crime, including rape and assault, remain near historic lows. Most property crimes are returning to pre-pandemic levels.

But McDaniel notes that residents are upset about “the perception of lawlessness.” The number of homicides per capita last year may have been much lower than in other cities, but it was still 41 percent higher than San Francisco experienced in 2019. The number of fatal drug overdoses per capita, meanwhile, have more than tripled over the past decade.

Those statistics have been enough to indict Boudin. The recall campaign has showcased the problem of drug dealing in the Tenderloin District and blamed the D.A. for a range of crimes such as auto break-ins and retail thefts that have drawn national news coverage. “When Fox News and their ilk cast their focus on a handful of society’s ills, that’s going to have an impact,” says Julie Edwards, a spokesperson for Boudin’s anti-recall campaign. “The singular focus on a handful of progressive prosecutors is not driven by data or policies, it’s driven by a political effort to drive back their opponents or any efforts at criminal justice reform.”

Boudin has the backing of unions and other liberal groups and has raised millions of dollars for his own defense. He’s noted that some of the crime footage meant to make him look bad was actually shot prior to his election.

He took office in January 2020. Within a couple of months, he and his staff were scattered by stay-home orders. He’s had the bad luck of serving during a pandemic that has either caused or coincided with an increase in crime across the country, notably homicides. Perhaps bad timing is more of a problem for Boudin than his approach.

But that’s a central lesson of politics. What happens on your watch is your responsibility, even if it’s not your fault. His policies may or may not have contributed to crime getting worse, or even the perception that it’s gotten bad. Any politician with authority, however, is likely to take the blame when things go wrong.
Alan Greenblatt is the editor of Governing. He can be found on Twitter at @AlanGreenblatt.
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