first published in Medium, November 1, 2109

Chesa Boudin with other attorneys on the steps of the California State Building, August 11, 2109. Photo by Smeeta Mahanti / Chesa4DA.

Who’s Afraid of Chesa Boudin?

By Matt Gonzalez

In the final days of San Francisco’s election for District Attorney, the San Francisco Police Officer Association (POA) is desperate to mischaracterize his views in a last-minute effort to derail Boudin’s vital reform campaign

We’re in the midst of an exciting race for District Attorney of San Francisco right now as three prosecutors face off against a public defender who has been a leader in criminal justice reform, from ending money bail in California to writing many of the policies the San Francisco Sheriff’s Department uses for handling immigration / ICE detainers. When Chesa Boudin first entered the race, most commentators were unsure of what to make of it. The son of radicals who were imprisoned for their part in a 1981 Brinks robbery in New York state which resulted in the death of two police officers and a security guard, it was unclear how Boudin would chart his path to being the top law enforcement official in San Francisco.

But Boudin is not his parents. Yes, he shares a progressive philosophy, but Boudin’s focus is addressing failures in the criminal justice system and demanding better outcomes. Rather than repeating failed policies, he seeks to end recidivism by treating underlying problems. He is the first candidate for District Attorney of San Francisco to say he wants to end mass incarceration and the corresponding racial inequities that go part and parcel with that (in San Francisco African Americans represent less than 5% of the population, yet 50% of the jail population).

A Rhodes Scholar who graduated from Yale Law School and who clerked for two federal judges, Boudin is hardly someone who has difficulty working with those within the power structure. Not surprisingly, he has made a compelling argument for how he would tackle intransigent problems. The top fundraiser thus far, having raised over $600,000, he recently also topped the only poll in the close race.

As a result, the reactionary San Francisco Police Officers Association (POA) has mounted several T.V. and mail attacks that misrepresent what Boudin believes in. It’s their hope that voters will be frightened of a candidate who has pledged to hold police accountable and who has committed himself to implementing restorative justice and alternatives to incarceration. It remains to be seen whether anyone cares what the POA thinks, given that in the last San Francisco mayor’s race, their endorsed candidate finished with just 7% of the vote. Despite their unpopularity their PAC (and associated law enforcement PACs) have thus far spent an estimated $700,000 in this race, which is more than Boudin has raised, to try deterring voters from considering his candidacy.

The POA is making two basic points: that by not being a prosecutor, Boudin lacks the experience necessary to do the job and secondly, that Boudin will not prioritize public safety. For this latter argument they present examples misrepresenting Boudin’s policy beliefs. Let’s break down each of these arguments.

Experience

It is true that Boudin has not prosecuted cases. As a public defender, that’s obvious. Unlike his prosecutorial opponents, however, he proudly has not participated in the failed war on drugs, argued to keep people in custody subject to money bail, or urged the deportation of immigrants arrested for minor offenses. Instead, he’s worked to reform the system as an outsider, all the while gaining valuable experience working with key stakeholders in the system to force it to meaningfully address problems.

The fundamental premise of his campaign is that those responsible for the broken system can’t see the problems, much less fix them. At best they can see the way the winds are blowing and follow. Case in point: Boudin is one of the leaders in the effort to end money bail in California and is one of the attorneys behind the Humphries case currently pending in the California Supreme Court. His opponents now all say they want to end money bail. But where were they when they urged judges to set money bail in misdemeanor cases in San Francisco’s courtrooms?

While recently-elected Philadelphia District Attorney never prosecuted a case before becoming DA, he nevertheless had years of experience and knowledge of the criminal legal justice system as an opponent to its prevailing preferences. Likewise, Chesa Boudin has more trial experience, and has worked longer in the courtrooms of the Hall of Justice in recent years, than the appointed incumbent.

That’s why reform-minded elected prosecutors from around the country including Larry Krasner in Philadelphia, Kim Foxx in Chicago, and Rachael Rollins in Suffolk County, MA, have endorsed him. It is also why respected law professors such as Lawrence Tribe (Harvard), Lara Bazalon (University of San Francisco), Michael Wald (Stanford), Judith Resnick (Yale), Bill Ong Hing (University of San Francisco), and Rory Little (Hastings) have too.

Chesa Boudin represents a new wave of progressive district attorneys across the country who want to aggressively reduce jail populations. They aren’t afraid to say certain neighborhoods are over-policed. They pledge to hold police accountable and to focus their efforts on serious crime rather than those offenses evidencing poverty and mental illness.

It is also worth noting that despite years of so-called “experience” no San Francisco district attorney has ever prosecuted a police officer in the shooting death of an unarmed civilian? And none of Boudin’s opponents have pledged to do so. This failure has lead to the erosion of public confidence. Shouldn’t community confidence in the District Attorney be valued?

Public Safety

There is a myth suggested by the POA that defense attorneys don’t care about public safety. Yet, the argument doesn’t hold up to scrutiny. Many former public defenders have been appointed or won election to the San Francisco Superior Court including Teresa Caffese, Brendan Conroy, Bruce Chan, Linda Colfax, Chris Hite, Perker Meeks, Carol Yaggy, and Gerardo Sandoval. These judges have made decisions about releasing people from jail every day, for years. Yet they are all former public defenders. Are they incapable of weighing public safety concerns because they were never prosecutors?

There isn’t anything precious about being a member of law enforcement or a prosecutor, as it relates to protecting the public. In fact, repeating the same failed law enforcement initiatives that result in the same failed outcomes, hardly inspires confidence or protects the public. The examples the POA has used to make their public safety arguments illustrates how misleading their critiques actually are.

DUI cases

Chesa Boudin has been criticized for saying he would continue a diversion program started by former District Attorney George Gascon. The other candidates have all attacked it. But what is at stake? Currently, a standard DUI, where the accused pleads guilty, results in a term of probation and no jail sentence. This isn’t anything new, it’s been that way for over 3 decades. So a diversion program that focuses on trying to keep people from recidivism risks what exactly? Other than not requiring someone to pay a couple thousand dollar fine, and having the prior conviction on their record, what does it do?

Boudin rightfully notes that a subsequent arrest could still carry a 6-month jail sentence regardless of the fact that the person isn’t on probation and doesn’t have the prior conviction. That’s plenty of jail time to seek for a repeat offender in a standard DUI case. (And of course, if the second DUI results in injury or an accident, it could be prosecuted as a felony depending on the circumstances. This is true whether or not you plead guilty to the 1st offense or participated in a diversionary program).

Attacking Boudin for this policy position is the kind of false rhetoric the POA and Boudin’s “experienced” opponents are engaging in. None of them are calling for stiffer penalties in DUI cases. Boudin’s approach tries to incentivize rehabilitation by offering diversion programs in the least serious cases. In this way, fewer DUI cases will have to be resolved with a jury trial, thus freeing up courtrooms for more serious felony cases.

Gang enhancements

When Chesa Boudin says he won’t use so-called gang enhancements, the police officer’s association put out a mailer saying Chesa Boudin won’t use gang enhancement in rape and murder cases. But what they don’t tell you is that Boudin has made clear that he would charge the rape and murder cases separately. Boudin’s approach is this: the accused, if convicted, would face serious prison time for any serious crime, including life in prison in any murder prosecution. The police knowingly and purposefully mischaracterize his position hoping to scare away likely voters.

Gang designations have been criticized by civil rights groups as unfairly targeting communities of color. Boudin rightfully makes the point that you don’t need the “added” enhancement since the underlying crime carries large enough penalties to punish and deter further crime.

Why is the POA so invested in this election?

When considering the arguments the POA makes against Boudin, keep in mind that the POA doesn’t have the greatest track record for engaging in lawful activity and protecting San Franciscans. They vigorously defended their members who sent racist text messages on personal phones while on duty. These texts included use of the word “n — ,” as well as disparaging comments about LGBTQ persons. The POA also defended police officers who were ultimately convicted in federal court and sentenced to prison for writing false police reports and entering homes without warrants or consent in the Henry Hotel scandal. Could it be that the POA is afraid of Chesa Boudin because they know he will hold them accountable for their actions?

Importantly, many current and former San Francisco Police Commissioners have endorsed Boudin including: John Keker, Petra DeJesus, Peter Keane, Bill Ong Hing, and Cindy Elias. They all have worked closely with the Police Department to discipline police officers and to guide Police Department activities. They all have confidence that Boudin can do the job.

Conclusion

Don’t be fooled by false claims. This is the most important campaign for District Attorney that San Francisco has seen. The loudest critics have the most at stake — the possibility that San Francisco’s next District Attorney will abandon jail as the primary tool to address crime. When voters go to the polls on Tuesday, San Francisco has the chance to choose a leader in the progressive movement for criminal justice reform. It’s an exciting prospect.

— Matt Gonzalez

Shawn King & Chesa Boudin, 2019.