Family Separation And ‘A Longer View Of Public Safety’: A Conversation With San Francisco D.A. Chesa Boudin

Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal. This article is also part of The Stakeholders, a series of Q&As with state and local actors on the criminal legal system.

Recent research has quantified the extent to which incarceration has penetrated American life, hollowed out families, and caused multigenerational harm. Nearly 1 in every 2 adults has had a family member in jail or prison, an estimated 113 million people, according to a 2018 report. Among children, 1 in 5 has experienced separation from a parent. On any given day, an estimated 2.7 million minor children in the United States will have a parent in jail or prison, according to a 2010 report.

The Trump administration is rightly condemned for its policy of family separation at the U.S.-Mexico border. However, family separation is routine in the criminal legal system. That separation is enacted disproportionately against poor people and people of color and has profoundly negative short- and long-term consequences for children.

Jurisdictions around the country have begun exploring programs that offer alternatives to parental incarceration. California, last year, took the most significant step in this direction with the passage of Senate Bill 394. The law went into effect at the beginning of the year.

In an email, Erin Haney, senior counsel at #cut50, the organization that sponsored SB 394, told the Daily Appeal that the law “creates a rehabilitative program in the California court system.”  For a person identified as a primary caregiver for children, “the court would be responsible for identifying an available program/s that, if successfully completed, would allow the defendant to avoid incarceration and a conviction.” Program offerings could include, among other services, parenting classes, mental counseling, and substance use treatment.

What happens now that the law has gone into effect? “SB394 gave counties an option to stop the generational cycle of mass incarceration and mitigate the trauma of family separation,” Haney wrote. She continued: “SB394 only provided an option, however, not a mandatory or required path for every case or even every county.  The implementation of Primary Caregiver Pretrial Diversion courts are largely dependent on the District Attorney, Public Defender, Presiding Judge, and available collaborative court programming in each county.”

The first district attorney in California to announce that his office would offer a pretrial diversion program for primary caregivers under the new law was San Francisco’s new DA Chesa Boudin, who did so last week. Boudin, whose own parents were sent to prison when he was a year old for their role as getaway drivers in an armed robbery that led to three deaths, has described his experience of parental incarceration.

The Appeal spoke with Boudin about the new Primary Caregiver Pretrial Diversion program, how he hopes it will prevent harm to and strengthen families, and his view of what public safety requires. The interview has been lightly edited and condensed for clarity.

Your own parents were incarcerated when you were a very young child and you also, as a public defender, represented people who faced separation from their children when they were incarcerated. What are the problems that this program seeks to address and how is it part of the solution? 

One of the things that I saw growing up and that we know empirically is that when we put people in jail or prison, or even when we give people felony convictions, or misdemeanor criminal convictions, it interferes with and undermines their future life prospects. We justify those consequences for criminal acts a number of different ways—punishment, retribution, deterrence, sometimes people talk about rehabilitation, although I think everyone who looks at the data knows that our criminal justice system is abysmal when it comes to rehabilitation.

The problem that this program seeks to address is that when the people we seek to punish have children, the punishment is not limited to the individual who may have caused the crime, but actually impacts the whole family. It’s something I experienced and saw many other children experience. I saw so many children suffer trauma, economic deprivation, emotional suffering because of something that their parents had done. I also saw many of those kids who I grew up with in prison visiting rooms end up in the criminal justice system themselves.

The goal behind this program is to break that cycle. To find ways to hold people who cause harm accountable, to intervene in ways as serious as the crime they’re accused of warrants, but without doing damage to the entire family. And in fact the intervention is designed to recognize the sanctity of the family and put people who have gotten in trouble with the law in a better position to provide for and support the children who depend on them.

You’ve said “public safety is implicated when we tear a child away from their parents,” and have spoken about the need to have “a broader view of public safety.” Can you talk about that? 

Often the conversation about public safety is limited to a retrospective analysis: Someone committed a crime, therefore public safety demands punishment for the person who committed that crime. It fails to consider the ways in which our punishment or our intervention after the punishment can actually make us all less safe in the future. So for example, we now know empirically that putting people who are low-risk—say accused of nonviolent misdemeanors—in jail for two or three days makes it more likely they will end up committing a crime in the future as opposed to immediately releasing them and allowing them to go through diversion programs. There’s tremendous empirical data showing that.

Similarly, we know that depriving children of their parents, of the breadwinner in the home, puts them at risk for a wide range of trauma potentially, depending on the community they’re in, violence, and involvement in the criminal justice system themselves down the road.

And so, a longer view of public safety considers the message to the child who’s left behind when a parent’s incarcerated, and also the desire to prevent the parent and the child from ending up causing harm to another person in the future, which we know, again empirically, is often the result of parental incarceration.

What from your experience as a public defender informs your ideas about what a meaningful opportunity to complete a diversion program looks like?

San Francisco already has a very robust pretrial diversion program that’s currently limited to certain categories of misdemeanors. And the procedure that we envision for the primary caregiver diversion is similar but more focused on parenting issues and accessible to a wider array of defendants.

The way the current misdemeanor pretrial diversion program works is eligible cases get referred by the court, they then engage in classes as determined by our diversion agency, which is a nonprofit with about 40 years of a track record in San Francisco providing services to the courts.

This program will add a layer of programming which is focused specifically on parenting so there would be parenting classes, and maybe substance abuse classes or mental health therapy if those are appropriate for the person’s needs. The goal, and the responsibility that will fall largely on pretrial diversion, is to assess the individual and their family needs and create an individualized program they’d be asked to complete. And they’ll have six months to two years to do that. Some of the programs would require the full two years. Certainly some of the felonies that are eligible under the statute would require a more rigorous engagement with service and programming in order to earn a dismissal. Some of the lower-level misdemeanors would be more on the six months side of the spectrum.

What do you want prosecutors in your office to consider if a participant has been unable to comply or maybe slipped up and they’re deciding whether someone deserves another chance to complete a program? 

I’m a big believer in second chances. I wouldn’t be the district attorney of San Francisco if I hadn’t had countless second or third chances over the course of my life. I also know from my own life experience, my relationship with my parents, that we’re all much more than our worst mistake. And I think that perspective is important when we think of the best interests of a child, when we think about the sanctity of the family. When we think about trying to encourage people and support people to change their lives.

For far too long our country has focused narrowly on something that’s really easy, which is punishing people when they’ve committed a crime.  What is much harder is to intervene in a person’s life in a way that prevents them from committing the next crime. That breaks the cycle of crime and punishment and that’s how we make our communities safer. 

So the message that I’ve sent to my office and I’ll continue to send is there will be consequences for people who commit crimes, we will hold people accountable, and we will uplift victims and make every effort to give them a voice and restore them. But we will not narrowly focus on punishment, particularly when that punishment puts our communities at greater risk. Instead, we’ll focus on ways to intervene that rehabilitate and target the root causes of crime and that uplift our families and communities so that we’re all safer and for longer.

This program is for people charged with misdemeanors and some nonviolent, nonserious felonies. Many cases fall outside the scope of this program. Are there principles inherent in this policy that you want the DA’s office to incorporate into its treatment of other cases?

This is one policy, you know, among many that we are developing and rolling out. Even just in these first couple of weeks in office. It’s important to remember that many people who are not eligible under the statute for this particular program may be eligible for other programs. We do have a range of collaborative courts in San Francisco, which we’ll be expanding in the weeks and months ahead. And the guidelines on those collaborative courts, which are not focused on or limited to people who are parents but which certainly encompass people who are parents, have in some instances broader admission guidelines than the primary caregiver parenting program.

The other thing to remember is that we are moving very quickly away from a pretrial detention system that relies on wealth and towards one that relies on risk instead. If someone is a primary caregiver for children that will always be a very serious consideration in any pretrial release decision that my office makes. It will also be a serious consideration at the time of sentencing.

What that means is if there is a way to release an individual to their family that depends on them, that is consistent with public safety, we will do that during the pretrial period. And if there is a way to impose a sentence after trial or after a conviction that allows the individual to continue supporting their family that is consistent with the law and with public safety we will always do that.

We will prioritize family integrity and family unity at every stage of the process to the extent we can do so.

Similarly, are there principles that you hope to apply in considering the cases of noncustodial parents as well? What will that look like? 

So under the terms of the statute, folks in that circumstance would not be eligible for the program but, as I said, they may well be eligible for other programs. My hope is this program will encourage more people to step up and take on responsibility for their children. I think it would be great if we saw people meaningfully re-engage with their children. If getting arrested and facing criminal charges does nothing else but provide incentives for parents who have been out of their children’s lives to re-engage and take responsibility we will have accomplished at least that. 

Anything else that’s important for understanding the program? 

In response to some of the critics, I would just say, first of all, this is not some radical go-it-alone initiative that I’ve come up with. This was a state law that went through the entire legislative process, had ample opportunity for debate, amendments, for refinements and then was signed into law by the governor. And I would also say that the law on its face explicitly allows for exceptions, people who will not be allowed to participate in the event of some overriding public safety concerns.

So while critics will always point to the most extreme scenario, the reality is in extreme scenarios my office and the court have the discretion to deny access to the program. And regardless of what cases get referred, people will have to do a rigorous process of up to two years in order to earn a dismissal. And during that time period the court will get regular reports, there will be monitoring of their compliance with court orders.

If we have people who are justice-system involved who spend a two-year period not getting in trouble, taking care of their family, and engaging in programming that sets them up to succeed, I think it’s a significant success and it’s a significant win for public safety.