San Francisco District Attorney Chesa Boudin will announce a new directive today that significantly restricts his office’s use of sentencing enhancements, like three strikes, that add prison time for past convictions or alleged gang affiliations. The office will also change how it handles cases that arise from certain police stops, according to another directive announced today.
Under previous DAs, Boudin told The Appeal, sentencing enhancements “would be filed as a matter of course.” Under the new directive, a draft of which was reviewed by The Appeal, Proposition 8, prior-strike, and STEP Act (also known as “gang enhancements”) will not be charged, except in limited circumstances. Pending sentencing enhancement charges will be dismissed, according to the directive. The DA or his designee must approve any exceptions to the policy.
“This whole idea of time served is a fallacy for many people,” Boudin said, “and so for us to then turn around and punish people more harshly because we collectively failed to rehabilitate them, because we collectively set up these roadblocks and obstacles for them is draconian. We don’t need to do that in most cases, so our presumption is we will not do that.”
When asked why his office did not issue an outright ban, Boudin said, “That’s essentially what we’re doing, but as with all policies there are exceptional circumstances and we want to leave room for those exceptions so we’re creating a presumption against using any of those enhancements but it doesn’t mean that we will never do it.”
About one out of every four years of incarceration served by people sentenced in San Francisco between 2005 and 2017 was due to a sentencing enhancement, according to a study published in October by the Stanford Computational Policy Lab. In 1982, California voters approved Proposition 8, which mandates a five-year sentencing enhancement for each previous serious felony conviction if the current conviction is for a serious felony. More than a decade later, voters passed the “Three Strikes and You’re Out” ballot initiative, which mandates a life sentence for anyone previously convicted of two crimes considered serious or violent. In 2012, voters approved a ban on life sentences for third strikes for minor offenses.
In California, more than 45 percent of those serving a life sentence as a result of the Three Strikes law are Black, according to the Three Strikes Project at Stanford Law School. An estimated 6.5 percent of the state’s population is Black, according to the U.S. Census.
Gang enhancements, which lengthen a person’s sentence on the basis of purported gang affiliation, are applied in a notoriously racist manner and often based on false information. In California, 92 percent of prisoners—more than 10,000 people—with a gang enhancement who are serving time in an adult state prison are either Black or Latinx, as of last August, according to The Guardian.
While running for DA, Boudin, a former public defender, publicly criticized gang enhancements as racist and said he would not seek them. The directive, Boudin said, is “motivated by a desire to move away from failed draconian, racist policies that have fueled mass incarceration and undermined confidence in the justice system.”
The directive, he said, is also intended to reform a plea bargaining process that has allowed prosecutors to use sentencing enhancements as leverage.
“If we’ve arrested the wrong person and charged them with a crime they didn’t commit we don’t want to coerce a guilty plea out of them because they’re scared their past will be used against them,” he said.
Boudin will announce a second directive today, also reviewed by The Appeal, on what are known as pretextual stops, in which an officer stops someone for a minor offense or infraction, such as a traffic violation, in order to conduct an unrelated search for items like guns or drugs.
According to the new policy, the DA’s office will not prosecute possession of contraband cases when the contraband was collected as a result of an infraction-related stop, “where there is no other articulable suspicion of criminal activity.” Any deviations from the policy should be made in writing and require approval from the DA or a chief of the criminal division.
Additionally, the ban includes cases in which a person consented to a search “because of the long-standing and documented racial and ethnic disparities in law enforcement requests for consent to search,” according to the directive.
Studies have shown that these types of stops and subsequent searches are overwhelmingly used against people of color. In California, Black people who were stopped for traffic violations were almost three times more likely to be searched than whites, according to a report by the Racial and Identity Profiling Advisory Board, which the state legislature created. Their findings were based on a study of approximately 1.8 million traffic stops by the eight largest California law enforcement agencies that occurred between July through December 2018.
Boudin’s directive compares pretextual stops to “the disavowed and discriminatory” practice of stop-and-frisk, which received renewed attention after former New York City Mayor Michael Bloomberg entered the 2020 presidential race. The DA’s office’s new policy, Boudin said, is “focused on remedying a well-documented problem in San Francisco and across the country of stop-and-frisk style policing.”