San Francisco Deputy Public Defender Chesa Boudin Announces Run for District Attorney

Chesa Boudin, an outspoken deputy public defender in San Francisco, entered the city’s 2019 district attorney race today. It is San Francisco’s first open race for district attorney in more than 100 years, after incumbent George Gascón announced in October he would not seek re-election.

Boudin, the son of Weather Underground activists Kathy Boudin and David Gilbert, has already positioned himself as a reform candidate, running to the left of former San Francisco police commissioner Suzy Loftus, who declared her candidacy in September. A former prosecutor who worked under Kamala Harris and is backed by Mayor London Breed, Loftus has focused her campaign on getting tougher on “quality of life” issues, such as car break-ins and street crime.

Boudin spoke with The Appeal before he filed papers to declare his candidacy.  He said he recognizes the importance of property crimes to city residents—particularly when violent crimes are at near-record lows—but as a public defender he has seen firsthand that such offenses are often driven by underlying issues like poverty and substance use disorder. If we don’t address those, he said, “whether we send them to jail for a week or for a year, when they get back on the streets, most of the time they are going to be worse off and more likely to break another window.”

Boudin became an advocate for criminal justice reform while in high school, speaking out for the rights of children with incarcerated parents. His own parents were imprisoned when he was 14 months old, for charges related to their participation in a 1981 Brink’s armored-car robbery, in which two police officers and a guard were killed. (Kathy Boudin was released in 2003; Gilbert remains in prison.) Boudin was raised in Chicago by his parents’ Weather Underground associates and friends, Bernardine Dohrn and Bill Ayers. He came to national prominence in 2002, when he was named a Rhodes scholar and profiled by the New York Times as a “child of convicts” who had “overcome striking challenges.”

After joining the San Francisco public defender’s office full-time in 2015, Boudin led a major challenge to money bail and pretrial detention. After his client, Kenneth Humphrey, was held on $350,000 bail for allegedly stealing $5 and a bottle of cologne, Boudin fought Humphrey’s detention in state court, arguing that pretrial detention without regard to whether a defendant can afford bail violates that person’s constitutional rights. As a result, in 2018 a California state court ruled that bail hearings had to take into account a defendant’s ability to pay and consider nonmonetary alternatives to bail, which helped push the state to reconsider how and when to use bail.

If elected, Boudin would join the ranks of other progressive district attorneys who have taken office in recent years, including Larry Krasner in Philadelphia and Rachael Rollins in Suffolk County, Massachusetts. “My goal is to make sure that the law is enforced equally against people whether they are civilian or law enforcement, whether they are white or Black, whether they are rich or poor,” Boudin said. “And, right now, that is not happening.”

This interview was edited for length and clarity.

Having parents who were incarcerated for so much of your life, how has that shaped your understanding of criminal justice?

When you grow up having to go through a metal detector and steel gates just to give your parents a hug and when you have to have every single phone call with your parents recorded by the Department of Corrections, it is something that is always there in your mind. For me, personally, I went through a lot of these kinds of challenges that many children with incarcerated parents go through: feelings of guilt and abandonment and anger. I had issues in school. I was way behind when I was younger and I got in trouble as a young child. It wasn’t until I learned to forgive my parents for what they had done to me … for leaving me with the babysitter and for risking their relationship with me and risking the stability of my life before I could even talk.

It wasn’t until I forgave them for that that I was able to move forward and begin to excel in school, and it was around that same time in high school that I started speaking out on behalf of other children of incarcerated parents and trying to help identify some of the things that supported me through such a difficult period.

How would your priorities for reform in the DA’s office differ from both current DA George Gascón and from opponent Suzy Loftus?

I think Gascón has had—in terms of his stated public policies—I think he has done a lot of good and I think he has had a lot of good ideas. I think there has been a failure to follow through and to deliver on some of them. It is not about blame. I think it is a difficult job.

I think one area where there has been a real failure on his part that I think is important, is a failure to enforce the law equally against everyone regardless of what their job title is or what the color of their skin is. In particular, he has been criticized for not holding the police accountable when they kill or use excessive force. I know that it is an issue he says he cares a lot about and I believe he does, but there hasn’t been action to follow up on that.

With regard to Suzy Loftus, I think she is framing herself as a reformer. I don’t know her personally. And I hope that that framing is honest and genuine. I don’t know what specific policy she is actually going to advance because she hasn’t put any out in the months that she’s been campaigning. That, to me, is cause for concern. … I would love to see her put out some very specific policies that would tell us whether or not she actually is a reform candidate.

Obviously, we see [likely presidential candidate Senator] Kamala Harris today, this week, kind of rewriting the history of her role as district attorney and attorney general to suggest that she was a reformer and we know that is not the reality of her administration either as district attorney or as attorney general and Suzy Loftus worked closely with her in both of those positions. That is one of the reasons why I am not comfortable sitting back and just watching the candidates who are already in the race run. But, that being said, I am open and optimistic about the commitment that other candidates have expressed to reform. I just hope it’s genuine.

Loftus has focused her campaign, so far, on car break-ins and property crimes. You’ve written about the pressure on DAs to address these crimes and noted that there has been racial bias and upcharging in some of the cases that do get charged. How would you respond to that pressure on you as DA?

Auto burglaries are a serious problem in San Francisco. I had my car broken into, my parents have had their car broken into, my brother has had his car broken into multiple times. This is a real problem and we need to find creative ways to address it.

In order to stop the next car window from being broken, we need to recognize what is driving the behavior and we need to address it at its roots.

Chesa Boudin candidate for SF DA

The failed tactics that the police developed over the last five and 10 years are what leave us where we are today where we have less than 2 percent of reported auto burglaries resulting in an arrest. … We need to work with the police to develop new, more eclectic tactics.

But, we also need to break the cycle of recidivism. … In order to stop the next car window from being broken, we need to recognize what is driving the behavior and we need to address it at its roots. From my personal experience working on auto burglary cases, I know that auto burglars fall into two broad categories. First, you have relatively sophisticated criminal networks with fencing operations to move stolen goods quickly beyond San Francisco. Then, second, you have people who are either unemployed or homeless and who are desperate because of addiction or other economic circumstances and they are committing crimes of opportunity. We have to recognize that there is a big distinction between these two groups and we have to treat them differently.

San Francisco is an amazing city with tremendous resources and technology and wealth, but right next to it—sometimes just across the street—there is tremendous poverty and there are people who are really suffering and who are sick. If we don’t recognize the diseases that they suffer from that drive their criminal behavior and timely treat it, then whether we send them to jail for a week or for a year, when they get back on the streets, most of the time they are going to be worse off and more likely to break another window.

Homelessness—and the policing of homelessness—is a major issue in San Francisco. There are more than 30 quality of life ordinances on the books that can be used to sanction homeless people, like the ban on street camping. Yet DA Gascón has said that his office does not criminalize homelessness. Do you agree with that characterization?

I do agree in the sense that we do not see criminal charges brought against people in San Francisco, by and large, with those categories of offenses that we know in other jurisdictions are regularly prosecuted. It happens occasionally in San Francisco, but for the most part, we do not see cases filed for the kinds of crimes that are easiest to use to target homeless people. I do agree with that, by and large.

What can we do differently? … We can recognize the roots of the problem are drug addiction and mental health.

Right now, approximately 48 percent of people booked into county jail on felonies are not charged with a felony case. What that means is we have a huge number of people, thousands of people a year … cycling through the system, usually for a couple of days at a time.

Of course, the police will continue to arrest people who they believe are breaking the law. What we need to do is make sure that when there are arrests, they are an opportunity to make sure we connect people in need of services with the wide array of public health services and mental health services and employment services and housing services and child welfare services that San Francisco has to offer rather than what we do today. This is not Gascón’s fault in the sense that he is not charging them with crimes in many of these cases, but it is a system problem that is unaddressed.

The new Suffolk County, Massachusetts, DA Rachael Rollins announced a list of offenses she would not be prosecuting. Are there certain crimes you simply wouldn’t prosecute?

Yes, there are charges that I would not prosecute. Already in San Francisco, we [have the discretion not to] prosecute women who work as sex workers, for example, for that, even though technically it’s a crime. The district attorney’s office already exercises discretion not to charge that and usually not to charge most stand-alone drug possession or possession of drug paraphernalia. So certainly I would continue to exercise discretion not to charge those.

I think that the way that gang allegations and enhancements are prosecuted in San Francisco and in much of California, if not the country, are explicitly racist.

Chesa Boudin candidate for SF DA

I would be very hesitant to ever charge a case as a three strikes case. I don’t think three-strikes sentencing makes sense or is humane or just.

I think that the way that gang allegations and enhancements are prosecuted in San Francisco and in much of California, if not the country, are explicitly racist. … If someone is involved in a substantive criminal act, whether it be gun possession or drug sales or an assault, they can be prosecuted for the substantive criminal act, but adding gang enhancement allegations and charges as a basis to dramatically increase the punishment and the scope of evidence that’s potentially admissible is unethical.

Gascón declined to file charges in several high-profile fatal shootings by San Francisco police. In one case, former mayor Ed Lee asked the Department of Justice to investigate police practices as a result. Would you have pursued charges in any of those cases?

I can’t comment on specific cases that I don’t have all the information about. I saw the videos and I read the press and I was surprised, frankly, that [in] none of the shootings—the high-profile shootings in San Francisco—were there any criminal charges filed against police.

What I can say is as district attorney, one of my absolute priorities will be to ensure that we enforce the law equally against everyone, regardless of the color of their skin, regardless of their job title, regardless of whether they are civilian or sworn employees. That means looking very, very closely at every single allegation of police misconduct, particularly involving use of lethal force.

The police do have a dangerous job and they do have to make difficult quick decisions and not every police use of force is a crime, to be sure. But, sometimes the police do commit crimes and the fact that we virtually never see them prosecuted—at least not in state court—is something that undermines the integrity of the entire criminal justice system. My goal is not to go out there and go after police. My goal is to make sure that the law is enforced equally against people whether they are civilian or law enforcement, whether they are white or Black, whether they are rich or poor. And, right now, that is not happening.

As a public defender, you had a case where a San Francisco police officer, James Trail, was called to testify, but you found out he had a history of dishonesty and misconduct. That potentially exculpatory information wasn’t disclosed by prosecutors—a Brady violation. What would you do as DA to deal with problems like that?

I actually believe that the individual prosecutor in that case was acting in good faith when she told me, “We don’t have any Brady notice for you” meaning, “We don’t believe there is any Brady material.”

But there is a system problem, which is that right now the only way she would have known whether there was the thousands of pages of Brady material that were an issue in that case, documenting prior misconduct, was if the San Francisco Police Department had told her he’s on our list of officers who have Brady material.

My goal is not to go out there and go after police. My goal is to make sure that the law is enforced equally.

Chesa Boudin candidate for SF DA

Obviously, the system is broken. We need not just to have individual prosecutors who are acting in good faith, but we need to have another mechanism to ensure that when there is Brady material … the police themselves aren’t the ones who are the sole decision-makers about whether an individual officer’s name belongs on that list. Now, I think the district attorney’s office has an affirmative obligation to create and maintain its own list.

So, for example, there were a number of current members of the district attorney’s office who were involved in investigating the underlying case that was the core of the Brady material I received ultimately. … Those individual members of the district attorney’s office knew that there was Brady material on Officer Trail because they investigated him under Kamala Harris for possible criminal charges. … There are high ranking members of the district attorney’s office who are still there today who were involved in the underlying case.

Would you fire prosecutors involved in Brady violations who are still in the office?

I’d certainly consider it. I think that I would have to know there was an intentional violation. In that case, I knew that prosecutor well, and I had reason to believe she had no idea. Other people did or should have known, and I think that’s a different situation.

You mentioned creating a list of officers with misconduct histories. Would you make that list public?

I would rather work with the police department to get the problematic officers off the frontlines than publish a list. The goal isn’t to humiliate individual officers. The goal isn’t to be retributionist in how we approach officers who committed misconduct, but everybody who works at the Hall of Justice knows that there are a handful of officers who regularly engage in misconduct: illegal searches, racial profiling, use of force, dishonesty on the witness stand and in police reports. There is not a lot. Most officers are out there doing their job, serving the public. But, the handful that aren’t following the law and that play fast and loose do tremendous damage to the relationship between our communities and the police that are there to serve and protect.

My preference would be to work with the police department to make sure that officers who are known to engage in misconduct do not continue to interact with the public and do not continue to get called into court to testify about cases. If the police department refuses to cooperate in what I view as a shared goal to restore the integrity of the department and restore the trust between the communities that are policed and the police, then I think I would have to seriously consider tactics like those used by Larry Krasner, but it wouldn’t be my first step.

Senate Bill 10, California’s bail reform bill that passed last summer, basically eliminates money bail. Yet you said in an interview that you felt “disappointed” and “betrayed” by the legislation. That it doesn’t actually change what you called the “racist system of mass incarceration”—it just expands it. Can you elaborate?

The face of the legislation, absent further guidance from the Supreme Court, suggests that anybody, regardless of criminal history and regardless of the charge that they face … could be detained indefinitely pretrial. In my view, that’s inconsistent with both the U.S. and the California Constitution. I think it’s also bad public policy. Now, it doesn’t mean that people would be detained … SB 10 cannot provide courts with the power to detain people who are not eligible for detention under constitutional principles.

The real question is: What are those constitutional limits on who can be detained? I think the face of SB 10 suggests that there are no limits and that is problematic. But, if the Supreme Court tells us that there are limits and what they are, then my fears will be allayed.

Day One of your tenure as DA. What do you want to do?

There is a foundation that has been built through our diversion programs and … bail reform and nonmonetary alternatives to pretrial convictions, and there is a foundation to build on for a lot of progressive policies. But there is a tremendous amount of work that needs to be done … to make sure that all the individual district attorneys in the courtrooms every day share that vision. And to make sure that we are partnering with the other city agencies to ensure that we are smart on safety and that we don’t conflate victims’ rights with longer prison terms and that we don’t conflate public safety with conviction rates.

For me, that is a big part of it, just making sure that we all, everybody at the Hall of Justice, thinks about public safety in broad terms, that public safety is implicated when police violate rights, that public safety is implicated when people are subject to unlawful arrest. That public safety is implicated when crimes go unsolved because of lack of trust between law enforcement and the community, that public safety is implicated when someone is in jail and risks sexual violence or contagious diseases, that public safety is implicated when we tear a child away from their parents. I think if we have a broader view about public safety and if that becomes the culture and the way we think about it at the Hall of Justice, then starting on Day One, we will have better outcomes.