Progressive prosecutors have swept into office across the country, winning district attorney seats in Pennsylvania, Massachusetts, and beyond. But what does it mean to be a “reform prosecutor”? What is the ideology of the movement and those who lead it? To answer these questions and more, we are joined this week by Chesa Boudin, a public defender running for San Francisco district attorney. He’ll discuss his vision for the city and what being a reform DA means to him.
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Adam Johnson: Hi welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can follow us on The Appeal magazine’s main Facebook and Twitter page and as always you can rate and subscribe to us on Apple Podcast.
From Massachusetts to Philadelphia, reform prosecutors are having some success of late. But what does it mean to be a quote unquote “reform prosecutor?” What are the limits and overarching ideology of the movement and what can be expected from those who are embracing the label? To answer these questions and more we will be joined this week by Chesa Boudin, who is himself running for San Francisco district attorney. He will be joining us to discuss his vision for the Bay Area and what, to him, the label of reform DA really means.
Chesa Boudin: Because voters are demanding change everybody running for district attorney now, certainly in big cities, is calling themselves a reformer regardless of what their history of work shows and regardless of what they actually plan to do. And that makes it difficult to distinguish people who are genuinely committed to transforming the approach to the criminal justice system and those who are committed to basically continuing the status quo.
Adam: Chesa, thank you so much for joining us.
Chesa Boudin: Thanks for having me. I’m excited to be on the show.
Adam: So we obviously talk a lot about reform prosecutors, reform DAs, so forth. You are the first person running we’ve had on the show, so excited to talk about that. The term reform is used somewhat loosely and I think strategically there’s a reason for that because, you know, one never wants to kind of die on the altar of perfection, but when you say the word reform or you hear the word reform prosecutor, what to you does that mean?
Chesa Boudin: You’re absolutely right that it’s become a popular and widely overused and abused term and I think a big part of the reason is that, um, because voters are demanding change, everybody running for district attorney now, certainly in big cities, is calling themselves a reformer regardless of what their history of work shows and regardless of what they actually plan to do. And that makes it difficult to distinguish people who are genuinely committed to transforming the approach to the criminal justice system and those who are committed to basically continuing the status quo. And that’s something we see in my race here in San Francisco where there’s four candidates and three of us are all saying we are reform candidates. I think Tiffany Cabán in her district attorney race in Queens said it well when she distinguished herself by identifying herself as a decarceral prosecutor, not just a reform prosecutor, but one whose reforms were aimed at decarceration and finding ways to make our communities safer without relying on incarceration as a first resort and actually striving to decrease the number of people that we put in jail and prison. I’m committed to the same thing and I believe that empirically we can make our communities safer by decreasing the number of people we incarcerate if we’re smart about how we do it.
Adam: Right. Okay. So there’s what I would refer to as reformist pain points, or kind of knotty issues — K-N-O-T-T-Y — knotty issues that I kinda want to untangle here. So one of the things that a lot of big city reformers run into, and this happened with Kim Foxx in Chicago where I live, is the issue of gun violence and gun control where this is obviously sort of a liberal wedge issue and justifiably so, but some reformers have relied on heavily prosecuting low-level gun offenders, which if you talk to local activists and bond reform supporters will tell you that it is true that prosecuting people for gun charges is a major driver in longer sentences, especially pretrial. And it’s something the media loves to harp on, especially here in Chicago. What is your approach to gun control? How do you balance the need for public safety versus the use of gun laws to put people in jail?
Chesa Boudin: Well look, I think we need to take a big picture view and recognize that guns are responsible for a tremendous amount of violence, uh, and trauma in our communities. And we need to do a more effective job of getting guns off the streets. There’s no question about that. And we need to take gun violence and gun crimes seriously. We don’t need to look further than any of the mass shootings that have occurred in recent weeks to recognize what a serious issue this is. But the Trump administration and the US Supreme Court has made it very difficult for us to regulate guns and access to guns at the local level because of a deeply antiquated view of the Second Amendment. I think that means a couple things for progressive prosecutor candidates or reform decarceral prosecutor candidates like myself when it comes to how we approach guns and gun violence. First is we absolutely need to continue efforts to get guns off the streets through gun buyback programs, through partnerships with community based organizations — like United Playaz here in San Francisco or Brothers Against Guns — who can work with community members to get guns out of the hands of young people and destroy those guns. Second, we do need to have police be proactive about getting guns off the streets, but we don’t need to use every time someone’s arrested for possession of a gun as an opportunity to destroy their lives, bran then a felon, make it impossible for them to go on and get an honest job. We also don’t need to turn every time a gun is discharged into a case where we try to send somebody to prison for life. We do need to take the crime seriously, we do need to get guns off the street, but most of all, we need a district attorney who’s going to use every tool and resource available to change the law so that we have better abilities to prevent guns from coming into our communities in the first place. That means a big picture, proactive impact litigation approach to changing the rules and regulations that the Supreme Court is using to hamstring local authorities in the face of the NRA lobby and the gun industry’s efforts to dump dangerous weapons into communities that have long histories of trauma over policing and violence.
Adam: Right, so you would try to move away from a carceral approach. What are your thoughts on gun diversion programs? I know Eric Gonzalez, the DA in New York and Brooklyn, has gotten tons of grief from the NYPD for doing a very, very minor version on this. Is that something that you’ll look into? I know that as far as reformers and abolitionists go, that one’s kind of a bit of a mixed bag, but what are your thoughts on gun diversion programs?
Chesa Boudin: I’m open to learning more. I think one of the great benefits of being in the position I’m in as a candidate is that I get to watch and learn from the successes and mistakes of folks like Eric, folks like Larry, folks like Rachael who are implementing and experimenting with these sorts of reform policies and see what works. I am absolutely committed to finding ways to send less people to prison and less people to jail, but we need to do it in a way that’s consistent with public safety. And uh, I am eager to see the results of Eric Gonzalez’s diversion program. I do think that it’s important always to recognize that people are more than their worst mistake, that we want to be using contact with police in the criminal justice system, not to destabilize or destroy lives, but to uplift, support and where necessary supervise so that people don’t have future contact with law enforcement and instead get the structure they need to be successful members of their community. That’s true regardless of what the crime is. But the stakes are very high when we’re dealing with guns. And we see that in Ohio and we see that in Texas and we see that across the country, particularly as white supremacists are finding access to assault rifles and other weapons of war.
Adam: Yeah. So your plan, you have a plan that really jumped out on me reading through your proposals to replace jails with mental health care. This is something that activists, abolitionists, reformers have been talking about for a long time, which is this idea of this most profoundly in Chicago Rahm Emmanuel closed mental health care facilities while closing schools and then of course increasing the number of prisons. It’s kind of a left-wing watchword, but I think it’s a super important philosophy. Can you talk about what it means to not just have decarceration but provide the other side of the equation, which is a modicum of social safety net and support for those who are vulnerable?
Chesa Boudin: Absolutely, and this is a key issue, you know, going back to the eighties there was an intentional plan by the Reagan administration and others to close down mental health facilities, to stop providing a social safety net for people who suffered from mental illness and the results have been really horrific and then gone hand in hand with the expansion of the prison system. In San Francisco, I want to make it really concrete because there’s two different issues on both sides of this coin here. On the one hand, 75 percent of the people arrested and booked into county jail are drug addicted, mentally ill or both. That means what’s driving our crime, our arrests, our interactions with police in the community are actually things that can and should be viewed through a lens of public health crises, not simply public safety and crime. Right? There’s a definite explicit connection to treatment, to health care, to addiction that is driving the crime that our police are making arrests in. On the other side, we have a jail that is divided into several parts. One of the jails is called County Jail #4 and it’s in a building, on top of the building, which is seismically unsafe. If there’s an earthquake in San Francisco, as there have been in the past, that building will likely collapse and everybody in it, the inmates, the sheriff’s deputies who run the jail, the nursing staff, the civilian workers who are in the building will likely all die. It is a tremendous fiscal and human liability to continue running and operating that jail. Now I’m committed to closing that jail — County Jail #4 — I think we can do it in a way that is entirely consistent with public safety and what we do is we transfer the people who do present a serious public safety risk from that jail to the other two jails that house San Francisco inmates. One is County Jail #5, one is County Jail #2. And the other people who are filling those jail beds should be processed for release as quickly as possible and as safely as possible. Here’s how we do it. I want to throw out a few statistics to make clear how excessive the San Francisco county jail population is today. In order to safely close County Jail #4 and not replace it with a new jail, we would need to reduce the daily jail population by approximately 10 percent.
Chesa Boudin: How do we get there? Right now, 80 percent of people in San Francisco county jail are pretrial, they’re awaiting trial. They have not been convicted of a crime. They’re presumed innocent. 65 percent of people in San Francisco county jail will spend a week or less there. We’re not talking about folks who represent a serious public safety risk because judges or prosecutors are deciding that it is safe for them to be released on average in less than a week. We’re talking about people who are cycling through the jail for very short destabilizing periods that can have, if any, only a marginal connection to public safety. 20 percent of the people or more are there simply because they’re too poor to pay money bail. In other words, if they were wealthier, a judge has already determined that they would be safe to be released. There was another 10 percent — remember the exact same number that we need to reduce the population by in order to close County Jail #4 — 10 percent are simply awaiting placement in a drug treatment program or a mental health program and there are not enough beds available in those facilities. In other words, judges have already approved almost exactly the number of people who we need to reduce the county jail population by for placement in non jail residential facilities where they can have their underlying medical conditions treated, but there simply isn’t enough bed space in those facilities and so the jail is being used as basically a holding tank for people with mental health issues, with homelessness issues. 40 percent of the jail population is homeless. If you look at all those numbers, it is not that difficult to reduce the jail population by the 10 percent necessary to close County Jail #4 safely and still make sure that people who do present a serious threat to public safety are detained pretrial if that’s appropriate.
Adam: So let’s talk about this bifurcation that is kind of implied in some of your language. You say that you want to quote “focus resources on serious and violent felonies.” One of the things writers like John Pfaff and some advocates have argued is that this distinction between violent crime and nonviolent crime is not always very clear cut, especially when it comes to things like gun possession. Do you think reinforcing a dichotomy between violent and nonviolent, Pfaff makes the argument that to meaningfully reduce prison population in this country we’re going to have to chip away at things we consider to be violent or felonious. Is that a conversation you think that you want to have or that you agree with, or do you think that this distinction between so-called violent and nonviolent is a useful taxonomy for reform prosecutors to indulge?
Chesa Boudin: I absolutely agree with Pfaff big picture that we need to move past that dichotomy. I also think we need to recognize that the way mass incarceration works is that it has a very, very broad base. And while it’s true that the people in state prisons across the country are increasingly people who have been convicted of a crime that is defined as violent and that I think is integral to Pfaff’s point. It’s also true that when we look at who’s getting arrested, prosecuted, who is unable to get jobs because of prior convictions, who is on probation or parole in ways that limits their housing options, their employment options, their travel options, it is still, and certainly in a place like San Francisco, largely for crimes that are nonviolent. And there’s another big part of the dynamic in San Francisco that’s important to understand, which is that there are numerous murder cases, for example, to take the most serious kind of case, that are more than five years old with people in jail awaiting trial. And one of the reasons for that is there are simply not enough courtrooms or judges available in San Francisco to try all the cases. And right now, two thirds of the jury trials, the most resource intensive part of the criminal process in San Francisco, are for crimes that are defined by law as petty offenses, misdemeanors. Half of those, fully a third of the total number of jury trials, are cases where there’s actually no named victim in the charging document, where there’s no person or animal or property that was harmed by the conduct that’s being criminalized. And so when I talk about the need to focus on serious violent crimes, I say that very mindful of the excellent arguments that Pfaff has made and committed to continuing to engage critically with the way those terms are used and defined, but also with a commitment to having a victims first district attorney’s office, one that prioritizes healing the harm that crime causes in communities, that prioritizes not retraumatizing survivors of crime and recognizing that the status quo approach not only uses the criminal justice system as a way to sweep up tremendously large numbers of mostly young black young men and put them on correctional supervision and put them in debt and give them search conditions, but also a system that uses and abuses victims to that end and often ignores the real needs that survivors of crime have.
Adam: If you are fortunate enough to be the district attorney of San Francisco, do you plan on prosecuting drug related offenses?
Chesa Boudin: Uh, I do not plan on prosecuting simple possession or use or paraphernalia.
Adam: How do you define simple possession versus intent to traffic or whatever kind of-?
Chesa Boudin: I think we see a lot of overcharging in this area and we see a lot of people who are using who are arrested and charged with possession with intent to sell. So I certainly intend to end the practice of overcharging. I also don’t think that the criminal justice system is a good solution to the drug crisis we see on our streets in the Tenderloin and really across the country. I do certainly intend to prosecute pharmaceutical companies, doctors, pharmacists who are participating in dumping prescription medication onto our streets. I think that’s a much better way to attack the supply side then going after street-level dealers and I intend to attack the demand side of the drug industry and the drug crisis, uh, by partnering with community based organizations, nonprofits and the Department of Public Health to have a harm reduction approach to decrease addiction and the demand for drugs. I don’t think that jail cells are a therapeutic way or an effective way to deal with people who are suffering from drug addiction. We know that periods of incarceration are actually often what cause overdoses and that the War on Drugs has not only been a total failure, but it’s been a racist and a costly failure. I refuse to double down on that failure. I am committed to finding a medical approach to dealing with the drug addiction crisis we see on our streets, but I understand that in the short term, pairing people with services they need will often still happen through the context of arrests and short periods of incarceration. But I’m committed to working with San Francisco and with our community based leaders such as Glide Memorial Church, Felton, Drug Policy Alliance to develop a harm reduction approach to the drug epidemic.
Adam: You were endorsed by Angela Davis, who is obviously very well respected in activist communities. She refers to herself as a prison abolitionist. Do you refer to yourself as a prison abolitionist?
Chesa Boudin: I do not. I think that as a theory, it’s an amazing talking point. I think it’s something that we should be committed to exploring and finding ways, as I said, to decarcerate our country. It is absolutely unacceptable and disgraceful that in the United States and more than half of Americans have an immediate family member who is currently or formerly incarcerated. Uh, that being said, I think until we do a tremendous amount of work in our communities to reduce trauma, to reduce violence, to reduce the causal factors driving violent crime, we are a long way off from being able to fully imagine a society without jails or prisons. But we certainly should be committed to significantly reducing the number of people and to working towards a society that doesn’t need to rely on putting people in cages.
Adam: I’m super sympathetic to that position. I think even some abolitionists would tell you that they understand that it’s a normative goal, not necessarily an overnight thing. When you say reduce the prison population, what, do you have like a generic percentage that you think would be a meaningful amount of decarceration or do you think that’s a little hacky way of looking at it?
Chesa Boudin: No, I think it depends on the jurisdiction. I think for me, because of the issue we talked about earlier with the San Francisco county jail, the short term goal is to reduce the jail population by about 10 percent so we can safely close County Jail #4. You know, in the longer term I think we also want to be committed to reducing the number of people we send to prison. And, you know, those two goals are often at odds with each other because it’s easy to reduce the number of people you send to prison if you increase the number of people you keep in county jail and vice versa. What California did in response to the Supreme Court litigation over prison crowding was they basically shifted a huge number of inmates from state prisons to county jail, and the number of people behind bars basically stays the same but instead of being housed in a state prison, their housed in a county jail. I think we need to be focused on reducing both numbers. I think how fast depends on a lot of factors. I think we should go as fast as we can safely, but we need to be mindful of the fact that many of the people who are currently housed in jail, who’ve been institutionalized by jails and prisons are not necessarily well-served by being dumped onto the street without reentry planning. We need to have much more robust reentry planning and services to ensure that the people we are releasing, who we are not incarcerating going forward, have the support, the structure and the opportunities they need to survive and thrive in the community.
Adam: Chesa, thank you so much for coming on. This was very informative and thanks so much for engaging all the questions.
Chesa Boudin: Thank you Adam. Really appreciate the work you all do. I love listening to your pod and I’m eager to talk to you again in the future.
Adam: Appreciate it.
Chesa Boudin: Take care. Thank you.
Adam: Thank you to our guest Chesa Boudin. This has been The Appeal podcast. Remember, you can always follow us on Twitter and Facebook at The Appeal magazine’s main Facebook and Twitter page and, as always, you can rate and subscribe to us on Apple Podcasts. The show is produced by Florence Barrau-Adam. Production assistant is Trendel Lightburn. Executive producer Cassi Feldman. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.