by Hannah E. Meyers
June 15, 2022
Last Tuesday evening, Chesa Boudin stood on a breezy San Francisco dais to make his concession speech. San Franciscans voted by a wide margin to recall Boudin from his role as District Attorney, which he assumed in January 2020.
Boudin’s recall will be a shot heard in local prosecutors’ offices around the country. He represented – loudly and proudly—a progressive attitude toward his role, one that explicitly defined justice itself as diminishing the number of individuals facing prosecution and incarceration and reducing the number of anti-social activities that are even considered crimes. In his triumphal-sounding farewell, he rattled off his administration’s greatest wins: 50% fewer juvenile offenders incarcerated, 40% fewer adult offenders, and a 30% drop in the state prison population.
These might be achievements in other contexts—perhaps if they were being touted by a nonprofit organization or a defense attorneys’ association. But they’re not achievements coming from a DA. They stand in direct opposition to the traditional role of a district attorney, which requires upholding justice by representing the people against individuals who break laws – all of whom, to one degree or another, have singular or collective victims.
Boudin, and his movement colleagues, such as Philadelphia’s Larry Krasner and Chicago’s Kim Foxx, follow a different philosophy, one in which the criminal justice system does not have to be adversarial—and in which the chief prosecutor does not need to be in combat with criminal offenders.
To that end, they have each touted the degree to which offending has not resulted in criminal justice consequences. Philly’s Krasner has instructed his office to seek lower sentences, decline to prosecute classes of crimes, and require line prosecutors to individually justify the costs of incarceration.
Foxx, similarly, boasted about her office as dismissing cases against low-level, nonviolent offenders, arguing it allowed prosecutors to concentrate on crimes of violence. And so, she was not fazed when, after her first three years as State’s Attorney, her prosecutors dropped all charges against almost 30% of felony defendants – a roughly 50% increase over her predecessor. That was even after she raised the bar for what constitutes felony retail theft upon taking office from $300 to $1000: resulting in 4,500 fewer such charges being filed than in the years before she took office.
However, Boudin’s recall represents a reckoning, and one that highlights the many benefits – not just to citizens but to offenders themselves—of a traditional system. In jurisdictions like Queens County, NY, for example, judges have long used their discretion and their leverage to reroute offenders into alternative programs, but with monitored oversight accompanied by the threat of prison for non-compliance.
These Alternatives To Incarceration (ATI) programs are not to be confused with non-compulsory programs that are often referred to by similar terminology.
According to a senior prosecutor who recently left the office, their Human Trafficking Intervention court would regularly have around 400 participants, most of them prostitutes, who were avoiding incarceration by accepting a suite of mandatory services including drug rehabilitation and social work. But since prostitution is no longer being prosecuted—and police, tired of making an effort for nothing, have ceased to make arrests—the necessary judicial leverage to get offenders the help they need has vanished. The number of—mostly—women with pending cases in Human Trafficking Intervention Court now hovers in the twenties. That’s a shame for those women who otherwise remain in exploitative sex work.
In addition to prostitution, Boudin and his analogs in cities across the country have blanket declination policies against prosecuting other types of “quality of life” offenses that are also associated with maladies like drug addiction and mental illness. When Boudin vowed not to prosecute public camping or theft cases and backed off on drug-dealing, he left a vulnerable population without the firm helping hand that is the choice between treatment or jailtime. He made good: prosecuting only about one third of petty theft offenders in his first year and undercharging drug dealing. Shoplifting in San Francisco reached an all-time apex in 2021, underwriting flourishing drug rings that thrive on the fenced goods from addicts who steal in order to feed their addictions.
But even though Boudin proudly trumpeted the services with which his office was connecting offenders, addicts in San Francisco are like those in every other major city: without the threat of jail that imposes mandatory participation, those services are not going to be much of a help. This is as true for criminal offenders who suffer from serious mental illness. While cities like New York report that 15-25% of jail inmates suffer mental illness, those who work in the city’s Mental Health courts describe how they have emptied out. Defense attorneys no longer counsel their clients to pursue them, knowing their cases will be dismissed anyway. And the family members who used to purposefully have their disturbed loved ones arrested, knowing it was the only way to force them into needed treatment, are now out of luck.
The adversarial criminal justice system also benefits criminal offenders by providing a strong deterrent to offending in the first place.
And, of course, the adversarial system benefits crime victims most of all. Those who marched out to the polls for Tuesday’s election doubtless included voters from among the two and a half thousand San Franciscans who have had their cars stolen so far this year, from the over-1,000 who have been assaulted, and from the friends and family members of two women killed by a parolee who was freed thanks to Boudin’s concerted efforts to take the sting out of prosecution.
In his brief speech, Boudin referenced the scourge of billionaires multiple times. But his electorate aren’t worried about billionaires breaking into their cars or shuttering their local pharmacies through exhaustive shoplifting. If progressive prosecutors nationwide do not redefine justice with themselves leading the battle against criminal offenders—not simply against social wrongs they want to right—they will soon join Boudin on the job market.
Hannah E. Meyers is director of policing and public safety at the Manhattan Institute. Her writing has appeared in numerous publications including The New York Times, Wall Street Journal, Tablet, The New York Post, The Washington Examiner, The NY Daily News, and City Journal. She provides frequent commentary for TV, radio, and podcasts, including CNN and Fox News.
Prior to joining MI in 2020, she managed corporate and private investigation teams for an international firm and directed research strategy for a counter-extremism NGO. She served for five years with the Intelligence Bureau of the New York City Police Department, partnering with detectives on counterterrorism investigations and bringing one of the first state-level terrorism cases to conviction. During her time at NYPD, she also supervised an intelligence analysis team and was seconded to the FBI. Earlier in her career, Hannah did think tank research pertaining to terrorism and human rights, was a contributing writer on a variety of topics, and served as deputy director of policy for a New York State gubernatorial nominee. She holds an M.A. in international relations from Yale University—for which she performed research embedded with British law enforcement—and a B.A. in government from Dartmouth College.