A strange thing is happening in the local and national news media as they address the attempted recall of San Francisco District Attorney Chesa Boudin:
The media outlets claim that Boudin is suffering from bad news media—and don’t seem to recognize that they are playing a role.
The reality: This recall effort is entirely a media-created monster.
The local news media have been obsessed with three themes: Crime is a growing problem in San Francisco. Locking people up is the best solution. Because Boudin isn’t locking up enough people he’s responsible for the alleged crime wave.
A corollary: Drug deaths from Fentanyl are a crisis that is best addressed by arresting and prosecuting dealers. Boudin isn’t locking up enough small-tine street dealers, so he’s responsible for the overdose epidemic.
None of these things are true. The data makes clear than none of them are true. And yet that’s the message we keep hearing, over and over—and it’s exactly the message that the Recall Boudin campaign is trumpeting.
For the record: Boudin is doing exactly what he said he would do when he ran for office. There is no evidence that he is corrupt or incompetent (even the very conservative Chron, which has been a big part of this media myth, said he shouldn’t be recalled.)
Every prosecutor in the country has faced challenges during a global pandemic. Courtrooms have been closed; judges have limited access to the most serious cases. Crime patterns have shifted in San Francisco; while overall crime is down, property crimes that used to happen in tourist areas have moved to the neighborhoods.
There are, of course, homeless encampments, and some people with serious mental-health challenges, on the streets. This has nothing to do with the DA, and everything to do with federal, state, and city policies that have created an affordable housing crisis and left the most vulnerable on the streets. The overdose crisis is real, and everyone agrees it’s a serious problem.
Again: None of this has anything to do with the occupant of the District Attorney’s Office.
Meanwhile the cops, who hate Boudin because he has filed charges against officers who used excessive force (which was part of his campaign platform, a platform that got him elected) have essentially stopped responding to a lot of crimes. As MissionLocal reports, they wouldn’t even give him a truck to transport stolen goods from a major fencing operation. They want him to fail, so they can get a DA who won’t hold them accountable.
The mayor wants him to fail, so she can appoint someone else.
The Republican donors want him to fail, so they can go back to talking about putting Black and Brown people in jail.
So why are so many people in liberal San Francisco seemingly prepared to vote for the recall?
It’s entirely because of misleading and sometimes sensationalized news media.
Let’s start the most recent chapter with The Atlantic, which ran a remarkable piece May 19 called “The People vs. Chesa Boudin.” It starts with an interview with Richie Greenberg, the Republican who tried and failed to get enough signatures to recall Boudin, before the big GOP money kicked in.
The story makes it clear that crime is not up in San Francisco, that the problems the city faces are not about Boudin’s policies, then notes that
Whether it is real or not, the crime wave is coming for Boudin. San Franciscans do not feel safe and secure. Polling commissioned by the recall campaign shows that more than half of likely voters believe that Boudin is “responsible for rising crime rates in San Francisco, especially burglaries and thefts.
This is in part what Greenberg was talking about when he said that “people are sick and tired of the whole atmosphere of the city” and that it is “not fun to live here anymore.” It is a sentiment that came up again and again as I talked with San Franciscans for this article, one I have felt myself from time to time in this jarringly unequal city. I pay crushing sums to live on the same street as a tent encampment. I have to make sure my kid does not pick up dirty needles or step in human excrement when we go for a walk.
I am sorry that wealthy people in San Francisco don’t think it’s “fun”
to live here anymore. It hasn’t been “fun” for poor people to live here for a long, long time. It’s not “fun” for people to lose their homes to speculators and face police harassment for the crime of having no place to go.
And the Atlantic admits that the “crime wave” isn’t real—but keeps repeating the talking points of people who say it is, for their own political purposes.
Boudin has also shown himself to be less than adept at the political role he’s taken on as D.A. He’s arguing with his own constituents about their lived experience. He’s sniping at the mayor and feuding with the police force. I can’t remember interviewing a politician who seemed less politic.
So: Boudin tells the truth and doesn’t try to spin things. This apparently is a big problem.
The bigger issue here is that The Atlantic never acknowledges that it’s part of the problem. If the news media say Boudin is failing and that—despite all of the evidence, he’s not doing his job—then they are creating the grounds for the recall.
DA Boudin and Fentanyl: Court Data Shows Just 3 Drug Dealing Convictions in 2021 as Immigration Concerns Shaped Policy
And this lead:
Despite a surging fentanyl crisis that killed nearly 500 people last year in San Francisco, the office of District Attorney Chesa Boudin did not secure a single conviction for dealing the deadly opioid for cases filed during 2021, according to a review of court data.
Let’s parse this for a moment.
The headline and the first sentence suggest two things: That Boudin has some responsibility for the fentanyl crisis, and that he’s more concerned about preventing the deportation of drug dealers than keeping drugs off the streets.
There’s a deeper issue here: The implication of the story is that prosecuting drug dealers and continuing the War on Drugs will make somehow make the streets safer and prevent deaths.
There is absolutely zero evidence to support that claim, and abundant evidence to refute it. We’ve been doing the War on Drugs for almost half a century. It’s decimated Black and Brown communities, sent hundreds of thousands of people to prison for no good reason—and yet, there’s plentiful Fentanyl on the streets.
There are overdoes crises all over the country, including in cities that have “tough-on-crime” DAs.
If you actually read beyond the first paragraph, you realize that the story is much more nuanced:
Boudin’s office is still obtaining convictions in fentanyl drug sales cases, but the actual convictions are not for the crime of drug dealing. About 80% of the cases in a type of charge category that included fentanyl dealing—44 in total—involved a defendant ultimately pleading guilty to a crime called “accessory after the fact,” meaning the accused was convicted of helping another person commit a crime. In a handful of cases, people arrested on multiple charges including fentanyl dealing end up being convicted of other serious felonies.
The explanation for the surprising absence of drug-dealing convictions is multi-faceted. The DA’s office has put an emphasis on diversion programs—partly out of a commitment to reducing incarceration for lower-level crimes and partly due to efforts to keep the jail population down during Covid.
Another big factor is the DA’s attention to offenders’ immigration status, which by law they are required to consider. Prosecutors and criminal defense attorneys point out that drug dealing convictions are grounds for deportation, and a substantial number of drug dealers in the city are Honduran nationals who could face deadly consequences if deported. The accessory charge still gives them and their families a path toward eventual citizenship.
“We’re not talking about folks that are dealing in kilos, we’re talking about folks that are dealing in grams,” said Marshall Khine, the office’s chief assistant district attorney. “Many times, because they are low-level offenders on non-violent offenses, we also take into consideration some of the stressors, particularly because some of the individuals that we see are trafficked themselves.”
Yes: Boudin ran on a platform of alternatives to incarceration. Yes, he and his staff recognize that low-level dealers are often victims themselves. Yes, he doesn’t want to push for more deportations.
The vast majority of San Francisco residents, I suspect, agree with those policies.
Rachel Marshall, a spokesperson for Boudin, pointed this out to the Standard. In an email to the publication, which I have obtained under the Public Records Act, she notes:
The clear editorial intent of the piece is based on the idea that arrest, conviction and deportation is the best – and perhaps only – solution to the drug and overdose crisis. This notion has been disproven by researchers and experts, but is nonetheless treated throughout the piece as a reliable premise from which to approach this issue.
Furthermore, throughout this country, people have been deported as a result of federal or state drug convictions. If this approach were remotely effective, we would not see the overdoses or drug crisis we have today. Instead, deportations have caused great harm to our immigrant communities and is a major reason why San Francisco is a long-standing sanctuary city. Minimizing that harm is concerning.
But yes, he’s also getting convictions for people who are selling fentanyl. They aren’t getting convicted in trials; they are mostly taking plea bargains, which might not involved the term “drug sales.” But that’s how the vast majority of criminal cases are resolved in this country. A guilty plea is, in fact a conviction.
Again, from Marshall’s email to the Standard:
The second dishonest premise of the story is that District Attorney Boudin is not securing drug convictions. That is false: As we explained – at length – prior to publication: our office has secure hundreds of convictions for drug sales. Those convictions have the same consequences, terms, and conditions as the charge your reporters have decided to arbitrarily focus on. Our convictions have the advantage of abiding by very clear state law.
As any criminal lawyer or criminal justice expert can attest, roughly 98% of cases result in plea deals. Oftentimes plea deals are settlements for different charges than were charged in the complaint. That is the leverage prosecutors have to secure plea deals; if prosecutors insist on a plea deal to plead as charged, there is no incentive for a defendant to accept the deal versus going to trial. Moreover, given defense attorney’s constitutional obligation to inform their clients of immigration consequences pursuant to thePadilla decision and California law, there are very few instances where a defendant would choose to accept a deal that could lead to deportation versus going to trial. In a court system that faces tremendous backlogs, our ability to settle cases and secure convictions means we achieve accountability faster by settling cases than by insisting on a trial.
Jon Weber, the editor of the Standard, responded to Marshall by email:
I can understand the issues you have with the story. I do not agree however with your assessment of our “editorial intent.” The article was attempt to show how DA Boudin has resolved drug cases, and explore some of the reasons for that approach. It does not advocate for “war on drugs” policies, nor does it blame DA Boudin for overdose deaths. Certainly the overdose crisis is relevant context for an analysis of drug prosecution strategies.
We do not agree that there is no functional difference between the accessory convictions (most of which were misdemeanors) and possession with intent to sell convictions. Nor do we agree that the DA has no choice but to prosecute in this way due to state law. The information we have from other jurisdictions would certainly indicate otherwise.
Again: The difference between “intent to sell” felonies and accessory misdemeanors is that one ruins your life, and the other doesn’t. Again, if ruining the lives of small-time dealers were a solution to the crisis, we wouldn’t have this crisis in the first place. Been there, tried that. It failed.
Meanwhile, the headline and the framing of the story just feeds into the Fox News-style attacks on progressive prosecutors. The story was retweeted more than 400 times—and most of that Twitter action was from backers of the recall.
Josh Koehn, one of the reporters on the story, then went on ABC News to repeat the allegations, and when the anchor asked if it were true that Boudin had obtained zero drug convictions in Fentanyl cases, and he responsed: “That is correct.”
As the interview continued, he described the immigration issue, but the sensational news headline was still there: Zero Fentanyl convictions.
Cisco Ugarte, a deputy public defender, had a detailed Twitter response.
He is not on Boudin’s staff or even on his side: He fights with prosecutors every day. But he points out that
Putting every drug dealer in the Tenderloin in prison isn’t going to prevent drug overdoses. The minute the dealers get arrested, others take their places. This is a deep, deep social problem that the criminal justice system has never been able to address, and never will.
More from Ugarte:
Come to SF Superior Court and see for yourself the revolving door of brown and Black human beings, often caged, charged with drug sales, who plead to felonies. Penal Code 32 (accessory to a felony) has always been considered a drug-sale related offense.
Weber told me:
We stand by the story, including the headline. I can understand how some people might see the headline as sensationalist, but I don’t agree with that assessment.
Okay, fair enough.
But again, there’s a much deeper issue here.
If the news media claim there’s a crisis, then suddenly, there’s a crisis. Matt Charnock notes on The Bold Italic:
When stories like these inevitably make their way into the cultural milieu, I return to Nigerian author Chimamanda Ngozi Adichie’s “The Danger of a Single Story.” When stories — articles, thought pieces, essays — are leveraged to fit into a singular reality, we endanger the entirety of the human experience.
We lose discussion around the dualities on important issues. Complex notions are forced through narrow conduits for disjointed contemplation for a gain of some sort. When single-sided stories that affect our immediate lives are published by influential news outlets, trust in hyperlocal journalism is eroded when those pieces are plucked apart — pulled into segments to dissect the slime between certain sentences.
If the news media says that crime is a huge issue, and Boudin is responsible, that becomes the narrative.
And with the power of right-wing Twitter attacks, the truth never has a chance.
The Chron officially opposes the recall. So do many San Francisco leaders. The SFStandard hasn’t taken a formal position. But all of these outlets need to understand their power and their role in creating a public perspective that may be dangerously biased, based on no real facts, and likely to undermine the reform efforts (including the efforts to hold police accountable for killing people) that Boudin, unlike every previous San Francisco DA in history, actually is promoting.
I was there in the 1980s and 1990s, and I watched the devastating impacts of the “War on Crime” and the “War on Drugs.” These, too, were media-created monsters. The only winners back then: The cops and the prison guards, who got more money, more staff, and more military-style weapons. I would like to think we’ve learned something from those terrible, deadly, mistakes.
But I’m biased.