It’s been a year since a small percentage of the voters in San Francisco recalled Chesa Boudin from the office of district attorney. The recall was fueled by a radically unfair media narrative and $7 million in big money, some of it from Republicans, who with the tacit support of the mayor created a picture of crime out of control.
Under Jenkins, violent crime has not declined. The narrative of the city continues, harming local businesses and the tourist trade. Meanwhile, we are seeing the same picture again, across the Bay, where the new reform-oriented Alameda County DA Pamela Price is under a media assault.
Boudin took some time off, and you can’t blame him for that. Now, he’s back in the picture, with a new job, creating a criminal justice center at UC Berkeley School of Law.
We caught up with Boudin this week for an interview, and he talked about the new institute, the crime situation in San Francisco, and the failures of the person who replaced him in the District Attorney’s Office.
48HILLS First of all, congratulations. Talk to me a little bit about your new job. What are you going to be doing? And how does that fit into the agenda of criminal justice reform?
CHESA BOUDIN Well, we’re going be doing research, education, and advocacy, all three of those things. What that means and how it’s balanced is going to depend a little bit on a few factors, but at a high level we’re going to be engaging with Berkeley Law students and Berkeley Law faculty to help shape and improve the curriculum and experiential learning opportunities available in the criminal law and justice space. We’re also going to be doing externally oriented education work, op-eds, podcasts, media engagement, convening public events; more externally oriented work will be an important part of what we do at the center.
Separate but related, we are going to, doing advocacy work and that advocacy work can look a lot of different ways. For example, we might work with local city councils to help develop model policies. We might file amicus briefs in cases of significant public impact. We might initiate our own litigation, for example around issues of conditions of confinement or victims’ rights.
The breadth and scope of what we’re able to do in the center is really one of the things that attracted me to the job, as well as the partners that I’ll have—brilliant professors thinking about these issues from all different angles. Also working with students who are the future public defenders and prosecutors and judges and tenants’ rights lawyers and immigrant advocates, and also being able to engage externally with the community locally in the Bay Area, as well as across the country of folks who are dedicated to making our community safer and our legal system more.
48HILLS It sounds like you’re going to be busy. Since you just brought this up, talking about confinement, one of the issues now in San Francisco, the pub, the Public Defender’s Office, as I’m sure you know, has been complaining that, partially because of the COVID situation, there’s a huge backlog in trials in the courts and there are people who have been sitting in jail for two years, way past the constitutional requirement for a speedy trial, and they just can’t get their case heard, and then some of them end up being innocent or the case gets dropped. What should we do about that, on a policy level, from the point of view of a former prosecutor and a public defender?
CHESA BOUDIN I think it’s worth pointing out a few things. This is not a new problem, but it was made a lot worse by the COVID pandemic. There are essentially three primary actors that are responsible for solving the problem, and other counties have done it much better than San Francisco has.
I also want to point out that and I think you very accurately summarize the real danger for those defendants whose constitutional rights and statutory rights are being violated, some of some of whom will be acquitted of all charges. This is also a real risk for the rights of victims of crime. You know, Marcy’s Law under California’s constitution provides victims with the right to speedy trial. And we know that the trauma of surviving a sexual assault or having a loved one shot and killed is drawn out and exacerbated by constant court appearances, by constant delays by the inability to get any closure one way or the other in a case by witnesses who get subpoenaed over and over and over again. So this is a problem really on all sides of the equation no matter what perspective you take or whose rights you prioritize or who’s to blame for it.
Our courts did a uniquely bad job of prioritizing criminal trials as we reopened from the pandemic, and you look at other counties around the state and they were doing trials much faster and much more frequently. The other issue is that we have a decrepit, decaying um seismically unsafe criminal courthouse. Other counties have a lot more resources or were able to do jury selection in outdoor spaces like, you know, county fairgrounds, something that San Francisco just didn’t do.
Then there’s a separate issue, which is that in San Francisco, you have a uniquely incompetent and dishonest district attorney, and you also have a uniquely aggressive public defender. The public defender is setting basically every case for speedy trial, whether the clients actually expect to go to trial or not. And one view is they have to do that, because it’s the only way they have a chance of getting to trial in the next several years. They can’t run the risk of waiting and deciding, because they won’t get a trial when they want one anyway.
Another analogy that I think is useful, and this is where the district attorney’s role comes in is, that the capacity in the court is a little bit like a bathtub and it fills up over time. New cases are getting filed every day and the public defender is setting almost all of them for trial. So the level of the bathtub is rising and you need to have some way to relieve the pressure. Now, doing jury trials is one way to do it, but it’s never been the main way that the pressure is relieved. Obviously, we’ve been doing far fewer trials in the last several years than in years past, but it was never the primary way in San Francisco or across the country. The main way that cases are resolved is through plea bargaining, and the current district attorney is unwilling to authorize plea bargains.
Precious limited courtroom space under my administration was prioritized for murders and sexual assaults and other serious violent crimes, where the stakes are the highest for the defendant, where the harm caused to the victim is the greatest. Those courtrooms now are being used for drug-sale cases that they can’t even secure convictions in. In fact, they’ve done three trials, that I’m aware of, maybe more in which the primary charge was a drug sale. And in all of them, they failed to secure a conviction. And you think about the wasted resources, and the ways in which that approach, rather than negotiating plea bargains, rather than putting people on probation, rather than, making diversion and treatment programs accessible, which is what we did. There has been a dramatic decline in the number of people who are being accepted to treatment programs like drug court, like mental health, diversion, like, community justice court, like young adult court, like behavioral health. All of the collaborative courts that were built up in the years prior to my administration are seeing their lowest numbers of enrollments ever under this district attorney. And that means there’s more pressure than ever for trial courtrooms at a time when we already have a several year backlog.
It’s sad to watch. It’s sad for the victims. It’s sad for police officers who have investigated cases and whose memories may fade as delays grow. And it’s certainly sad for people languishing in county jail whose rights are being violated every day.
48HILLS You bring up drug sales. On Tuesday, I watched, at question time, the mayor say, basically, I don’t care what our own health department says. I don’t care what the data says. We are going to arrest drug users and force them into treatment. This has been her policy, that the way we’re going to solve the opioid crisis is through the criminal justice system, we’re going to arrest people and she says, force them into treatment. I’m wondering if you can comment on that and whether you know, not, not just with Breed, but on a policy level. Does that ever make sense?
CHESA BOUDIN First of all, it, it never makes sense to ignore data and the history of policies that have been tried and failed. We should always be looking for empirical evidence and evidence-based practices when we’re implementing public policy. But even if it did make sense, for that approach to have a snowball’s chance in hell of working, we would need to have treatment, resources available to force people into. Before we start using the criminal justice system as a tool to force low level people with substance use disorders into treatment, we have to have treatment available for them. We have to, in other words, make it the path of least resistance. We have to ensure that for everybody who does want to get sober, for everybody who does want to reduce their use of substances, there’s someone there to help them. And in San Francisco today, that’s just couldn’t be further from the truth. On the campaign trail in 2019, and throughout my time in office, what I said is that the first step is to have an adequate supply of treatment beds, of case managers of medical professionals who can provide the services for mental illness and substance use disorders that we know are contributing to public safety concerns. You can arrest as many people as you want. But if you don’t have treatment beds, if you don’t have resources invested in building out a wide array of services that are necessary to help people get off the street and on their feet, the arrests are going to do nothing other than brutalize people in low points in their life and waste tax dollars.
48HILLS One of the interesting things that came out in the last few weeks is that, during the past year while Brooke Jenkins has been DA, violent crime is actually up in San Francisco. It’s still way down from years past, but it’s up in San Francisco under the DA who said that she was going to fight violent crime and be law and order. You got accused of allowing crimes to happen. But how much does the district attorney actually have to do with whether there’s violent crime or not crime in the city?
CHESA BOUDIN Well, look, I have my views that are grounded in research and empirical evidence. I think it’s important in this instance to really focus on Brooke Jenkins and what she said when she was campaigning for the recall, and what she said over and over again in, in tweets and in press interviews, was that violent crimes in San Francisco, including specific crimes, were a direct result of policies from the District Attorney’s Office. That’s what she said. She said it over and over again. Now I happen to think that’s not accurate. I happen to think that’s not the way the world works. I happen to think she even knew that.
But since that’s her claim, since her claim is that violent crimes in San Francisco were a direct result of policies from the District Attorney’s Office, since her claim was that the opioid overdoses that were resulting in so many fatalities were a direct result of policies in the District Attorney’s Office, then surely the record high surging increase in fatal overdoses from opioids and surely the increase in murders and robberies and assaults that we’re all suffering from in San Francisco today are a direct result of her failings and shortcomings.
48HILLS One of the things that Jenkins has done is dropped two cases that you filed against police officers for improper use of force. We can argue the specifics of those cases forever, but let’s take a half step back. What message does that send to the police department and for police accountability?
CHESA BOUDIN The message is a very clear one: There are two systems of justice in San Francisco, one for police and people wearing uniforms and another one for everybody else. Police under her administration are clearly above the law.
48HILLS Alameda County has a new DA, Pamela Price, who ran on many of the same policies that you did and is trying to enact some of the same policies that you did and is of course, immediately under attack from the press and from the police and, and others. What advice would you have for Pamela Price at this point as she’s weathering these attacks?
CHESA BOUDIN San Francisco is a very different place in many ways from Alameda. I wouldn’t presume to tell her how to navigate the local politics there. What I will say is that watching the press coverage of her administration and comparing it to the way that Jenkins Administration is being covered by the press or comparing it to the way that my administration was covered or comparing it to the way that [former DA] Nancy O’Malley was covered, we have a lot of really easy direct comparisons. And what becomes very clear is that the press is not being fair to Pamela Price.
I’m not saying she hasn’t made mistakes or that there aren’t real challenges. That’s an inevitable in our line of work. And, and given the challenges she inherited around violent crime and a largely dysfunctional office, there are going to be missteps. But the press is being extremely unfair, not just to the Price but to the kinds of policies that voters in Alameda knowingly and intentionally and by a significant margin voted to support. They are not giving reforms a chance, even as we all recognize the very serious toll of violent crime in, in Oakland and other parts of Alameda are taking on its most marginalized residents.
48HILLS It’s interesting that you talk about that. One of the things that has happened in San Francisco, of course, is this media narrative that was created by, I would argue, Brooke Jenkins and her allies and the allies of the mayor and the mayor, they created this narrative while you were DA of San Francisco as a horrible, lawless, dangerous place. And now, you know, with Brooke Jenkins as D A, it’s, come back to haunt them because now, you know, conventions are saying we don’t want to come to San Francisco because it’s a lawless place when, in fact, you know, when under your administration, violent crime was down.
CHESA BOUDIN Absolutely, they fanned the flames of fear. Instead of being leaders and instead of doing the work to address the legitimate public safety issues that have always existed in big cities in America, they engaged in fearmongering to win political points. And now they own that narrative, and it’s really destructive to small businesses in San Francisco. It’s destructive to the hard-fought and well-deserved image that San Francisco has had for decades as a leading city in the world and a prime tourist destination. It’s going to have real political consequences for, for the mayor and for the DA who are so responsible for that dishonest narrative—and look, crime is up under their rule. Their tough-on-crime approach is making things worse and that’s as clear as day. All you have to do is walk around downtown and look at the statistics from the police department itself.
48HILLS One last question. I’d like you to weigh in as a former prosecutor. What do you think about the federal indictment of Donald Trump? Is this a solid case?
CHESA BOUDIN first of all, you always have to remember the presumption of innocence and you never know what the defense is going to be for certain until you’re in court and you see them putting on evidence. But from what we have seen, it appears to be a uniquely strong prosecution case. The fact that he had the opportunity, as other elected officials, including Pence and Biden have done to cooperate with returning documents that may have been inadvertently taken, and that he refused to do so and that he is recorded acknowledging that he has taken documents he’s not supposed to have and that he’s refusing to give them back that he’s directing his lawyers to lie to investigators. The fact that all of that appears to be documented and undisputed and in his own recorded words, makes me think that he may be in very serious trouble.