Monday Morning Thoughts: Boudin Making History

Over the last few years we have talked a lot about progressive prosecution.  We have seen some stunning victories, like the victory of Larry Krasner and more recently Chesa Boudin in San Francisco.

We have suffered some heartbreaking defeats, like Tiffany Caban last summer in Queens and, more locally, Dean Johansson who in 2018 came within a few thousand votes of defeating three-term incumbent Jeff Reisig.

But one of the big questions is how much of an impact a DA can make.  Recently we spoke to Larry Krasner in Philadelphia, who talked about the things they have accomplished, but we have also seen the Philadelphia AG and legislature try to strip discretion from the Philly DA.

We spoke with Aramis Ayala from Florida, who is not going to seek a second term after the state’s high court upheld a ruling that took death penalty cases out of her jurisdiction.

However, now with the victory of Chesa Boudin in San Francisco, we can see in a largely unencumbered manner what a progressive prosecutor can really do.  We have already seen changes like ending cash bail.  But what we saw on Friday was something even more extraordinary, something no one has tried—the end of pretext stops, the end of sentencing enhancements for prior strikes and prison and the end of gang enhancements.

Chesa Boudin had scheduled a press conference for Friday morning following his discussion at the Justice Collaborative event with Professor Jody Armour, a law professor at USC.

During his discussion with the professor, they discussed the groundbreaking announcement that would come.

As Professor Armour put it, “The civil rights issue of our day is criminal justice.”

Chesa Boudin timed these changes, all of which disproportionately impact people of color, to coincide with Black History Month.

He said, “I think when we look back on the moment we’re in today, think about the changes we’re trying to implement in our office, think about the broader criminal justice reform movement—I think and hope that in 10 and 20 years from now, we’ll look back and say, of course three strikes is wrong, of course stop and frisk style policing is wrong, just as surely as we look back and say, of course slavery is wrong.

“We know that these are the civil rights issues of our generation,” he said.  “We have a lot of work to do.  It’s amazing to see every day, every step of the way, how much resistance there is to change.”

The stats here are overwhelming in terms of their disproportionate impact on people of color.

As Chesa Boudin and many others have pointed out, stop and frisk and pretext stops, where they stop someone for an articulable infraction in order to search them for contraband, are disproportionately used against people of color—particularly African Americans. And it really doesn’t work to make us safer.

We may hear about the one case where the officer stops someone and finds drugs or a weapon. But that’s comparatively rare. Most of the time, they stop someone and find nothing.

That is not a costless stop. That means that the US government is invading the privacy and person of a completely innocent person. And when it is disproportionately enforced, it undermines the authority and credibility of the police and creates suspicion in people of color.

As Chesa Boudin argued on Friday, these policies help drive racial disparities.

For example, even a policy like three strikes, which you could argue is race neutral on the surface, turns out to not be.

Their policy notes: “The Stanford study found that the use of sentencing enhancements in San Francisco accounted for about 1 out of 4 years served in jail and prison. This study found that the use of sentencing enhancements — mostly Prop. 8 priors and Three Strikes enhancements — accounted for half of the time served for enhancements.”

They add, “Worse still, these enhancements exacerbate racial disparities in the justice system: 45% of people serving life sentences in CDCR under the Three Strikes law are black.”

Gang enhancements are even worse—they are almost exclusively used against people of color.

The DA notes in his policy that “more than 90 percent of adults with a gang enhancement in state prison were either black or Latinx.”

And, of course, stop and frisk is almost exclusively used against people of color. In New York for example, in 2009, black and Latino people in New York were nine times as likely to be stopped by the police compared to white residents.

Maybe you could argue that this would be worth it, if there were a connection to crime prevention.

But according to Fordham Law Professor John Pfaff, whom we just interviewed for a podcast, “There is strong empirical support for declining to charge these status enhancements. Long sentences imposed by strike laws and gang enhancements provide little additional deterrence, often incapacitate long past what is required by public safety, impose serious and avoidable financial and public health costs in the process, and may even lead to greater rates of reoffending in the long run.”

According to Pfaff, a growing body of evidence-based studies have made it clear that what deters violent and anti-social behavior is not the threat of a long sentence imposed at some point in the future, only imposed in those cases that result in an arrest and conviction. What deters far more effectively is the risk of detection and apprehension in the first place. Policing deters; long sentences do little.”

In 2016, the DOJ did a report on San Francisco and one of the areas they looked at was stop and frisk, pretext stops.  Ten years earlier, the ACLU looked at pretext traffic stops in San Francisco.

“All of the data showed that police are stopping black San Franciscans at rates that are grossly disproportionate,” he said.  More importantly, when they do stop them, “they are less likely to find contraband than when they stop and search somebody that looks like me.”

Professor Armour emphasized “there is not a statistically rational relationship.”

Mr. Boudin added that “when police actually do search white people, the data tell us, they actually have a good reason to do it.  But when they search black and brown people, it’s more often because they’re black and brown.”

Chesa Boudin pointed out that the DOJ report came out in 2016, “and here we are four years later, and there’s virtually no change in police conduct.”

Chesa Boudin stopped all of this—a month into his term as DA. Hopefully others will follow.

—David M. Greenwald reporting

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