There's Still Hope for Prosecutorial Reform After Recall of San Francisco District Attorney Chesa Boudin

The recall of San Francisco District Attorney Chesa Boudin demands a rethinking of the "progressive prosecutor" brand.

Economists sometimes say that when the U.S. sneezes, the world catches a cold. With that in mind, given that famously left-wing San Francisco has booted a prosecutor accused of being "soft on crime" from office, many might assume the rest of the nation will reflexively reject prosecutors who don't define their job as seeking the maximum punishment for every defendant. The reality is much more complicated, but the recall of San Francisco District Attorney (D.A.) Chesa Boudin does demand a rethinking of the "progressive prosecutor" brand.

First, let's unpack the popular claim that this recall is a harbinger of an anti-reformist tsunami poised to sweep across the nation. For one thing, most elected prosecutors do not have nearly $7 million working against them, as Boudin did, and most jurisdictions do not have recall elections, which create unique electoral dynamics. Specifically, these plebiscites tend to generate lower turnout, with about a third fewer people voting this time than in 2019 when Boudin was elected, and attract the segment of voters most dissatisfied with the status quo.

Unlike the attempted recall of Democratic California Governor Gavin Newsom, replacements for Boudin were not on the ballot, and San Francisco Mayor London Breed is now set to appoint his successor. In an age when the public is skeptical of most elected officials and candidates, an election without an opponent to criticize creates a referendum on the status quo—a setup far more perilous for an incumbent than a choice between flawed options.

Boudin was also more vulnerable because San Francisco adopted some of the nation's strictest COVID-19 restrictions. This affected both perceived and actual levels of public safety, as well as Boudin's ability to prosecute crime. With more people holed up in their homes instead of commuting to work or going out to eat, those seeking to perpetrate crimes constituted a greater share of the total number of people on the street. Thus, even though the number of reported crimes in San Francisco was lower in 2021 than in 2019, there is evidence that in dense urban environments where the denominator of total people on the street went down precipitously, those that did go out had a greater chance of becoming a victim of street crime. 

While the pandemic and related restrictions challenged the work of prosecutors nationwide, including through mandated closure of their own offices and courts, San Francisco's halls of justice were particularly slow to reopen.This created a backlog of 441 felony defendants  who, as of May 2022, had gone beyond their last legal date for trial. As Boudin acknowledged, this outcome not only delays the delivery of justice, but also frustrates crime victims seeking accountability and closure. 

Finally, although Boudin never expressly called for "defunding the police," comments he made during his initial campaign led some to believe that he was sympathetic to the idea, a perception promoted by his critics. The defund slogan has rightly become toxic over the last two years as homicides have spiked, though the rise in killings has occurred in all jurisdictions, regardless of the D.A.'s ideological orientation. 

To be clear, San Francisco police unions also attacked Boudin's predecessors, including  Vice President Kamala Harris, and would have probably continued opposing him anyway, in part because he has discharged his duty to prosecute nine officers for alleged misconduct.. But other district attorneys who campaigned as "progressive prosecutors" smartly avoided quips that could leave them carrying the "defunding" baggage, an association that can exacerbate tensions with officers on whom they depend to arrest suspects and gather evidence. 

This mix of dynamics may not apply to all prosecutors who have campaigned on reform, but the Boudin recall should still prompt a rethinking of the notion that prosecution should be "progressive." That word typically connotes expanding the size and cost of government, often without sufficient accountability. In fact, however, policies and practices that seek to more efficiently allocate limited resources and provide public visibility into a prosecutor's work and outcomes resonate not just with voters in liberal jurisdictions, but elsewhere as well.

Take the top prosecutor in Jacksonville, Florida, Melissa Nelson. Nelson won office as a conservative Republican by pledging to reduce the number of youths tried in adult court, identify and correct wrongful convictions, and divert many defendants with mental health and substance use disorders to specialized courts and treatment programs. At the same time, her balanced approach has included focusing prosecutorial resources on serious gun crimes, seeking both tough sentences when warranted and developing partnerships with community-based violence prevention groups, and championing expanded victims' services. Since being elected in 2016, she has not only fulfilled these commitments but deployed an online dashboard of prosecutorial performance measures, providing greater public transparency. This dashboard is identical to those used by her Democratic counterparts in Milwaukee and Philadelphia, and similar to a dashboard that Boudin expanded after it was initially developed by his predecessor, George Gascon, who is now the D.A. in Los Angeles and may face his own recall election.

The point is that the choice should not be cast as between right and left, but between two conceptions of a prosecutor's role. Under an antiquated approach, the prosecutor's only mission is to send as many people to prison for as long as possible, despite burgeoning research showing that in many instances, opting for formal prosecution and jail over diversion for those arrested for the most minor crimes increases recidivism. Yet reality has always been more complex than the sign in some stores declaring "Shoplifters Will Be Prosecuted to the Full Extent of the Law." Indeed, Americans of all ideologies can appreciate the difference between a random kid who steals a candy bar and organized shoplifting like the "smash and grab" robberies that bedeviled San Francisco and surrounding areas late last year.

The alternative model, in which the prosecutor is a "minister of justice," involves not only reaching a just resolution in the case at hand, but also weighing the aggregate impact of how each case is processed on metrics such as reducing recidivism, controlling costs, and ensuring proportionality in case resolutions regardless of the victim or defendant's background.

Ultimately, voters' decision to toss out Boudin is at least substantially attributable to local circumstances – and serves as an indication that some jurisdictions went too far in stopping the wheels of justice from turning during the pandemic. What it does not suggest is the existence of some powerful public demand that prosecutors dispense with anything other than a punitive impulse. 

Sending the most dangerous and chronic lawbreakers to prison so that they cannot continue to threaten the public will always be part of a prosecutor's job, but a broader toolbox and vision are needed to deliver individually tailored justice to maximize the use of public resources. If we pigeonhole the performance of the vital government function of prosecution as either progressive or conservative, it obscures the truth that enforcing the law and balancing safety and justice are moral and practical imperatives, rather than ideological crusades. The recall in San Francisco is over, but a holistic, data-driven approach to prosecution is too important to forget.