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Why California Wants to Recall Its Most Progressive Prosecutors

Why California Wants to Recall Its Most Progressive Prosecutors

Why California Wants to Recall Its Most Progressive Prosecutors

San Francisco and Los Angeles are two of America’s most liberal large counties. Democrats dominate their elected offices up and down the ballot. Yet in both places, serious efforts are under way to recall left-leaning district attorneys who have not even completed their first term.

San Francisco’s Chesa Boudin and L.A.’s George Gascón each ran for office on confronting structural racial inequities, reducing incarceration, and toughening accountability for law enforcement. Their victories, in 2019 and 2020, respectively, represented landmark moments in the nationwide “progressive prosecutor” movement. But in San Francisco, opponents have already collected enough signatures to force a June 7 recall election for Boudin that most local political professionals doubt he can survive. While Gascón’s situation isn’t quite as dire, opponents say they have collected hundreds of thousands of signatures toward the 566,857 they need by July 6 to prompt a recall election against him. And polls show substantial disapproval of his performance.

The drives to remove both men have drawn energy from local controversies specific to each city. But the similarities in these twin struggles far outweigh the differences. And those similarities underline the structural challenges confronting the broader push for criminal-justice reform that exploded into massive public protests after the murder of George Floyd in 2020.

Reformers in cities across the country have made the case that a more equitable system will produce a safer community over time by reducing the number of repeat offenders hardened by excessive incarceration. But the recalls show how vulnerable those arguments are to short-term changes in the crime rate. The successes of Boudin and Gascón’s approach—as measured by individuals who are kept out of prison and use the opportunity to stabilize their lives—are inherently much less visible than the failures: offenders who, when given that chance, commit more crimes. While the impact of Boudin’s and Gascón’s tenures might take years to assess fairly, both men have been battered by public anxiety about immediate trends in safety and disorder—even if the causes, most experts agree, extend far beyond the policies of the D.A.’s office, and even if crime rates are also increasing in communities with hard-line police chiefs and district attorneys.

To reform advocates, the backlash testifies to the depth of resistance to change in almost every corner of the criminal-justice system, including police departments and D.A. offices, where career prosecutors have taken a stunningly public role in support of each recall. More ominously, the prospect that voters might turn on Boudin and Gascón has some reformers wondering whether the millions of people who marched in the streets in 2020 really meant what they said when they called for a fairer justice system.

“It’s almost as if the summer of reckoning in 2020 has never happened,” says Lara Bazelon, a University of San Francisco law professor who serves on a commission Boudin established to review possibly wrongful earlier convictions by his office. “People are happy to be progressive and happy to be anti-racist as long as their bike doesn’t get stolen, or they don’t watch a viral video of a theft at Walgreens. Once that happens, or they feel vulnerable in some way, they throw out the high-minded ideals that made them vote for a reformer.”

Yet if Boudin’s and Gascón’s troubles suggest that the momentum for criminal-justice reform might already be receding, they also offer hints of how the reform movement might recalibrate to build more durable political support.

Gascón, 68, and Boudin, 41, took very different paths to their current positions. Born in Cuba, Gascón immigrated to the United States with his parents; he then worked his way up from a beat cop in Los Angeles to become an assistant chief, before being named chief of police in Mesa, Arizona, and then in San Francisco. When Kamala Harris was elected as state attorney general in 2010, California Governor Gavin Newsom, then San Francisco’s mayor, appointed Gascón to replace her as the city’s district attorney. After serving two terms, Gascón somewhat surprisingly resurfaced in Los Angeles and won election as the county district attorney in 2020, unseating incumbent Jackie Lacey, who had strong support from law-enforcement unions.

Boudin, who won the 2019 race in San Francisco to succeed Gascón, had much less experience. Before his election, he had served as a law clerk to two federal judges and a deputy public defender in San Francisco (as well as working as a translator for Hugo Chávez’s administration in Venezuela). He is the son of famous 1960s radicals (Kathy Boudin and David Gilbert) and was raised by even more famous ’60s radicals (Bill Ayers and Bernardine Dohrn) after his parents were sentenced to prison for their role as getaway drivers in a fatal 1981 robbery.

Although they started with marginal support, both men pulled off upset victories and arrived on the job determined to reorient their office. Gascón announced a broad range of policy changes on his first day, rooting his approach in the belief that “our criminal-justice system is riddled with what I would call systemic racism,” as he told me when I interviewed him at an Atlantic event last year. Boudin was equally direct when he announced his own changes less than two months after taking office in 2020: “Today … we send a message that is loud and clear to the police department and to communities of color. We will no longer participate in, condone, tolerate, or amplify racist police tactics.”

The ensuing policy changes were sweeping. Each D.A. set a prohibition against trying juveniles as adults (though Gascón this year backpedaled to allow exceptions in rare cases). Each said that, with only rare exceptions, he would not seek sentencing enhancements, which can rapidly multiply the length of a prison term for added factors such as gang activity, the use of a weapon, or offenses that apply against California’s three-strikes law for repeat offenders. Boudin also said he would not seek cash bail for any defendant, while Gascón ruled out cash bail in all instances except serious and violent felonies. (Both men said they would ask judges to impose pretrial detention on only the most dangerous defendants.) Each said he would largely stop prosecuting “quality of life” misdemeanors often associated with homelessness, like trespassing and public urination. Each pledged not to seek the death penalty and to reassess the death sentences their offices already had imposed. And each promised to prosecute alleged misconduct by law-enforcement officers more aggressively.

An aerial view of a homeless encampment
An aerial view of a homeless encampment in San Francisco. (Tayfun Coskun / Anadolu Agency / Getty)

There’s little disagreement that Gascón and Boudin have attempted to implement the agendas they promised to voters. Gascón’s policy on juvenile prosecution kept about 100 minors from being transferred to adult courts from the time he took office, in December 2020, through 2021, according to a report he released last year, and his refusal to seek sentencing enhancements eliminated an estimated 18,000 years from prospective sentences. He also reported last year that he had identified 60,000 earlier cannabis convictions for dismissal and had filed 17 cases of misconduct against 21 law-enforcement officers.

The overall jail population in Los Angeles hasn’t changed much under Gascón. But Michelle Parris, a California program director for the Vera Institute of Justice, a liberal advocacy and research group, says that’s primarily because the county has not established an independent, comprehensive pretrial-services office to offer judges more alternatives to detention. Even so, she says, the group has found, using government data, that Gascón has significantly reduced the proportion of inmates held in jail on misdemeanors, another high priority for reformers.

Boudin’s office has not quantified his results as precisely. But San Francisco has seen significant reductions in both the jail population and the number of juveniles in custody since Boudin took office, as well as the first ever homicide prosecutions against police officers for actions on duty. “He did the things he said he would do,” says Jonathan Simon, a professor of criminal-justice law at the UC Berkeley School of Law.

In each city, the new D.A. faced almost immediate resistance from within the law-enforcement community. In Los Angeles, the Association of Deputy District Attorneys, the union representing career prosecutors, filed a lawsuit just weeks after Gascón took office to block his policy rejecting the use of three-strikes counts and other sentencing enhancements. This past February, the union’s membership voted virtually unanimously to support the recall of their own boss. Alex Villanueva, Los Angeles County’s bombastic hard-line sheriff, also supports Gascón’s recall. In San Francisco, the police-department leadership has openly feuded with Boudin, and the police union has bitterly criticized him.

Brooke Jenkins, who resigned from the San Francisco D.A.’s office last October and has emerged as one of Boudin’s most visible critics, argues that his “blanket policies” against seeking cash bail and trying juveniles as adults are hindering prosecutorial discretion and undermining the office’s “ability to hold some of our most dangerous offenders accountable and, many times, to do what we need to protect the public.” In L.A., Eric Siddall, the Association of Deputy District Attorneys’ vice president and a 15-year veteran of the office who now prosecutes crimes against law enforcement, says that when Gascón barred prosecutors from seeking sentencing enhancements, including three-strikes counts, he put the office’s line attorneys “in an ethical dilemma” of following “his orders or … the law.” The laws, Siddall continues, that Gascón “refuses to enforce were passed by the legislature and, in some cases, were passed by the people of the state of California directly. So, no one man has a right to overturn state law by himself.” (An L.A. County judge ruled partially in favor of the union last year that Gascón must apply the three-strikes law, but the case is on appeal.)

Supporters of Gascón and Boudin, meanwhile, view the breadth, and especially the speed, of the backlash as a measure of law enforcement’s reflexive resistance to change. “You have an institution and a culture that is being told that everything you were doing for most of your career you weren’t doing correctly, and here is this other way,” Bazelon, the University of San Francisco law professor, told me. “And there are people who are going to react very badly to that.”

Some see law enforcement’s support for the recalls as an attempt by entrenched interests to nullify the will of the voters. “The voters voted in Gascón. I think all of the other elected officials and all the other people that are opposing him, including the A.D.A.s that are within his office, at the bare minimum should at least give him the opportunity to implement the policies that he promised to bring in,” says Sam Lewis, the executive director of the Anti-Recidivism Coalition in L.A., a group that works with the formerly incarcerated. “If he fails, after his first term, vote him out. But don’t make up reasons to vote him out [now].”

In each city, the opposition from law enforcement—along with support from right-leaning donors—provided the initial spark for the recall efforts. But each has fed on what polls show is broadly shared public anxiety about safety. And while there’s no question both cities have experienced some very high-profile crimes—including mass shoplifting events and follow-home robberies of wealthy individuals—the crime statistics are mixed. Some safety indicators have undeniably deteriorated, but others haven’t budged much or have even improved.

In San Francisco, the police department’s dashboard shows that the total number of serious offenses from January 1 through April 24 of this year (14,625) was significantly higher than during the same period in 2021 (13,345), while more of the city was still closed down because of the coronavirus pandemic, but much lower than during the equivalent period in 2019 (16,174), before the outbreak began and before Boudin took office. Through late April of this year, assaults were up 6 percent compared with the same period in 2019, and burglaries were up 12 percent. Break-ins or thefts of motor vehicles have soared by almost 50 percent over that time. But rapes, robberies, and property thefts all have declined, and the number of homicides hasn’t changed much (11 in the early months of 2019 versus 15 in the same period this year.)

Los Angeles also showed mixed trends through 2021, though with a clearer tilt toward more violence. The total number of property crimes that year, while higher than in 2020, remained slightly lower than in 2019. The number of violent crimes, conversely, was slightly higher in 2021 than in 2019. Most troubling in L.A. has been a dramatic rise in the number of people shot and the number of homicides, each of which spiked by more than 50 percent from 2019 through 2021. Homicides per capita are still much lower than they were in the 1990s, or even the 2000s, but they have demonstrably increased since bottoming out soon after 2010.

Magnus Lofstrom, the policy director for criminal justice and a senior fellow at the nonpartisan Public Policy Institute of California, says the rise in homicides and aggravated assaults across California is genuine cause for concern. (California’s increase in homicides from 2019 through 2020, he points out, was the biggest since the state started keeping records in 1960.) But property- and violent-crime rates across the state are generally returning to the relatively low levels experienced before the pandemic, he says. “Broadly,” he told me, “you are not seeing patterns that are unique to Los Angeles or San Francisco over the last couple of years compared to the rest of the state, and the state in general is broadly reflecting what we are seeing in the country as a whole.”

Indeed, the recent nationwide rise in the crime rate also affected jurisdictions where police chiefs and prosecutors are implementing hard-line policies. “These traditional prosecutors often act as if their traditional policies produce safety, and that is clearly not the case,” says Parris of the Vera Institute of Justice. “They are just as susceptible to the trends that we are seeing around the country that have really complex root causes. But their records are rarely scrutinized.”

The available data also suggest that Gascón and Boudin aren’t ignoring serious crimes, as aides to each pointed out when I spoke with them about their bosses’ records. A detailed analysis by the Los Angeles Times found that Gascón filed charges in just over 58 percent of the felony cases brought to him by police in 2021, almost exactly equal to Lacey’s annual average over her eight years in office. An online dashboard maintained by Boudin’s office shows him filing charges this year and last in just under three-fifths of felony cases, which equals or slightly exceeds Gascón’s record in most years when he held the job there. “Arguments attacking our filing rates hold no water,” Rachel Marshall, Boudin’s director of communications, told me.

Still, critics of Gascón and Boudin argue that their policies of not prosecuting most misdemeanors and seeking cash bail for only the most serious offenses have created a sense of impunity. “It not only makes residents feel less safe,” Vicki Halliday, who sits on the board of directors of the Venice Neighborhood Council in Los Angeles, told me. “It emboldens the petty criminal.”

Siddall, of the Association of Deputy District Attorneys, raises another complaint about Gascón’s approach to bail: Under California law, people with a previous felony conviction are not allowed to possess guns. But if a felon is caught with a firearm (without using it), that offense is technically a nonviolent felony, Siddall says, which means that under Gascón’s rules he or she is released without bail. “They are released before the police report is even written,” Siddall says. “When you are allowing hard-core criminals to run around our society with impunity, with guns, you are going to create a very dangerous situation.” Los Angeles Police Department officials similarly have complained about gun-toting defendants in follow-home robberies who have been repeatedly arrested and released.

Alex Bastian, a special adviser to Gascón, says the bail policy applied to those gun-possession cases is shaped by a California State Supreme Court decision discouraging reliance on cash bail, and by rules the state and county court systems instituted to reduce incarceration during COVID-19 outbreaks; Gascón, Bastian adds, is working with law enforcement to explore whether there should be more exceptions to the rule for repeat offenders or others who pose a special risk.

In San Francisco, critics point to the significant increase in the number of cases Boudin’s office has resolved through diversion into behavioral or counseling programs. According to his office, the share of all cases resolved through diversion has increased more than fourfold since 2016, and while Boudin has applied that remedy mostly for misdemeanors, the number of felony charges channeled into diversion has nearly tripled over that period—to just over one in five.

A crime scene in Beverly Hills, California
The remains of a crime scene in Beverly Hills. (Damian Dovarganes / AP)

It’s also clear that both Gascón’s and Boudin’s reputations have been damaged by the unease in each city about a problem that’s distinct from but related to crime: homelessness. In recent polls, considerably more Los Angeles residents expressed concern about homelessness than about crime. In both cities, it has become harder to get through the day without encountering people living on the street, many of whom appear a danger to themselves or others. In Los Angeles, that anxiety is compounded by the presence of large encampments that have created a sense that the city is losing—or ceding—control of its public spaces. (The area around the public library in Venice, for instance, has been so engulfed by tents that I have a hard time imagining many parents bringing young children there.)

The resulting frustration among even liberal voters is reminiscent of the anxieties about urban anarchy that inspired the famous “broken windows” policing strategy in the 1980s, and the election of Rudolph Giuliani as New York mayor, on a promise to tame disorder, in the 1990s. (In Los Angeles, the wealthy developer Rick Caruso has leveraged that sentiment, and a torrent of his own television spending, into one of the leading positions in this year’s mayoral race.)

Experts agree that cities cannot arrest their way out of a homelessness problem that requires more mental-health and drug treatment, as well as more housing. And, compared with other elected leaders, district attorneys have only limited leverage over homelessness, mostly through their prosecution (or not) of misdemeanors like public urination or drunkenness. Yet because of the momentum created by the recalls, Gascón and Boudin might pay the price.

This public backlash against Boudin and Gascón points to two intertwined challenges both men face in defending their reform agendas.

The first is that the successes of their strategy are much more difficult to quantify than are its setbacks. Progressive prosecutors are acutely vulnerable when anyone kept out of prison by their policies reoffends—as happened in San Francisco on December 31, 2020, when a repeat felon out on parole killed two pedestrians as he rocketed a stolen car through an intersection, a tragedy that many consider the initial spark for the Boudin recall. But an offender who’s kept out of prison, or sent there for a shorter term, and takes the opportunity to straighten out his or her life is virtually invisible to the public.

Lewis, of the Anti-Recidivism Coalition, told me the stories of two young offenders he has worked with in Los Angeles. Each was convicted as a juvenile but later received a reduced sentence, and both used that second chance to reshape their lives. One is now working as a firefighter; the other, as a carpenter. Both regularly join Lewis to counsel younger kids drawn to gangs and violence. “They got their life back on track, but they got their life back on track earlier, when they were 25 years old, as opposed to when they were 45 years old,” says Lewis. “As we multiply these things over the years, it enhances public safety.”

Academic studies have not consistently concluded that longer sentences reduce future offending. Parris, of the Vera Institute of Justice, also notes that a study conducted in Boston and surrounding communities in Suffolk County, Massachusetts, found that prosecuting fewer people for low-level, nonviolent misdemeanors shows promise as a way of both reducing longer-term crime and helping those offenders straighten out their lives. Yet even if most people kept out of prison by such policies find a productive path, the smaller share of those who reoffend inevitably attracts much more media attention.

Time is the second big challenge for progressive prosecutors. “The effect that any policies that a D.A. adopts has on crime will take some time to manifest itself,” says David Alan Sklansky, a Stanford University law professor who studies criminal justice. Although it might seem logical to increase prosecutions and stiffen sentences in response to rising crime rates, Sklansky points out that incarcerating more people for longer periods can seed more crime later, as “people become hardened criminals behind bars and then [are] released into their communities to reoffend.” Conversely, he notes that although diversion programs or investment in social services might look like leniency today, those policies can foster safety over time by shrinking the pool of potential future offenders.

The benefit of reducing unnecessary incarceration, Bastian says, “is less recidivism, lowering the likelihood of future victims, and lowering the fiscal costs, while advancing public safety at the same time. Unfortunately, it is going to take more time for us to know the full value of that.”

The question is whether voters have the patience to see what comes of Boudin’s and Gascón’s policies over the long term, while some key measures of crime keep rising. Sklansky doesn’t think the American public has turned on the progressive-prosecutor movement yet, observing that California law makes it unusually easy to qualify a recall for the ballot. And the reelection of progressive prosecutors Larry Krasner in Philadelphia last year and Kim Foxx in Chicago the year before suggests that it’s possible to retain majority support for reform policies even when crime is rising.

But other observers, including many Democrats broadly sympathetic to criminal-justice reform, say it would be myopic not to take lessons from the pushback Boudin and Gascón have faced. Every analyst and practitioner of San Francisco politics I spoke with said they would be stunned if Boudin survives the June recall election. Gascón has a better chance of keeping his job, but he will be at serious risk if the recall effort gathers enough signatures: Recent polls by both Univision and the Los Angeles Times have found that only about one-third of county residents approve of his job performance. And hardly any prominent Democrats are defending either man’s policies (even if some, like Representative Karen Bass, the leading liberal candidate in the L.A. mayoral race, oppose the recalls on the grounds that the district attorney should face voters at the end of a full term).

Some of that distancing reflects the uncertainty among Democrats nationally over how to respond to Republicans’ attempts to paint the party as soft on crime. But Democratic officeholders and political strategists in each city consistently expressed exasperation that Boudin and Gascón have demonstrated little sympathy, or even concern, for the middle- and working-class families that are genuinely unsettled by the types of crime that are increasing, and by homelessness. “If you run for prosecutor, you do have a job: to prosecute. You have discretion, but people basically see your job is to get people who are dangerous off the streets,” says one veteran California Democratic political strategist, who asked for anonymity to discuss the races candidly. “When you start rejecting, essentially, the job people hire you to do, it creates all sorts of problems.”

Rafael Mandelman, a centrist Democratic member of San Francisco’s Board of Supervisors, generally backs the goals of criminal-justice reform, but he rejects the idea that a D.A.’s only choices are to sustain an unfair status quo or change direction as quickly and sharply as Boudin has tried to: “I don’t think it’s a binary—either you go along and get along and you don’t have any problems, or you blow everything up and have explosions every day.” The D.A.s and their allies make a forceful counterargument for swift, bold action: Gascón told me last year that moving more cautiously would only perpetuate racial inequities without winning over the forces that oppose him. Yet neither he nor Boudin can advance reform at all if they are removed from office.

Bazelon told me she worries the message of the recalls is that “moving forward, the progressive movement can’t be as progressive as we want.” But the message might be less about direction than approach. Any elected official can sink into trouble by issuing too many absolutist pronouncements or by appearing indifferent to changing circumstances, like the rising public concern in both cities, largely extending across racial lines, about safety. Boudin and Gascón have legitimate reason to worry that the system won’t change without blunt-force directives. But their experience shows the risks of coming across as too inflexible in pursuing reforms.

The threat to these two men is rooted, above all, in the impression that they are more concerned about the small minority of people accused of crimes than about the larger majority whose principal interest in the criminal-justice system is that it keep them safe. However the recall efforts turn out, the pushback against Gascón and Boudin suggests that progressive prosecutors ultimately can do more to eradicate bias if they never lose sight of preserving safety.