Former San Francisco D.A. Chesa Boudin, Pt. 1

Sea Change Radio

If you look at the data, you’ll probably notice that traditional incarceration-focused criminal justice approaches are both extremely expensive and terribly ineffective. But, defying logic, they continue to be fairly popular. And when bold thinkers try to advance more sensible approaches, they sometimes get knocked down. In 2020, just days after Chesa Boudin’s narrow election to become San Francisco’s District Attorney (running on a platform of progressive reform), deep-pocketed out-of-state interests began the process of recalling him. The recall was successful, and in July of 2022 Boudin was unseated. His replacement, appointed by Mayor London Breed, was a member of his own prosecutorial team, Brooke Jenkins, who happened to have been one of the local leaders of the recall campaign. This week on Sea Change Radio, we welcome Chesa Boudin to the show for the first part of a two-part, far-ranging conversation to discuss his unique childhood with two incarcerated parents, evidenced-based approaches to criminal justice, and the bitter fight that nipped his promising tenure in the bud.

Narrator | 00:02 – This is Sea Change Radio covering the shift to sustainability. I’m Alex Wise.

Chesa Boudin (CB) | 00:19 – You can always, in any jurisdiction across the country, find some category of crime that in some period of time has gone up or has gone down. It’s simply not an honest or effective way to think about either public safety or the role of prosecutors.

Narrator | 00:36 – If you look at the data, you’ll probably notice that traditional incarceration-focused criminal justice approaches are both extremely expensive and terribly ineffective. But, defying logic, they continue to be fairly popular. And when bold thinkers try to advance more sensible approaches, they sometimes get knocked down. In 2020, just days after Chesa Boudin’s narrow election to become San Francisco’s District Attorney (running on a platform of progressive reform), deep-pocketed out-of-state interests began the process of recalling him. The recall was successful, and in July of 2022 Boudin was unseated. His replacement, appointed by Mayor London Breed, was a member of his own prosecutorial team, Brooke Jenkins, who happened to have been one of the local leaders of the recall campaign. This week on Sea Change Radio, we welcome Chesa Boudin to the show for the first part of a two-part, far-ranging conversation to discuss his unique childhood with two incarcerated parents, evidenced-based approaches to criminal justice, and the bitter fight that nipped his promising tenure in the bud.

Alex Wise (AW) | 01:45 – I am joined now on Sea Change Radio by Chesa Boudin. He is the executive director of the Criminal Law and Justice Center at the University of California Berkeley Law School. He’s also the former district attorney of San Francisco. Chesa, welcome to Sea Change Radio.

Chesa Boudin (CB) | 02:18 – Great to be here with you.

Alex Wise (AW) | 02:20 – Why don’t you first tell us about… how did your parents being incarcerated affect your path into criminal law?

Chesa Boudin (CB) | 02:28 – My parents were both arrested when I was 14 months old, and though I don’t remember that day, or even when the judge sentenced my mother to 20 years to life, or when the judge sentenced my father to 75 years to life, my earliest memories as a child are waiting in lines to go through steel gates and metal detectors just to be able to see my parents, just to be able to give them hugs. I visited my parents in jails and prisons all across New York state over decades. My mom served 22 years before she was released. My father served 40 years before he was released. And so, you know, that experience was really a defining part of my childhood. Um, it’s something that separated me from the other kids in my school, something that gave me a connection to a part of the American experience that I might not otherwise have had any awareness about, which is racism, which is mass incarceration, which is the failings of our approach to public safety. And so, from a very early age, I was interested in thinking about how we could do a better job keeping our communities safe, a more effective job holding people who commit crimes accountable, um, how we could, uh, more efficiently marshal tax dollars to advance safety and justice. And it was that lived experience in part that led me to go to law school, and that led me to want to become a criminal lawyer after law school.

AW | 03:48 – And what led you to become a prosecutor? You would think, listening to your story, that the more obvious path would be criminal defense, but you chose to go on the prosecutorial side of things. Why?

CB | 04:01 – Well, to be sure my instinct was the same as your question suggests. Coming out of law school, I did choose to become a public defender. And after a couple of federal court clerkships, my first job as a practitioner was at the San Francisco Public Defender’s Office. And I spent years there handling individual client matters, defending people accused of crimes, and seeing professionally what I had experienced personally throughout my life, which was the real failure of our system to do justice or to meaningfully intervene in ways that protect and advance safety. It was that experience together with my lived experience that led me in 2019 to decide to run for San Francisco District Attorney. Now, it was really three very specific things in that moment that led me to run. The first one was San Francisco’s, uh, incumbent district attorney at the time announced that he was not seeking reelection in late 2018. That meant that the election in 2019 was going to be the first open election for district attorney in over a century. Seems kind of shocking, but most of the time when there’s a race for district attorney all across this country, there’s an incumbent who’s running for reelection or the outgoing incumbent has left in the middle of their term and allowed someone, usually of their choice to be appointed to replace them in San Francisco. That wasn’t going to happen. He was leaving at the end of his term, and that meant it was going to be a free and open democratic election for the first time in over a century.

AW | 05:37 – Was it also the first time that there’d be ranked choice voting?

CB | 05:40 – There was ranked choice voting in San Francisco prior to that.

AW | 05:42 – But it was a ranked choice voting election?

CB | 05:44 – Absolutely right. Yeah. Most San Francisco County races are ranked choice. And what that means is voters. It’s also called instant runoff. It means that voters can choose not just their first choice, but their first, second, third, as many as there are candidates on the ballot. It’s a great way for jurisdictions to avoid the cost of runoff elections or primary and then general. And it’s also a great way to give voters the ability to choose their first choice candidate, even if that person is not expected to win. So imagine, for example, for national listeners in 2000 when, um, Bush beat Gore, and a lot of people said, well, all those folks in Florida who voted for Ralph Nader gave the election to Bush. Well, imagine with ranked choice people who wanted to vote for Ralph Nader in Florida in 2020 in, excuse me, in 2000, but who also didn’t want their ballots to essentially be thrown away. You could vote for Nader as your first choice, or Ross Perot or whoever it is, and then you could put your second choice or your third choice as the person who is leading in the polls or in contention to win. And that’s a way to show your preferences and still have your vote be counted in one of the final two candidates, uh, final outcome. So yes, San Francisco uses rank choice. That wasn’t really a consideration for me, though it certainly did end up being a factor in how the election was decided.

AW | 07:06 – It was very close

CB | 07:07 – Very close, and we’ll get to that in a moment. The second thing that’s important about my decision to run was that, um, there was a national criminal justice reform movement that was building strength throughout the early two thousands. And in the late 20 teens, a part of that movement, um, that emerged, was known as the progressive prosecutor movement. We saw people running and winning the Office of District Attorney all across the country on platforms that for the first time in history were not just focused on being so-called tough on crime or locking people up for longer, but rather that also recognize we can advance safety and justice through decarceration, through police accountability, through alternatives to incarceration, through investing in victim services. Um, and I was inspired by not only that movement, but by its successes. Uh, not just the idea, but the fact that it was actually taking hold. People were winning races, they were following through on their campaign promises. Um, and the third thing was more personal, which was that over the years of my time as a public defender, I started doing more and more work, not just for individual clients, but also around policy, um, impact litigation, um, launching new units within the public defender budget advocacy. And I realized that I was, uh, drawn to work that could have a system-wide impact, not only impact individual clients. And I realized that it was a more natural fit to do that work in an office where you were making policy and not just a public defender where you’re representing clients

AW | 08:39 – Now. If you can explain what you were trying to do as District Attorney and how that carries over now into your work at the Criminal Law and Justice Center at Cal.

CB | 08:48 – My three core promises to voters on the campaign trail were reduce over-reliance on incarceration. In other words, expand alternatives to incarceration, particularly for low level offenses. And second, um, reinvest some of the savings from decarceration into meaningful victim services and third, enforce laws equally so that we’re not only prosecuting and jailing poor people of color, but that we’re also enforcing laws when they’re violated by police or politicians or, uh, billionaires in corporate boardrooms. Those were the three core promises, and we tried to do that in a number of different ways, which I’m happy to talk about in as much depth as you’d like. Um, all of that carries over into the work we’re doing at Berkeley in the sense that we are continuing to look at these same challenges, problems, and opportunities, uh, in the criminal legal system. Now we’re doing it, um, through a very different lens than that of an elected official or a head prosecutor. Now we’re doing it through the lens of research, education and advocacy.

AW | 09:53 – And when you were elected, you wrote a little bit of a wave of other similarly minded progressive district attorneys around the country, or at the state at least. I’m trying to remember some, but it, it became a narrative of sorts. But then there was this backlash on the heels of the pandemic culminating in your recall. What do you see though on the horizon? Like, we’ve kind of come full circle. Are we going to continue on this path of a fear-based lens, or can we go with evidence-based practices?

CB | 10:25 – The progressive prosecutor movement has had really tremendous success at the polls and also in terms of our policies. and I hope we’ll have time to talk more about that because I’d love to explain what is really counterintuitive to many people who read the news. I mean, there, there’s a narrative out there that the progressive prosecutor movement is failing, is being voted out of office, et cetera. There’s no question that it is and has been under relentless attack from the far right. Um, but it continues to be popular with voters, particularly in urban jurisdictions. Now. I think it’s absolutely predictable that this movement, particularly given how successful it’s been, was going to face fierce resistance. The wealthy real estate interests, the police unions, many other deeply entrenched, uh, political interests, the Chamber of Commerce, travel bureaus, hotel lobbies, they do not want to see reform in this space.

AW | 11:24 – And it’s easy to twist it based on anecdotal thinking, right?

CB | 11:28 – Absolutely. In any big city in America, there’s always going to, there’s always crime. Every day there’s crime.

AW | 11:33 – So you can say “Hey, this person over here got hurt. It’s your fault.”

CB | 11:35 It’s your fault. That, and that’s exactly what we see. We see, uh, these folks with really kind of easy access and control of media narratives, blaming progressive prosecutors in criminal justice reform in general, for any crime that occurs, crime occurs in red states, it occurs in red jurisdictions, it occurs in jurisdictions with very traditional prosecutors, but nobody blames them when the same crimes occur. So there’s a total double standard and again, it’s predictable. It’s not a surprise, I think it’s important to remember when we look at these issues and the arc of, of history and social movements that change and progress are never linear. There’s always resistance, there’s always fear, there’s always backsliding and yet we do move forward. So imagine for a second, being a abolitionist in the 1840s who was fighting to abolish slavery in the 1840s, it would’ve felt lonely. You would’ve felt embattled. It, it, it might’ve felt like the task ahead of you was impossible, insurmountable and yet just 20 short years later, 25 short years later, slavery was abolished. Now, there were many people, including people of conscience, decent liberal minded people who in the 1850s and even, early 1860s, felt like it was impossible to imagine a world without slavery. Felt like maybe we could make marginal improvements to how slaves were treated, or maybe we could create more opportunities for next generation of slaves.

AW | 13:10 – It was so deeply rooted. This was not something like the Vietnam War. This was something that was multiple centuries. So like their grandparents never even knew anything else but slavery.

CB | 13:20 – It was foundational. Exactly right. It was a foundational part of American culture, of the economy, of people’s identity. And so for those few courageous visionary folks who were fighting against slavery as early as the 1840s and earlier, of course some, it, it was a difficult time. They were called crazy by many. They were, they were called radicals by many, even people who tended to agree in principle with their moral framework.

AW | 13:46 – And then when you think about the economic disruption of something like that, the success of the American Industrial Revolution was largely on the backs of this horrible practice.

CB | 13:56 – Slave labor. Exactly. And so, I use that analogy because not, not because I think prisoners are slaves or because I’m saying it’s a one-to-one comparison, but it’s important to remember that in American history, big changes, system changes take time. And when we’re in that process, even when we’re close to making major breakthroughs, there will always be folks who simply lack the creativity or who are scared of what those kinds of changes will mean for their economic interests, for their social status, for their identity. And we see that today. We see that in the resistance of, uh, uh, correctional officer unions of police unions, of many of the private corporations that benefited from slave labor in the, uh, 18 hundreds and that benefit from prison labor. Today, we see it as well, of course, in many of the economic interests that benefit from gentrification. The real estate industry, for example, major drivers of, uh, recalls against progressive prosecutors of, uh, ballot initiatives to ratchet up, uh, criminalization of poverty because, uh, real estate, lobbyists and real estate agents benefit tremendously from whitewashing neighborhoods in big cities and from gentrification.

(Music Break) | 15:18

AW | 16:06 – This is Alex Wise on Sea Change Radio, and I’m speaking to Chesa Boudin. He is the executive director of the Criminal Law and Justice Center at the University of California at Berkeley Law School, and he’s the former district attorney of San Francisco. Chesa, the balance that a district attorney has to walk in trying to prove that they are not only tough on crime and that they care about all citizens, but also want to do the right thing in terms of what works. We are so rooted. You talk about the, the problems with slavery, that we are so rooted in a punishment oriented lens that if you do wrong, you need to pay for it. And the solution that we’ve come up with for centuries is, is jail prison. But putting people in jail actually increases their criminal genic risk. We know that. But what can be done to get us back on track towards intelligent prosecution? Why can’t we do something different? Talk about the challenges facing, trying to really change that dynamic.

CB | 17:06 – I want to make two points. One is a fundamental difference between being a public defender or most other kinds of lawyer and being a prosecutor, is that most lawyers and certainly public defenders defense attorneys have a client, and their clear ethical obligation is to zealously advocate for that individual client. Prosecutors, by contrast, represent the people of their jurisdiction, the people of the state of California, the people of the city and county of San Francisco, et cetera. And the ethical obligation is to advance justice. And that’s a more complicated ethical role for lawyers to play. You don’t only represent the victim of a crime if you’re a prosecutor, you also technically represent the person you’re prosecuting. You represent everybody. People who don’t even know about this crime. You have a ethical obligation to advance justice in the cases that you prosecute and the way that you prosecute them. And that is both a humbling power and also one that is easily manipulated by powerful interests. And so the second point I want to make is that while prosecutors are elected in most jurisdictions in this country, and therefore serve all of the people who elected them, and, and even those who voted against them, right? They serve all of the people in their jurisdiction as a practical matter, as is so often the case with the big money and the powerful lobbies in American politics, certain special interest groups like police unions, like chambers of commerce, like real estate lobbyists, can easily capture the attention and priorities of elected district attorneys and lead them to do work that advocates for and advances the interest of those powerful wealthy lobbies and not the vast majority of working people in their jurisdictions. And that’s a real risk from the standpoint of advancing justice and public policy, as well as trust and integrity of the justice system.

AW | 19:06 – And fear sells. And when you get money behind these fear-based movements, it can be a very sian task to try to overcome that. The cherry-picking of data crime data is one that I remember trying to wrap my mind around during your recall, especially during a pandemic. This is something that people don’t really understand and it can work for and against a district attorney politically.

CB | 19:35 – The reality is that we live in a, in a moment in history where data and facts and evidence are highly politicized. And we see folks like Donald Trump normalizing the absolute wholesale rejection of scientific consensus in favor of how people feel and we see folks cherry, as you said, cherry picking and moving the goalposts and redefining what data we care about and how we, uh, evaluate it. Um, simply because it doesn’t, you know, point in the direction that, that we like politically, it’s really problematic and we see it as much as anywhere, perhaps more than anywhere else in the context of, of conversations about public safety and, and, and criminal justice. It is absolutely true and undisputed that crime rates fluctuate. They go up, they go down, and it sometimes in, in the same jurisdiction, you might have one crime rate go up and another one go down. And sometimes if you narrow in on one neighborhood, you might see crime surging. Well, in the neighborhood next door, crime is falling. It is for that reason that it’s so easy for people to exploit for political purposes, changes in crime trends. And they did that in San Francisco with me. They would send mail to voters across the city saying, burglaries are up by 150% in this one neighborhood. And of course, depending on what start date and end date you look at, depending on what your lens of comparison is, how much you zoom into a specific neighborhood, what specific category of crime, you can always, in any jurisdiction across the country find some category of crime that in some period of time has gone up or has gone down. It’s simply not an honest or effective way to think about either public safety or the role of prosecutors. What the academic consensus tells us is, first of all, nothing prosecutors can do in the short term, will affect crime trends in the long term. There are things that prosecutors do that may affect crime trends, um, but only in the long term and never in ways that are more powerful or that can override other overarching factors such as the economy such as effective or ineffective policing, such as, uh, some of the things that we know may have had a very significant role in crime trends like Roe v. Wade legalizing abortion or like the elimination of lead paint from toys and daycare centers all across America.

AW | 22:02 – Yeah. You see violent crime rates plummeting when you can remove lead from a neighborhood, or on the flip side, you see something. Was it Proposition F that just passed here in San Francisco, which was I think a, a kind of the logical conclusion in some ways of what many on the left here in San Francisco feared from your recall, which was, it was a mandatory testing, it still hasn’t been implemented, and it sounded completely not San Franciscan in any way in spirit, but London Breed pushed it through the mayor and it was a war on drugs tactic where if you failed a drug test, you wouldn’t be eligible for certain social services.

CB | 22:42 -Yeah. Basically, conditioning welfare on not testing dirty for drugs, right?

AW | 22:47 – So you’re going to affect the crime rate that way, is what I was thinking.

CB | 22:49 – You’re going to drive crime up because what you’re going to do is you’re going to take people who have substance use dependency and instead of giving them treatment, which is very hard to get in this city. And treatment on demand is something I’ve been calling for years, especially. Yeah. People are dying every day. I mean, London Breed, the mayor of San Francisco has closed down the, uh, supervised consumption centers that were saving lives. She has increased criminal enforcement against people who are simply using drugs while at the same time refusing to build out treatment centers. Um, that is a recipe that predictably has led to a dramatic increase in fatal overdoses. Um, and on top of all that, now she has backed this proposition you described, which is going to condition welfare on people not having any drugs whatsoever in their urine. I, I would love to see all of the fat cats in City Hall in San Francisco get their urine drug tested and see which ones of them are consuming drugs and condition their salary on testing clean, because the reality is there’s a total double standard. The people in Silicon Valley and in City Hall who are pushing these war on drugs 2.0 policies across San Francisco and beyond, are themselves violating the law with impunity.

AW | 24:03 – It’s kind of like the crack versus powder cocaine legislation in the eighties. Exactly. It’s just a war on the most vulnerable in our society.

CB | 24:11 – With devastating consequences for people living at the margins. Devastating, and in ways that then increase crime.

AW | 24:16 – Talking about the anecdotal thinking as opposed to looking at things from a, a wider perspective. First day I knocked on doors for your recall, not far from my neighbor…

CB | 24:26 – Against my recall, hopefully!

AW | 24:27 – Against your recall, yes. I remember knocking on a neighbor’s door, I spoke to a woman who was like, “I’m a lawyer and I’m Asian. So obviously I’m for him being recalled.” So explain a little bit how the Asian community became a little split and there was this vein that worked against you because of, was there a hate crime that happened? I’m a little vague on the history of this.

CB | 24:52 – Yeah. I mean, largely it was invented, and divide and conquer tactics are tried and true. And that’s exactly what they did here, um, in San Francisco. And they did it based largely on fiction. Um, you know, we did more and I’m so proud of our record on advancing language access for the Asian American community on fighting against hate crimes, targeting Asian Americans and others. But there was a tremendously effective conquer disinformation campaign that, promoted fear in the Asian American community. And San and San Francisco has a larger Chinese American, population as a percentage than any other city in America except for Honolulu. So it is a very important part of the, the electorate. It’s a very important part of the community that I was serving as district attorney. And I was proud to have the endorsement of every major Chinese American or organization and newspaper in the city because the folks who looked at what we were doing dramatically expanding the number of Chinese speaking victim advocates, um, launching Bay Area task forces to investigate and prosecute hate crimes going on Chinese language radio on a monthly basis to answer questions directly from the Chinese speaking community and so much more that we did, um, to increase access and inclusion for this community. But what happened was, in a city with this many Chinese Americans, of course, there are crimes every day, sadly, where Chinese Americans are victims of crime. And they managed to get the press to cover each and every one of those cases. As though it was the first time in San Francisco history where there had been crime committed against Asian Americans, it simply wasn’t true. Crime was not going up against Asian Americans. We were to be fair living in a moment where thanks largely to Trump’s racist, anti-immigrant rhetoric and his efforts to blame Covid and the pandemic on China and on Chinese Americans. We were living in a moment when white supremacy and white supremacy targeting not only Chinese Americans, but Asian Americans in general, Jews, African Americans hate crimes, hate speech was on the rise. Trump had empowered and unleashed white supremacists to feel like they could speak their minds and act on their hateful views. That was a challenge we were confronting in San Francisco. As across the country, there was a mass shooting targeting Asian American women in massage parlors in the Atlanta area. Nobody blamed the district attorney for that. We recognized that it was a sickness, it was a serious problem. But in San Francisco, it was weaponized against criminal justice reform in a way that was very powerful and very effective. And immediately after the new district attorney was put in office, there was a backstepping of that rhetoric. Nobody blames the current district attorney when crimes are committed against Asian Americans. And in fact, for all of the attacks that I and my administration suffered saying we should have charged specific crimes as hate crimes, not a single hate crime allegation was added to a single criminal case after I was removed from office.

Narrator | 27:57 – Tune in next week to hear the second part of our discussion with San Francisco’s former district attorney Chesa Boudin. You’ve been listening to Sea Change Radio. Our intro music is by Sanford Lewis, and our outro music is by Alex Wise. Additional music by Fela Kuti and Junior Murvin. To read a transcript of this show, go to SeaChangeRadio.com to stream or download the show, or subscribe to our podcast on our site, or visit our archives to hear from Doris Kearns Goodwin, Gavin Newsom, Stewart Brand, and many others. And tune in to Sea Change Radio next week as we continue making connections for sustainability. For Sea Change Radio, I’m Alex Wise.