Former San Francisco D.A. Chesa Boudin, Pt. 2

Sea Change Radio

Gallup poll data show that for the past forty years, majorities of Americans consistently perceive crime to be worse “this year” than the previous year, irrespective of the tremendous downward plunge in both property and violent crime during that same period. This week on Sea Change Radio, the second part of our discussion with former San Francisco District Attorney Chesa Boudin. In this episode, we examine why “tough on crime” legislation can have such deleterious outcomes, talk about the problems with recall elections, and look at the work Boudin has embarked on at the UC Berkeley School of Law. Then, we dig into the Sea Change Radio archives to revisit a portion of our previous conversation with Kevin Ortiz, a San Franciscan who learned firsthand how hard it can be to extricate oneself from legal entanglements.

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

Chesa Boudin (CB) | 00:22 – What percentage of people would vote for Joe Biden if the question put to voters were, shall Joe Biden continue to be president? Totally different question than who do you want to be the president, Joe Biden or Donald Trump?

Narrator | 00:35 – Gallup poll data show that for the past forty years, majorities of Americans consistently perceive crime to be worse “this year” than the previous year, irrespective of the tremendous downward plunge in both property and violent crime during that same period. This week on Sea Change Radio, the second part of our discussion with former San Francisco District Attorney Chesa Boudin. In this episode, we examine why “tough on crime” legislation can have such deleterious outcomes, talk about the problems with recall elections, and look at the work Boudin has embarked on at the UC Berkeley School of Law. Then, we dig into the Sea Change Radio archives to revisit a portion of our previous conversation with Kevin Ortiz, a San Franciscan who learned firsthand how hard it can be to extricate oneself from legal entanglements.

Alex Wise (AW) | 01:42 – I’m 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) | 01:57 – Great to be here with you.

Alex Wise (AW) | 01:59 – Now if we can talk about your successor, Brooke Jenkins. In 2022 convictions were up 37% under her administration. Then 2023 convictions were up 43%. This was something that they were touting putting people in jail to fight crime, but we know that that is not the solution. How do we get people to recognize that it’s better to invest in solutions that are proven to work, Chesa?

Chesa Boudin (CB) | 02:26 – Yeah, I mean, here’s the problem with, with those statistics in a vacuum. The problem with those statistics is that we were not seeking to maximize conviction rates when I was in office. We were seeking to maximize accountability.

Alex Wise (AW) | 02:37 – When I put those stats out there, that can be twisted either way. She might tout that and I might be horrified by that, but…

CB | 02:44 – Yeah, but let me tell you what’s problematic. If we were saying what percentage of cases that go to trial result in a conviction, that might be marginally useful to evaluate whether or not a district attorney is doing a good job choosing trial cases and presenting evidence to juries. But if you just look at overall conviction rates, what’s missing that’s critically important is cases that are dismissed because of successful completion of diversion or treatment programs.

AW | 03:13 – And resources are limited.

CB | 03:15 – Exactly. I got a phone call last night, literally last night out of the blue from a prosecutor who used to work for me, who’s still in the office. And this prosecutor said to me, you know, I wasn’t a true believer when you were the DA. I didn’t fully appreciate what you were doing when you expanded collaborative courts, drug treatment courts, diversion programs that allow people to earn dismissals by staying out of trouble, by engaging with services. And this prosecutor said to me, you know, now I’m, I’m prosecuting cases and I see that there’s no, um, off ramp for folks who don’t need to be convicted of a crime, who simply need to be supervised by the court while they get their life back on track. And when you were the DA, this lawyer said to me, huge numbers of cases were huge numbers of defendants were being given a chance to earn a dismissal. And if they didn’t do it, if they got rearrested, or if they refused to follow court orders, we prosecuted them. The cases were there, they were pending. But now, none of those off ramps, none of those service opportunities are available. And so, not only are we securing convictions against people whose lives will be ruined.

AW | 04:26 – For some things like simple drug use.

CB | 04:28 – Yeah, simple drug use or shoplifting or graffiti. We’re going to have very serious consequences, lifelong consequences for people in ways that are genic, that undermine public safety. But also, this lawyer said to me, we’re drowning and we’re not able to do a good job on the cases that need to be tried because we have so many additional cases that could be in a diversion program or a drug treatment court, but instead they’re on our desks. So yeah, you can tout your conviction rate, but really the reason that number’s gone up isn’t because they’re doing a better job in trial. It’s because they’ve entirely closed off, off ramps that I intentionally and publicly and transparently created and incentivize people to go to. Because I know evidence shows us giving low level offenders a chance to engage with drug treatment, with parenting classes, with job training, not only reduces crime in the future, but it also allows the limited bandwidth that prosecutors have to be focused on more serious crimes. We prosecuted serious and violent crimes as a priority when I was the DA, and in fact, we tried more homicide and sex crimes cases as a percentage of our trials than any other DA in modern San Francisco history.

AW | 05:43 – And that’s because you weren’t wasting a lot of resources on low level offenses.

CB | 05:47 – We weren’t. Exactly. We were not criminalizing poverty and forcing all of our lawyers to spend their time going to trial in low level drug cases.

AW | 05:55 – Yes, we’ve had public defenders on in San Francisco like Peter Callaway saying, he, he’s doing his best sometimes, but the caseload, it’s an impossible task to really give full…

CB | 06:05 – Zealous representation when you have that many clients. And, and it was a very clear promise of mine as a candidate and a very transparent, uh, policy goal when I was in office to make treatment courts, drug treatment, veterans court, community justice court, young adult court and diversion programs that centered services rather than jail and prison, the path of least resistance for eligible defendants. We wanted to incentivize people to go there, even though we knew it would bring our conviction rates down. Because the fundamental goal was not to secure as many convictions as possible, but to intervene in people’s lives in ways that prevented future crime that made our communities safer.

AW | 06:49 -But the challenge that you took on was to try to actually effectuate change. Getting back to our original question, if you were more politically expedient, I’m just thinking of a friend who texted me from Maine when I, I forget there was a school shooting or something terrible in San Francisco happened, and Brook Jenkins was on TV and he must have seen her on CNN. He texted me. He was like, “wow, your DA sure is a badass.” I thought to myself, I was like, we want, there’s something…

CB | 07:17 – It’s easy to talk tough.

AW | 07:19 – But there’s something very base in wanting that Sergeant Buford Pusser or the Wild West hanging judge or whatever. We want that the “tough on crime” guy that makes us feel..

CB | 07:31 – It’s deeply embedded in our culture.

AW | 07:33 – It’s deeply embedded in our culture and to try to, I remember seeing Kamala Harris on the campaign trail talking about how she’s been able to put all these bad people behind bars.

CB | 07:42 – Yeah, look, it’s a simple narrative, right? It’s a simple narrative that there’s good people and there’s bad people, and that the bad people need to get locked up forever. Right? And if you don’t want to do the crime, don’t, if you don’t want to do the time, you shouldn’t do the crime. It’s a very shortsighted and narrow way to think about public safety. Research shows that. And yet it’s, uh, a narrative that is easy for people in this country to relate to. It’s simple, it’s un nuanced, it’s uncomplicated, and it taps into a, a, a deeply rooted fear of, of crime and fear of other people who don’t look like us. And it goes back to parts of, uh, American history where people who committed crimes were strung up by their neck in the public square and, and, and left to die and left to be seen by people. It is not, uh, something that is, uh, effective at reducing crime. It’s not something that’s a good use of limited tax dollars, and it’s not something that elevates our collective moral consciousness. And yet it is an effective political technique.

AW | 08:42 – Yes. Your recall in my mind was the one of the darkest moments in this city since November of 1978 when we saw George Moscone and Harvey Milk get assassinated, and the Jonestown Massacre really reverberated through the city. I think this was just as important in terms of a shockwave across the city that was on the right track and suddenly did a 180.

CB | 09:06 – We were making tremendous progress. You know, overall reported crime during my two and a half years in office was down more than 20% compared with the prior two and a half years. Now, some of that may have been driven by changes in the pandemic, but to have a district attorney recalled during a period when crime has fallen by 20% is, is pretty, is pretty surprising.

AW | 09:25 – And the recall really started moving within the first month of your tenure.

CB | 09:29 – Oh, they registered the domain for the website the week I was inaugurated. I mean, this had nothing to do with any policy we implemented or any change in crime. It had to do with power and a power grab. And look, the reality is if you try to make big changes, you make powerful enemies in the process. And that’s exactly what we saw, what we experienced. But despite the $10 million that they spent on the recall, despite the lies and the police work stoppages and the sabotage from within the office and from the mayor, uh, the refusal of, of, of the mayor and so many others to, to work with us around public safety goals, um, we actually won more votes against the recall in 2022 than we won to get elected in 2019. And that’s something that’s not part of the narrative that people don’t like to talk about. But going back to where we started with ranked choice voting, I won 35% of the first choice votes to get elected. When you include the people who put me as their second and third choice on the ballot. We had just 42% of the total votes in 2019. That was enough to win the race. Fast forward two and a half years, global Pandemic, $10 million campaign, uh, national kind of backlash against criminal justice reform focused on me and on San Francisco. And we ended up with 45% of the vote. 15,000 more people voted to keep me in office than voted to elect me. And I take tremendous solace in that. I think it’s dishonest that it’s not part of the national narrative because San Franciscans didn’t change their mind. What happened was the billionaires created an election in which I wasn’t running against anybody else. I was running against myself. I want you to imagine for a moment in the election this November, if Joe Biden goes up against Donald Trump as we expect he will, we can all but guarantee that both of those candidates will get about 50% of the vote, plus or minus one or 2%. But imagine that either one of them were running against themselves, not against the other. I mean, what percentage of people would vote for Joe Biden if the question put to voters were, shall Joe Biden continue to be president? Totally different question than who do you want to be the president, Joe Biden or Donald Trump? A lot of people, myself included, will vote for Joe Biden, not because we think he’s the best person to be president or because we think he’s doing a great job, but we’ll vote for him because we really, really dislike the alternative. Now, that’s how most elections in this country work. That’s how the election that I won to serve as District Attorney worked. But recalls are different. And the folks who wanted me out of office knew that if they spent the money to pay for signature gatherers to put a recall on the ballot, that they would be able to say to voters, “Chesa is doing a bad job. Look at how scary the world is in the pandemic – let’s get him out of office!” without having to say a single thing about who would replace me or what policies they would implement.

AW | 12:26 – It’s so much easier to pray to cynicism and fear in this environment, or in almost any political scenario. You see it happening in Europe. Some of the best run governments are, are teetering on plunging into right wing darkness, but you’re able to be optimistic and evidence-based. And I salute you for that. I hope we can have you back sometime soon to talk about a little bit more about the work you’re doing now at the Criminal Law and Justice Center at Cal.

CB | 12:53 – I’d love to do that. Yeah, we’re really excited about the work. It’s longer term work than is possible in politics in this moment, and it’s much more data driven, frankly, than the polls or the Twitter dunks that seem to drive, so much political grandstanding in public policy these days. So I’m really excited to be in a role where I can work with the best and the brightest of the next generation of lawyers where I can do interdisciplinary research and where we can work on policy and litigation advocacy, around a wide range of criminal justice issues.

AW | 13:24 – Chesa Boudin, thanks so much for being my guest on Sea Change Radio.

CB | 13:28 – Thank you.

(Music Break) | 13:32

AW | 14:39 – I’m joined on Sea Change Radio by Kevin Ortiz. Kevin is the president of the San Francisco Latino Democratic Club. Kevin, welcome to Sea Change Radio.

Kevin Ortiz (KO) | 14:45 – Hey, thanks for having me on.

AW | 14:50 – Why don’t you start us off, Kevin, by giving us your backstory and how you encountered legal troubles as a younger man.

Kevin Ortiz (KO) | 15:00 – Yeah, definitely. And so maybe diving a little bit backwards. So I just turned 30. When I was 19 years old, I was in a much different place than I’m at now. And so I was kind of in the party scene drinking a lot more than I should have been. I think, you know, at the time I was also doing drugs, and so it was a different kind of lifestyle that I was living right to where I currently am. And so, I went out to a club event when I was like 19, I think it was 19 and a half when the incident happened. And so, you know, on 22 and Mission for an 18 plus event at that time. And, um, you know, I stumbled outta the bar, right? And, you know, intoxicated, being underage, um, there was already a situation that was going on at that time. And so, you know, I kind of stumbled into it as I was trying to jaywalk across the street. Police stopped me, immediately arrested me because they had so seen that I was intoxicated. And from there I got slammed on the back of a police car. And, um, at that time, you know, I had a little bit of a motor mouth . And so, um, you know, I got into a verbal altercation with the police while I was basically getting handcuffed and arrested. And so I got hogtied thrown right back in the, the back of a police vehicle. You know, I got taken back to the Mission Police station, which is about, it’s five blocks away from, um, you know, where the incident happened, about actually a block away from where I lived at the time. And so I experienced what we would now describe as police brutality. I was, you know, basically, you know, as I was getting taken outta the car, hogtied talking a lot of smack. And so from there, I basically, you know, ended up getting, you know, like I got beat up on.

AW | 16:39 – And you were initially just arrested for jaywalking?

KO | 16:42 – Jaywalking. And at that time, then they saw that I was already at that time basically intoxicated. Right. So they basically arrested me from that time. Right. and then they found out I was underage. So it basically justified the warrant, right? Or not the warrant, the, the arrest. But, you know, I at that time basically ended up getting a pretty big case. I was talking a lot of mess to the police, you know, at that time. They basically, um, you know, ended up hitting me with nine different charges Right. Re resisting arrest, and, you know, kind of throwing the whole book at it. Right? And so I ended up getting connected to SF Pretrial. Uh, it was my first offense, uh, and it would be my only offense, but I, um, you know, was looking at something like, you know, potentially five years in prison time.

AW | 17:24 – Based on public intoxication or because it, it elevated to resisting arrest.

KO | 17:29 – Resisting arrest. Yeah. So there was like three different charges of resisting arrest.

AW | 17:33 – And how long were you in jail before you connected with SF Pretrial?

KO | 17:39 – So I was in jail for about a week. And so, you know, I ended up, you know, getting released pretty early on after a week because, uh, you know, I had not had any, uh, previous, like, charges right at the timing was really rough because I was supposed to start a job the, the Monday after, right. And the incident happened on a Thursday, right? So I missed that job interview. And so at that time, you know, I ended up going through the first court case. They, they ended up seeing me on the Monday after that Thursday incident basically went down. So I spent the weekend in jail, and then I was released the following week after that.

AW | 18:10 – And So you missed out on that job opportunity?

KO | 18:12 – I did, yep. And I had just recently transitioned from a, like a retail job into doing more of a sales job at that time. So it was a little bit of a tumultuous time in my life because, you know, I, I didn’t have a job. I was facing, you know, multiple charges and, you know, I was, you know, dealing with a substance abuse problem. And so I had, you know, family support, right? But it’s also tough navigating the legal system for the first time, right? And so getting connected, uh, through the public defender’s office, who recommended that we should do, uh, pretrial, right? Because there was no previous issues, um, at that time, right? And so I, I got connected with Pretrial, um, and I think it honestly really changed my life and also, um, really redirected me into a much different place than where it was at.

AW | 18:59 – So why don’t you explain what SF Pretrial is and how it helped you in terms of your pretrial process?

KO | 19:06 – Yep. So, you know, normally when you’re like going through a case, you’ll, you’ll get arraigned, right? A judge will basically, Hey, you know, here are the sentences, right? Like the, the people versus, you know, me as the defendant, right? And so the district attorney is bringing cases forward. The judge is basically weighing in about, you know, what is the validity of these cases, kind of going back and forth. And, you know, I will say that I think I could have fought it all the way to trial, and I, I would’ve been okay. Um, but it’s also looking at something like, is this the best approach, right? To go through a major legal fight that could have more risk in the long run, right? Even though there was pixelated photos from me; my eyes being swollen red from being hit in the face, uh, by the police, right? It was one of those things where it’s like, is this the best approach on this or is this something that, you know, I could look at, you know, like we could take the path of least resistance, right? And so my public defender had, you know, talked to me at that time about, let’s look into SF pretrial, um, we can get you the help and support that might be needed at that time. And so SF Pretrial, basically they connect folks with the resources that they need prior to going to a trial, right? And so, you know, depending on, you know, they’ll come up with kind of a comprehensive, you know, individualized plan based off the individual that’s facing it, right? So for certain folks it might be drug services, right? And so being able to get connected that way. For me, I think I was recommended at the time, 12 weeks of group therapy. And so, for privacy sake, I’ll mention it was like, I got connected with a group therapist by the name of Terry, right? Um, and so Terry, I think, you know, I would go in every Tuesday I’d go and we’d basically just talk, we talked about our issues that were going on at that time, what, what things we were struggling with on the individual level, right? So getting a lot of the social emotional support. And so for me it was tough because you have an open pending case and you’re not really allowed to apply. Like when you’re doing a background check, um, you’ll have a pending case that pops up on that, right? And so it was, I, at that time, I was struggling because even though I wanted to apply for, you know, high level tech jobs to do sales and things like that, because at that time I was doing a lot of sales work, I, I was getting a lot of those entry barriers because of the fact that I couldn’t pass a, a background check. And so it was a really tough time, but I was still doing kind of like the outside street sales and before making that actual transition to corporate sales. And so Pretrial was helpful in the sense of being able to get me to understand kind of my, my awareness about where things were, like being really like, you know, tough, right? Uh, in the sense of why was I drinking so much? Why was I going out partying so much? Right? Why is it that what things I’m struggling with, right? So the individual like therapy, I think really helped out a lot, um, because there was the group therapy, but also the individual therapy.

AW | 22:03 – And all of these services were free.

KO | 22:10 – Yes. Yep.

AW | 22:15 – And you happen to be introduced to SF Pretrial by your public defender, as you mentioned, but prosecutors also would potentially, or the sheriff’s department, there’s many different wings that SF Pretrial partners with in order to, to introduce people into the system. Is that right?

KO | 22:26 – Yeah. Think of, um, pretrial as a prerequisite of catching folks in a way that we, if we can, it’s, I see it in a lot of ways as being a preventative model, right? If you catch someone once, um, before they go into a full, kind of like the incarceral system, right? Um, and being caught up into the full legal, all the issues that come with being connected with the legal system for the first time, right? Um, it’s one of those things where like, if they’re able to catch you and help support you, then, you know, the, you know, it really, I think prevents a lot of other issues from being able to, you know, spring out later on. Right? And so I think, um, the recidivism rate for, um, as a pretrial is actually pretty low comparatively to other programs that are around.

(Music break) | 23:15

AW | 23:51 – This is Alex Wise on Sea. Change Radio, and I’m speaking to Kevin Ortiz. Kevin is the president of the San Francisco Latino Democratic Club. So Kevin, you were talking about Wending your way through the legal system and how SF Pretrial supported your therapy and, and got you some of the social and emotional support that helped you out. Now, walk our listeners through the legal proceedings, if you can. What was the outcome of your case?

KO | 24:18 – So after I completed my, I think 12 weeks of, um, you know, like required group therapy and then doing individual therapy on the side as well too, I ended up, um, you know, having my, my case fully dropped. And so it was completely, um, you know, it was basically the, they dropped charges. Um, and, you know, everyone, I, I was able to walk away without having any anything on my record, right? But having been exposed to the legal system of having to, you know, go through, you know, issues of potentially if you miss court, right? And then now you have a bench warden having to connect with folks, right? Um, you know, to make sure that there wasn’t anything that was outstanding or, you know, having the case that was delayed because this wasn’t a short term process. This was like a two and a half year process right. From basically 19 and a half to, um, you know, right around 21. And so, um, it was a long kind of process to really have to navigate with the help of my public defender, but also SF pretrial as a partner.

AW | 25:15 – So you, you are only incarcerated for that one week Yep. In jail, basically. You never had to go to prison.

KO | 25:21 – Yeah. Never went to prison.

AW | 25:22 – And so after that week until they dropped the case, that was a two and a half year period.

KO | 25:28 – Yep. With an open pending case.

AW | 25:30 – And is that standard, or was that particularly long?

KO | 25:33 – I mean, it’s, it’s a pretty long process in general. I mean, and it’s hard to say, depending on each case is unique in their own ways, right? But a lot of folks do experience that, right? Where it’s a, it’s a long time to actually deal with something that’s that open, right? And the opportunity, the access to opportunities becomes very limited, right? Because if working in a professional, like kind of setting a job where a background check is one of the main things, even though you might, might not have been convicted of something, right? Because the fact that you have something still pending on there, it still bars you from being able to access normal opportunities.

AW | 26:09 – If you can talk a little bit about your relationship with the public defender. What kind of interfacing did you do with that public defender and, uh, I’m assuming they were critical in having your case dropped.

KO | 26:23 – Yeah, I mean, I think luckily, for me, my first public defender, I would what I would consider a pit bull. And I had two public defenders during my case, right?

AW | 26:33 – Who were they?

KO | 26:34 -Yali Cori-Levy. And then, Sylvia Lynch, Yali actually was a pretty strong litigation, trial attorney, right? And so he was used to actually going into those cases, right? But, you know, it’s one of those things where it was his advice of if we can avoid something where we don’t have to go into it, right? That’s sometimes the path of least resistance is sometimes the better approach on it, right? And so, um, you know, I consider actually my public defenders, like still like personal friends to the state, right? And so, you know, still check in with them, have coffee with them, and so they, I really attribute them helping me navigate the legal system as really being able to change my life. And so I went from being in, you know, in a system that, you know, potentially I could have been incarcerated for, for a while, right? That could have had, you know, things on my, like my record, right? That could have barred me from employment opportunities, right? To being able to become an activist and doing a lot of housing work, um, in like the Mission district negotiating with the developers to becoming a youth organizer, to, you know, teaching young people how to organize in their own communities to working in, you know, some of the highest levels of government, um, as a congressional aid, um, you know, during a pandemic. And now being able to actually, work for nonprofit organizations to be able to do that while also being like a political activist, and the president of his own charter Democratic Club.

AW | 27:58 – Kevin Ortiz, thank you so much for being my guest on Sea Change Radio.

KO | 28:02 – Thank you.

AW | 28:17 – 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 Talking Heads, Gil Scott-Heron and Bob Dylan. 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 into Sea Change Radio next week as we continue making connections for sustainability. For Sea Change Radio, I’m Alex Wise.