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How Chesa Boudin is pursuing his promise to reduce incarceration

Originally published: The Appeal on March 18, 2021 by Elizabeth Weill-Greenberg (more by The Appeal)  | (Posted Mar 19, 2021)

For weeks last summer, James, then 60, had been up all night. He believed his upstairs neighbor was purposely stomping around, trying to keep him awake, according to his attorney with the San Francisco public defender’s office. The Appeal is using a pseudonym to protect James’s privacy.

But his neighbor couldn’t have been stomping, his attorney told The Appeal; she was in a wheelchair. James had lived with paranoid schizophrenia for years, but had struggled to find stable mental healthcare since his psychiatrist’s retirement at the end of 2019, according to his attorney. The COVID-19 pandemic then worsened an already precarious situation, she said.

“The shelter in place and the pandemic hit in March, and all social services went into an upheaval,” his attorney, Sierra Villaran, wrote in an email to The Appeal. Her client “could not get an appointment with anyone.”

In August, James was arrested and incarcerated at the San Francisco County Jail on several felony charges for crimes allegedly committed against his elderly neighbor. The day after his arrest, James went before a judge. At his hearing, the prosecutor did not seek pretrial detention and also agreed to James’s release with an electronic monitor, according to Villaran. Once out of jail, he began working with a social worker who made sure he had food and shelter, and helped connect him with mental healthcare.

“My life is looking brighter,” he told The Appeal.

It’s looking really, really bright.

In November, James was accepted into the Mental Health Diversion program, a move the prosecutor’s office supported. He’s now working with a community-based mental health organization that has provided him with a social worker, nurse practitioner, caseworkers, and housing advocates. The group sends progress reports about every three weeks to the judge, prosecutor, and Villaran. If he completes the program, which can take up to two years, his charges will be dismissed.

James’s case illustrates San Francisco District Attorney Chesa Boudin’s focus on offering—and expanding—diversion programs. According to Boudin, since he was inaugurated in January 2020, his office has obtained funding to grow existing diversion programs, increased the number of people referred to several restorative justice programs, and launched a diversion program tailored to caregivers.

“I have been a big proponent for diversion programs that help address root causes of behavior to prevent recidivism and promote public safety. Our office’s focus is always on long term safety and decisions to refer are made individually in collaboration with clinicians and defense attorneys,” Boudin told The Appeal in an email.

Boudin’s pretrial practices and willingness to resolve cases without incarceration have transformed the lives of people like James, who is now thriving, Villaran said.

“Policies that emphasize pretrial release and treatment change lives—both for the people directly involved and the community,” Villaran said in an email to The Appeal.

It is how long-term, sustainable security is achieved.

During Boudin’s campaign he promised to reduce the city’s reliance on incarceration and end cash bail. His own father is incarcerated in a New York prison, as he has been since Boudin was a toddler. His mother was released in 2003 after serving 22 years. When Boudin was 14 months old, his parents participated in an armed robbery in which three police officers were killed. Neither of his parents fired any shots during the crime.

“I campaigned in 2019 on a platform focused on ending mass incarceration,” he told The Appeal in a phone interview.

That campaign was based on a recognition ingrained in me since childhood that our reliance on jails and prisons actually undermines public safety.

One of his first directives as district attorney was to order prosecutors not to request money bail, although a judge could still choose to set it. That policy contributed to a decline in the jail’s pretrial population. In 2019, the number of people held pretrial, each month, in San Francisco was between 1,100 and about 1,300, according to data provided to The Appeal by the DA’s office.

Between February 2020 and February 2021, there was an approximately 25 percent reduction in the jail population, according to data compiled by the Vera Institute of Justice. This is a significantly greater decrease than jails in other major cities. The Los Angeles County jail system reduced its population by 10 percent over the same period, according to Vera. New York City’s population actually increased by 2 percent.

When the pandemic hit, Boudin’s commitment to decarceration took on new urgency. Public health advocates warned of an impending crisis inside the country’s jails and prisons if people were not released.

“Both the spread of the disease and its fatality rates are more aggressive and faster in jails and prisons because they create the perfect environment,” said Boudin.

You can’t social distance. You have limited access to hygiene. You have limited access to healthcare.

Since the start of the pandemic, 135 people incarcerated at San Francisco’s county jails have tested positive for COVID-19, and no prisoners have died from the disease, according to the sheriff’s website. Other jails in California have much higher infection and death rates. In the Los Angeles County jails, for instance, there have been more than 4,200 confirmed cases and 13 deaths among residents, according to the UCLA Law COVID-19 Behind Bars Data Project. This was nearly 32 times as many COVID-19 cases as San Francisco jails, despite Los Angeles County jails holding a population about 20 times larger.

Boudin says he worked with the public defender’s office, jail medical staff, and re-entry services to release people who “didn’t need to be in jail in the first place.” In one case, he said, a woman with a high-risk pregnancy who previously had never been convicted of a crime was serving a sentence for a misdemeanor. She was released, he said, and has since given birth.

“It was those kinds of decisions, looking long and hard at every individual in the jail and figuring out what a more humane and, frankly, more effective alternative might look like,” he said.

We did that case by case, day after day.

Boudin also announced initiatives to curb excessive sentences. He implemented a directive in February 2020 that restricts his office’s use of sentencing enhancements that add prison time for past convictions or alleged gang affiliations. About one out of every four years of incarceration served by people sentenced in San Francisco between 2005 and 2017 was due to a sentencing enhancement, according to a study published in 2019 by the Stanford Computational Policy Lab.

Proposition 8, prior-strike, and STEP Act (gang affiliation) sentencing enhancements will not be charged, except, Boudin’s directive reads,

in the event extraordinary circumstances present unusual risks of harm to public safety or crime victims.

Proposition 8 mandates a five-year enhancement for each previous serious felony conviction if the current conviction is for a serious felony. California’s so-called three strikes law mandates a life sentence for anyone previously convicted of two serious or violent crimes. The STEP Act allows prosecutors to seek harsher sentences if a crime was committed with a “criminal street gang.” Boudin or a designee must approve any exceptions to the policy. The Appeal asked Boudin’s office how many sentencing enhancements were filed last year, but DA spokesperson Rachel Marshall said they do not track this data. 

Boudin told The Appeal that sentencing enhancements have been used in a “select few cases.”

“If we’re going to use those sorts of enhancements then I have to personally approve it,” he said.

The instances have been really limited to cases where, for a variety of reasons, the maximum punishment without the enhancements feels really inadequate from a public safety standpoint.

Boudin has, in some ways, carried on George Gascón’s record of reform. Both Boudin and Gascón, who won the Los Angeles DA race after serving in San Francisco from 2011 to 2019, are leaders of the newly formed Prosecutors Alliance of California, a self-described progressive, advocacy law enforcement association.

While Gascón was DA of San Francisco, the average daily jail population decreased by about 27 percent, according to the Los Angeles Times. After Proposition 64 passed, which legalized and regulated recreational marijuana, he partnered with Code for America to proactively find convictions that could be dismissed, a move that was not required by the law. By February 2019, Gascón’s office had dismissed more than 8,100 convictions.

But despite his stated commitment to criminal justice reform, Gascón never prosecuted a police officer for killing a community member. He has defended his record, saying that he was limited by state law. During Gascón’s tenure, police killed 24 people, according to the San Francisco Police Department. In 2015, Mario Woods, a Black man with mental health challenges, was walking away and holding a knife at his side when police opened fire, hitting him with 20 bullets, according to news reports. During his campaign, Boudin questioned Gascón’s decision not to press charges. “Our team is still evaluating this case,” Marshall told The Appeal in an email, “and we have no update to share at this time.”

During Boudin’s first year in office, he did charge two officers in two separate incidents. In 2019, Officer Christopher Flores shot Jamaica Hampton, who was on the ground and had already been shot. Hampton survived, but had to have his leg amputated, according to news reports. Boudin’s office charged Flores in December with negligent discharge of a firearm, assault by a public officer, and assault with a semi-automatic firearm. And in November, Boudin charged Officer Christopher Samayoa with manslaughter. In 2017, Samayoa shot and killed Keita O’Neil, who did not have a weapon and was running away from police at the time. The department fired him after the shooting.

“He started prosecuting police, which is something you haven’t seen happen,” Melina Abdullah, co-founder of Black Lives Matter-Los Angeles, said of Boudin, who she previously endorsed.

That is a rarity not just in San Francisco, not just in California. Officers are almost never charged when they kill people.

Boudin has not yet made a decision in the case of Sean Moore, according to the DA’s office. In 2017, police officers beat and shot Moore, who lived with mental illness, outside his own home. His injuries eventually led to his death in January 2020 when he was incarcerated at San Quentin State Prison for a separate incident. The coroner ruled his death a homicide, caused by a “remote gunshot wound to abdomen,” according to the San Francisco Examiner.

Last month, Boudin announced he would not be filing charges against officers involved in two fatal incidents in 2019. Boudin’s office determined that 10 officers who shot at Jesus Delgado-Duarte, after he began firing at police, acted in self defense. The officers who wrestled and handcuffed Christopher Kliment, who refused to leave an emergency department, will also not be prosecuted. Kliment fell unconscious, was hospitalized, and died a few days later.

Criminal justice reform advocates have applauded many of Boudin’s initiatives, but not all of them have been embraced. On March 2, the public defender’s office condemned Boudin and a San Francisco supervisor’s proposal for a fentanyl task force that would cost the city about $2.3 million. Six prosecutors would comprise the task force, according to the San Francisco Chronicle.

“Public health and safety cannot come from arresting, incarcerating, and caging our community members,” Public Defender Mano Raju said in a statement.

We do not need another task force linked with a proposal for expanding prosecutions to address our most urgent public health and safety needs. We need housing, food, treatment, and healthcare for all people, to build a sustainable and better future for our communities.

Boudin defended the proposal.

“As I have said since day one, I refuse to double down on the War on Drugs,” Boudin said in a statement to The Appeal.

I also refuse to sit by and watch as fatal overdoses skyrocket. This Taskforce aims to use innovative, data-driven approaches to complement a public-health approach to this crisis.

Boudin is also facing criticism from those who say that crime has increased during his tenure—although these allegations conflict with data published by the San Francisco Police Department. In 2020, overall crime was down about 23 percent compared to 2019. Within specific categories of crime, numbers did fluctuate. Rape, robbery, assault, human trafficking, and larceny theft all decreased last year. There was a rise in arson, motor vehicle theft, and burglary. Homicides increased from 41 in 2019 to 48 in 2020. “The increase in homicides is consistent with neighboring cities and national trends that are likely tied to the pandemic,” DA spokesperson Rachel Marshall wrote in an email to The Appeal.

From Jan. 1 to March 14 of this year, there was a 29 percent decrease in overall crime, compared with the same time period last year. There were three homicides in January 2021, the most recent month with data, the same number as in January 2020.

“The data speak for themselves,” wrote Marshall. “Overall crime went down significantly.”

Venture capitalist Jason McCabe Calacanis is soliciting donations through GoFundMe to hire an investigative journalist to hold Boudin “accountable,” as first reported by The Intercept. So far, more than $58,000 has been raised.

Another Silicon Valley investor, David Sacks, tweeted that he “challenged [Boudin] to a debate.” “Do you have the guts to face me?” Sacks, the co-founder and general partner at Craft Ventures, wrote. He has publicly criticized Boudin’s opposition to cash bail and other decarceration policies, writing on Medium that “Boudin’s ardent advocacy for decarceration borders on the fanatical.”

Former Republican mayoral candidate Richie Greenberg is leading the effort to recall the DA. The San Francisco Department of Elections approved his group’s petition, which allows the group to start collecting signatures to hold a special election. The Committee Supporting the Recall of District Attorney Chesa Boudin will need signatures from 10 percent of San Francisco’s registered voters, more than 50,000 people, by Aug. 11. “Mr. Boudin has actually planned to allow mayhem on San Francisco’s streets and in our homes,” reads the group’s website. The group says the city “has seen an astronomical increase in crime, even under COVID-19 restrictions.”

When Boudin ran for DA, law enforcement groups spent more than $650,000 opposing his election, warning of rampant crime sprees if he won. “Chesa Boudin: The #1 Choice of Criminals and Gang Members!” read one mailer sent by the San Francisco Police Officers Association. The recall effort appears to have adopted similar rhetoric, claiming Boudin has made “malicious” changes and “schemes to vastly favor criminals over law-abiding citizens.”

Boudin told The Appeal that his office is seeking to break the country’s “monomaniacal reliance on incarceration as a response to such a diverse array of social problems.”

“It’s hard because our office is not set up to provide the kinds of interventions that actually change lives,” he said.

It’s set up to process human beings through cages and warehouse them.

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