Criminal justice reform isn’t dead, but has lessons to heed

Would you like to see more Black and Latino men locked up in prison?

How about a shoutout for giving cops more leeway to use force as they see fit, without repercussions?

What about that homeless crisis — why not build really big jails and prisons and clean our sidewalks by arresting our way out of the problem?

If you are like the majority of Californians, those ideas are ludicrous and offensive, and yet only a few years ago, they were how the business of justice was conducted.

So no, progressive criminal justice reform is not dead. San Francisco voters have recalled their district attorney, Chesa Boudin. But the pendulum hasn’t swung back to the days of ignoring, or even celebrating, mass incarceration, systemic racism and the criminalization of poverty.

Voters’ rejection of Boudin does mean something and he may have even earned it, seemingly never having made the jump from winner to leader.

But races across the state were split when it came to criminal justice reform. There is no grand takeaway, other than the world has not recovered from a pandemic in its third year that has left us socially, economically and even physically off kilter — overwhelmed by drugs, mental illness and poverty, and unsure how to fix it all.

Contra Costa County progressive D.A. Diana Becton won reelection, despite being bashed as soft on crime. Pamela Price, a progressive civil rights attorney, is leading in Alameda County. But progressive San Joaquin Dist. Atty. Tori Verber Salazar looks to be out in her Central Valley home, after years of vicious fights with the local police union. Sacramento went with the conservative choice, Thien Ho, and in the O.C., Todd Spitzer won, crediting his victory to repudiating the “pro-criminal ideology” of L.A.

Statewide, progressive Atty. Gen. Rob Bonta — who has quietly done more to advance reform that any A.G. in decades — easily moved to the November election, not only trouncing his Republican opponents but also no-party preference candidate and current Sacramento County D.A. Anne Marie Schubert, standard-bearer of the tough-on-crime agenda.

Michael Shellenberger, the conservative author turned gubernatorial hopeful who ran by fearmongering on the drugs and chaos of San Francisco’s Tenderloin, earned 3.7% of the vote, the same as Jenny Rae La Roux, who ran for office after Jesus spoke to her son in a closet endorsing her candidacy. So we weren’t buying Shellenberger’s efforts to scare us into a vote any more than we were looking for household miracles to solve our problems.

People are both fed up with conditions on our streets and committed to fixing the criminal justice system — and all over the map on how to do those simultaneously. That complicated duality is what we saw play out in Tuesday’s election. Before the election, voters were clear that homelessness and crime were top concerns. After the election, we are just as clear we have no idea what the solutions are.

But nuance and reason, as Yolo County Dist. Atty. Jeff Reisig told me, are too often missing from our criminal justice conversations. He won his fifth term Tuesday, beating a progressive challenger in a Democratic county of about 250,000 whose demographics largely mirror the state.

Reisig, who is also the president of the California District Attorneys Assn., has enacted more than one progressive policy but hates the P-word. He thinks it’s been hijacked for a hardline ideology that, whether right or wrong, doesn’t work in practice because justice is messy and every crime has a story.

“There’s a lot of gray area in the actual practice [of law],” he said. “There has to be discretion.”

Boudin and Los Angeles Dist. Atty. George Gascón, who is also facing a possible recall, are (or were) the West Coast kings of progressive prosecutors. Well-funded by the national organizations intent on re-imagining the office, both men were expected, like Marines, to come in fast and hard and make things happen even if it meant cracking a few skulls on the way. Both were elected on that promise and both followed through — so no one should be surprised at their guns-blazing approach.

They made those changes (no adult charges for teens, curtailing prosecutions of low-level crimes) by issuing direct orders — blanket policies that left little room for argument in the ranks of prosecutors they command.

The cost of that was twofold. First, they never consolidated power in their staffs or their cities. They also came into office with well-organized enemies intent on derailing their high-profile reforms, and added to that list with their my-way-or-the-highway approaches.

In fact, both lost the trust and respect of many of their inherited prosecutors by trying to steamroll them with unpopular orders that took away their discretion and their power to navigate the gray areas.

Any defense attorney will tell you prosecutors like to be in charge and are always up for a fight — scores of those underlings have turned against their bosses, leaking information, publicly speaking out and working actively on recalls. There’s a righteous determination to it, and as any local Starbucks manager knows, it’s impossible to run a shop — whether you’re selling coffee or putting people in jail — if you’re staff is out to get you.

The decrees also led to some high-profile mistakes. Those include a seven-month juvenile camp sentence for a minor who allegedly was on probation for spiking a girl’s drink when he hit a mom and her 8-month-old child while driving the wrong way down a one-way street in a stolen car and charging an adult sex offender as a juvenile. Both of those were Gascón cases.

In San Francisco, the recall made headlines with the case of a 45-year-old with a history of robbery convictions who blew through a red light and hit and killed two women with his car in a crosswalk while having a gun in his stolen car. He’d been arrested and not charged multiple times in the months leading up to the deaths.

In all of those cases, the public was rightfully outraged. As much as the reform movement needs to be mindful of over-incarceration and punishments that are more about retribution than rehabilitation, it also must make sure victims and communities have a voice in what that means.

But neither Gascón nor Boudin has ever fully owned their failings, instead holding up their ideology like a shield and leaving themselves open to attacks by foes, including police unions, who know a thing or two about capitalizing on weakness.

Their siege mentality is understandable, though. Both Boudin and Gascón surely knew that big money was going to come after them, (and in Boudin’s case it did) and that their time in office could be short and fraught. Without the blanket policies, it’s uncertain if they would have been able to deliver on reforms.

But, not to sound like a self-help seminar, leadership requires listening and learning. If the election has a lesson, it’s that public servants, including prosecutors, need to do their jobs in ways that make voters feel heard.

The way we think about justice has been permanently improved by the progressive push. And as Boudin said himself, standing on a keg Tuesday night, “This is a movement, not a moment.” He can run for office again this November and rumors are already circulating that he might.

So this loss isn’t the end of anything.

But it is a moment — for us to make it clear that we want equitable justice, but also demand prosecutors who have the humility and character to lead rather than rule.

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