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

Want to see more black and latin men in prison?

How about kudos for giving cops more leeway to use force as they see fit without consequences?

What about this homeless crisis – why not build really big jails and jails and clean up our sidewalks by blocking our way out of the problem?

If you are like the majority of Californians, these ideas are ridiculous and offensive, and yet just a few years ago they were the way the judiciary was conducted.

So no, progressive criminal justice reform is not dead. San Francisco voters have recalled their prosecutor, Chesa Boudin. But the pendulum has not swung back to the days when mass incarceration, systemic racism and the criminalization of poverty were ignored or even celebrated.

Voters’ rejection of Boudin means something, and he may even have deserved it, as he never seems to have made the leap from winner to front runner.

But races across the state were divided when it came to criminal justice reform. There is no great takeaway except that the world has not recovered in its third year from a pandemic that has left us socially, economically and even physically unbalanced – overwhelmed by drugs, mental illness and poverty and unsure how to do it can fix everything.

Progressive Contra Costa County prosecutor Diana Becton won re-election despite being classified as criminally soft. Pamela Price, a progressive civil rights attorney, is a leader in Alameda County. But progressive San Joaquin Dist. atty Tori Verber Salazar appears to be at her Central Valley home after years of bitter fighting with the local police union. Sacramento went for the conservative choice, Thien Ho, and the OC was won by Todd Spitzer, who attributed his win to rejection of LA’s “procriminal ideology.”

Nationwide, progressive atty. Gen. Rob Bonta — who has quietly done more to push reforms than any General Assembly in recent decades — eased into the November election, beating not only his Republican opponents but also the non-partisan candidate and current Sacramento County attorney , Anne Marie Schubert, standard bearer of the tough anti-crime agenda.

Michael Shellenberger, the conservative author-turned-gubernatorial candidate who ran through fear mongering against the drugs and chaos of San Francisco’s Tenderloin, received 3.7% of the vote, as did Jenny Rae La Roux, who ran for office after Jesus with Her son had spoken to Cabinet supporting her candidacy. So we stopped buying Shellenberger’s efforts to intimidate us into voting when we looked for budgetary miracles to solve our problems.

Fed up with the conditions on our streets, people are determined to fix the criminal justice system – and across the map how to do it at once. We saw this complicated duality in Tuesday’s election. Before the election, it was clear to voters that homelessness and crime were top concerns. After the election, we’re just as clear that we have no idea what the solutions are.

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

Reisig, who is also President of the California District Attorneys Assn. has enacted more than one progressive policy, but hates the P word. He believes it was hijacked for an uncompromising ideology that, right or wrong, doesn’t work in practice because the judiciary is messy and every crime has a story.

“In practice, there are many gray areas [of law],” he said. “There has to be discretion.”

Boudin and Los Angeles Dist. atty George Gascón, who is also facing a possible recall, is (or was) the king of progressive prosecutors on the West Coast. Well funded by the national organizations eager to reinvent the Bureau, both men were expected, like Marines, to come fast and hard and get things started, even if it meant cracking a few skulls along the way . Both were elected on that promise, and both have kept it – so no one should be surprised at their use of force at gunpoint.

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

The costs for this were twice as high. First, they have never consolidated power in their staffs or in their cities. They also came into office with well-organized enemies intent on derailing their high-profile reforms, adding to this list with their “my-way-or-the-highway” approaches.

Indeed, both lost the trust and respect of many of their legacy prosecutors by attempting to overwhelm them with unpopular orders that stripped them of their discretion and their power to navigate the gray areas.

Any defense attorney will tell you that prosecutors like to be in charge and always ready for a fight—many of these subordinates have turned against their bosses, divulged information, spoken out publicly, and actively worked on recalls. There’s a genuine determination behind it, and as every local Starbucks exec knows, whether you’re selling coffee or jailing people, it’s impossible to run a business when your employees are after you.

The decrees also resulted in some notable mistakes. That includes a seven-month juvenile camp sentence for a minor who was allegedly on probation for spiked a girl’s drink when he hit a mother and her 8-month-old child while driving the wrong way down a one-way street in a stolen car and charge an adult sex offender as a juvenile. Both were Gascón cases.

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

In all of these cases, the public was rightly outraged. As much as the reform movement needs to be vigilant about excessive incarceration and punishment that is more about retribution than rehabilitation, it also needs to ensure victims and communities have a voice in what this means.

But neither Gascón nor Boudin have ever fully admitted their weaknesses, instead holding up their ideology like a shield and leaving themselves vulnerable to attack from enemies, including police unions, who know a thing or two about capitalizing on weakness.

However, their siege mentality is understandable. Both Boudin and Gascón certainly knew that big money would be after them (and in Boudin’s case it was) and that their tenures could be short and tense. Without the blanket policy, it is uncertain whether they would have been able to implement reforms.

But not to sound like a self-help seminar, leadership requires listening and learning. If the election teaches one lesson, it’s that government officials, including prosecutors, must do their jobs in a way that voters feel heard.

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

So this loss is far from the end.

But it is a moment – for us to make it clear that we want just justice but also call for prosecutors who have the humility and character to lead rather than rule. Criminal justice reform isn’t dead, but has lessons to heed

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