Don’t believe the lie that DA Boudin is “not bringing charges”
By: Josh Kalven
Tags: Legal, Criminal Justice Reform, San Francisco, Criminal Justice

“We have a district attorney who doesn’t want to prosecute people … it’s like a fire chief who doesn’t believe in using water” — David Sacks

“Boudin’s only answer is decarceration. He doesn’t want to prosecute anyone. He doesn’t want to lock anybody up.” — David Sacks

“Boudin is deconstructing the district attorney’s office from the inside. He is destroying it. He is not bringing charges against people. He is firing all the veteran prosecutors. He is bringing in his own people who are all public defenders. And people are dying.” — David Sacks

“It’s turned into Escape From New York, Gotham City-level chaos here … If you say you are not going to prosecute crime and you demonstrate to the hardest-core faction of criminals that you don’t prosecute, they are going to take advantage of that weakness.” — Jason Calacanis

These are a few quotes from a recent All In podcast episode in which Bay Area venture capitalists David Sacks and Jason Calacanis harshly criticized San Francisco District Attorney Chesa Boudin after his first year in office.

You can watch the entire 20-minute segment below:

Several times during the show, Sacks and Calacanis, along with their VC co-hosts Chamath Palihapitiya and David Friedberg, acknowledge that mass incarceration “is definitely not the only answer” and paint themselves as reasonable, rational-minded analysts, untainted by ideology. They are titans of the tech, after all — an industry in which data reigns supreme and assumptions must be rigorously tested.

Yet they bring none of that diligence to the issue at hand.

Moments after Palihapitiya says that their show is about “real honesty,” Sacks repeatedly serves up Fox News-caliber lies about Boudin’s record as DA. The central strawman is that Boudin is simply refusing to prosecute crime.

(Full disclosure: I went to high school with Boudin, see him socially once or twice a year, and volunteered with his campaign.)

It’s true that Boudin has followed through on his campaign pledge to no longer file charges for public camping, blocking sidewalks, public urination, and sex work.

But has he ceased prosecutions altogether, as Sacks claims?

Mission Local’s Joe Eskenazi recently examined the data from Boudin’s first year and here’s what he found:

Let the record show that Boudin’s office last year charged 73 percent of residential burglaries presented to it by the police; Gascón in 2019 prosecuted 75 percent. Boudin last year charged 78 percent of drug cases; Gascón in 2019 charged 83 percent. Boudin in 2020 charged 75 percent of homicide cases; Gascón in 2019 charged 65 percent.

In fact, Boudin’s office filed 4,300 new criminal cases last year.

This is going to be a long post, one that gets a bit into the weeds. If you don’t have time to read on, just remember this: “Boudin is not bringing charges” is a lie, plain and simple. It’s one that I see every day in online neighborhood forums. And one that Sacks has been shamelessly repeating over and over again in different venues. (If you’ve heard the separate claim that Boudin isn’t holding enough trials, scroll down to the very bottom to learn why that is misleading too.)

These are Trump-style tactics. That a person this dishonest is a leading light in our local tech community is truly, truly shameful.

But what about the crime spike in San Francisco?

In addition to Calacanis’ claim that San Francisco is descending into “Gotham City-level chaos,” Sacks says on the podcast that “crime is out of control and it’s [Boudin’s] fault.”

If you live in this city, you know that we have our share of problems when it comes to petty crime and homelessness. But the claim that overall crime has spiked in San Francisco since Boudin took office is easily disproved.

Take a look at the SFPD’s own dashboard. In 2020, the overall crime rate was down 23% as compared to 2019.

The number of rapes, robberies, assaults, and larceny thefts (which includes car break-ins) all went down.

In keeping with the national trend during the pandemic, homicides ticked up from 41 in 2019 — the lowest tally in over 50 years — to 48 last year. That’s a 17% increase. (Not surprisingly, considering his general sloppiness on this issue, Sacks erroneously wrote in his post titled “The Killer DA” that homicides had increased by 32% last year.)

The overall drop in crime seems to be continuing in the first two months of 2021, with incidents down 30% overall compared to the first two months of 2020.

As for homicides, we had the same number (3) in January 2021 as in January 2020:

On the other hand, auto theft is up. And residential burglaries are way up and climbing, as the dashboard shows and as anyone who lives here is well aware.

It’s a matter of real concern. But Sacks lazily lays it all on Boudin, falsely claiming that this is the result of the DA having no “interest” in prosecuting such crimes:

As Eskenazi’s reporting shows, the DA charged nearly three-quarters of the burglary cases brought to his office by the SFPD in 2020.

It’s important to note, however, that he only received “285 possible cases to charge out of the 7,391 burglaries reported to the police.”

Why do the police have such a low clearance rate on these cases?

Sacks will wave this away as a “complicated” or “over-intellectualized,” but it turns out burglaries are just hard to solve.

Take it from SFPD Richmond District Captain William Conley in recent comments to the Chronicle:

“You’re dependent on physical evidence — fingerprints or DNA or video. Absent of a witness or a combination of the other things, they’re very difficult to solve.”

At the same time, it’s well-established that property crime is closely related to rates of poverty. We live in a city where the bottom 20 percent of households make an average of $26,000 per year. The top 5% of households make more than $900,000.

We’re also living through a pandemic-driven unemployment crisis that has disproportionately affected those on the bottom of the income ladder.

Not surprisingly, there’s a lot of desperation in this city. At the same time, there are a lot of well-to-do folks here (myself included) who haven’t really been economically impacted by the pandemic. And in the upper echelon where Sacks resides, they’re doing better than ever.

None of this is to say it’s not awful to have your home burglarized and your stuff stolen. Someone attempted to break into my building’s garage last month. A few days ago, someone tried to steal my mountain bike off the roof of my car while I ran into the grocery store.

The rise in property crime is legitimately disturbing and unsettling. It is reasonable to ask what can be done about it. But it’s naive to think that the DA alone can reverse this trend through his charging decisions or rhetoric.

Yet that’s the theory that Sacks and Calacanis repeatedly put forth in the segment above, casually advancing the “deterrence theory” of law enforcement — which has been roundly disproven. Just look at Richard Wright and Dietrich Smith’s famous ethnographic study of working criminals, as described here by Maggie Koerth-Baker:

[Wright and Smith’s] interviews suggested that people trying to prevent crime don’t always understand how people think when they are committing crimes. For evidence of this, look no further than the policy of deterrence — the basis for most of the punishments our criminal justice system doles out. Whether it’s prison itself, longer prison sentences, or sending more people to prison for smaller crimes, these prescribed consequences are usually predicated on the idea that a would-be criminal will consider them and then think twice: “Nope, I’m not going to do this,” they’ll rationally decide.” I don’t want that to happen to me.” Unfortunately, the work of Wright and Smith suggests that real people don’t often make that kind of careful deliberation before they rob somebody, and subsequent decades’ worth of research on the effects of deterrence-based punishments — including mandatory sentencing and the death penalty — have failed to prove that they do anything to reduce crime. That doesn’t mean criminals aren’t thinking, though. The people Wright and Smith spoke to made plenty of decisions before, during, and after the crimes they committed. It’s just that they were working from a set of choices that make the criminal act seem a bit more rational than it might to the average law-abiding citizen. The people he interviewed were often involved in alcohol and drug use, for example, and didn’t have jobs or any real source of status other than their standing with friends. They didn’t see themselves as having futures. Amid pressing imperatives like feeding a drug habit, earning the respect of peers, or just meeting everyday expenses, robbery and burglary were, for them, simply solutions.

Sacks and company want easy answers to a wicked problem. But no matter how much we might wish-wish-wish that Boudin could wave a wand and make crime go away, it’s just not that simple. Violent crime has been falling nationwide since the 1990s and we still don’t totally understand why.

What’s clear is that a multitude of factors impact crime rates. As such, some humility is required here, as well as some recognition that the “law and order” approach (more arrests! longer sentences! punish! punish! punish!) has been tried for decades and has not been proven effective.

But isn’t it true that Boudin is letting arrestees go free?

Yes, he is. And he’s not alone. Every day, in cities across the country, judges and prosecutors of all political stripes let defendants go free on pretrial release. The data shows that we are actually safer because of this.

From Emily Bazelon’s book Charged:

In 1992, Washington, D.C., effectively got rid of money bail. Ever since, the city has deemed a small percentage of people accused of crimes an unacceptable safety risk (based on their record and the crime they’re accused of committing) and sent them to jail while releasing the vast majority before trial. Eighty-eight percent of those who are released make every court appearance. In Kentucky, which also largely doesn’t use money bail, the rate of return to court is 85 percent. As for the risk that people who’ve been charged with a crime endanger the public if they’re released, it’s true that while people sit in jail, they’re less likely to cause trouble on the outside. But the trouble prevented appears to be surprisingly small. Of the defendants who are released before trial in Washington, D.C., only 1 percent are arrested for a violent felony while their cases are pending, and only 9 percent are rearrested for any offense at all. The numbers have been about the same for Kentucky. The results of the biggest-ever bail study are even more telling. In 2016, researchers affiliated with the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School published a study of bail and detention in more than 380,000 misdemeanor cases in Harris County, Texas (Houston and its suburbs). The analysis showed that the misdemeanor defendants in Harris County who were detained pretrial were 30 percent more likely to commit a new felony in the eighteen months after a bail hearing than the people who were released. They were also 20 percent more likely to commit a new misdemeanor. The results seem counterintuitive, but other research has found that jail and prison are “criminogenic” — locking people up makes them prone, on average, to reoffending. They can lose their jobs, housing, and sense of stability, leaving them worse off to the point of desperation.

So yes, all over this country defendants await trial outside of a jail cell. And yes, convicted criminals are also regularly released on parole.

The COVID pandemic has made this even more of an imperative.

In order to prevent outbreaks in prisons (thereby protecting us from that risk), law enforcement agencies across the country have had to heavily reduce the amount of people they hold in jail this past year, creating all sorts of unusual new issues. To wit, Boudin recently told Mission Local, “State prison hasn’t picked up a single individual in San Francisco since early April. I literally cannot send anybody to prison. I have like 40 or 50 guys sentenced to state prison who are still in county jail.”

Due to the same COVID-related precautions, the state parole office has instructed its officers to take a more arms-length approach in monitoring their parolees.

In short, thanks to the delays and bottlenecks caused by the pandemic, there have been lots more opportunities for higher-risk offenders to fall through the cracks. It appears that’s what happened in the case of Troy McAlister, who tragically killed two women in a hit-and-run on New Years Eve while driving a stolen car high on meth. After five years in prison awaiting trial for armed robbery, he was released last spring by Boudin’s office on a plea deal. He was then arrested repeatedly for a string of non-violent crimes.

Boudin has expressed regret about the incident and is actively working to improve the communication channels between his office, the police, and the state parole agency (to which the DA’s office repeatedly referred McAlister after his arrests).

Rather than believe Sacks’ demagoguing on this incident, I’d urge you to read Joe Eskenazi’s nuanced deep dive on Mission Local and listen to this KALW investigation of the incident. I learned a lot from both.

Then there is the case of Jerry Olee Lyons, who Sacks spends a good deal of time talking about in the segment above. Lyons blew through a red light near Lake Merced last month, while under the influence of drugs, and killed 26-year-old Sheria Musyoka, who had just arrived in SF ten days earlier with his family.

Lyons had been arrested in San Francisco (DUI, stolen car) in December, was held in jail for over a month pending toxicology results, and then released. He went on to get arrested several times on misdemeanors in San Mateo County in January and was released each time.

Sacks likes to assert that Boudin lets repeat offenders like Lyons go free because “decarceration is his only answer.”

So surely the San Mateo County District Attorney — who also repeatedly let Lyons walk free — must share Boudin’s politics?

In fact, Steve Wagstaffe is a longtime proponent of the death penalty in California and a recent president of the California District Attorneys Association. Here’s what he had to say about the case:

Wagstaffe said his office has filed six cases against Lyons for drug and theft crimes “typical” of an addict since last July. “None of those would have put him in custody that would prevented him from driving that day,” Wagstaffe said. Lyons has been cited and released in San Mateo County with court dates to appear as far out as next January, Wagstaffe said. “That is not the way we operate here,” Wagstaffe said. “That is due completely to the changes we have done here… due to the pandemic.”

The truth is that San Francisco could have the most old-school, “tough-on-crime” DA in the world … and Lyons would have still been out on the streets that day.

As the D.C. data showed, one out of every 100 defendants released before trial will commit a violent felony. In some cases, that violent felony is going to have a tragic outcome. But if we’re going to effectively reform the system and reduce harm, we have to resist the urge to engage in counterfactuals when that inevitably happens. It’s this type of “what if” thinking that helped create the mass incarceration crisis that Sacks and his buddies claim to want to solve.

From Santa Clara University law professor W. David Ball’s fascinating paper entitled “The Peter Parker Problem”:

Criminal law is rife with situations that lend themselves to counterfactual thinking, where the temptation is to opt for simple, overly restrictive solutions “just in case” something bad might happen, even when the probability of these events is extremely remote. As long as it can be imagined, it may be considered. So, for example, California prison officials denied medical parole to a quadriplegic man on the grounds that he posed a threat to public safety “just in case” he might “possibly use his vocal cords, which [were] not paralyzed, to order crimes, maybe attacks on state employees.” Police officers stopped and frisked hundreds of thousands of mostly Black and Latinx people in New York “just in case” some of them had weapons, even though the overwhelming majority didn’t. The Supreme Court held that it was reasonable to strip search someone wrongly arrested on a bench warrant “just in case” they were smuggling drugs — based on the fear that the defendant could have anticipated both the clerical error that resulted in the warrant and the timing of the arrest and secreted drugs in his rectum in advance.

In Charged (published in 2019), Bazelon points out the inevitable result of this “just in case” posture when it comes to pretrial release:

Over the last two decades, all of the growth in the jail population has consisted of people detained pretrial. These are people who have been found guilty of nothing and who are supposed to be presumed innocent. The cost of locking them up is nearly $25 million a day. The annual total is $9 billion.

We have to remember that for every one of these defendants who commits a violent felony after being released, there are ~99 others who don’t commit a crime. Some of them are innocent of the charges brought against them. And regardless of their innocence or guilt, research shows that many of them become more likely to commit serious crimes when we lock them away for months or years pending trial.

Critics of Boudin also seem to be begging him to lower his evidentiary standards in order to put more people behind bars. For instance, they’ve recently pointed to the fact he declined to charge an alleged rapist in one case and an alleged phone thief in another (the latter of whom went on to commit a murder in Sacramento). But if you click through and read the DA’s explanation in those cases, it’s clear that his office believed they couldn’t win a conviction against either of these defendants. The evidence or relevant witness just wasn’t there. It may frustrate the desire for swift justice, but we should want our criminal justice system to move deliberately and with care. When prosecutors rush to convict, innocent people inevitably end up behind bars. And we don’t hear those stories until decades later, if at all.

It’s counterintuitive, I know. But when we respond to rising crime by pushing our prosecutors to just lock more people up, regardless of evidence or data, it has a huge ripple effect that makes our society less stable and safe in the long run.

Well then, how do we judge Boudin’s record?

First, we must remember that the pressure being brought to bear on Boudin over the burglary spike and these tragic cases is part of a familiar pattern, one that helped create the incarceration crisis in this country.

From Chris Hayes’ A Colony In A Nation:

Elected officials, for their part, have powerful incentives not to alter the machinery, not to do anything that might draw too much attention. Since no one actually knows why crime is down (though many think they do), the cargo cult of white fear requires certain rituals be maintained, and when they are flouted, a visceral collective anxiety results, stoked unfailingly by demagogues. Everyone tasked with keeping crime from returning has developed deeply held, near-religious beliefs about What Works. We are farmers begging the Gods to keep the drought away; we will give them what they want, if they will spare us their wrath. Any political momentum to reduce mass incarceration, strengthen police accountability, and rethink our approach to justice rests on the continuation of the oh-so-delicate status quo, in which crime continues at historic lows. But what happens when that changes? In Baltimore, which experienced a horrific surge in murder and violent crime after Freddie Gray, the apparent vengeance of the crime gods ripped the entire city’s political order apart. That same fate hangs over any politician who would take bold steps toward decolonization and integration, if such steps also correspond with an increase in crime.

We like to believe that our criminal justice system operates like a scalpel, reaching carefully into our communities and excising the bad. If we just read the headlines about high-profile arrests and convictions, it can feel like it’s working. But behind the scenes, the system all too often resembles a dull hatchet: clunky, imprecise, and causing just as much damage as it supposedly prevents.

There is so much work to be done upstream of our crime trends, in the realms of economic justice, mental health, housing equity, and educational opportunity. Yes, the district attorney has immense, largely-unchecked power. But we shouldn’t be so naive as to think he can singlehandedly “solve” crime in this complex and unequal society we inhabit.

I supported Boudin because I want a DA who considers both sides of the equation — providing fair, proportional justice for crime victims and also reducing the unnecessary and counterproductive harm that prosecutors often cause, out of sight of the cameras and far from the Nextdoor feed.

This is a difficult task in our punishment-obsessed society, as Hayes points out. And it’s been made even harder by the pandemic.

Nonetheless, this is the balance I hope Boudin’s office is able to strike and it’s how I’ll personally be judging him over the course of his four-year term.

P.S. A few more fact-checks:

“First week on the job, [Boudin] abolished the whole cash bail system — which voters in November just voted with Prop 25 to affirm. So voters of California want the cash bail system, because it keeps criminals locked up.” — Sacks

Another shameless lie. A vote against Prop 25 was not a vote to affirm cash bail, as anyone who took two minutes to study the initiative knows. Case in point: SF Public Defender Mano Raju, a vocal opponent of cash bail, came out in opposition to Prop 25.

Also, the childlike belief that cash bail simply “keeps criminals locked up” ignores the extensive damage done by this system over the past few decades.

“The next thing [Boudin] did is fire seven veteran prosecutors, who weren’t on board with his agenda. These are people who have spent their whole lives prosecuting murders, rapes, hardcore crime, and it takes years of experience to learn how to be a prosecutor like that. So for him to just purge this office of these veteran prosecutors is a disaster for this city.” — Sacks

Boudin fired seven prosecutors out of about 140 on staff at the time. Claiming this represents a “purge” is laughable.

Also, we shouldn’t reflexively valorize prosecutors. Working for the DA’s office for decades doesn’t make you unimpeachable or unaccountable. To wit, check out this egregious example of overcharging by one of the prosecutors fired by Boudin. (Please also note: the defendant in that case was acquitted of all the charges after spending eight months in county jail awaiting the trial.)

“They’ve also done stuff like take the death penalty off the table, take gang enhancements off the table. They’re unilaterally disarming the prosecution teams. They’re taking away weapons at their disposal to lock people up.” — Sacks

Speaking of ineffective and counter-productive policies … please take a second to educate yourself on gang enhancements.

“We have all these social services. Guess what? Nobody uses them because a hardcore addict is not going to avail themselves of those services [without also facing punishment].” — Sacks

The notion that we have an under-utilized social services apparatus in SF is plain wrong. The truth is that we’re still woefully ill-equipped to address the need — though there are many promising new initiatives on the horizon that aim to address these shortfalls. And even if you get into a treatment program, and make it out the other side, you still have to find an affordable place to live if you’re going to have any chance of thriving and avoiding relapse.

More from the Chronicle:

Tracey Helton Mitchell, an overdose prevention advocate … said someone like Stanphill’s son needs a host of services that are hard to come by, or don’t exist, in San Francisco: Safe and supportive housing; outreach workers who can keep tabs on him; a 24-hour drop-in center where he can go anytime he needs help; a safe consumption site, where he can use drugs around nurses who can save him if he overdoses. The state is working on legislation to allow San Francisco to open a safe consumption site, and the city is working on a 24/7 drop-in center. But both of those things will probably take years to implement. Meanwhile, she said, the pandemic has exacerbated the crisis by isolating people from their communities, which they often rely on for help if they overdose. “We are offering people things, but are they the things that they are asking for?” Helton said. “Are we giving people the tools they need to transition out of that lifestyle? I would argue no.”

UPDATE (3/15/21): Sacks and company have now moved off the “Boudin doesn’t bring charges” line of attack and are instead claiming that “Boudin doesn’t hold enough trials.” Example below:

They even go so far as to compare the SF 2020/21 trial stats to those from 2019:

What they don’t mention, of course, is that jury trials have been heavily curtailed across the country since last March due to Covid:

New York City alone is bogged down with about 49,000 pending criminal court cases, while Maine has 22,000 pending criminal cases, officials say. Florida’s court system says it needs $12.5 million to crawl out from beneath a mountain of more than 1.1 million stalled cases.

To give an example from this Pew article on the subject, Texas usually holds ~190 trials a week across its state court system. From last May to September, there were only 50 trials statewide.

This has obviously snarled the justice system nationwide and created enormous backlogs of cases (and huge constitutional issues for those in jail awaiting trial). But the decision to shut down jury trials resides with the court administrators in each county — not the DA. It has nothing to do with Boudin.