It seems like only yesterday that criminal justice reform was in vogue.
Progressives were being elected as prosecutors. Laws were passed to relieve prison overcrowding and divert offenders from the system who needed treatment, not jail time. Sentencing excesses from the crack era and the three-strikes era were rolled back. The bail system and the death penalty were on the defensive.
Then the inevitable backlash came. As crime rates crept up from their near historically low levels, the mood soured and conservative tough-on-crime attitudes began to reemerge, clashing with the liberal agenda.
Chesa Boudin, the progressive district attorney in San Francisco who was elected in 2019, was ousted in a recall election in 2022 after being accused of “coddling” criminals. Los Angeles County Dist. Atty. George Gascón, another reformer with a supposed “pro-criminal” agenda, narrowly dodged his second recall challenge last year.
Homelessness and crime became dining-room discussions in L.A. and San Francisco; violence in the subways preoccupied New Yorkers. Fentanyl-related overdoses led San Francisco to reconsider its “sanctuary city” laws. The law that reformed the unfair bail process in New York City four years ago was scaled back three times, most recently in April. Police departments, once threatened with defunding, saw their budgets increased in many cities around the country.
In the run-up to the midterm elections last fall, crime ranked as the second-most important issue for voters, according to Gallup.
The battle is on, and it was against this backdrop that I read last week that Boudin — the 42-year-old public defender-turned-prosecutor-turned-private citizen — has been hired by the UC Berkeley School of Law to be the executive director of a new Criminal Law & Justice Center.
The center will do litigation, legislative advocacy and public education, presumably aimed at reforming our often unfair, punitive and inefficient criminal justice system.
But I was particularly pleased to hear, when I called Boudin to talk about the new job, that he’s also emphasizing another area: data analysis and research. He says he’s tired of the public conversation about crime policy being “devoid of science or data or even short-term memory.”
It’s about time.
It’s long been a truism that attitudes about crime and punishment are cyclical, characterized by pendulum swings of leniency followed by a desire to crack down and lock up everybody indefinitely. Public sentiment mostly depends on whether crime seems to be rising or falling.
But often those mood shifts are based on how safe people feel rather than how safe they actually are; they’re driven not by facts but by emotion, fear and grisly anecdotes. Public policy often gets made in response to banner headlines and sensational tweets, and by politicians reading polls.
What’s more, there’s powerful political pressure from police and prison guard unions, rank-and-file prosecutors and crime victims’ groups whose scare stories encourage a return to the throw-away-the-keys policies they believe in. On the other side, progressive reformers can also be ideologically rigid and driven by emotion, just like their opponents.
So I’m all for more hard information about what’s happening, what works and what doesn’t. Boudin notes that legislatures have a tendency to pass laws but not to look back a year or two later to analyze their outcomes. Or they set up pilot programs and then, bizarrely, don’t study the results.
Here are some things I’d like to know (although I don’t mean to suggest they haven’t been studied):
When we divert people from the criminal justice system to substance abuse treatment or mental health care, do they clean up their acts or do they reoffend?
When we release more suspects before trial, do crime rates rise dramatically or insignificantly?
Do safe consumption sites encourage drug use? And if so, how do you weigh that against the lives they save by preventing overdoses?
Boudin is a well-known advocate of progressive criminal justice reform policies. I asked him whether his data analysis would be designed simply to confirm his preconceived notions. He bristled.
“I have my worldview, my lived experience and my professional experience, but that doesn’t mean we’re going to be outcome-oriented in our research,” he said. “I want policy choices to be supported by facts, not by the dearth of information we have now.”
For my part, I support criminal justice reform, but I’m not an ideologue. I believe we incarcerate too many people who actually need treatment. We make it far too difficult for ex-offenders to reenter society. There are glaring inequities, racial and otherwise, in the bail system and the sentencing process. We’re too tolerant of inhumane treatment and excessive force.
But I also believe dangerous people need to be kept off the streets. I think police should be permitted to do their jobs, as long as they do so fairly and responsibly.
I’d welcome more research to help policymakers develop smart, humane, effective strategies for fighting crime and rehabilitating offenders.
Boudin is a fascinating figure whose backstory has been told so often it’s become perhaps too familiar. His mother, Kathy Boudin, was a member of the radical Weather Underground and in 1981 took part in a holdup of a Brink’s armored truck during which three people died. She spent 22 years in prison. His father, David Gilbert, spent 40 years in prison for participating in the same crime.
That means their son spent most of his youth and young adulthood traipsing in and out of prisons to visit them, even as he became a lawyer, a public defender and then a prosecutor. He believes that his “lived experience” helps him bridge the gap between the real world and what’s being discussed by lawmakers in Sacramento.
Boudin was recalled from his job as district attorney by voters who, in my view, didn’t give him enough of a chance. Let’s see if he and Berkeley Law’s new center can produce useful data and innovative policy recommendations that will stop the pendulum and make policing and prosecuting more just.
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