The recall of Frisco district attorney Chesa Boudin has given rise to two opposing lessons. The first is that criminal law reform is dead, blamed as the cause of increasing crime and a growing public sense that society has become unsafe. The second is that the problem is messaging, as tough-on-crime advocates are proving successful in lying to the public to foster fears and a backlash against progressive prosecutors.
The reality is that neither of these is either accurate or useful in explaining complex problems. Crime is trending up again, after a lengthy unexplained drop from the really bad old days of the 1990s. It’s nowhere near what it was back then, but it’s also not remaining at its low levels or still falling. People not only know this from the media reports, but from their own observations and life. Denying it is not merely bizarre, but foolishly ineffective.
Reciting crime stats comparing today with 30 years ago wins no one’s heart or mind, but it’s all progressive reform activists have to try to salvage their progressive prosecutors, so that’s what they do. And they’re not wrong, per se, but they’re not right either. Much as academics and partisans take credit and level blame for crime going up and down, it’s never really understood and a consequences of a multitude of factors, most which have nothing to do with the usual excuses. Blaming progressive prosecutors is silly, just as lauding their plans to “fix” the system by choosing not to do their job when they don’t feel like it.
But as argued, Boudin wasn’t recalled because of what he did as much as what he represented, a failed social approach.
But there are also signs that the Boudin recall hinged on factors particular to the city of San Francisco and may not represent a larger national backlash to the movement.
In other elections, reform prosecutors prevailed, suggesting that while there might be a growing concern about crime, it does not necessarily mean that people are blaming reforms for it or that they are done with reforms and ready to go back to prison nation, locking away as many people as possible for as long as possible.
The push for reform was once touted as bipartisan, common-sense medicine for a country that leads the world in incarceration. But it has been reframed by opponents, including law enforcement groups, as the province of the far left.
To be fair, the far left has seized ownership and control of reforms, rejecting bipartisanship in formulating sound and sustainable change in favor of simplistic dogmatic change. Defund police, anyone? Abolish prisons, maybe? Reformers rejected nuanced changes that would produce significant improvements without undermining the functioning of the system, as too incremental and hard to explain to their tribe’s useful idiots. The choice didn’t have to be between imposing bail on everyone or no one, but imposing only when necessary. But that would take a scalpel, and the reformers only had a bludgeon.
“No, California didn’t just send a message on crime — only voter apathy,” read the headline of an editorial in The San Francisco Chronicle, citing low turnout.
That people didn’t come out to vote for Boudin wasn’t apathy. Like voting against Chesa, it was a choice. If they were apathetic, it was because they were not moved to vote because of the failed mess San Francisco was becoming. They may not have blamed Boudin, but they weren’t going to fight for their city to get increasingly worse either.
One commentator, in a Chronicle opinion essay, warned of the emergence of what he called the “‘I’m a progressive, but …’ demographic” of affluent white people whose commitment to social justice and ending mass incarceration has limits and whose frustrations are real, even if the recall campaign was fueled by misinformation. “Boudin supporters can’t afford to dismiss the movement against meaningful reform as a purely astroturfed coalition,” he wrote.
For years, I’ve sought to make the point that reform without consensus won’t happen. As much as the majority of a country supports eradicating the burden of unlawful discrimination, that does not mean they are prepared to shift the burden onto themselves and create a brave new world where the majority exists to serve the minority. If it works for everyone, and everyone can live with it, then it can survive. If it fails the majority, then it has no chance of survival.
For years, I’ve sought to make the point that reform has to do more than merely change things, but change them for the better. Improving the legal system isn’t just about sloganeering, but dealing with the complexities of a system that will never be perfect because people aren’t perfect. We’ve learned from the Drug Wars that merely ratcheting up sentences doesn’t eliminate crime, even though people were certain that’s how it would work. We have yet to learn that eliminating sentences isn’t the answer either, as some people do bad things to other people, and the people to whom they do it deserve some consideration as well as the people doing the dirty.
Janos Marton, the national director of Dream Corps JUSTICE, an advocacy group, and a candidate in last year’s race for Manhattan district attorney, said he was not impressed with arguments that played down the significance of Mr. Boudin’s loss in an overwhelmingly Democratic city. “This is a huge deal,” he said. “This is very disappointing. This is a big setback.”
The recall may not have been a death knell for the movement, he said, but it exposed “longstanding weaknesses,” particularly a failure to recognize that liberal gains in the criminal justice arena are fragile and must be defended even after they are won.
The lesson on the left is that they need to double down, dig the hole deeper, fight, fight, fight.
“We’re not learning the lessons of past defeats,” Mr. Marton said, adding, “The very aggressive messaging that’s hostile to criminal justice reform is not going to let up, so we need to be honest about whether our countermessaging as a movement is successful.”
Progressive activists see their problem as movement countermessaging, not that people still support reforms, but just not their reforms. The people in San Francisco sent a message that they don’t want to live in the social cesspool that progressive policies have created. It’s unclear whether the interest in reform will survive, but if so, it will have to be far smarter, focused and more sustainable than the childish crap progressives spew on twitter.
CJ reform needs to be about increasing the accuracy of the CJ system, not merely shifting the burdens of its errors to society at large.
The price of reducing over-incarceration on a small slice of society (who generally got that way of their own free-will) cannot be increased victimization* (and broader fear of vicimization) of society as a whole.
(*Credit @darkblue74 on Twitter for the incarceration-victimization word play).
Thank you for bringing twitter level deep thought to a law blog.
Gotta know your audience.
But you don’t. The audience is lawyers and judges that actually do this stuff. It’s not your ignorant nonsense. It never will be. Please, go back to your twitterish nitwits–you’ll do better in the echo. They will think you smart. We never will, as you’re not.
“Crime is trending up again, after a lengthy unexplained drop from the really bad old days of the 1990s.:
Actually, it was fairly easy to explain. Putting bad guys in jail and aggressively enforcing the law worked. No one complained about Broken Windows Policing, and “Lock Em Up” DAs until the crime rate went down. Now we are seeing the results of complaints come home to roost. Add to that, the bad guys who were in jail are back out and open for business again.
Trends swing back and forth like the arms on a metronome. Broken Windows and Lock EM Up will be back on the agenda soon.
If it was the point of the post rather than one line, it might be worth explaining why you’re completely wrong. But it’s not, so we’re not diving down that rabbit hole. But you’re completely wrong.
I guess they didn’t take the lead paint outta your nursery.
Sometimes anecdotal experience simply overwhelms statistics. When people see news footage of criminals looting freight trains and retail shops with impunity, or terrorizing citizens in the streets with impunity, reading them comparative statistics is not going to allay their concerns.
There is no hope for reform. I want reform. You want reform. Many people want reform, maybe even a majority. But none of us can afford to buy politicians. The owners of the politicians do not want reform. If public support for reform becomes overwhelming, they will give us Boudin-style “Reform!” that destroys quality of life wherever it is implemented, thus destroying the public support for reform.
San Francisco has always been a uniquely liberal city. I’ve been to San Francisco many times, and it was once a beautiful city and a great place to visit, and to live if you could afford it. The support for reform was so strong there that the city had to be turned into a needle-strewn feces-infested ghetto to stop it. If they can prevent criminal law reform in San Francisco, they can prevent it everywhere. There is no hope for reform.
Reform may still be possible from the right or the center. As an example, the right are advocating for a default mens rea standard for federal criminal offenses—statutory and regulatory—that lack an explicit standard (Mens Rea Reform Act). Reform from the progressive left is probably DOA. Michael Shellenberger’s book, San Fransicko, puts forth the idea that progressive reform is failing because of ideology. Namely that some people are victims of society and therefor entitled to destructive behaviors.