The California Prosecutors Who Want to Keep People Out of Jail

The California Prosecutors Who Want to Keep People Out of Jail

The California Prosecutors Who Want to Keep People Out of Jail

In the state that once pioneered the punitive Three Strikes policy, a coalition of recently elected district attorneys is pushing back against mass incarceration.


Politics is often defined or understood as the art of making a deal. But I think, at its best, it’s the art of making possible tomorrow that which we can’t even imagine today,” says Chesa Boudin, the district attorney of San Francisco County. The son of two members of the Weather Underground sentenced to long spells in prison, Boudin was narrowly elected in 2019 under San Francisco’s ranked-choice voting system. He talks of the pain of growing up with imprisoned parents; of the collect calls he still receives every Saturday from his incarcerated father; and of his belief, inculcated in him from childhood, that simply locking people up is a failure of the political imagination. “My personal experience shapes me—my worldview, my fears and hopes, my dreams and aspirations,” he acknowledges.

Boudin and three other district attorneys—Republican Tori Verber Salazar of San Joaquin County, in the Central Valley (whose office didn’t respond to requests for comment for this article), and Democrats George Gascón of Los Angeles and Diana Becton of Contra Costa County—joined the Prosecutors Alliance of California in September 2020. Although their offices serve only four of the 58 counties in California, they represent more than 30 percent of the state’s population. The organization was established as a progressive alternative to the more conservative California District Attorneys Association (CDAA), which, for decades, has helped shape criminal justice priorities in the Golden State. In 2022, when 56 of those counties hold elections for their DAs, the number of Californians served by self-identifying progressive prosecutors could well reach the 50 percent mark.

Regarding his own philosophy of criminal justice and his belief that a prosecutor’s office shouldn’t be a prisoner-manufacturing machine, Boudin continues, “It requires the courage to be ahead of your time, the confidence to take risks, and drawing on not one ideology or dogma, but being constantly aware of the limits of our knowledge and experience.”

The changes in criminal justice priorities taking place up and down the West Coast—primarily, though not exclusively, in its big cities—make for one of the most extraordinary, head-spinning political stories of the past decade. The prosecution systems of the largest metropolitan regions of the West are being run by men and women who speak the language of racial justice fluently, who are deeply opposed to mass incarceration and believe they should be judged on whether they can lower—not increase—the number of prisoners in their jurisdictions.

Four hundred miles to the south, Gascón, Boudin’s predecessor in San Francisco, was elected DA of Los Angeles County in an upset this past November. He has been pushing his prosecutors to limit sentencing enhancements, death penalty prosecutions, “three strikes and you’re out” convictions, trying juveniles as adults, and other vestiges of the decades-long wars on crime and drugs. In March, Gascón’s office reported a 71 percent reduction in the use of sentencing enhancements between December 2020 and February 2021, compared with the same period the previous year.

“We’re reducing incarceration levels by thousands of years and billions of dollars in costs,” he explains. “We have all come to the conclusion that mass incarceration has increased systemic racism and hasn’t necessarily contributed to the safety of our communities.”

Gascón, who recently (and very publicly) resigned from the California District Attorneys Association, acknowledges the high level of pushback he has received from the prosecutors within his own office; some have threatened to resign in response to his directives. But he believes that the public is with him. “You have a group of people who for the last decade have been fighting every reform effort, and they’ve been losing,” Gascón says. “Frankly, I think they’re becoming irrelevant.”

Not surprisingly, those words don’t sit well with many of his peers. For Vern Pierson, the district attorney of El Dorado County and president of the CDAA, Gascón is engaging in dangerous posturing, signaling to criminals that they won’t be subject to longer sentences if, for example, they use firearms while committing crimes. Pierson argues that his LA colleague isn’t progressive but, rather, “reckless.” There is now “no deterrent,” he says, “for people who are going to commit a strong-arm robbery. There’s no deterrent for them arming themselves. In the three months since Gascón has been in office, shootings are dramatically up in Los Angeles.”

That shootings have increased in recent months is true, says Cristine Soto DeBerry, founder and executive director of the Prosecutors Alliance; but as she quickly notes, correlation doesn’t necessarily equal causation. In the 2000s, crime rates fell sharply at the same time the number of people imprisoned increased—but that decline, many criminologists now argue, had more to do with changes in economic conditions and drug gang structures, along with a range of other factors, than with ramped-up incarceration. Similarly, in 2020 and 2021, violent crime has likely increased not because of the election of a handful of progressive DAs but because of the pandemic and its social dislocations. “It’s a complex, interwoven conversation,” DeBerry says. “We’ve seen dramatic increases in gun sales in this country during the pandemic,” and that, she argues, rather than some DAs retreating from harsh mandatory sentencing, has translated to an increase in gun crimes.

Despite the controversy his policies have generated and the anger expressed by many DAs in the state, Gascón insists that the newly elected progressive DAs have an electoral mandate to implement sweeping reforms of the state’s criminal justice and legal systems. He believes that in the long run, the data will back up his notion that being “tough” on crime isn’t the same as being smart on crime; that investing more in mental health services, education systems, and community infrastructure will prove to be more effective than simply adding decades to felons’ sentences. “Voters,” he says, “are unequivocally voting to unwind the vestiges of the mass incarceration years.”

North of California, in Oregon and Washington, the electorates in the Portland and Seattle metropolitan regions have also shifted their criminal justice priorities. In Multnomah County, where Portland lies, Mike Schmidt, running on a slate of policy reforms that included opposition to mandatory sentences and an emphasis on harm reduction, was elected DA this past May, despite opposition from unions representing the police and attorneys in the DA’s office, and took office in early August. He promptly announced that he would not prosecute people arrested during the racial justice protests after George Floyd’s killing in Minneapolis and also came out in favor of Ballot Measure 110, which decriminalized personal-use amounts of most controlled substances. “Criminalizing just drives the problem underground, makes it worse,” he says. “The same thing with mental illness. Nobody believes the best result or the therapeutic response is arrest and a jail cell.”

In Seattle, City Attorney Pete Holmes has been on the job since his election in November 2009. Holmes became somewhat notorious in criminal justice circles when he announced he would dismiss all pending marijuana possession cases on his first day in office and then actively supported the successful effort to legalize marijuana in the state three years later. Once pot became legal in his city, Holmes stood in line to buy two bags, “one bag for posterity and one for personal use.” Soon the Seattle Police Department—which had spent the early years of Holmes’s tenure testing his no-prosecution policy by arresting as many people on marijuana possession charges as possible—was handing out bags of Doritos to attendees at the city’s annual Hempfest.

Holmes also pioneered a policy, later adopted statewide, of not seeking sentences longer than 364 days for misdemeanor offenses. This was more than just a technicality: Under federal law, a noncitizen immigrant sentenced to at least 365 days behind bars immediately becomes the target of deportation proceedings.

As a young journalist in the 1990s, I frequently traveled to California to explore the enormous impact of tough-on-crime laws like three strikes, passed with bipartisan support in the legislature and cemented into the state’s constitution by a successful ballot initiative. During these years, the state, under three different governors—Republican Pete Wilson, Democrat Gray Davis, and Republican Arnold Schwarzenegger—went on a multibillion-dollar prison-building spree, saw a quintupling of its incarcerated population, and witnessed the seemingly unstoppable rise to power of the California Correctional Peace Officers Association. Nothing related to criminal justice stood a chance of passing the statehouse in Sacramento without the imprimatur of the association and its allies in the California Highway Patrol, the police, and the CDAA.

By the end of the century, prosecutors were no longer considering whether sentences were just, or even worth the cost to the state of housing the inmates. (It costs upwards of $80,000 a year to house a single inmate in California, according to the state’s legislative analyst’s office.) Instead, success was measured by how long even low-level offenders stayed behind bars. My first book, Hard Time Blues, chronicled the life of Billy Ochoa, a heroin addict, burglar, and petty fraudster from LA who was given 13 consecutive three-strikes sentences—more than 300 years behind bars—for a series of welfare frauds that added up to a few thousand dollars, money that he used to fund his addiction. Ochoa died in a supermax prison a few years later; his incarceration had cost the state several hundred thousand dollars.

Now, after decades of community organizing and, in more recent years, a concerted legislative and electoral reform effort, the criminal justice landscape on the West Coast, from the Mexican to the Canadian border, is undergoing, at a breakneck pace, a once-in-a-generation transformation. “There’s been remarkable progress made, and we have seen a sea change in terms of who’s jumping in to run for prosecutors’ roles, who’s getting elected, what the public wants,” says Lenore Anderson, founder and president of the Alliance for Safety and Justice, one of the leading criminal justice reform organizations in the country. “But it’s happening in the context of a lot of pushback. This is very contested space.”

Anderson worries that these progressive elected DAs are facing organized opposition from many career prosecutors and the bureaucracies that staff the various parts of the criminal justice and court systems. “It’s not as if the tough-on-crime mindset has gone away,” she continues. “It’s very much alive and well, especially at the local level. It’s going to be a bumpy ride, a roller coaster.”

As Gascón notes, prosecutors have sometimes threatened to resign en masse rather than implement progressive changes—though, to date, these threats have proved empty. He adds that he is routinely accused of being insensitive to crime victims, and that some California courts have pushed back against DAs who decline to prosecute three-strikes cases, with judges ruling that the statute doesn’t permit them such discretion. And at the legislative and ballot-initiative levels, conservatives have, in recent years, attempted to roll back sentencing reforms that converted lesser felony charges into misdemeanors, and they’ve succeeded in reversing moves to end cash bail in the state.

For the progressive prosecutors, this backlash proves that they have succeeded in changing the ground rules and that the tough-on-crime lobby is getting worried. “My election was a parting of the waters, and it impacts the rest of the country because of the size of LA County,” Gascón says. He argues that the DA’s office measured progress by incarceration levels and the number of death penalty convictions for so long that it turned a blind eye to police abuse and became too cozy with police unions to stand up to systemic racism and other violence. He says he’s determined to transform his office, to make the prosecutors of LA County address crime “from a very different point of view—not necessarily a carceral, punitive approach.” But he knows it won’t be easy. When he stopped prosecuting large numbers of three-strikes cases, the deputy DAs’ union sued him. Many of his older prosecutors, who cut their teeth during the early days of three strikes, made their discontent clear to him.

Contra Costa County DA Diana Becton rides the roller coaster every day. Becton, who quotes Thurgood Marshall and Rosa Parks in conversation, has urged her team to focus on diverting low-level offenders— especially those whose crimes involve drugs—into treatment programs rather than prison. She measures her success by her ability to “shrink our footprint,” reduce the size of the state’s bloated penal infrastructure, and tackle the racial inequities that the criminal justice system has contributed to. And she believes in the need to minimize the influence of the policy lobby in shaping criminal justice legislation and decision-making at the state level. Not surprisingly, she has faced opposition from her own prosecutors. “We have to come in and literally and really change a prosecutorial culture,” she says. “Part of it is education, putting in place new measures of success. Doing what is fair and what is just. What we have at this time is really an exposure of inequities of the criminal justice system on a national scale.”

Up north in Seattle, Pete Holmes wholeheartedly agrees. “We can choose to be enablers,” he says, “continue to be a rubber stamp for police and a lock-‘em-up approach. Or we can refuse to participate anymore and break the addiction of ‘call a cop’ for any social problem.”

Around the country—with Kim Foxx in Chicago; Larry Krasner in Philadelphia; José Garza in Austin, Tex.; and Marian Ryan in Middlesex County, Mass.—a new criminal justice consciousness is emerging in the halls of power. Its impact hasn’t been fully felt yet, but these DAs will have an outsize influence in reshaping, and likely downsizing, the country’s bloated carceral systems. In reimagining the language of crime and punishment, they are initiating a broader discussion of power relationships and societal priorities in 21st-century America.

Chesa Boudin believes that, in years to come, prosecutors’ offices should establish Innocence Commissions to investigate allegations of wrongful prosecutions and should push for increased resources for victims’ services, veterans’ services, drug treatment and drug courts, diversion programs for parents and other providers so their children aren’t left out in the cold following an incarceration, as well as neighborhood courts and an array of other interventions that traditional prosecutors have tended to dismiss as naive or utopian.

“It means thinking outside the box in every case,” Boudin says. “Coming up with solutions that are more creative than just locking people up for a certain number of days or months or years. To be successful in building a more just, safer society, we need to do it in a way that brings skeptics and critics along.”

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