Progressive prosecutors & the public they serve

Today, San Franciscans will vote on whether to recall District Attorney Chesa Boudin. Almost three years into his tenure — during which time he’s under-prosecuted, under-charged and under-sentenced countless offenders — more than 80,000 petitioners hope to oust him.

But Boudin’s recall is not just a referendum on how well one prosecutor is doing his job. It’s a measure of what the famously liberal Golden City thinks a prosecutor’s job is.

In the Manhattan district attorney’s office where I worked for three decades, we were taught that justice dictates a simple formula: evidence + law = charge. In other words, we were to carry out the law as the people’s representatives had written it, not to decide for ourselves whether the law should be more lenient.

Of course, every case is unique. A good prosecutor must make assessments based on the strength of the evidence, the presence of viable defenses, staffing considerations, etc. Often after careful consideration, charges lead to cooperation agreements, plea bargains and programs designed to rehabilitate.

But most importantly, we were to prosecute with honesty, transparency and compassion. It would have violated our professional ethics — and the oath of office we swore — not to charge a serious provable case based on our political ideology.

Boudin, however, follows a different formula. After graduating from Yale Law School, he initially pursued criminal defense work, finding moral clarity in representing the criminally charged. That’s a necessary and noble mission; defense counsels put the government to the test of proving charges. But it also means the client’s interest is the primary concern. Defense attorneys are free to ignore, and indeed must ignore, collateral damage that might flow from such a focused mission.

Prosecutors, on the other hand, don’t have that luxury. Prosecutors must evaluate the collateral consequences of every decision, factoring in public safety and the law as written, not as they wish it was written. Justice, rule-following and fairness must dictate their decisions, in order to make the victim and society whole, and to keep communities safe.

Boudin rewrote the playbook, disregarding the written law by charging (or not), sentencing (or not), and trying (or not), as he saw fit. In perhaps the most infamous example, he cut a lenient plea deal with repeat offender Troy Ramon McAlister, who went on to kill pedestrians Hanako Abe and Elizabeth Platt in December 2020 while driving a stolen vehicle.

Sadly, this approach fits broader prosecutorial trends. Boudin rode into office, after all, with a wave of “progressive” prosecutors who do not share the traditional vision of a prosecutor’s obligations as chief law enforcer in the community. Instead, their mission, as they see it, from Philadelphia to Chicago to L.A., is to decrease incarceration and dismantle disparate criminal-justice outcomes.

By espousing this trendy approach, Boudin and his ilk ignore the simple reality: A district attorney must take one case at a time, protecting the community from the few crime drivers who threaten the peace and safety of many.

In the aftermath of a violent crime, a victim feels her power has been stripped away. But government, police and prosecutors — most explicitly prosecutors — are supposed to restore that power, by standing up for the truth, illustrating the unfairness of the crime, and pursuing redress. Only when the criminal act is condemned can confidence in government be restored.

“Progressive” prosecutors miss that essential duty altogether. They think that by excusing crimes or their magnitude, they are delivering retribution for, say, how bad policing has afflicted communities of color in the past. But the greater demand of communities of all ethnicities is that their lives be protected.

Boudin is failing on that score, and the community has had enough. A San Francisco Standard Voter Poll showed that 67% of voters disapprove of Boudin’s performance. Asian-Americans particularly feel threatened. Police representatives agree, asserting that Boudin undercharges or fails to charge despite evidence. Perhaps most impressive, 53 staffers quit the SF DA’s office itself, including senior prosecutors Brooke Jenkins and Don Du Bain, citing Boudin’s routine disregard for the law and case evidence.

This recall vote is not just a referendum on Boudin’s performance. It’s a referendum on the mold of “progressive” prosecutor that made him. Are Americans comfortable with men and women swearing to represent the people against criminals, but instead focusing primarily on advancing political aims?

Who will fight to restore the confidence of the elderly night clerk afraid to go back to the deli for his shift? Who will stand up for the teenager petrified to return to school after being mugged? Who will restore power to the young woman who declines dates after work because she can’t get home safely when the evening ends?

Not Chesa Boudin, apparently. Today, San Franciscans have a chance to remove him from office.