Opinion, Berkeley Blogs

The (SF DA) Recall and the Future of Criminal Legal System Reform

By Jonathan Simon

Yes there are many California and SF specific factors behind the June 7 recall of progressive prosecutor Chesa Boudin including California’s easy recall rules and the outsized role of rightwing tech donors, the relatively small Black population. Still the recall is an indicator (among many) of just how politically difficult it is to truly transform the criminal legal system.  After the wave of protests against policing in response to the murder of George Floyd by Minneapolis police officers in June 2020, many in the public and media seemed to believe that talk about defunding the police and reducing their gargantuan role in most cities would catapult us into an unknown (and to many scary) future without police at the end of a 9-1-1 call.  But that ignores just how deeply embedded the major elements of the criminal legal system, especially police and prisons, are in our social understanding of public safety, and the extraordinary “law and order” myths that have developed around these institutions.  These myths and not just the deep pockets of the dysfunctional SFPD and its allies in SF’s political and economic elite (especially Mayor London Breed), help explain how easily defenders of the carceral status quo can rebuff substantial reforms (or reformers) by manipulating public fears.  

Those two institutions alone, prisons,—-the caging of people to render them harmless and supposedly better—-, and policing, —- the surveillance and coercive oversight of suspected populations—-, have been part of the American story since before “America” as we commonly understand it.  Prisons in their modern form of cellular structures capable of isolating and containing people, were championed by leaders of the American Revolution (like Philadelphia’s Benjamin Rush) and constructed in the early decades of the Republic.  Policing, in the form of the “slave patrol”, long predated the American independence, and even the London style police with their uniforms and badges, were brought to large American east coast cities before the Civil War.  

Each has been through multiple cycles of aspirational growth and repeated failure.  The prisons built in the Jacksonian era (1820s and 30s) were the most expensive public outlays of their time, and yet, their promise of converting ready thieves to willing workers gradually spread them across the whole country by the Civil War.  Not long after that war, however, improved identification techniques made it possible to recognize how many people imprisoned, had in fact, been there before.  

Uniformed police (also very expensive) spread to cities as they reached a large enough size and tax base with the promise to prevent property crime, labor unrest and rioting.  But by the 1920s, when the Wickersham Commission looked into the failure of Prohibition laws, it was clear they were too corrupt or too close to the communities they policed to be effective at suppressing property crime or labor unrest and all too willing to countenance or even participate in rioting (especially against Black citizens for much of the first half of the 20th century).  

Nonetheless, both prisons and police survived their many moments of doubt, by aligning themselves with new myths that the criminal legal system and its defenders generated in the 20th century.  One especially important myth, associated with the enormously influential Eugenics movement, was that most crime could be blamed on a small population of irredeemable offenders (racialized from the start) who the police and prosecutors could select out and incapacitate in prisons.  

Another one, still spreading in the early 21st century under the label “broken windows policing”, is that vigorous policing of minor illegalities can bolster neighborhoods against the spread of serious and violent crime.  Under both myths, the criminal legal system grew to an unprecedented scale in the late 20th century, and concentrated its damaging effects on vulnerable low income communities of color.  

To bring us back to the present, it was growing recognition of those costs and racially concentrated harms that led to a demands for transformative change in the criminal legal system in the 2010s and the election in some cities of “progressive” DAs.  Their task was never going to be easy.  Transforming our use of prisons and our expectations of policing put these DA’s directly in the path of the powerful law and order myths.  In Chesa Boudin’s case, the fingerprints of these myths are all over the body.

The myth that most crime is a product of a small group of irredeemable offenders was aggressively spread by SFPD which repeatedly and falsely told reporters (and the public) that their efforts to remove repeat offenders from the community was being stymied by Boudin’s unwillingness to charge them with felonies.  Second, the recall movement succeeded in mobilizing long growing anger over homeless encampments near expensive San Francisco real estate, and property crimes believed to stem from them, to activate the “broken windows” myth that aggressive enforcement of public order offenses would protect them from serious and violent crimes.  Both myths helped build a consensus among many San Francisco residents that crime was “out of control” in the City, despite crime trends suggesting SF was doing better than most other cities.  

After the recall, those of us who find the criminal legal status quo unacceptable must face some hard truths.  Most voters, even in the communities most impacted by over use of prisons and police, share deeply held beliefs about law and order that make wishful thinking all too easy when it comes to expanding the criminal legal system (look at Mayor London Breed trying unsuccessfully to spend wildly on police overtime only to find there is already more than enough in the budget to pay for it) and fearful thinking all too easy when any of its actors or agencies are criticized or threatened with reduction.  

Some will take Boudin’s defeat to mean that reform should be more moderate.  But because of these law and order myths, even the most moderate reforms will generate existential resistance from entitled law enforcement agencies and give rise to disproportionate fears of change from many members of the public, across both parties, who cannot imagine a world without a prominent place for prisons and police.  

That leaves those of us sickened by the racism, violence, and incompetence of our criminal legal system to proclaim our own tough truth.  The criminal legal system cannot really be reformed; it can only be replaced over time (think of it like our reliance on fossil fuels, we can only “reform” them so much, ultimately we have to stop using them).  The hardest job is not electing a new progressive DA in SF (that’s the easy part and to that extent the recall backers wasted their money) but to stand up new institutions at every level of government and in civil society, that will address the insecurities and harms facing the most vulnerable communities (as measured in life and death) without primary reliance on the criminal legal system.  That task is really hard (even thinking about it makes me want to go and lay down), and doubtless will create its own myths.  

There will be no victory party for that campaign, and no defeat either.