Progressive Prosecution Meets Organizational Discombobulation: Chesa Boudin and the Case of the Police-Citizen Mutual Violence

Let’s start with the important stuff. My wonderful students have established an excellent new journal, the Hastings Journal of Crime and Punishment (HJCP). Issue no. 1 is already out, including my essay about how Jeff Sessions hasn’t managed to destroy the Cheap on Crime trend. But more importantly, we’re holding a terrific daylong symposium titled Progressive Prosecution in the Carceral State. Join us on Feb. 7 at UC Hastings! RSVP via this link.

Progressive prosecution has been an exciting trend, especially because of the recent tendency to talk about the contribution of county prosecutors to mass incarceration. But expecting the election of a professed progressive official at the top of the pyramid misses out on important institutional dimensions that could stand in the way of progressive reform.

Take, for example, the recent San Francisco hullaballoo. Our recently elected District Attorney, Chesa Boudin, is in conflict with our police union over his decision to withdraw charges against Jamaica Hampton, a man who, in a violent altercation with the police, allegedly attacked the cops with a vodka bottle:

Alex Bastian, the spokesman for the district attorney’s office, said the case was set aside to avoid conflicts between two separate investigations — one being the internal officer-involved shooting case and the other being the criminal allegations against Hampton.
“Both cases are still under investigation,” Bastian said. “We don’t want one investigation to interfere with the other. We are looking into developing a policy to avoid conflicts in cases where multiple investigations are ongoing.”
Bastian on Sunday disputed Scott’s characterization that charges against Hampton had been withdrawn, saying that he was never formally charged. The district attorney’s office filed charges in December but Hampton had not been arraigned.
Hampton, 24, was originally booked on charges of assault with a deadly weapon, assault upon a police officer and threats to an officer after videos from police body cameras and surveillance footage showed him hitting an officer with a vodka bottle and then being chased through the intersection at 23rd and Mission streets.

The police union is demanding federal intervention but, save for their dissatisfaction with the D.A.’s decision, I’m not sure what would be the basis for that. This is a violent incident against municipal police in an area not governed by federal law. Proximity to a school might throw some federal jurisdiction into it, but it’s not a drug case, so I’m not sure whether that would avail the police union.

But even if there were parallel federal jurisdiction here, there are a few bigger issues. According to the Petite policy, the feds do not interfere with cases charged and adjudicated in states unless these proceedings leave an important federal interest unvindicated. True, there are no formal charges here, but can we really say anything here calls for federal intervention? Politically, sure, but legally? One argument that can be made on Boudin’s side (and hasn’t been highlighted by his spokesman) is that incidents of mutual violence between police and citizens tend to end with charges against the citizens, rather than against the police, and that these often serve as fig leaf for the police. Crazy examples abound (even though the Hampton case might not be the textbook example of this, there nonetheless is a problem.) This supports the notion that it is better to wait for the police investigation to play out and then take that into account when making a decision about pressing charges.

More importantly, is this the harbinger of things to come in terms of obstacles for implementing Boudin’s vision for a progressive San Francisco? Boudin has already fired several prosecutors and, as the Hampton incident shows, will face pushback from cops and judges, as well as from his own subordinates. Progressive prosecution is a great study of how the organizational culture of lower courts would respond to someone elected for the very purpose of jamming the wheels of the giant machine.

Want to learn more? Join us at our Feb. 7 symposium. Chesa Boudin will be there, as will other progressive prosecutors from around the nation, scholars, policymakers, and activists!

Facing Criminal Charges to Save Animals, Part III: Planning Open Rescue in the Shadow of the Law

Image result for dxe arrested
Arrest during a protest in Petaluma. Photo credit: DxE.

Whether or not the necessity defense applies, or should apply, to open rescue, is a doctrinal legal question. As a law and society scholar, I ask myself questions about the interaction of the law with people, institutions, and movements. Because I have a special interest in social movements, I ask myself: How do animal rights activists understand and perceive the role of the criminal process in their lives? The extent to which the law is present in people’s lives is its own field of study, known as legal consciousness. 

Part I
Part II

In their classic book The Common Place of Law Patricia Ewick and Susan Silbey present three schemas of relating to the law in everyday lives: before the law, with the law, and against the law. People’s experience of the law extends farther than their involvement in official legal institutions, such as calling the police on someone, visiting a courtroom, or hiring a lawyer. While some scholars have supported the idea that the law is present everywhere in everyday lives (see Austin Sarat’s study of the welfare poor) others have found people so busy surviving that they are not even conscious of the law or so skilled and privileged that they can structure even oppressive legal experiences, such as incarceration, as “games”, “experiments”, or “educational experiences”, outside of the legal framework.

But what about social movements? An entire area of study is devoted to this question, looking at the way advocates and activists perceive the law. Idit Kostiner, who studied social justice activists, found that they see the law’s value through three main schemas: instrumental (obtaining rights), political (galvanizing activists and organizing) and cultural (relying on the law to change perceptions.) In expanding the understanding of legal consciousness beyond merely obtaining rights, she follows Michael McCann, who argues that legal mobilization helps social movements even if they don’t get exactly what they advocate for, because it provides them with a framework that is helpful for advancing their cause.

How do animal rights activists map onto all this? The animal rights movement operates within the constraints of a legal order that completely ignores, or negates, what the movement believes in. The law sees animals as property, and much of our economic system is structured around the exploitation of animals (often in conjunction with the exploitation of others.) This could make the activists very cynical about the law. Indeed, a beautiful interview-based study conducted by Erik Fritsvold found that radical environmental activists tend to perceive their relationship to the law as “under the law” and their primary engagement with it through lawbreaking.

Fritsvold’s subjects and mine are not that different from each other. The activists he studies also define their actions as direct action, which, according to Noel Sturgeon, is “a series of ‘actions’ engaged in by groups that organize themselves in a decentralized, nonhierarchical manner . . . which use a participatory, democratic, decision-making process . . . and which prefer direct action to institutionalized, electoral, or interest-group politics. Frequently, such groups are involved in civil disobedience, that is, the principled breaking of the law in the process of political protest.”

For direct action environmentalists, the law is an instrument of injustice to fight against. This schema differs from Ewick and Silbey’s category of “against the law”, because to the activists, “the law veils the illegitimacy of the existing social order and actively represses dissent. Against the Law observes that the law often fails as an asset to achieve justice; Under the Law views this failing as intentional and perceives law as an active agent of injustice.”

Nonetheless, it seems that animal rights activists in general, and DxE activists in particular, somewhat differ from Fritsvold’s interviewees. Helena Silverstein’s wonderful 1996 book Unleashing Rights about animal rights activism shows that, despite thorny philosophical difficulties with the concept of “rights”, which activists saw as anthropocentric, they did not shy from employing this concept when it served their purpose–or from hiding it from sight when it did not. Indeed, my own subjects, when planning open rescues, display some important markers of legal sophistication. Until fairly recently, DxE was led by Wayne Hsiung, an attorney and former legal academic, who is very well-versed in the legal status of animal rights nationally and internationally. Other members of DxE are lawyers, law students, or aspiring law students, and very well aware of the role the law plays in their activism.

Important questions regarding DxE’s legal consciousness involve how open rescue operations are planned. In anticipation of a direct action, do activists reach out to legal authorities to report animal cruelty? Do they expect the authorities to intervene, and on whose behalf? When entering the facility, do activists try to seek detection, avoid detection, or a mix of both? If and when they encounter the facility owners or workers, do they attempt to alert the media or resolve things quietly? When encountering law enforcement in the field, how do they interact with them?

Answers to these questions are strategically tricky, because there are two different legal outcomes looming ahead: the short-term one consists of a possible arrest of the activists, perhaps followed later by a court case. The long-term outcome consists of changing the laws of the animal products industry and, perhaps in our lifetime, even eradicating it. What activists might do to promote one of these outcomes could harm the other, and requires careful thinking ahead. It is also the case that, even with carefully planned actions, unexpected circumstances can change the nature of the encounter and enhance, or diminish, the clash with law enforcement. I plan to look at these questions as well.

The next post in the series will address preparations and strategies for criminal trials, involving both strategic and tactical considerations.

Part IV
Part V

Facing Criminal Charges for Saving Animals, Part II: The Necessity Defense

Image result for activists rescuing chicken
Activist rescuing pigs. Photo courtesy DxE.

Part I here

The necessity defense is recognized in common law as a situation in which a person violates the law in order to prevent or mitigate harm. One way to understand the principle behind necessity is to think of a car swerving off the road to avoid an accident and then running into someone’s fence. Ordinarily, the driver would be responsible for the damage to property, but because she caused it in order to avoid a greater harm, we do not hold her responsible. Necessity belongs to a family of affirmative defenses known as “justifications”: rather than merely excusing an individual for a particular set of circumstances that absolve them of responsibility (because they are insane, too young, or intoxicated, for example), a justification applies more universally, and might be regarded as a legal statement that, when faced with these circumstances, the law wants people to choose the lesser harm.

As Jenni James explains in this excellent article, the necessity defense can be elusive, because over the years judges have narrowed its scope. Most states do not even have it codified into their penal code: for example, to find California’s necessity defense, you’d have to recur to the California jury instructions. The elements vary somewhat across jurisdictions, but for the most part they conform to some general principles:

  1. Serious harm (in CA, defendants have to prove that they acted “in an emergency to prevent a significant bodily harm or evil to (himself/herself/ [or] someone else)”
  2. No adequate legal alternative.
  3. Proportionality between the harm committed and the harm avoided ( in CA, “[t]he defendant’s acts did not create a greater danger than the one avoided). In other words, the opposite of what the Cowboy Fireman did in this terrific Faith Petric song.
  4. A genuine, subjective belief that the act was necessary to prevent the threatened harm or evil.
  5. Objective support for the subjective belief: In other words, that “a reasonable person would also have believed that the act was necessary under the circumstances.
  6. Lack of culpability on the part of the defendant for the emergency in the first place (CA law requires that the defendant “did not substantially contribute to the emergency.”)

As James argues in her article, the ability to even present the necessity defense in court depends on judicial discretion (typically exercised in the context of a motion in limine to prevent the presentation of the defense.) In one decision, U.S. v. Schoon, the Ninth Circuit held that the necessity defense will only be available to activists who engage in “direct civil disobedience”–that is, directly challenging the rules they protest–and not “indirect civil disobedience” activists, who violate a law that is “not, in itself, the object of protest.” As James explains, open rescuers engage in both forms of civil disobedience, because they challenge both the exploitation and cruelty of the animal industry (indirect) AND ag-gag laws (direct.) But the upshot of the decision was that protesters, by definition, were to be denied the necessity defense–even though lower courts sill allow it on occasion. And of course, as James points out, the necessity defense can be a poor fit for these premeditated and planned operations, because by its very nature it is designed to address emergencies.

This means that activists encounter some serious hurdles in presenting the defense. The first and foremost issue that might come up is the big question whether the suffering of animals constitutes “serious harm,” and also, a harm that is proportional to the harm they cause when they enter the facility or remove an animal. Part of this debate is factual: the activists would have to prove the imminent harm to the animals, and to come up with a way to show that this harm is equal or greater to the harm that their actions caused to the farmers. Video evidence showing sick or dying animals might prove their marginal monetary worth to the farmers as well as the harm and suffering to them (but requires, of course, that activists engage with the legal framework that sees animals as property.) As to how harm and suffering are to be measured, one thing I plan to look at is the extent to which potential jurors are open to considering evidence of animal emotions and theories of animal personhood.

I’m reading Frans de Waal’s Mama’s Last Hug, whose point of departure is the animal behaviorist’s skepticism about proof. De Waal argues that we can, and should, be able to assess and measure animal emotions, which human and nonhuman animals can both exhibit and control. The examples he provides show nonhuman animals as imbued with a sophisticated understanding of their social world, as well as a sense of justice, as well as fairness. Larry Carbone’s interesting What Animals Want, which is set at a lab, raises important questions about assessing physical suffering of animals held in labs for experimentation. My hope is to expand my reading on animal emotion, feelings, and suffering, and think about which theory of animal agency would be persuasive to a jury.

Then, there are questions about the subjective and objective intents of the activists, as well as the extent to which they recurred to legal means before taking illegal action (reports to the police, etc.) – this element can be difficult to handle, because often one can know of the specific harms that are occurring only via illegal means. In short, as James argues in her article, “[j]udges seldom have to overtly pit commercial privacy interests against an animal’s right not to suffer. Instead, judges often assume the practice causing the animal’s suffering was legal and thus not harmful for purposes of the necessity defense balancing of harms. Rescuers who wish to remove animals from industrial facilities, then, should be careful to select only animals suffering from clearly illegal activity, which, ideally, should also be documented. However, to avoid the appearance of vigilantism, rescuers might consider using this documentation sparingly and perhaps even sharing it with law enforcement promptly.”

But that raises other questions, which are a proper subject for ethnographic research: How do animal rights activists relate to the law, and to the prospect of criminal justice in their activities? More on that in Part III.

Part III
Part IV
Part V

Facing Criminal Charges for Saving Animals, Part I: Open Rescue

Image result for dxe rescues bird
DxE activists with rescued birds. Image courtesy Indybay.

Hello, friends! I’m writing this from the Harvard Animal Law Policy Program, where I am a Visiting Fellow this fall. My plan for this fellowship is to examine the intersection of criminal justice, social movements, and animal rights–in other words, what happens when animal rights activists engaging in open rescue are criminally charged for their actions?

A brief primer: the conditions of confinement experienced by animals–cows, pigs, chickens, turkeys, and others–in factory farms are beyond atrocious, and this is true not only for conventional farms, but also for so-called “humane” or “cage-free” facilities. I have seen footage that has torn my heart apart. In one video, from a chicken farm, I saw emaciated and sick chickens, some of which were barely moving and clearly close to death. The animals trampled upon each other to breathe and carcasses of trampled chickens were clearly visible on the ground. Parts of the animals’ bodies were torn, likely by other animals trying to push through to obtain food and air. There were some indications that the animals, starving and parched, had turned to cannibalizing each other.

These are difficult things to see and experience, partly because opening our eyes and hearts to animal suffering requires seriously reconsidering our consumption habits that contribute to this cruelty. But the first step is, of course, to raise public awareness to these conditions, and there are very few legal avenues to doing so. Because of that, activist organizations turn to a technique called open rescue.

The Animals and Society Institute defines open rescue as “[t]he process of giving aid, rescue, and veterinary treatment to animals confined in typical factory farm living conditions. The immediate aim of the rescuers, who identify themselves even when trespass is necessary, is to save lives, while documenting the animal suffering inherent in large-scale industrialized food production.” This definition has several important components.

First, it is a “rescue” mission, and therefore often involves not only documenting conditions at the farm, but also removing sick and endangered animals. The activists I spoke to explained that they seek to identify animals that might imminently die or suffer irreparable harm unless they are removed from the facility (this, in itself, requires them to do some selection, because all animals subject to factory farm lives are in dire circumstances.) They also do this because working for animal rights can be emotionally devastating and demoralizing, and rescuing animals provides an optimistic element to the experience.

Second, open rescue is “open”. In an article about the need for solidarity and cooperation in the animal rights movement, Taimie Bryant quotes Paul Shapiro, formerly of Compassion over Killing, who explains that, by contrast to other animal liberation actions in which participants “go to great lengths to conceal their identities”, the point of open rescue is to rescue the animals “completely openly… you videotape yourself doing it, you take full responsibility for the fact that you did it and you openly publicize the fact that you did it.” Shapiro argues that the overt nature of the action garners much more sympathy for the activists and focuses attention away from the morality of their own actions (“should we treat them like orderly criminals, or like political prisoners?”) and toward the conditions suffered by the animals.
–> But, as it turns out, you can’t really avoid the question of how to treat the people, even in the face of the serious question how to treat the animals. Entering factory farms to document conditions does not only violate garden-variety penal code provisions against trespass (and, if animals are rescued, larceny), but also a slew of ag-gag laws–laws lobbied for by the agricultural industry prohibiting entry to, and documentation of, animal factory farms.

As an aside, saving animals turns out to be a fairly dangerous proposition in general. During Hurricane Katrina, the Animal Legal Defense Fund composed a memo offering legal guidance for the brave people who broke into abandoned, flooded homes to rescue animals left behind. Even in the face of the heartbreaking story of Snowball— reportedly, the inspiration behind legislation requiring states to come up with animal rescue planning as a condition for FEMA assistance–the law offered (and still offers) little to no protection even for people who rescue the most sympathetic animals of all: domestic pets. Good Samaritan Laws, which protect emergency rescuers from criminal and/or civil liability, either do not refer explicitly to animals or explicitly use the term “person.” Local animal cruelty laws do not go as far as offer coverage for rescuers.

This is especially true for farmed animals: as reported by the Animal Welfare Institute, several states explicitly exclude farmed animals from the definition of “animal” in their animal cruelty laws, so that these laws do not apply to them. Moreover, the aforementioned ag-gag laws were designed specifically to protect agricultural interests, as exemplified in this Intercept story by Glenn Greenwald. So, from the perspective of the farmers, the legislature, and the prosecutors, open rescuers are trespassers (when they step on the premises) and thieves (when they remove animals from the premises.)

My project involves a study of an organization called Direct Action Everywhere (DxE) which, among other avenues, pursues open rescue and documentations. DxE activists use sophisticated technology–drones, virtual reality filming–to present the horrors of factory farms to the public. And, the organization often rescues animals, whom they name and care for with the help of vets and sanctuaries. Such acts have resulted in several criminal cases against activists. Some of these have been dismissed (such as the case against a woman who gave water to thirsty pigs on their way to slaughter) but some are still pending, in California (Sonoma County), Utah, and North Carolina.

The activists facing trial have, so far, declined plea bargains in favor of jury trials, and they plan to argue for a necessity defense.

The next installment in this blog post series will examine the elements and feasibility of relying on a necessity defense in open rescue cases.

Part II
Part III
Part IV
Part V

When Cheap on Crime Becomes Mainstream: Santa Clara to Divert Nonviolent Drug Offenders

Chapter 3 of Cheap on Crime opens with a 2009 headline from the San Francisco Chronicle, which reads, “Many Contra Costa Crooks Won’t Be Prosecuted.” Who are said “crooks”? D.A. Kochly explains: “[B]eginning May 4, his office will no longer prosecute felony drug cases involving smaller amounts of narcotics. That means anyone caught with less than a gram of methamphetamine or cocaine, less than 0.5 grams of heroin and fewer than five pills of ecstasy, OxyContin or Vicodin won’t be charged.”
This was viewed with suspicion and scorn at the time; Kochly lamented the lack of funds and said, “We had to make very, very difficult choices, and we had to try to prioritize things. There are no good choices to be made here. . . It’s trying to choose the lesser of certain evils in deciding what we can and cannot do.”

Compare that to today’s headline: The Mercury News informs us that “Santa Clara County DA will stop filing charges in most minor drug cases.” The policy is basically the same as the one from Contra Costa ten years ago: “the aim of the change is to keep one- and two-time offenders out of the court system, diverting them instead to drug treatment programs and reserving bandwidth for more serious addiction cases that cross over to become community nuisances or public-safety concerns.” Again, costs are cited, in the grand humonetarian fashion: “the policy shift also cuts out an exponentially larger number of corresponding court dates, potential bench warrants and jail stays and thousands of work hours for judges, attorneys and police officers. All of those efforts go to address offenders that everyone agrees might have addiction issues but do not pose a threat to public safety.”

Same news, different spin. What used to be regarded with scorn at the very beginning of the Cheap on Crime era has now gone mainstream. Note how easy and acceptable (and non-radical!) it is for a prosecutor (!) to cite cost expenses (!) as a justification for diverting nonviolent offenders into a public health treatment silo.

In many ways, this is the coda to Cheap on Crime: the ultimate success of the cost-centered rhetoric in normalizing the decarceration of nonviolent offenders. Years after recovering from the recession, the thinking patterns formed during the recession are here: marijuana should be legalized for revenue and so that our resources can be spent on the “real” offenders; treatment and prevention are cheaper than punishment; crime rates are low, and therefore there is no risk to public safety. It’s nice to see this trend continue to play out on the state level, at the heart of the consensus, while War on Drugs dinosaurs rage in the White House.

Is Race “Baked” into the Criminal Justice System?

Today, San Francisco D.A. George Gascón announced a new program: race-blind prosecutions, aided by machine learning. The San Francisco Chronicle reports:

“When I first became district attorney, one concern was to understand how the criminal justice system impacts people of color disproportionately,” Gascón said. “I wanted to see if there was anything in our practice that we could improve.”
The district attorney decided to reach out to the Stanford Computational Policy Lab, which already had many of the tools available to help create the artificial intelligence.
Racial disparities in San Francisco’s criminal justice system are driven by downstream factors like arrests, Gascón said, and his office tries not to exacerbate the disparities. Even so, he wanted to remove any possibility for implicit bias in his office to ensure “the purity of the decision isn’t questionable.”
The system, Gascón said, will create a model that other prosecuting agencies around the country can use, and Stanford has agreed to publicly release the technology at no cost.
The technology organizes a police report and automatically redacts the race of the parties involved in the incident. It also scrubs the names of officers, witnesses and suspects, along with locations and neighborhoods that could suggest a person’s race.
In the complicated world of artificial intelligence, the technology is relatively simple, said Alex Chohlas-Wood, deputy director of the Stanford Computational Policy Lab. It uses pattern recognition and Natural English Processing to identify which words in a police report should be redacted and fills them in with a general description.
The digital tool uses machine learning, so it can make decisions without human intervention.
The district attorney’s office will start using the tool in the 80% of cases that come in through general intake. Cases like homicides, domestic violence and other specialized units will not immediately use the technology.
During the first review process of general intake cases, prosecutors do not look at evidence like videos or pictures that would reveal a person’s race. The case then goes to a second review where a prosecutor makes a decision on whether the evidence is strong enough to move forward with charges.
If a prosecutor decides to reverse a charging decision between the first and second review, when they will likely learn the race of the parties, he or she will have to document the reason why it’s justified in a report, Gascón said.
The tool, he said, will help streamline charging decisions by expediting the ability to review police reports and quickly analyze the information.

The New York Times adds:

The only information prosecutors will initially have access to is an officer’s incident report, which generally includes the reason someone was stopped before an arrest, evidence that a crime was committed, witness statements and anything a suspect might say.
Only after assistant district attorneys make a preliminary decision about charges would they be permitted to access other information, including race and other demographic details, body camera footage and photos. In each case, regardless of the initial charging determination, all of the evidence will ultimately be reviewed, prosecutors said. If a prosecutor comes to a different conclusion between the first and second steps, that will be recorded and compared to historical data. Prosecutors will also be required to explain what changed their minds, and those patterns will be studied, the office said.

The decision to try and examine whether biases are at the root of differential charging rates for different races is laudable, but I suspect it will do far better at catching explicit than implicit bias. Here’s why.

It’s true that, in some cases, race works in isolation to create a mental picture of the situation. This is proven by the classic audit study, in which identical resumés are submitted for a job, with only the name of the applicant changed (“Lakisha” or “Jamal” versus “Emily” or “Greg”). There are now enough studies of this ilk to show that the name alone impacts employability. But note that the application does not reveal the applicant’s race; the name implies the applicant’s race. Similarly, in a race-blind prosecution, even with the names and locations removed, prosecutors are likely to implicitly (or explicitly) deduce the race of the suspect from the circumstances of the offense.

The reason for this is simple. As research has shown since the 1960s, part of acquiring professional expertise as a prosecutor or a defense attorney consists of developing sociological “scripts” of the typical ways in which crimes are committed. This means, for example, that particular types of burglaries might suggest to a criminal lawyer that the suspect is probably addicted to drugs, and that particular scenarios of sexual assault might suggest to a prosecutor that the victim is probably a sex worker.

It is not difficult to imagine race playing out as one of the factors an experienced prosecutor or public defender will deduce from ostensibly race-blind facts. To illustrate this, think about the 100:1 crack/powder cocaine sentencing disparity (now diminished to 18:1 through the Fair Sentencing Act). One of the main arguments against the disparity was that the seemingly neutral rule, which simply targeted the type of drugs used, had the effect of disadvantaging African American defendants. Why? because people of different races had different patterns of using drugs. The association of African Americans with crack cocaine and white Americans with powder cocaine is not just stereotypical–it is factually true often enough that a stereotype can confidently build: in an extensive study of four cohorts (2009–2012) of the National Survey on Drug Use and Health (NSDUH) in all 50 states and District of Columbia, “[w]hile blacks were at particularly low odds for powder cocaine use (AOR=0.33, , before controlling for other factors, blacks were actually at increased risk for crack use.” Use fancy Stanford computers to remove race and location of drug using suspects, and experienced San Francisco prosecutors will still assume that the crack user is black and the powder user is white–and what’s more, most of the time they will be correct.


This ability to imply a person’s race from the circumstances surrounding the crime goes beyond cocaine, though it does not always reflect reality. People often assume that serial killers are predominantly white (they’re wrong in the sense that African Americans are overrepresented by a factor of 2:1 among serial killers; but if you run into a serial killer in an alley, he’s still more likely to be white, simply because most Americans are white). People often assume that child molesters are predominantly white and that rapists are predominantly black (the realities are much more complicated). Marijuana arrests tend to target black neighborhoods and populations, though the realities of who uses marijuana are much more complicated. It is unlikely that a prosecutor will assume that a gang shooting over a drug dispute involves white suspects, and she will often enough (but not always) be right.  In other words, racialized perceptions are baked into the sociological narratives of crime that the culture feeds us, and prosecutors and defense attorneys are no exception. Assumptions about the race of crime perpetrators (and, for that matter, victims) are not always borne by empirical evidence, but they are true often enough that prosecutors will start making generalizations, and redacted names are not going to make these generalizations go away.

Moreover, redacting neighborhoods is not going to make much of a difference, because county prosecutors practice law in an area they are already familiar with from previous cases. Go to a D.A.’s office in any town and ask where street crimes are predominantly committed. Odds are the prosecutors will be able to pinpoint particular neighborhoods in which things happen–that’s how the police addresses “hot spots“, and that’s how street-based sex workers know where they might find clients and where police raids are likely to occur. Criminal procedure students know that a “high crime area”, which has special rules about “reasonable suspicion”, is often a high-arrest area, a high-poverty area, and a high-people-of-color area (this is partly why underenforcement and overenforcement often go together). In the context of San Francisco, the fancy Stanford machine can remove the location of a gang shooting from the facts of the case, and still the D.A.’s office is unlikely to assume that it happened in Noe Valley or Pacific Heights.

In short, race, racialized behavior, and racialized assumptions about behavior are so deeply embedded into the American fabric that it is hard to imagine any process that strips race and location from a scenario without eliminating the basic facts of the scenario. The very facts and circumstances of a crime form a picture in the prosecutor’s mind, and because prosecutors live in our very racialized society and are, like all of us, a product of our very racialized culture, the picture is likely to include race. Not because anyone is racist–or at least, no more or less racist than the rest of us–but because that is how heuristics and biases work. Whether this is an interesting aspect of cultural diversity or an unfortunate byproduct of differential opportunity structures depends on the context. But what it means is that this well-intended measure will not capture, or remedy, the natural tendency to make racial assumptions.

The Rise of the Progressive D.A.

San Francisco is ablaze with the news that a new contender has joined the race for District Attorney: Public Defender Chesa Boudin. The Chron reports:

“We know the system is broken. Everyone knows that,” Boudin said in a recent interview in his Outer Sunset apartment. “I have the perspective, and the creativity, and the insight into the problems to do something other than just double down on harsher convictions and longer sentences.” 

More than nine months ahead of the Nov. 5 election — the first wide-open race for the district attorney’s office in more than half a century — Boudin has secured endorsements from city progressives like Supervisors Hillary Ronen and Aaron Peskin. He hopes to become the latest in a national wave of reform-minded candidates, in some cases public defenders, to run and win elections for district attorney. 

Boudin believes San Francisco can become safer and a leader in national criminal justice reform by prioritizing rehabilitation and reducing recidivism over punishment.

Boudin’s candidacy is making a splash because of his unique background: he is the son of two radicals who, in his infancy, were imprisoned for their part in the robbery of a Brinks armored car that  ended in the murder of two police officers and one safety guard. But in other ways it is characteristic of a recent interesting trend: the rise of progressives interested in reforming the system from a prosecutorial position.

When John Pfaff wrote Locked In he waged what, at the time, was an uphill battle against what he refers to as “the conventional story” of mass incarceration–namely, one that attributes the rise in imprisonment rates to the racialized war on drugs. Relying on statistics, Pfaff disproved the causality: most people are in prison for violent offenses, not drugs, and incarceration flows from criminality, not criminalization. However, notably, it wasn’t that people were committing more felonies: rather, county prosecutors were charging more violent felonies than before. The recession-era reforms I discuss in Cheap on Crime targeted, for the most part, the low-hanging fruit of nonviolent offenders, which made them more politically palatable and easier targets of bipartisan good will. To produce a significant dent in incarceration rates, said Pfaff, we need to embrace reform for violent criminals.

While Pfaff’s explanation was less edgy and politically popular than the mainstream war-on-drugs explanation, he gradually managed to win over mainstream progressive, as this New Yorker essay by Adam Gopnik demonstrates. Among those convinced that the key to reversing incarceration trends is changing prosecutorial policies was activist Shaun King, founder of the PAC Real Justice. The PAC’s goal, per its website, is threefold:

  1. Elect candidates to county prosecutor positions where they can make a material impact on people’s lives by helping to combat discriminatory policing, limiting or eliminating money bail, and rolling back other practices that lead to mass incarceration. Electing reformers to county prosecutor positions will also help restore voters’ faith in public sector to address their problems.
  1. Win county prosecutor races with a systematic, mass participation approach to digital and field pioneered on the Bernie Sanders presidential campaign. Once prosecutors are elected they face enormous pressure from police unions, other elected officials, and the staff in their offices. A campaign that includes volunteer to vote contact, small dollar fundraising, and social media organizing will strengthen the voices of voters as a countervailing, pro-reform voice to hold newly elected prosecutors accountable to the people who helped elect them.
  1. Win races with a mandate for real justice. By working to help candidates with a bold, clearly articulated platform win by the widest possible margin, we help create a mandate for overcoming the barriers to making big changes on day one of a new administration. The 2017 success of Larry Krasner in Philadelphia raised the bar for what reformers could demand once in office — and other elected local officials are following suit such as when the Philadelphia City Council voted to abolish cash bail.

Larry Krasner’s victory became the blueprint for the new prosecutorial candidate: the progressive D.A. Like Boudin, Krasner was a career defense attorney who famously took on law enforcement in high-profile lawsuits.

Do progressive D.A.s live up to their promise? It remains to be seen. David Sklansky study of the change in police demographics was not optimistic about the effect of police diversification on police culture, but we could differ on whether the prosecutorial organizational culture is more amenable to change. Boudin’s candidacy promises a memorable race, but should he win, his tenure as D.A. could be an interesting test case: will he change the face of San Francisco prosecutions, or will the office change him?