Boudin election as DA is consistent with larger trend

On Jan. 8, Chesa Boudin, a former deputy public defender, became San Francisco’s newly elected district attorney. While not unprecedented, Boudin’s election was a complete shock for many people due to Boudin’s background. This, however, is consistent with a pattern taking place throughout the entire country. More progressive individuals are running and being elected to fill positions traditionally filled by those who are more conservative about criminal justice issues.

One of the first individuals to partake in this type of movement was Terence Hallinan. Hallinan was progressiveness’ real first launch. He was elected San Francisco’s district attorney in 1995 and again in 1999. He was defeated by Kamala Harris in 2003. Nevertheless, throughout his time as district attorney, Hallinan had a more progressive view regarding criminal justice issues. He was against the death penalty, the three strikes law, and worked arduously to reform the criminal justice system.

Like Hallinan, Boudin’s campaign for the highest position at the district attorney’s office was centered on reforming the DA’s office. Within just a few weeks of being in office, Boudin began to take action to fulfill the promises made to San Franciscans during his campaign. One of the most controversial decisions he has made to date as the newly elected DA, was to lay off seven deputy district attorneys. Interestingly enough, one of the deputy district attorneys laid off by Boudin was the head of the gang unit.

Gang Enhancements

Just recently, the Los Angeles Police Department has made headlines over allegations that officers in the department have falsified field interviews cards. Field interviews cards are the primary method utilized by officers to classify individuals as gang members, and subsequently used by prosecutors to charge criminal defendants with gang enhancements. When an individual is arrested and the officer suspects that the individual arrested may be a part of or is in some way involved with a gang, the officer will create a field interview card. The officer will take the following factors into consideration to support his/her classification of an individual as having gang membership:

• admission to being a gang member;

• arrest for offenses consistent with gang activity;

• identification as a gang member by a reliable informant/source;

• association with documented gang members;

• display of gang symbols and/or hand signs;

• whether the subject has been seen frequenting gang areas;

• whether the subject has been seen wearing gang dress; or,

• whether the subject is known to have gang tattoos.

(LAPD Manuel, V.4)

The officers will make a note of the above-mentioned factors in a field interview card, and if the individual satisfies two of the criteria above, the officer will then classify the individual as having gang membership.

Being labeled a gang member is of extreme importance because if an individual is subsequently charged with a crime, this individual will likely also be charged with an enhancement for having been labeled a gang member. If and when convicted, this gang enhancement will result in an additional sentence on top of the initial sentence for the crime convicted of.

This is relevant in San Francisco because this specific problem is not only occurring in Los Angeles, but is becoming more prevalent throughout the entire country. The ease with which a police officer can simply classify someone as a gang member is abysmal and can oftentimes be arbitrary.

For instance, a few years ago I represented a client who was charged with dissuading a witness in furtherance of a gang. His brother was allegedly tagging on a grocery store the name of a gang. There was a witness at the scene who observed this. According to the police report, my client told the witness “I see the color of your shoes.” This statement was sufficient for the prosecutors to charge my client with dissuading a witness in furtherance of a gang. This is just one example of how easy it is for individuals to be classified as acting in furtherance of a gang or as being a member of a gang. These procedures ultimately result in the misclassification of many individuals who are not acting in furtherance of a gang or have any involvement with any gang.

One of the promises Boudin made to people of San Francisco was to end charging individuals with gang enhancements. Although many people thought that Boudin would completely eliminate the gang unit, Boudin opted to eliminate charging individuals with gang enhancements that often resulted in much higher sentences than the underlying offenses for which the individual was convicted of. Boudin’s reasoning for ending gang enhancements was primarily due to these enhancements being racist, ineffective and unnecessary.

Elimination of Cash Bail

In addition to eliminating gang enhancements, to fulfill the promises made during his campaign to reform the DA’s office, Boudin also opted to end cash bail in criminal cases. Under this new rule, criminal defendants will not be required to post cash bail in certain criminal cases.

Rather, Boudin has implemented a new “risk-based system” that determines the likelihood a defendant may flee or pose a threat to public safety. According to Boudin, the bail system allows wealthy people to buy their freedom while poor people remain incarcerated for failure to be able to post bail.

Lay-off of Key Deputy District Attorneys in the DA’s Office

In yet another move to reform the DA’s office, Boudin laid off Ana Gonzalez — the head of the gang unit at the San Francisco DA’s office. Gonzalez was one of the seven deputy district attorneys fired by Boudin within the first few weeks of taking office. He also laid off high-level deputy district attorneys that had been employed at the DA’s for over 10 years. However, one important question remains. What allows Boudin to layoff these civil servants without any explanation or procedure?

The Civil Service Commission oversees the merit system for San Francisco. It establishes the rules and policies for city employees in San Francisco. Generally, government employees, including deputy public defenders and district attorneys are protected by civil servant laws. Civil servant laws protect government employees who provide services to the public at the local, state, and federal level. However, in San Francisco, this is not the case. Prosecutors in San Francisco are not subject to civil service protections and since they are considered “at will” employees, they can be let go at any time. This is what allowed Boudin to layoff these high level district attorneys. According to Boudin, in order for him to be able to fulfill his promise of reforming the San Francisco DA’s office, he had to layoff these high level district attorneys.

Given the current civil servant laws in San Francisco, although the inapplicability of the civil servant laws to prosecutors in San Francisco allowed Boudin to replace district attorneys with those of his own choosing, the fact that any head district attorney is able to do this is dangerous. The lack of civil servant rules encourages corruption and does not permit public servants to carry out their duties without potential retaliation by the head district attorney.

Unquestionably, one of the most important powers any head of a district attorney’s office has is the discretion to decide which criminal offenses to prosecute and the policies and procedures that govern the entire office. Accordingly, it is important for individuals who are open minded and have a true interest in reforming the criminal justice system to occupy these important roles so they can take action to reform our flawed criminal justice. While Boudin is just one of the most recent former public defenders to become the head of a district attorney’s office, he was not the first and will hopefully not be the last. 