Crime, punishment, and Chesa Boudin
Chesa Boudin ignores global best practices for crime reduction and is undermining his own goals
This is a special guest-post by my friend, Jay Donde. While we don’t always agree (I’m center-left, he’s center-right), I am consistently impressed by Jay’s dedication to well-sourced debate and his commitment to intellectual honesty. I actively maintain friendships across the ideological spectrum because heterodox opinions make for better reasoned positions. I hope you enjoy his analysis on crime and the effective suppression thereof, and benefit from his perspective.
Jay Donde is a co-founder of the San Francisco Briones Society, a club for moderates, center-right conservatives, and their allies to connect, share ideas, and engage in the political process. To learn more, follow them on Twitter and visit their website.
When Chesa Boudin was elected as our new District Attorney in December 2019, his supporters hoped that he would usher in an era of reform, demonstrating that it’s possible to dramatically reduce our justice system’s reliance on incarceration while simultaneously maintaining, or even enhancing, public safety. Boudin’s detractors, on the other hand, argued that he was an irresponsible ideologue, a man who would free dangerous criminals to roam our streets.
In the past two years, despite some notable exceptions, arguments between these two camps have generated more heat than light. What follows is a modest attempt to improve the quality of this important public debate. It is, in immodest terms, everything you ever wanted to know about the administration of criminal justice in San Francisco, but were afraid to ask.
Before we start, though, I should lay my cards on the table. I am one of Boudin’s detractors. I believe that he has done an immense disservice to San Francisco, that his policies increase net human suffering, and that he should be recalled. Weaved throughout the following is what I think is the strongest, simplest argument for recalling Boudin—an argument that can be embraced by almost everyone, both on the left and the right.
San Francisco Does Not Practice Mass Incarceration
One claim that has been made about Boudin is that he is an adherent of what I call the Jean Valjean School of Criminal Justice: First, if only offenders had more access to social and economic opportunity, they would not turn to crime. Second, punishment is inherently unjust and ineffective. Sticks are never the answer; what’s always always always needed are more carrots.
This claim is intuitively appealing. Reading about some of the cases where Boudin has refused to file charges, or has pled the sentence down to time served, one is led to wonder whether he believes there’s ever any value in sending someone to, or threatening someone with, prison.
For example: 73 felonies and 34 misdemeanors in San Francisco alone; Nearly two years after their daughter’s brutal murder, the DeYoe family still waits for justice; Two cyclists killed. Two drivers arrested; Child predator released by SFDA charged by FBI; Emma, Ronisha, and Latanette; How a driver who struck a bicyclist got away with murder; Patrick Thompson arrested in April 2020 with a drug pipe — and an axe; ‘We Just Want My Grandpa To Feel Safe’; Chesa Boudin is a man without a plan; Injustice for a Victim and the Victim’s Advocate; Boudin “Takes Action” And Now a 3rd Person Is Murdered; Danny Babineaux; Walker Quinn; Wife of man killed in SF crash tells heartbreaking story of California dream turned nightmare.
Of course, Boudin would object to this characterization, and say that he certainly does recognize the value of punishment. He just doesn’t recognize the value of mass incarceration. Fair enough. Though he campaigned as a radical decarceralist (e.g. “We will not prosecute cases involving quality-of-life crimes. Crimes such as public camping, offering or soliciting sex, public urination, blocking a sidewalk, etc., should not and will not be prosecuted” and Chesa Boudin wants to transform San Francisco’s criminal justice system), and continues to present himself as such before certain audiences, his post-election messaging to the broader electorate—uneasy after two years of rising crime—has shifted: “Don’t believe your ears about what I said earlier. I’m just a commonsense reformer.”
Indeed, reform is needed. There are more than 2 million people in American prisons, jails, and other carceral facilities. We lock up more of our population per capita than any other country in the world, including manifestly undemocratic states like Cuba and Turkmenistan.
Even if you sincerely believe that offenders should be made to suffer greatly for their crimes, I think you’d be shocked by what you’d find if you looked closely at what happens in American prisons. In many cases, our penal system is unjust, costly, and inhumane.
If you need to hear this from someone who is not a bleeding heart leftist to believe it, look no further than Peter Moskos, a sociologist at John Jay College and former Baltimore police officer. Moskos is so convinced of the folly of our current system that he wrote an entire book arguing that flogging offenders would be more compassionate than imprisoning them:
If we really wanted to punish people with something worse than flogging, we could sentence drug offenders to join gangs and fear for their lives; we could punish child abusers to torture followed by death; we could force straight men to have semiconsensual prisongay sex. But we don’t because we’re better than that… [except] all these things already happen….
There are strong arguments to be made that America relies too heavily on incarceration as a response to crime. But therein lies the rub: San Francisco is not America.
I don’t mean this in a jingoistic, pejorative, “SF is not the real America” sort of way. I mean it literally. Nationwide, approximately 630 out of every 100,000 Americans are in prison. But in San Francisco, our prison incarceration rate is much lower. In 2016, approximately 144 out of every 100,000 San Franciscans had been sentenced to prison. Furthermore, over the last five years, California’s incarcerated population has decreased by about 30 percent. I don’t have exact figures for San Francisco, but that would mean our city’s 2021 rate is closer to 103 prisoners per 100,000 residents.
This didn’t happen by accident: In response to court rulings on prison overcrowding, California has been aggressively reducing its incarcerated population over the last decade, and laws such as 2014’s Prop 47 decriminalized a slew of offenses. Also, San Francisco DAs have for many years prosecuted fewer than half of all arrests presented to them, which is a singularly low prosecution rate. Compare us to Chicago or Philadelphia, for example, which are hardly lock-em-up-and-throw-away-the-key jurisdictions, but whose DAs’ rates have consistently been at or near 90 percent.
With all that in mind, it’s worth reconsidering what’s implied by Boudin’s claim that San Francisco before him had been practicing mass incarceration. Here are some other places that, by his logic, must be doing the same: Taiwan (226 per 100,000 residents in prison), Greenland (225), Australia (167), New Zealand (164), Portugal (113), Canada (104), France (100), and Belgium (93).
Do we really need to have an argument about whether New Zealand is a carceralist state, or can we all just agree that this claim is absurd on its face?
In fact, once you get down into the range of fewer than 70 per 100,000 residents in prison, what you find are mostly (a) very small countries (like Liechtenstein and Iceland), (b) countries with highly restrictive immigration policies and intensely conformist cultures (like Japan), or (c) failed or quasi-failed states where the government is incapable of providing basic policing and judicial services (like Yemen or the Central African Republic).
It’s also important to remember that these comparative figures are national, weighing down the naturally higher prison population rates of cities with the lower rates of suburbs and rural areas, which is a bit unfair to San Francisco. The proper comparison for us is against, say, London, not against the entirety of England.
Boudin’s claim that public safety would be enhanced if San Francisco incarcerated fewer offenders is contradicted by empirical evidence
So, San Francisco has prosecution rates that are inordinately low, incarceration rates lower than most urban centers around the world, and some of the highest property crime rates in America. On top of all that, we spend more money on social services than any other comparably-sized American city. I don’t think it’s unfair, then, to say that Boudin’s campaign claim that public safety would be improved if we incarcerated even fewer people is an extraordinary one, and requires extraordinary justification.
I can only think of two ways to steelman this claim: One, there must be something unrelated to criminal justice administration that (a) is only occurring in San Francisco, and (b) is so criminogenic that crime should actually be higher here, but our low incarceration rate is suppressing it. I honestly can’t think of what that would be, though. Alternatively, the claim must be that the functional form of crime (y) regressed on incarceration rates (x) is such that y increases as x decreases up to somewhere in 0 < x < 100, then rapidly decreases after that. In other words, there is some magical tipping point where almost no one is incarcerated, and that’s when crime will fall off a cliff. This is... an interesting theory, but is entirely without evidence, as far as I can tell.
Now, two years later, we can confirm that Boudin has in fact lived up to his campaign promise, and spent the last two years prosecuting and incarcerating fewer offenders than his predecessor.
Of course, what was popular in 2019 is not so popular anymore. So, as noted above, Boudin has lately been, with the assistance of shockingly incurious “data journalists” who re-publish curated reports provided to them by his office (and based on data that his office has elsewhere refused to disclose pursuant to Public Records Act requests), presenting himself to “normie” audiences as a mainstream reformer.
In other words, lying to the public: Data shows Chesa Boudin prosecutes fewer shoplifters than predecessor; Is DA Boudin spinning or lying?; Boudin trials since taking office; 74 car break-ins/day; The Chronicle and Boudin: Creating Urban Myths; Boudin Provides Chronicle Contextless Statistics; Boudin gives victim info to Washington Post; San Francisco DA Chesa Boudin Unveils New Crime Data; Boudin: 19 Takeover Robberies Not Worthy of Jail Sentence.
Unfortunately, the duplicitous rot from Boudin’s office has spread to other branches of the criminal justice system in San Francisco, where decarceralist allies of Boudin have been covering for the complete failure of his marquee “bail reform” policy. What was sold to the public as a way to introduce equity into decisions regarding pretrial confinement has turned out to be a vehicle for leftist judges, prosecutors, and defense attorneys to collude and release dangerous arrestees en masse. The results are not exactly a huge surprise, given what bail reform has wrought in other cities.
We also can confirm that crime (especially property crime) has increased during Boudin’s tenure, again despite articles written by those aforementioned incurious journalists, who seem all too ready to accept government-provided statistics, so long as the numbers support a certain narrative.
For example: Crime trends; Why crimes go unreported; Crime stats; Chronice police stats part 1; Chronicle police stats part 2; ‘Only 6 Shopliftings Occur Daily in SF’; Maria Cid Medina; Dion Lim; Sam Altman; Mark Pincus; Who’s listening to the Tenderloin’s children?; She structures when she leaves home around when she thinks it's most safe; Why Walgreens stores are closing part 1; Why Walgreens stores are closing part 2; All San Francisco Target locations reducing operating hours due to recent spike in crime; Ahsha Safai.
And, yet, Boudin today still claims that we are practicing mass incarceration, and that public safety will be improved by prosecuting and incarcerating even fewer offenders. In other words, we need to accelerate on his acceleration.
Reducing the prison population in San Francisco would require releasing violent, repeat offenders into our communities
What would that even look like? Many believe that mass incarceration in America is due to the war on drugs and racial inequities in our justice system. If only we stopped locking people up for non-violent drug crimes, or for their first offense, America’s incarceration rate would resemble Western Europe’s or Japan’s, right?
Wrong. Non-violent drug offenders comprise less than 20 percent of the incarcerated population, and most of these offenders are locked up for trafficking, not possession. Even this low figure is likely inflated somewhat. As Rafael Mangual notes, “[G]iven that charges often get downgraded or dropped as part of plea negotiations, an inmate’s conviction record will usually understate the crimes he committed.” And here’s John Pfaff, elaborating: “[A]t a minimum, 55 percent of those in state prison have been convicted of a violent crime—and… nearly 30 percent… have been found guilty of murder, manslaughter, rape or sexual assault….”
What about inordinately long sentences? Aren’t people increasingly being locked up for years over minor offenses?
No. Not only has there been no discernable trend toward longer sentences over the past four decades, many people would be shocked at how little time is served for even violent crimes. The median sentence for all state prisoners released in 2016 was 1.3 years, and 40 percent of those prisoners served less than a year. The median sentence for violent offenders was just 2.4 years. Only murder will get you locked up for more than half a decade, if that.
In many places in America, you have to try pretty hard to actually end up in prison. San Francisco is one of those places. Unless Boudin wants to argue that he’s no less carcelist than other DAs across the country, we can presume that, compared to the numbers above, an even larger percentage of offenders sentenced to prison in our city are either violent or repeat offenders, or both.
All of this means that initiatives like cut50, which aims to halve the US prison population, would necessarily entail releasing significant numbers of violent repeat offenders whose sentences are already far more lenient than the public would expect. This is a hard truth that people like District 6 Supervisor Matt Haney, a co-founder of cut50, don’t talk about—either because it’s something they don’t know, or because it’s something they don't want you to know.
And yet, despite all of the foregoing, Boudin argues that San Francisco should be even more lenient toward criminals. I’m at a loss as to how this can be any thinking person’s sincere conclusion. Is the argument that we simply haven’t yet reached the magical tipping point? Or that the criminogenic factors unique to our city before were somehow locally exacerbated over the last two years?
In blunter terms, Boudin might say that he recognizes that punishment sometimes has value, but if you’re incarcerating less than almost any other major city in the world, and property crime is high, and then you incarcerate even less, and property crime rises, and you still don’t think incarcerating more might be appropriate, at what point do you think punishment will have value? The answer, it seems, is “effectively never.”
True commonsense reformers might look at incarceration as akin to antibiotics—something currently overprescribed, but of use in treating a general variety of infections. More radical reformers might even look at incarceration as akin to opioids. Boudin’s actions, on the other hand, reveal him as embracing something beyond even the radical perspective: Incarceration is like an exotic treatment for a one-in-a-million genetic disorder. Sure, punishment has value, but only in exceedingly rare circumstances. In all other instances, the proper response to crime is more leniency, more money, more services.
Boudin’s claim that public safety would be enhanced if San Francisco incarcerated fewer offenders is contradicted by scholarly consensus
This is a position that is clearly contradicted by crime trends in San Francisco, and the only way it can be defended is by appeal to wildly implausible claims regarding confounding variables and functional form. But if the lived experience of thousands of San Franciscans is not enough for you, then perhaps you’ll be convinced by the fact that Boudin’s position is also contradicted by the majority of criminal justice scholars. The best available evidence, taken from a broad spectrum of fields including psychology, neuroscience, sociology, and economics is in agreement: Punishment is both effective and necessary for desistance.
That doesn’t mean that punishment is sufficient. The proper response to crime is certainly not all sticks. For example, economic need, social disenfranchisement, and wealth inequality are indeed positively correlated with crime rates, and we could—and should—do more to address these root causes. But the mechanisms by which social ills cause crime is not as clear, or as sympathetic to criminals, as some might think.
It’s also not the case that their mitigation will have an immediate impact on crime. For example, unemployment and economic dislocation were significantly more acute during the Great Recession than they are now, but crime rates were much lower in the late 2000s. Violent crime rates increased across the US during first months of the COVID-19 pandemic, but property crime rates didn’t, which isn’t what you would expect if your working theory of crime is that it’s proximately driven by economic desperation.
Just Add Carrots is not a cogent, mature policy response to crime. Consider this from the book Bleeding Out by Thomas Abt, former Chief of Staff in the Office of Justice Programs under Obama:
“Nothing stops a bullet like a job,” Father Gregory Boyle, founder of Homeboy Industries, a well-known reentry program for former gang members, used to say. But Father Boyle no longer believes his own famous line. “When somebody introduces me somewhere and they say that, it almost feels creepy,” Boyle said in an interview. “It doesn’t get at what this is about. I would find somebody a job, sometimes even a career. But then a monkey wrench would get thrown and… next thing you know, he was back in the neighborhood and then returned to prison.”
There are commonsense actions we can take right now to reduce crime
But enough about what doesn’t work, let’s talk about what does.
To begin, whether your objective is to prevent crime, reduce the prison population, or both, the best thing to do is the exact opposite of the modern left’s cri de coeur: Rather than defund the police, we need many, many, many more cops. Far from being a police state, the US is unique among developed countries in spending way too much on prisons and way too little on sworn officers. In terms of sheer numbers, the US has fewer police officers per capita (~240 per 100,000 residents) than most EU countries.
What these countries understand, and we apparently do not, is that there’s an inevitable tradeoff: If you want less crime, you can either have more police or more prisons. The former is cheaper, more effective, and more humane.
Catch more, punish fewer
If you want to end mass incarceration, the answer is more cops.
Why is this? By far the primary mechanism at work here is deterrence. Study after study from the fields of behavioral economics and cognitive psychology tells us that, especially among the young men lacking impulse control who commit the vast majority of crimes, increasing the severity of punishment usually isn’t helpful, because these offenders aren’t thinking through the consequences of their actions, or they don’t believe they’ll be caught.
A better approach is to ramp up the certainty of being caught. Most criminals are cowards who exploit moments of opportunity and defenseless victims. When there’s a cop at every intersection, they don’t roll the dice on a mugging, a car theft, or a drug sale. This “certainty principle” is an old concept, going back at least as far as Cesare Beccaria, that we keep rediscovering. A recent, extensive survey of the evidence supporting it can be found in the works of Daniel Nagin at Carnegie Mellon.
These two articles are particularly informative because they touch on two other important implications of police staffing levels. First, “defund the police” is largely a movement of privileged white folks living in safe neighborhoods. Most Americans, including Americans of color, want the number of cops in their neighborhoods to stay the same, or to be even higher—and that support for policing has only increased since June 2020. The fact is, when the rubber meets the road, those who shouted loudest in 2020 to defund the police reveal themselves as just wanting to defund your police, not theirs. Now that the disastrous consequences and unpopularity of defunding the police have become evident, many on the left are attempting to rewrite history by claiming that what they always really intended was reform, not defunding. Don’t let them gaslight you. Second, increased manpower allows the police to implement a diverse array of proven strategies to prevent crime, effect safe arrests, and build trust within communities—strategies that aren’t actionable by a police force whose officers must rush from one emergency call to the next.
And what are those strategies? Almost all bear in mind a key insight: Most crime is committed by a small number of people engaging in a few risky behaviors in a handful of places. Like many other social phenomena, crime follows the Pareto Principle—except even more so.
In some cities, upwards of 70% of violent crimes are concentrated within social networks comprising just 6% of the population, and sometimes even less than that. The most proven approach to pacifying these “impact offenders” is known as focused deterrence, which involves an interdisciplinary team of police, prosecutors, social services orgs, and community organizations directly engaging with the offenders. In focused deterrence programs, the teams make clear to targeted offenders that further criminal activity will be met with law enforcement consequences, but they also offer a tailored portfolio of support services and community resources to help the offenders go straight.
One of the behaviors most strongly correlated with criminal activity is—no surprise—illegally carrying firearms in public. Multiple studies confirm that a “firearms first” policing strategy dramatically reduces homicide rates and, more broadly, violent crime. See, also, “Police Strategies to Reduce Illegal Possession and Carrying of Firearms” in Proactive Policing: Effects on Crime and Communities.
Curious about how de-policing firearms possession is currently playing out in Philadelphia? Here’s a hint: Under Boudin’s fellow traveler Larry Krasner, Philly’s homicide numbers are now as high as they were back in the bad old days of the early 90s.
Now, in order to effect this type of strategy, there must be an emphasis on proactive policing that increases the likelihood of apprehension when carrying. That means some form of “stop-question-frisk.” Often misunderstood, and more often distorted as just “stop-and-frisk,” stop-question-frisk is a constitutionally permissible and highly effective strategy when implemented narrowly. In the Kansas City Gun Experiment, for example, authorities focused exclusively on arresting and prosecuting individuals for carrying illegal firearms.
Finally, most crimes occur in a few neighborhoods, on a few streets, and at a few intersections, known as “hot spots.” We now have a sizable body of evidence showing that increased police presence in these areas reduces crime without displacement. But the most impactful implementations of hot spot policing do not simply rely on the deterrent effect of more cops. This effect must be followed up with, at least initially, an emphasis on enforcing quality of life laws.
It’s important to understand that the key mechanism here is likely not policing. That’s just the catalyst. The prohibition of overt criminal activity on the street means more pedestrian traffic and a more hospitable environment for businesses. More businesses in a community means more tax revenue, more political influence, and, importantly, more civic participation in the form of neighborhood groups and the like. Each of these factors reinforces the other, yielding virtuous feedback loops that push neighborhoods past the tipping point from “bad” to “good.” Policing simply allows these feedback loops to accelerate. As Abt notes: “If police exercise their authority legitimately, they strengthen the community’s capacity to police itself.”
I want to pause here to highlight what all this evidence about hot spot policing and focused deterrence says about San Francisco’s current approach to open-air drug markets in the Tenderloin: It is literally the opposite of what should be done. Allowing the unimpeded operation of such markets, as advocated by the network of de-policing and harm-reduction nonprofits whose budgets are tied to the continuation of human misery in the Tenderloin, will only lead to more addiction, more violence, more death.
So, to recap: The above policies and strategies are effective because they increase the certainty of apprehension and they focus both policing and social resources on the most problematic persons, behaviors, and places. Here’s an excellent survey of the current state of research on crime prevention strategies.
Credible threats curb antisocial behavior
How does all of this analysis of policing relate to Boudin? That's simple: Increasing the certainty of apprehension is only effective if there is some cost associated with that apprehension. No one’s going to sweat getting arrested if they’re released immediately. You still need sticks, or at least the credible threat thereof. A striking example of the failure of the approach that only emphasizes more carrots comes from “violence interrupters”-style programs. These programs are uniquely ripe for comparison against focused deterrence strategies: The two are almost identical, except for the fact that the latter includes a law enforcement component. This study performs that comparison, and if anything goes pretty easy on the interrupters.
It appears that meaningful punishment does have value in modifying antisocial behaviors, which should come as no surprise to anyone who’s ever raised a child, coached athletes, or managed employees. Does any serious person want to argue that never holding someone accountable for his actions leads to good outcomes for the child, athlete, or employee—much less the family, team, or business of which they're a part?
But is punishment only valuable as an ex ante threat (or, ex post, to bolster the credibility of that threat)? I think this question is too broad to have one right answer. We need to start by understanding the diversity within offender populations, behaviors, and circumstances, and then develop a portfolio of sentencing strategies that account for that diversity. For simplicity’s sake, let’s divide the offender population into a series of binaries: young vs old, first-time vs repeat, violent vs non-violent.
First, crime is almost exclusively a young man’s game. As noted above, certain cognitive factors that are acutely prevalent in youth are also strongly associated with criminal behavior—e.g., lack of impulse control, poor risk assessment skills, etc. Second, the more times someone has been arrested, the more likely he is to re-offend, and the more likely it is that his next offense will be a serious one. Finally, there is some evidence to suggest that non-violent criminals are more likely to re-offend than violent ones, although this is not a consistent finding across offender populations. Compare this study to this and this.
It may come as a surprise that violent criminals might be less likely to re-offend than others, but if you think about it for a moment, it makes sense. Violent crimes are often one-off acts of passion (or inebriation); property crimes are more often premeditated acts that form a pattern. For some criminals, theft, burglary, and robbery are professions; thankfully, there aren’t many “professional” murderers or rapists walking around.
With all of the above in mind, let’s first tackle an “easy” case: A woman in her 30s with no prior convictions gets drunk at a bar, provokes an argument, and gets into a fight with another patron. In all likelihood, prison is not the optimal sentence here. In fact, in situations like this, prison might actually increase the likelihood of recidivism. Does that mean we shouldn’t punish this drunken pugilist? That doesn’t seem right.
Now consider a more complicated situation: A man in his 20s with a long history of property crime arrests is once again picked up for burglarizing someone’s home. Everything we know about crime and incarceration tells us that this type of offender should be sent to prison, and perhaps not released until he’s very old. Of course, that should strike you as a shockingly harsh sentence. But what’s the alternative? This burglar has proven time and time again that he’s incorrigible. We know that, even with access to social services, if he’s not kept in prison he WILL re-offend. A BJS study found that “5 in 6 state prisoners released in 2005 across 30 states were arrested at least once during the 9 years following their release,” with an average of 5 arrests per released prisoner. Moreover, according to the same study, this population regularly graduates to more violent offenses: “By the sixth year after release, prisoners released for a violent or property crime were similarly likely to be arrested for a [subsequent] violent crime.”
The point is, there are no easy answers here, no simple rubric that we can plug values into to calculate optimal sentencing. But we should at least start by taking a clear-eyed look at what prison—the predominant method of punishment in America—is good for, if anything.
What is prison good for?
As noted in the foregoing discussion of policing strategies, incarceration plays a key role in effecting “general” deterrence. The threat of meaningful punishment dissuades potential criminals from offending. But does incarceration dissuade a convicted criminal from reoffending after release? The evidence for this “specific” deterrence is mixed, but there does seem to be a weak negative correlation between recidivism and sentence length. Compare this study and this study to this, this, and this.
Could it be that specific deterrence is not the mechanism at work here, but rehabilitation? Do lengthier sentences allow prisoners more time to reflect upon and change their patterns of behavior? No, at least not the way prisons in America are currently administered. In fact, the Sentencing Reform Act of 1984, which governs federal sentencing policy, expressly rejects imprisonment as an effective means for promoting rehabilitation.
Prison might actually have a net criminogenic impact. Intuitively, this makes sense if one considers the typical experience of prison. Again quoting Moskos: “[O]ne cannot imagine an environment less conducive to healing and mental health recovery than involuntary confinement surrounded by aggressive criminals—talk about a spiritual retreat from hell.” But while there’s a lot of advocacy-masquerading-as-analysis touting the criminogenic impacts of incarceration, there aren’t many quantitative studies concluding the same published in top journals, save this (cited earlier).
None of this means that prisons can’t be rehabilitative; it just means they currently aren’t. What would a successful rehabilitative model look like? Actually, we already know. Rather than a warehouse for “doing time,” prisons can effectively be used (for many, but not all, types of offenders) as a sort of mandatory psychosocial treatment facility. While I find many of this article’s recommendations unconvincing, I think its fundamental argument is correct: Desistance requires maturation.
In other words, effective punishment requires teaching childish people to behave like adults. One way to accelerate that process is by sentencing offenders (whether in lieu of or in addition to prison) to anger management and emotional intelligence courses and, most importantly, to cognitive behavioral therapy.
Of course, an ounce of prevention is worth a pound of cure: Instead of trying to rehabilitate offenders with severe behavioral and mental health issues, we could focus on preventing these issues from developing in the first place. Decarceralists are 100% right about this, and about the fact that there’s plenty of low-hanging fruit to be plucked, including more access to basic healthcare and childhood nutrition, and less exposure to environmental toxins.
But, when it comes to harder questions, like how to prevent the downward spiral of addiction that serves as a gateway to, and traps one in, a life of crime, they’re unwilling to acknowledge the effective, but unfashionable answers. Namely, housing first and harm reduction are policy failures that have led to an epidemic of homelessness and addiction in every jurisdiction that has embraced them. That’s why Portugal and the Netherlands abandoned these policies in favor of arrest and mandatory treatment. For more analysis on the link between crime, homelessness, drugs, and social policy, check out Tom Wolf and Michael Shellenberger, who know more about this nexus than practically anyone.
The costs of crime extend well beyond the harm to the immediate victim
Another way to make prison sentences more rehabilitative is to enroll offenders in programs for restorative justice. These programs involve a series of facilitated encounters between a criminal and his victim, which is sometimes an individual and sometimes an entire community. The purpose of restorative justice is to acknowledge and heal the trauma of the victim, while simultaneously providing the offender a path to redemption and reintegration into society.
Unfortunately, “restorative justice” has also become a catchphrase among decarceralists who fail to understand its key tenets and tout it as a consequence-free panacea for hardened criminals. One of those key tenets is that the offender must not only confront the harm he’s caused, he must be held accountable for it. In other words, even in—and perhaps especially in—restorative justice, punishment (and the internalization of the justness of that punishment) is a prerequisite to healing.
From a long-time restorative justice practitioner: “Minimizing harm by purposefully choosing language that blunts the reality of violence is neither restorative nor victim-centered. It also does a disservice to the significant journey of accountability for an offender.”
Accountability is central to RJ because both “restoration” and “justice” demand some form of restitution. In monetary terms, our best estimates peg the direct, tangible costs of crime in America at over $600 billion per year. For reference, that’s approximately the entire 2019 GDP of Georgia, the ninth most productive US state. Researchers have also developed innovative methods of measuring the indirect costs of crime, like victims’ pain and suffering, insurance costs, and reductions in civic participation. These estimates reach as high as $3.41 trillion annually, just slightly less than the 2019 GDP of Germany.
These staggering amounts are a stern rebuke to the increasingly fashionable trivialization, particularly on the left, of crime’s consequences. What they reflect is the fact that crime has an impact that extends far beyond the direct victim. Crime disfigures communities. Crime makes it impossible to run businesses, depriving already-underprivileged neighborhoods of basic services. Crime makes employees afraid to go to work. Crime is a pandemic of fear, emptying out parks and churches and social clubs, trapping children indoors, and draining the lifeblood from cities. As Patrick Sharkey notes: “[T]he very idea of city life doesn’t work if public spaces carry the threat of violence. Cities are places where people share space. That idea breaks down when public spaces are unsafe.”
This passage from Sharkey’s Uneasy Peace describes the costs of that breakdown:
During a heat wave in 1995, the sociologist Eric Klinenberg documented that residents in communities that had been taken over by open-air drug markets and gang activity were unwilling to leave their apartments… to find cooler air on their stoops or in the parks. Hundreds of people died, most living in streets where stores had closed their doors and signs of government presence in this emergency were nowhere to be found.
Crime is a fundamental violation of the compact between the government and the governed. When citizens are scared, when they feel nothing is being done to protect them, they withdraw from social, economic, and political participation, weakening the state. That’s why criminal matters are prosecuted not in the name of the instant victim, but of the People. In England, they are prosecuted in the name of the Crown. This practice is rooted in the centuries-old concept of “the king’s peace.” Crime undermines the integrity of the ruler’s oath to protect her people, her end of the bargain in exchange for their allegiance and their civic-mindedness.
Thus, beyond deterrence, rehabilitation, restoration, and restitution, punishment also serves to reaffirm the government’s commitment to security, to reconsecrate that bargain. Punishment is a signal that the community takes the victimization of one of its own seriously. Scholars refer to this as the expressive theory of punishment, and when we fail to take it seriously, social order decays.
Incapacitation is sometimes a necessary and effective last-resort
Finally, we must come to terms with the fact that, more often than we’d like, some offenders will simply be incorrigible. In those instances, prison really does, and should, serve primarily as a means of incapacitation. It’s a last resort, but it does reduce crime. In fact, new research suggests that—contra the bien pensant line about the second-order effects of incarceration—removing offenders from their families actually improves outcomes for the latter.
This is, admittedly, a grim finding, but it should only further motivate us to heed the evidence-based practices detailed above. Too often lost in the rancor of our public discourse over criminal justice is the fact that both “sides”—those who emphasize the harms of crime and those who emphasize the harms of incarceration—share compatible aims: If fewer people are offending, fewer people are going to prison. Taking these aims seriously means increasing support for social welfare programs, yes, but it also means more police and smarter policing. It means diversion courts for criminals who are not likely to re-offend, but it also means keeping dangerous people off the street—for their own good as well as for the community’s. In short, it means forgiveness and compassion, but also accountability.
What comes next?
Even if none of the above is convincing to you, surely you want a decarceralist standard bearer that is at least minimally competent in his duties, right? But Boudin is not even an able ideologue: Judge Chan blasts Boudin; ‘Are you saying Boudin can’t win a case if a victim doesn’t testify?’; Nancy Tung; Why a progressive prosecutor just left D.A. Chesa Boudin’s office and joined the recall effort; Two SF Prosecutors Quit, Join Effort to Recall District Attorney Chesa Boudin; Why colleagues say District Attorney Chesa Boudin must go.
How long can this go on until it provokes a backlash against decarceralist efforts that are thoughtful and worthy? Or worse, until a critical mass of residents decide they’ve had enough, and those who can pick up and leave—hollowing out urban centers and abandoning underprivileged communities? Avoiding these outcomes requires taking the impacts of crime on our communities seriously, and electing leaders who follow the best available evidence in formulating policy.
The simple argument, then, for recalling Boudin is a proof by negation. To argue that Boudin should remain in office, you have to (a) be willing to claim that countries like Canada and France are carceralist states, (b) ignore the consensus of criminal justice scholars who believe punishment is an important tool to effect desistance, and (c) be supportive of the administration of an incompetent liar. Personally, I find life easier not having to do any of those things.
This is a complex topic. Maybe I’ve convinced you, maybe not. In any case, I hope that you’re now better equipped to think about and debate the future of criminal justice in San Francisco, and to cast your vote on the Boudin recall (in the June 7, 2022 ballot) accordingly.