The Trial of Chesa Boudin
Of all the progressive prosecutors elected in American cities during the law-and-order Trump years, none embodied the hope for criminal-justice reform as perfectly as San Francisco’s Chesa Boudin. The son of the infamous political radicals Kathy Boudin and David Gilbert, Boudin grew up visiting his parents in prison, and began speaking publicly about the brutalities and racial inequities of the penal system when he was a teen-ager. Even by the standards of the criminal-justice-reform movement, he struck visionary notes in his 2019 campaign, calling for decarceration and declaring, on the night he won, “It’s time for radical change to how we envision justice.” Most of all, though, Boudin had San Francisco. The city’s lurid inequalities and radical political tradition meant that there was natural support for politics like his, as well as a district attorney’s office that has often been led by progressives—among them, Kamala Harris. If the country was to try a radical change in how it envisions justice, then surely this was the place.
Progress was quick. Boudin had campaigned on many of the same issues as progressive prosecutors across the country—most famously, Larry Krasner in Philadelphia and Kim Foxx in Chicago—and, in his first weeks in office, Boudin acted quickly on them. His office eliminated cash bail and announced that it would no longer use gang affiliation to seek longer sentences or bring cases in which police pulled over a car as pretext for a drug search. When the pandemic shut down San Francisco, and infections began to rise in prisons around the country, Boudin saw an opportunity for decarceration; by May, 2020, he had cut the city’s jail population from a daily average of about twelve hundred people to about seven hundred.
Between March and December of 2020, crime dropped by thirty per cent. “I’d love to take credit for that, but let’s be real—nothing I could do could cut crime by thirty per cent,” Boudin told me recently. The cause, he surmised, was the shutdown. But the pandemic raised other concerns. San Francisco has long had a large homeless population, but, whether because their numbers were growing or because the streets were otherwise barren, there suddenly seemed to be tent encampments everywhere. A new drug—fentanyl—was spreading, especially in the Tenderloin district; overdoses were spiking, and many of the people on the streets were sick or high. Then, toward the end of last summer, there were reports of a rise in property crime: storefront windows were being smashed in, and garages were being cased and stripped clean. Between January and July of 2020, burglaries rose by forty per cent, and car thefts by more than twenty per cent. There was no dramatic spike in violence, but there did appear to be an increase in disorder.
Boudin is slim and balding, with pale skin, a thin brown beard, and an intent, intellectual manner. When I met him in his offices recently, he struck me as a little formal, slightly reserved. When it came to crime during the past year, he said, there had been a great displacement. Before the pandemic, San Francisco’s crime reports had been dominated by car break-ins and shoplifting. Once the pandemic descended, there were no more tourists, and few open shops. Boudin explained that, “without the low-hanging fruit of stores to walk into, or tourists who leave valuable electronics or cash in cars that are obviously rentals,” there were more break-ins to closed businesses and homes (often garages). This changed people’s relationship to crime. Boudin said, “If your car gets broken into, you’re outraged or angry or inconvenienced or incurred an expense. If your home gets broken into, it feels much scarier.”
If this were all that had happened during the pandemic, then San Franciscans might have remained as coolly rational as their district attorney. But at the end of 2020 there were two important events. First, in November, Boudin’s office brought homicide charges against an on-duty police officer for the first time in San Francisco’s history. Second, on New Year’s Eve, a repeat offender named Troy McAlister, who had been paroled that March, stole a car and ran over two women in a crosswalk, killing them. When reporters looked up McAlister’s criminal history, they discovered that, in 2018, when McAlister had stood trial for armed robbery, Boudin, then a public defender, had filled in for McAlister’s lawyer in a hearing. The morning after McAlister’s connection to Boudin was revealed, a political gadfly named Richie Greenberg started a petition calling on Boudin to resign; within four days, it had ten thousand names. In March, Greenberg launched an initiative to trigger a recall election. In May, some moderate Democrats announced a second. I couldn’t find any San Francisco political observer who thought that Boudin was likely to lose a recall election—so far, neither effort has even collected enough signatures to get on the ballot—but, if 2020 was a year of experimentation with a new model of criminal justice in San Francisco, then 2021 is the year of backlash. Each Sunday, Greenberg told me, he staffs a petition table at the Clement Street Farmers Market, under a banner that reads “Recall Chesa Boudin.” “We don’t have to convince someone to sign this,” Greenberg told me. “They come over with purpose. They come over angry. They say—their words—‘Give me the fucking pen.’ ”
Theft is often described as if it is among the highest of criminal arts, but the figures in recent San Francisco surveillance videos are artless. Earlier this month, a bystander captured the final stages of a ten-person larceny of designer handbags from Neiman Marcus. One by one, they spill out the front door, each clutching oversized bags to the chest; the final thief races out carrying half a dozen handbags, still attached to a multipronged security chain. Their movements are encumbered, zany, almost Chaplin-esque; when they exit, some look uncertain about which way to run. This is disorder without menace, but not without effect. Walgreens has closed stores in the city, and Target has cut store hours, citing an “alarming rise” in retail theft. The Gap, which is headquartered in the city, has closed nearly all of its retail outlets there.
The San Francisco surveillance videos that have gone most viral are those that emphasize brazenness and impunity. In June, a reporter at the local ABC affiliate posted on Twitter a cell-phone video taken at a Walgreens in Hayes Valley. A man on a bicycle stands in the middle of an aisle, calmly loading cosmetics into a black garbage bag. He begins with the top shelf, and works his way down to the bottom one, until his bag is full. A few feet away is a Walgreens security guard, who makes no effort to stop the cyclist, choosing instead to film him with his phone. Eventually, the cyclist mounts his bike and rides out, ducking to avoid a half-hearted lunge from the guard. The video crystallizes the subversive, Banksy-ish quality of the San Francisco theft wave. It also supplied a political context—in her post, the reporter, Lyanne Melendez, tagged Boudin.
In his office, Boudin considered, for what must have been the thousandth time, the implications of the Walgreens video, a task to which he brought a yeshiva intensity. “When I watch that video, I think about five questions that people are not asking that I think they should,” he said. “Is he drug addicted, mentally ill, desperate? Is he part of a major retail fencing operation? What’s driving this behavior and is it in any way representative, because it was presented as something symptomatic?” The way the video had been presented suggested that shoplifting had become a raging problem in San Francisco, but, he pointed out, the official data showed that over-all theft was down from the previous year.
Boudin turned to the matter of the security guard: Why, Boudin asked, had he reacted so passively? Boudin said, “If Walgreens has insurance for certain goods or they expect a certain amount of loss, if they would rather not risk lawsuits or escalation to violence—then maybe that’s something we should know about.” He mentioned a fact he often cites when confronted about property crime—that the police make arrests in just two-and-a-half per cent of reported thefts. “Maybe that’s a good thing—maybe that means they’re prioritizing murders,” Boudin said. “But when this particular individual was arrested, and we got the full police history, it turned out that he had been detained by the police previously after another Walgreens incident, and they didn’t arrest him because Walgreens had said they did not want to press charges in that prior case. The police had known who he was for months.”
Boudin paused, seeming to recognize that he was offering an essentially structural explanation for an emotional problem, which was that people thought criminals weren’t being punished and that freaked them out. He said, “From a public political standpoint, what matters more is the ups and downs and if people feel less safe. It doesn’t matter that crime is down. People feel less safe. They want to feel safe.”
The central event in Boudin’s life happened when he was fourteen months old, in October, 1981, when his parents, who had been affiliated with the Weather Underground, took part in an armed robbery of a Brink’s truck, organized by members of the Black Liberation Army. Two police officers and a security guard were killed. It was an infamous case, in part because of the role of Chesa’s parents and another participant, Judith Clark—they were white graduates of prestigious colleges and parents of young children, who seemed, by conventional standards, to have quite a lot to lose. Coming at the outset of the Reagan era, the Brink’s robbery and trial reflected an emerging politics around law and order—the politics that helped build what activists now call the carceral state. Kathy Boudin pleaded guilty to one count of felony murder and eventually served a little more than twenty years. David Gilbert was convicted of three counts of felony murder and is still in prison. (Clark was convicted of three counts of felony murder and was released on parole in 2019.) Chesa Boudin often mentions that his parents received very different sentences for what was essentially the same crime, which he attributes to his mother having excellent lawyers and his father deciding to represent himself. He describes it as “one of the countless capricious outcomes of the criminal-justice system.”
After his parents’ arrest, Boudin was raised by Bill Ayers and Bernardine Dohrn, former members of the Weather Underground who had two sons about his age and who lived in Chicago. The sheer infamy of the case meant that his childhood was well documented, in newspaper articles and eventually books, in which he was generally described as difficult and prone to tantrums. When I spoke with Ayers, he said that impression was true, but that Chesa had also been an unusually determined boy. Ayers remembered a day in fifth grade when students at Chesa’s school had to swim laps for a fund-raiser. “He was a graceless swimmer,” Ayers said. “But he got everyone he knew to pledge a dime or a quarter for each lap and we all thought we’d be shelling out five or ten bucks. He never got out of the pool. Everybody else had left. The staff was trying to go home. Zayd and Malik”—Ayers and Dohrn’s other children—“were waiting for dinner. And the motherfucker was still in the pool.”
As early as high school, Boudin spoke publicly about his experience as the child of people in prison, on behalf of activist groups. While he was at Yale, in the early two-thousands, his mother’s allies made a big push for clemency. Boudin played a role in this effort, giving speeches and interviews and lobbying people close to George Pataki, the Governor of New York. He went to the church where the slain officers’ families still worshipped to make his appeal, which was that his mother had served a lot of time and that no good was done by keeping her in prison. Kathy Boudin remembers reading an interview Chesa Boudin had given while she was still in prison. “He talked about me as if I were a human being—as a mother,” Kathy said. “I’d have to say that the most important role he played, and that he continues to play, was to help people see me and David as human beings.” In 2003, a parole board voted to release Kathy Boudin. Shortly afterward, Ayers told me, Chesa said to him, “We’re going to get David out, too.”
Boudin went to college at Yale, and attended Oxford on a Rhodes Scholarship. After graduating from Yale Law School, in 2011, he moved to California to clerk for Margaret McKeown, a liberal on the ninth appellate circuit, and eventually became a public defender. To the people who knew him in California, it wasn’t especially surprising that Boudin went on to run for office: he’d had a public profile his whole life (when he won the Rhodes Scholarship, it made the front page of the Times) and he had the gregariousness essential to an up-and-coming pol. (“He’d talk to a squirrel,” a friend of his told me.) That he ran for district attorney seemed less fated, but the progressive-prosecutor movement was gathering momentum—by the time that Boudin announced his campaign, in January, 2019, Foxx, Krasner, and Rachael Rollins, of Suffolk County, in Massachusetts, had been elected, and the cause matched his life experience and convictions; he was a believer.
San Francisco was not as ideal a site for a radical approach to criminal justice as it first appeared. In the 2019 primary, the city’s progressives, who had aggressively organized young voters and represented close to half the electorate, backed Boudin, who won Bernie Sanders’s endorsement. The establishment, including nearly every major elected Democrat in California and the San Francisco Chronicle, backed Suzy Loftus, a former prosecutor, and the city’s Police Officers Association spent more than six hundred and fifty thousand dollars to try to defeat him. Jason McDaniel, a political scientist at San Francisco State, described the divide as “renters versus homeowners.” Weeks before the primary, the sitting district attorney, George Gascón, who was not running for reëlection, resigned, and the moderate mayor, London Breed, appointed Loftus to replace him, giving Loftus the benefit of incumbency. The maneuver dominated coverage of the final weeks of the campaign; if it was intended to benefit Loftus, it seems to have backfired. Boudin won by three thousand votes out of a hundred and seventy thousand cast. No one was in a mood for reconciliation. At his victory party, one supporter, the San Francisco supervisor Sandra Lee Fewer, led the crowd in a chant of “Fuck the P.O.A.”
The campaign polarized opinions around the new district attorney. Boudin himself had that effect, too. “I’ve known Chesa for more than ten years,” Lara Bazelon, a professor of law at the University of San Francisco, told me. “For whatever reason, the people who love Chesa love him with all their heart. The people who hate him want to destroy him. And there’s almost no middle ground.”
At moments of anxiety about crime, politicians have often tried to make people feel safe by insisting on more enforcement and punishment. The recall campaign’s case against Boudin is that he has not been willing to do this. “It’s similar to a mortician playing surgeon in the operating room—he’s in the wrong job,” Richie Greenberg, the leader of the first recall campaign, told me. Greenberg showed me a video of Boudin at a town hall at which residents had asked what could be done about some drug dealers. Boudin noted, in his reply, that many of the drug dealers had been brought to the United States by human traffickers—that they were, in a sense, victims themselves. “He’s excusing the Honduran drug dealers,” Greenberg said. “Not holding them accountable greenlights.”
Boudin’s first response to opponents like Greenberg was explanatory—to patiently describe the specific conditions under which Troy McAlister had been released from prison, and under which the Walgreens robbery took place. But that had only intensified the media’s pressure on him. “No one wants to be told that their feelings aren’t real or that they need to look at our studies,” Lara Bazelon said, recalling a scene from the documentary “Philly D.A.,” in which Larry Krasner had done just that at a community meeting in Philadelphia, and it had gone disastrously. “But if that’s not effective—what is? And for me that’s the big question Chesa needs to answer if he wants to survive this recall and get reëlected.” She thought the stakes were high. Of the progressive prosecutors, she said, “I don’t think there is criminal-justice reform without them.”
At times, Boudin has retreated to a less transformative approach, one that his predecessor Kamala Harris used when she spoke about being “smart on crime,” not tough on crime—that is, selective enforcement. While speaking about property crime, Boudin noted that eighty-five per cent of retail theft was organized by large-scale fencing operations, and that last year his office led a task force that recovered eight million dollars in goods, bound for local storefronts, eBay and Amazon, and China, Vietnam, and Russia. “Eight million dollars is a lot of stuff,” Boudin said, and then told me that the task force was working in “six or eight different areas” to find the people ultimately responsible. That didn’t really amount to what he’d promised in his campaign—a new vision for criminal justice.