Boudin recall: DA recall likely to slow criminal justice reforms and lead to office shakeup

District Attorney Chesa Boudin’s approach to law enforcement in San Francisco is no longer—at least until the mayor appoints his replacement next month.

Mayor London Breed won’t say who she plans to install in the interim, despite comments pointing to an appointee who can manage to continue criminal justice reforms while making sure crimes are vigorously prosecuted.

“It is not just about law-and-order and tough-on-crime and locking people up and throwing away the key,” she said Wednesday about her choice to replace Boudin. “It’s about accountability when those lines are crossed and coming to a reasonable conclusion around justice and what that really means for, in some cases, not just the perpetrator but the people who fall victim to those crimes.” 

When Breed swore in Boudin, she said prosecutions should strike a balance between fairness and responsibility. But the mayor has been on a rhetorical public safety crusade since late last year after a series of highly publicized property crimes cast San Francisco as a lawless city. And many of the positions espoused by potential replacements suggest the new regime could spell an end to reforms championed by Boudin. 

The prospective slate of rumored DA replacements range from progressives who might advance Boudin’s reforms to moderates with more punitive approaches to crime.

Among potential appointees are Supervisor Catherine Stefani, a vocal supporter of police, and veteran Alameda County prosecutor Nancy Tung, who has said she will run in the coming election with a tough-on-crime mentality. Several other longshots include former police commissioner Suzy Loftus, who was interim DA before Boudin’s election, and former prosecutor Brooke Jenkins, as well as the Department of Police Accountability head Paul Henderson and private attorney Joe Alioto Veronese, who announced his run for DA earlier this year. 

The new DA could launch a plan to combat this atmosphere of perceived disorder in a city reeling from more than two years of pandemic. Some of the city’s neighborhoods have been plagued by street-corner drug dealing, an uptick in overdose deaths and homelessness, making many feel unsafe despite a relative decline in most serious crimes. 

But some reform-minded prosecutors and public defenders fear the mayor’s pick will return the office to a focus on punishment, which might make the public feel safer while failing to reduce San Francisco’s crime. 

Christine Soto deBerry, executive director of the Prosecutors Alliance of California, has expressed trepidation about Boudin’s replacement. The one-time chief-of-staff for former SF DA George Gascon and Boudin said she expects the successor to make empty promises that rely on hard-nosed prosecutions that won’t get to the root of crime. 

Soto deBerry said Breed’s pick could take the city “back to a place where we are doubling down on this failed approach.” 

Most prosecutors and DA staffers contacted by The Standard declined to comment. Many may have no idea what is happening and have had no official communication from their leaders—no emails had been sent to DA staffers about the recall even as Wednesday drew to a close. But over at the public Defender's Office, an all-staff Zoom meeting was held the morning after the election to discuss a strategy for how to deal with the next DA. Breed can appoint the replacement after the vacancy officially occurs, which is 10 days after the Board of Supervisor certifies the election. The certification is expected to happen June 28.

Though much remains uncertain, here are four ways the District Attorney’s Office and its approach to enforcing the law could change.

During his time in office, Boudin touted a number of programs and approaches as key to changing how the DA goes about enforcing the law.

Many of those efforts could fall by the wayside.

Boudin’s office declined to comment, but his campaign did. No-on-H spokeswoman Julie Edwards said the DA’s ouster would stall criminal justice reform in San Francisco. 

“... Entrenched interests have opposed Boudin since Day 1 because he promised to bring reforms to the office,” she wrote in an email before the polls closed Tuesday. “That includes policies like ending cash bail and treating kids like kids. He also promised accountability for all—including police who do wrong and big corporations. I would not be surprised if those same interests push to eliminate these popular and needed policies, using their millions of dollars spent as a threat.”

Boudin’s policy of not asking for any cash bail could also be modified but wouldn’t significantly change since recent state law already severely limits bail, said Alex Lilien, a deputy public defender.

While the San Francisco Superior Court no longer uses its old bail schedule, which used to list bail amounts in line with a specific crime, judges can still set bonds in line with each defendant’s ability to pay, Lilien explained. Nonetheless, the DA’s office commonly files detention motions in violent cases, and that may increase under whoever comes after Boudin.

Entities such as the Sentencing Commission, the Independent Investigations Bureau (IIB)—the DA’s unit that investigates police misconduct– and some restorative justice programs could face downsizing or mothballing, Soto deBerry predicted.  

Eric Quandt, a former ADA in the IIB unit, who now works for the Public Defender’s Office, said that his former unit won’t go away, but staffing changes could undercut how it’s been run under Boudin. A more vexing issue for him is what might happen to the open cases against police officers. 

“The question about IIB,” he said, “is whether any of those police prosecutions get dismissed.”

New DAs often begin their tenure by firing and hiring.

That was true of Boudin, who axed a number of prosecutors, which was followed by an exodus of others and an inflow of people from the Public Defender’s Office. And it will likely be true of the person who replaces him.

Paul Cummins, who worked under five DAs before leaving the office in 2006—then run by Vice President Kamala Harris—said personnel shakeups often happen when a new top prosecutor takes the helm.

“They can do whatever they want,” said Cummins, noting that prosecutors are at-will employees, so a new DA can fire anyone they want. That often means leadership changes because DAs want their own people running the office. 

Still, she said there was some carryover as Boudin kept Gascon’s chief-of-staff, DeBerry, who remained for a year and left on amicable terms. 

Rebecca Young, an ADA in the IIB unit, and a former deputy public defender, said she has no fear of losing her job. She said she’s more concerned about the office backtracking after “making tremendous strides toward reforming the criminal justice system.”

The IIB should be safe, she said, because of its special funding from the Board of Supervisors, which created the unit under Gascon after a spate of police shootings.

When Boudin came into office, he promised to stop filing charges linked to illegal traffic stops and stop-and-frisk policing, which he characterized as unconstitutional. He declined to charge children as adults and created policies severely limiting prosecutors from filing gang enhancements and charges that could impact immigration status. And he channeled many low-level drug cases into diversion. 

Meanwhile, police arrests declined, leaving his office with fewer cases to charge.  

All of that now stands to change.

Eric Fleischaker, a deputy public defender who worked cases during Gascon and Boudin’s tenures, said he hasn’t seen huge numbers of vigorous investigations from the police under Boudin. “I do know that the cops really, actually weren’t pursuing investigations when Chesa was there,” he said, “so there will be an uptick.”

More rigorous investigations would result in more arrests and charges, which may include enhancements—such as gang and weapons charges—as well as strikes for prior offenses. That could strengthen the hand of prosecutors when it comes to pushing plea deals and sentencing, Quandt said.

“Our big concern over here is the ferocity of strikes being alleged,” he added.

This new atmosphere could also result in more arrests for quality-of-life issues based on the city’s ordinance so-called sit-lie ordinance, which Boudin has refused to charge because he said they criminalize homelessness.

Police could return to overbooking people with the knowledge that more of their allegations may be filed—which wasn’t often the case under Boudin. Pretext stops could also become more common after Boudin, who eschewed charging such cases.

Another new approach for prosecutors could include a practice known as case consolidation, which means a defendant's distinct cases get combined, which can be prejudicial and hence make for easier convictions, according to an attorney in the public defender’s office not authorized to speak on the record. 

An additional change could alter Boudin’s policy regarding sharing Brady lists—the names of officers whose documented lies disqualify them from testifying—within 48 hours of charging. In the past, such discovery would only come right before trial, according to a DA staffer who feared retaliation if named.

Boudin’s relationship with the San Francisco Police Department has always been chilly, but it got bone cold in February. That’s because SFPD Chief Bill Scott walked away from a memorandum of understanding with the DA governing investigations into police shootings and other serious incidents. 

The kerfuffle, which centers on an alleged failure to share information in a police misconduct case, has brought the two agencies to a level of dysfunction that will apparently culminate with a new DA.

Any new face heading the DA’s office would most likely improve relations with police.

Ultimately the choice remains a mystery.