How do we reduce crime?
If your answer to that question is: by not charging crimes and thereby depicting cratering prosecution statistics as “crime reduction,” congratulations. You, too, can become one of the nation’s high-profile, big city “progressive prosecutors,” with all the media adulation and George Soros-backed funding streams that implies. No legal experience? No problem. All that stuff about mastering the law, applying it to facts? A quaint relic of the prehistoric 1990s. The aim of the "progressive prosecutor project" is to leave the laws unenforced. You’re policing a racialized, cultural Marxist narrative, not the streets.
Wait, the "progressive prosecutor project" … isn’t that all over now? Wishful thinking, I’m afraid, by us earthbound types, who notice that serious crime is surging, not just while arrests and prosecutions lag but because arrests and prosecutions lag, such lagging being a key tenet of the project to begin with.
To be sure, a ray of hope, maybe even a beam of hope, now shines across blue San Francisco. Even preening liberal Democrats, principal authors of the aforementioned narrative of law enforcement itself being a scheme of racial injustice, seem to have had enough. In early June, the City by the Bay fired that most iconic of liberal prosecutors, Chesa Boudin.
Radical royalty, Boudin is the adoptive son of notorious Weatherman terrorists Bill Ayers and Bernardine Dohrn, who were pressed into parental service because one night in 1981, when Chesa was a toddler, his natural parents, Weatherman terrorists Kathy Boudin and David Gilbert, were apprehended trying to flee from the infamous Brinks robbery, in which two Nyack, New York, police officers and a security guard were murdered as a result of the Weatherman conspiracy with fellow terrorists from the Black Liberation Army.
Elected district attorney in 2019, Boudin was the liberal prosecutor paragon. We must note from the get-go, though, that he never hoodwinked anyone. Boudin campaigned unabashedly as what he is, the trailblazer of “a movement … rejecting the notion that, to be free, we must cage others.” He ran on a policy platform of nonenforcement of the criminal law, except to the extent the laws could be turned against police. He made no secret that his office would aggressively investigate the conviction of criminals, in a zealous quest for evidence of police racism and brutality.
He was true to the dogma right up to the end. In a large city awash in narcotics trafficking and its attendant malignancies, Boudin’s office convicted exactly three drug dealers in 2021. Three. With voters poised to show him the door, Boudin was making the otherworldly case that he couldn’t be expected to prosecute illegal alien — er, I mean, undocumented — fentanyl dealers because that would likely lead to their deportation. Even in San Francisco, the response of most people, legions of whom by then had been mugged by reality, was: “Yeah … and?”
So, yes, Boudin is gone, at least for now. Good. But if you don’t grasp how District Attorney Chesa Boudin happened, you are apt to misapprehend as victory what is merely the beginning of a long, arduous road back to a semblance of sanity in America’s cities.
The "progressive prosecutor project" is strategic. The radical Left is driven by the socially transformative exploitation of power. There is no power quite like executive power — in particular, prosecutorial power. Except in the Democrat-run cities they’re destroying, liberals can’t make much headway in legislatures because their policies are unpopular and their ambitions are scary.
Historically, then, they’ve relied a great deal on the judiciary. The courts are filled with liberal activists produced by elite law schools; at the highly influential federal level, they are unaccountable to voters, enabling judges to forge transformative change under the guise of interpreting the Constitution, which can be very hard to undo. (If Roe is overturned by Dobbs in the coming weeks, for example, it will have taken half a century.)
Yet there is a limit to how far the judiciary can take the Left. Unlike legislatures, courts cannot dictate policy agendas. They are stuck with resolving the cases that come before them. There are, moreover, layers of review. At the federal level, the highest appellate tribunals, especially the Supreme Court, took on a decidedly constitutional-conservative cast during the Trump years. For that, kudos to the Federalist Society, which has led the most successful, effective conservative advance in modern American history.
That has left liberals to wager heavily on prosecutorial power. It has been a good bet.
After a century of liberal inroads in governance, the executive branch is the locus of real power, bursting out of the reins the framers designed to check it. Among the most awesome of executive authorities, and the most immediately felt by the public, is the police power. Essentially, this is a state power, though the law-enforcement apparatus of the federal government is now so intrusive and wields such influence on the states that it seems anachronistic to insist that there is no federal police power.
In our constitutional blueprint, the states were to be sovereign in governing their internal affairs, and that meant sovereignty over matters of law and order. Whether the municipality at issue is a city, town, or county, police power is predominantly controlled by the chief prosecutor. In most major cities, the chief prosecutor (i.e., the district attorney) is elected, which provides the incumbent with political independence from the chief executive (i.e., the mayor). And while city hall may be able to influence law enforcement — in many cities, such as New York, which has the nation’s largest police department, the mayor appoints the police commissioner — the prosecutor is the last word. Police officers can make arrests, but if the DA won’t prosecute the cases, what’s the point?
Prosecutors can effectively suspend laws by refusing to enforce them. In this, they are abetted by the abuse of the doctrine known as prosecutorial discretion. In reality, this is just a commonsense resource-allocation doctrine: There is more crime than there are resources to address crime (police, prosecutorial, judicial, and correctional); ergo, choices have to be made about how to use those resources in a way that gives the public the biggest bang for its security buck. But modern liberals resort to prosecutorial discretion as if it were a license not to execute the laws faithfully.
Liberal prosecutors are not making case-by-case judgments about the relative merits of proceeding or dropping charges. De facto, they are programmatically refusing to enforce substantive criminal laws and sentencing enhancements enacted by the people’s representatives. When not declining prosecution outright, they are engaging in the pernicious practice of “fact-pleading,” in which prosecutors collaborate with defense lawyers to fabricate a fictional version of the offense in order to avoid incarceration or, if a crime is so publicly notorious that it can’t be ignored entirely, reduce it to a risible minimum.
The ramifications make district attorneys uniquely powerful. In effect, prosecutors willing to abuse their authority become the legislature and the judiciary: They craft the “laws” that they apply, and they knead the cases in a way that determines whether they ever reach a court and what the court may do if the cases do get there. Moreover, it is not enough to say that they are the police power in the sense that they decide whether arrests become indictments and prosecutions; instead, they are the scourge of the police. Once it becomes clear that on-the-ground police work will not be followed up with courtroom enforcement, criminals become audacious. But this is worse, for once it becomes clear that the liberal prosecutor’s main enforcement interest is to investigate the police, there is anarchy. The police conclude not only that arrests are pointless, but that all police actions to discourage crime, and certainly all proactive measures to disarm violent criminals, carry risk for the police: risk of prosecution and personal financial ruin.
In the last decade, liberals realized that this was a gold mine of power, there for the taking. Many cities around the country are under the entrenched, one-party control of Democrats. The district attorney has essentially been chosen by the party establishment. Even when there have been competitive primaries and elections, the campaigns have been modest by modern standards, often just five- or low-six-digit affairs. With the backing of Soros and a network of left-wing institutions and political action committees, liberals have access to bottomless troughs of money. It dawned on them that they could find committed liberal lawyers, which are mass-produced in academe and runneth over in public defenders’ offices and law firm criminal law practices, and back them with campaign funding that would overwhelm any competition.
This enabled the movement to install its true believers, not just in San Francisco, but in big cities from New York to Los Angeles, from Cook County in Illinois to Travis County in Texas. These prosecutors would then actuate liberal dogma: The criminal is not the agent of crime; we have, in fact, no agency at all, just a systemically racist society in which the criminal is as much the “victim” as the actual victim on whom he has preyed. If offense rates are higher among young black men, a small percentage of whom commit crime at a level significantly disproportionate to their small slice of the overall population, then disparate impact theory dictates that this must be due to racist policing, not an inclination to offend, and all the cultural dysfunction, such as family breakdown, that drives that inclination. Incarceration, we are to believe, is the cause of, not the remedy for, criminal activity. Even if gang activity is principally responsible for violent street crime, we are to see anti-gang enforcement as the root of a schoolhouse-to-jailhouse pipeline that produces crime and undermines the gang members’ prospects. Enforcement is never to be seen as protecting the public and projecting a determination to enforce the laws that leads to order and enhanced economic opportunity.
Of course, with these cuckoo theories being applied in city laboratories, a generation of historic plummeting of crime rates, along with the consequent prosperity and flourishing of urban life in America, is unraveling. It is vital, however, to understand why this happened.
The theories Chesa Boudin brought into the San Francisco district attorney’s office were not his. They pour out of the universities, resonating in the media and popular culture. Boudin’s adoptive parents did not go to prison for their terrorist schemes; they were welcomed into the academy with distinguished professorial chairs that vested them with enormous influence over school curricula and the “social justice” vanguard of the legal profession. Columbia University rolled out the red carpet for his mother when she finished serving her 20-year prison sentence. His father was just released from prison having been granted clemency, the last official act of disgraced former New York Gov. Andrew Cuomo as he left office. Nothing unusual about that. President Bill Clinton pardoned terrorists of the radical Left. President Barack Obama pardoned terrorists of the radical Left. Retired terrorists are not pariahs. They are liberal icons.
Boudin has been booted, but the latest reports indicate that the vote was tighter than initially thought. It is worth remembering: He didn’t sneak up on anyone. He ran on who he is. San Franciscans embraced him. They’ve now turned him out. But, to take a different example, there’s an East Coast version of Boudin, Philadelphia’s Larry Krasner. He won election with just 38% of the vote in a crowded field. He cleaned house, purged prosecutors who wanted to prosecute, and assiduously implemented the no-enforcement agenda. In 2021, Philadelphia had a record-high 562 murders — seven dozen more than New York, a city five times its size. Krasner was also reelected with a whopping 65% of the popular vote.
San Francisco’s Chesa Boudin is gone. His replicas around the country are thriving, even as their cities implode. The liberal prosecutor phenomenon is a symptom. It will be with us until we grow the spine to deal with its underlying cultural causes.
Andrew C. McCarthy is a contributing editor at National Review and a former federal prosecutor.