Guest Commentary: Eradicate Racial Bias from Our Criminal Justice System

By Chesa Boudin

Chesa Boudin is committed to using the power of the District Attorney’s office to ensure that nobody is treated differently by our criminal justice system because of the color of their skin. Equal justice demands it.

The criminal justice system is racist. That’s true across the country, and it’s true in San Francisco.  Even though African Americans make up at most 5% of San Francisco’s population, they make up about 50% of the people in San Francisco’s jails. According to data from the US Department of Justice Bureau of Justice Statistics, the incarceration rate for Black San Franciscans is almost ten times the rate for all San Franciscans.  It’s more than double the rates of Los Angeles, Washington DC, and Chicago, and more than six times the rate of New York City.

And it’s not just incarceration.  Black and Brown people in San Francisco are more likely to be harmed by the criminal justice system at every single stage of the process.  They’re more likely to be stopped by the police.  Once stopped, they’re more likely to be searched without their consent, despite being less likely to be found with contraband.  Black San Franciscans are over seven times more likely to be arrested than their White counterparts, and they are eleven times more likely to be booked into county jail.  They are held in pretrial custody longer and are over ten times more likely to be convicted of a crime.  After conviction, Black defendants receive sentences that are, on average, 28% longer than those received by White defendants.  It’s a shocking set of statistics, building on centuries of systemic racism beginning with slavery and moving through Jim Crow, housing policy, the Drug War, and more.  It needs to change.

As District Attorney, Chesa Boudin is committed to doing everything in his power to eradicate racism from the criminal justice system.  The system must not treat people differently based on the color of their skin.  While racism runs much deeper in our society than our courtrooms and jails, the District Attorney can make a real difference.  Here are some of the things Boudin is committed to doing on day one.

Under Boudin’s leadership, the District Attorney’s Office will:

  • Commit to transparent decision-making.  The criminal justice system can’t be fair if it isn’t also transparent.  And right now, it’s anything but.  The office will publish data about the demographics of people stopped, arrested, jailed, convicted, and sentenced to increase the transparency and accountability of every agency involved in the system.  There is no excuse for obscuring this information from public view, and by forcing us to grapple more seriously with the racist outcomes the system produces, we will be better equipped to change them.
  • Require a racial impact statement in every case.  The racist outcomes produced by our criminal justice system will be less tolerable when decision-makers are regularly forced to confront them.  Accordingly, prosecutors will be required to state on the record–in open court and before the judge–the racial bias statistics relevant to the stage of the case being addressed.  For example, before asking that an African American defendant be detained prior to trial, a prosecutor must state on the record the percentage of African Americans in jail on pretrial detention and the percentage of African Americans who reside in San Francisco.  Before making a sentencing recommendation, a prosecutor must state the disparity in sentences among Black and White defendants.
  • Implement race-blind charging and plea bargaining.  We should do everything we can to make sure that neither explicit nor implicit biases impact decisions made by the District Attorney’s Office.  Prosecutors will not know the demographic information of people before filing charges.  The office will explore applying the same process for plea bargains, having a second prosecutor review a file, blind to demographic information, before making an initial plea offer.
  • No more prosecuting racist gang enhancements.  When a person is convicted of a felony, they may be sentenced to time in prison.  Under Penal Code § 186.22, part of the California Street Terrorism Enforcement and Prevention Act (STEP Act), prosecutors can seek additional prison time beyond that received for the underlying felony when the person accused of the crime is found to be gang-involved.  But here’s the thing: This mechanism, known as a “gang enhancement,” is racist, ineffective, and unnecessary.

It’s racist because for years not a single white person has been prosecuted for a gang enhancement.  It’s ineffective because San Francisco jurors almost never find sufficient evidence to establish a gang connection.  And it’s unnecessary because it piles on punishment in a system where punishment is already too severe.  People who are convicted of felonies are already subject to prison terms, often lengthy ones, for the crime they’ve been convicted of.  And people are rarely sentenced to the maximum punishment allowed by law.  We don’t need racist gang enhancements, with their additional potential prison time, to keep San Francisco safe.

  • Decline charges where the arrest was racially motivated.  Racist policing has no place in our city.  Once a case has been charged, the standard for having the case dismissed based on a racist stop or arrest is extremely high.  That’s why prosecutors should use their discretion to decline to even charge cases where they determine that an arrest is racially motivated.
  • Decline to use evidence where it was gathered in a racially motivated manner.  As with racially motivated arrests, the legal standard for excluding evidence based on racial bias is difficult to meet, particularly when there is some other plausible reason the evidence was obtained.  But if the evidence was actually obtained in a racially motivated manner, it should never be presented in the first place.  Under the policy, that common sense measure will be a reality.
  • Decline to prosecute cases where an arresting officer has a history of racist behavior.  We can’t possibly trust that an arrest was made for a valid reason when an officer has a history of racist words or actions.  Where there is evidence of such a history–racist texts, social media posts, other racially motivated arrests, etc.–arrests by the officer of people who belong to the group(s) he or she has targeted with hatred will be declined.
  • Require implicit bias training for all staff.  Many of the racist outcomes in our criminal justice system result from decisions made by people who don’t know they are being racist.  But whether a racist outcome is produced by overt hatred or by the subtle ways our society has influenced perceptions of people of color since our country’s founding, it is a racist outcome all the same, and it is entirely unacceptable.  All DA staff will participate in yearly implicit bias training led by top trainers to ensure that the impact of implicit biases is reduced and ultimately eliminated.
  • Build the most diverse District Attorney’s Office in the country.  The District Attorney’s Office should be as diverse as the city it represents.  From across the country Boudin will hire, retain, and promote a diverse staff, including formerly incarcerated people and others who have been personally impacted by the criminal justice system. He will work to ensure that leadership positions are occupied by people of color, women, LGBTQ individuals, people with disabilities, and others.  And he will implement best practices across the board with respect to training, hiring, and promoting, and fielding complaints of harassment or discrimination.

When our criminal justice system treats people differently based on the color of their skin, the integrity of the entire system is undermined.  Individuals and entire communities come to distrust law enforcement, making our city not only less just, but also less safe.  Eradicating racism from our society is a long project, and one we need to take on much more seriously than we have.  The criminal justice system, capable of producing incalculable harm, is an important place to start.

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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