By David M. Greenwald
San Francisco, CA – Last week in response to a Vanguard tweet, one of the supporters of recalling SF DA Chesa Boudin responded, “Restorative Justice! Great theory… unless it’s New Year’s Eve and you tryin to cross a street in SF…”
As someone who knows a lot about restorative justice and is a strong supporter of it and a believer that it can transform our system, I knew enough about the tragic case of Troy McAlister, a parolee who ran down and killed two pedestrians on New Year’s Eve in San Francisco, to know that there was never restorative justice involved in that case—and that the tweeter knew not of what he tweeted.
My next opportunity to ask DA Boudin about this was Tuesday night during a Zoom townhall meeting, where I gave him the chance to explain and he didn’t disappoint.
“The New Year’s Eve vehicular manslaughter case was a horrific tragedy,” the DA said. “I have lain awake at night for weeks and months on end wondering what, if anything, I or my office could have done differently to prevent that when it compounds the suffering and the harm that was caused.”
But he also noted that he is troubled with the way that “police unions and Republican operatives have tried to exploit that devastating loss to undermine criminal justice reform in the Black Lives Matter movement.”
He said those are two separate conversations and, by conflating them, people are actually undermining victim’s rights.
He explained why Troy McAlister was released.
McAlister, DA Boudin explained, was “someone who was on active role supervision was arrested repeatedly by San Francisco police for the low level nonviolent property crimes during the midst of a global pandemic, during which everyone in the department of public health, the sheriff’s department, and every other justice partner agency was desperately trying to avoid a COVID outbreak in our jail… not a hypothetical scenario but of the kind that we witnessed in San Quentin prison, across the Bay, that cost the lives of dozens of people, not just incarcerated people.”
There were difficult decisions made by the Department of Parole in Sacramento “about not incarcerating parolees who were arrested for non-violent, non-weapons related violations.”
Chesa Boudin explained, “We did what the office has done for years when someone on parole is arrested for a low level offense, we refer the case to their supervising agency or agent. We did it for lots of good sound policy reasons. And in this instance, the outcome was tragic.”
The question is what do we do about this going forward.
“One solution is that every time someone’s arrested for a non-violent crime, we can ask the court to hold them in jail indefinitely,” he said. “It’s not good policy. It’s giving into fear. It’s not a good use of resources. It’s destroying families and communities. It’s bankrupting the very communities that we know most need our support. So we have to make difficult decisions.”
Restorative justice, DA Boudin continued, “has nothing to do with any of what we just discussed.”
“Restorative justice is a victim’s right framework,” he explained. “It centers victims, and it asks victims what they need to heal.”
Boudin continued, “Instead of simply asking that victims be satisfied with a lengthy prison sentence, with being treated as a piece of evidence subpoenaed in order to come to court and many jurisdictions across the country, including here in California, prosecutors put victims in jail, literally, so that they’ll be available to testify on demand whenever they’re needed in a trial.
“That’s the traditional approach to justice.”
He explained, “Restorative justice starts by asking the victim what they want from the process and centering them as much as they desire in that process. At its best. It also transforms how we think about accountability for those who’ve caused harm.”
He makes the point that “sending someone to jail or prison for a random arbitrary period of time, a year, a decade, a lifetime is a really passive form of punishment.
“It’s not the same as accountability,” he said. “You can do a decade in prison and never take responsibility in a meaningful way for the harm that you’ve caused. You cannot successfully complete a restorative justice process without owning your crime, without owning the damage that you caused to a victim in your crime, without looking the victim in the eye and seeing the pain and the suffering that you are responsible for.”
Chesa Boudin pointed out that this is something that he lived himself. He explained that his parents have served time in prison, with his father still in prison for life, while his mother was released after 22 years.
“You know what a bigger difference to her perspective, to her remorse for the three lives that were lost in her prime, than any one of those 22 years she served, it was building a relationship with one of the victims. It was getting to know her and seeing, and hearing her humanity and her suffering.”
Chesa Boudin very beautifully explained that the passive way of the criminal justice system right now is to throw a person in prison for a long time. But that doesn’t ultimately help the victims heal and it doesn’t ultimately help those incarcerated be able to accept responsibility.
We still operate in a system where seven out of every ten people released from prison (remember, 85 percent or more of those in prison will be released at some point) will commit a new crime five years after being arrested.
Research shows that restorative justice approaches can reduce that recidivism rate by as much as a quarter—if not more.
This isn’t a get-out-of-jail-free card.
Chesa Boudin explained, “We don’t let people out of jail pending murders to participate in restorative justice, but when eligible crimes, less serious crimes, occur, we reach out to the victim and we explained to them what their rights are and what the options are.”
There are two different approaches.
“One is a traditional approach that would call the witness to testify, subpoena them and bring them to court, try to secure a conviction and then some kind of a sentence imposed by the judge.”
The other one is a restorative justice approach.
Boudin explains, “One of the things that we made really clear is it’s optional and is the victim’s choice. The second thing is if it doesn’t work, whatever that means, if it means the victim doesn’t want to do it anymore, or the person accused of a crime fails to comply with the terms or walks away or gets arrested for a new crime, then their case goes back into the regular criminal justice process.”
He added, “It’s not like once and done say, sorry, and move on. Sometimes it takes years as it did in my parents’ case. Sometimes it involves incarceration for lengthy periods of time, as it did in my parents’ case. But the point and the focus is empower victims to own the process and then see what the outcome is in terms of recidivism.”
The key point here is that this is not a soft approach to crime—I have participated in these processes and I have talked to people who have gone through them, and it is much easier to sit in a jail cell for decades than go through these processes because here you have to take responsibility.
But the other point is the other way does not work. Seven out of ten people released from prison commit new crimes. Restorative justice changes that calculation.
New things are scary, but people need to educate themselves rather than jump to conclusions based on limited pieces of information.