The dead end of prosecutorial progressivism

The early 1970s shared many attributes with the culture we live in today. Confidence in the system had declined. American prestige had receded. Sexual mores were rapidly changing. In what seemed to be an increasingly violent society, law and order was a hotly debated topic, with courts leaning toward greater protections for those accused of crimes. Richard Nixon even ran for president on a platform of “law and order” as a response to increased crime. He knew voters would reward him for going hard on crime.

Last Tuesday, that lesson repeated itself in San Francisco recalling its inept prosecutor.

History is less of a trend line in one direction and more of a series of cycles or swings of a pendulum. Actions provoke reactions. In the 1970s, one could see a strong response to the emerging liberal legal establishment in the medium of popular entertainment. That’s when American cinema witnessed the emergence of Clint Eastwood’s Dirty Harry, a San Francisco cop driven by his sense of justice to defy the ineffective politics of his superiors. In last week’s recall election, San Francisco voters played Dirty Harry to progressive prosecutor Chesa Boudin by voting overwhelmingly to remove him from office. Keep in mind this was in San Francisco, not a place known for conservatism by any stretch of the imagination.

Boudin is something of a figure from central casting. His parents were connected to the left-wing Weather Underground terrorist organization and were getaway drivers in the infamous Brink’s armored truck robbery in 1981 that left two police officers and a security guard dead.

Driven by a sense that the justice system is stacked against the poor and minorities, Boudin took concrete steps to reduce the use of bail and declined to prosecute crimes such as street-level drug dealing, public urination, prostitution, and blocking sidewalks. During his term of office, conviction rates for petty theft reached record lows, a fact that squares with the eye-catching videos of smash and grab robberies throughout the city and the decision of Walgreen’s to shutter some stores. Under his leadership, San Francisco has become a laughable-but-sad paragon of progressive dystopia. The urbanites of the city have been mugged by the reality of a judicial system that fails to understand human nature as it is.

Boudin’s recall from his post is a blow to the national progressive prosecutor’s movement, which has briefly flourished in the wake of the killing of George Floyd and subsequent calls for defunding police. Viewing crime as primarily a systemic problem and not a proper subject of individual fault, such prosecutors have sought to increase scrutiny on police and make maximum use of prosecutorial discretion to favor defendants who commit crimes not involving violence. Similar reversals will likely be visited upon other prosecutors employing the progressive approach. Los Angeles could be next.

Christians need to appreciate the nature of the debate at hand. While the headline is that a prosecutor seemed to enable sin, which then broke out furiously upon the people, the reality is more complex. It is not crazy to see criminals in the underclass as victims of poverty and other social pathologies, but the question is how they should be helped. The enduring flaw in the liberal approach is to unintentionally undercut the dignity of offenders by placing moral culpability on the system alone. C.S. Lewis warned of this long ago with his intoning against what he called the “humanitarian theory of punishment,” a type of penal system that fails to appreciate the moral agency of criminals and offloads responsibility for a crime elsewhere. Boudin’s incompetence embodies this notion. By so doing, it only increases helplessness and invalidates any kind of understanding that could lead to ethical and spiritual development.

Another important lesson to draw from Boudin’s removal is the necessity of interpreting prosecutorial discretion correctly. The reason for the existence of great discretion in the prosecutor’s hands is to avoid manifest injustice in specific cases. In other words, there could be compelling circumstances in a particular case that would make the ordinary operation of the law unjust. A good prosecutor can apply discretion to bring about a more just result. But that discretion is inappropriate when applied to cases in a blanket fashion. While there may be virtue in leniency exercised with regard to extenuating circumstances, it is a mistake to translate discretion into a decision to ignore the law in whole classes of crime.

Prosecutors are part of the executive apparatus of the legal system, not the legislative. They are to enforce the law, not make it. By treating some laws as illegitimate or not worth enforcing, Chesa Boudin effectively acted as a kind of king. Nevertheless, his removal signifies that healthy self-government instincts remain, even in the most liberal city in America. Last week’s election results in San Francisco demonstrate how even the most progressive of enclaves cannot persist in a state of chaos.