Guess which California counties had some of the highest homicide rates last year? Kern, Tulare and Kings counties – all located in the Central Valley – were among the main culprits. So, naturally, we’d expect a movement to recall its district attorneys for being soft on crime, right?
Bad. While Chesa Boudin was recently recalled to San Francisco and George Gascon just escaped a recall in Los Angeles, none of the county prosecutors won by Donald Trump in 2020 have been recalled – even as their homicides topped the state.
How can this be?
I study the so-called progressive lawsuits, a phenomenon that has occurred in many states in recent years. From big cities like Philadelphia, Chicago and Houston to more rural areas like Alamosa, Colorado, a burgeoning movement has swept the country.
What unites these prosecutors is a sense that the criminal justice system has been overly punitive, often with racially disproportionate effects, and that “getting smarter about crime” can save taxpayers money. while simultaneously tackling crime.
Some of the initiatives most associated with progressive prosecutors are cashless bail for non-violent offenses, the decriminalization of certain victimless crimes, such as driving without a license, and felony finding for youth, first-time offenders and drug addicts. All of these steps are part of evidence-based practice in criminal justice policy.
In some ways, the progressive prosecution could just as well be called libertarian, since one of its goals is to limit the power of the state by employing incarceration only where it is needed. However, prosecutors associated with the movement are often viewed as liberal, whether because they are former defense attorneys, run as Democrats, or accept campaign funds from liberal sources.
Even those who have been career prosecutors or former police officers are labeled “left-wing” or “activists”. As a result, it is easy for some to accuse them of being “soft on crime” or blame them for lawlessness when the crime rate rises.
However, the recent increase in crime is largely due to an increase in homicide – a type of crime that is hardly affected by more progressive approaches to prosecution. On the contrary, the data shows a relationship between increased access to guns and increased murders – a change that owes in many ways to conservative resistance to gun control. In fact, property crimes hit an all-time low in 2020 shortly after many progressive prosecutors took office. As tempted as prosecutors may be to take credit for the drop, many know the change likely reflects the effects of the pandemic quarantine when people were stuck at home.
The reality is that many factors affect the crime rate outside of prosecution policy. The FBI lists more than 13 factors, including economic conditions, population density, and cultural and religious characteristics. Prosecutors come in 10th position, behind police presence and strategy, and equal to judicial, correctional and probationary policies.
So what’s behind the decision to hold prosecutors accountable for rising crime rates and champion recall campaigns in cities like San Francisco and Los Angeles? The predominant answer is political. In their early victories, progressive prosecutors have often opposed and defeated existing power structures, and those opponents do not go away easily. In some cases, the opposition includes police unions, who don’t like having a new prosecutor scrutinize their actions and who clearly have an interest in drawing attention to another entity if crime increases.
But, there is a bigger factor behind it all. For years, public punitiveness has been expected to be tied to fear of crime; the more voters believe they can be victimized, according to the hypothesis, the more likely they are to vote for harsher criminal penalties, such as mandatory minimum sentences and “three strikes and you’re out” measures. Yet research tells us that support for greater punitiveness actually stems from the public’s assessment of social conditions, particularly their concerns about declining social ties and consensus, and their fears of a greater social diversity. Simply put, if you look around you and see a society that no longer reflects your values and yourself, if you think society is ‘falling apart’, you are more likely to support repression. “others” to enforce an order that reflects your morals.
Looking at the situations in San Francisco and Los Angeles, it’s easy to see why the public would go wild for greater punitiveness. The pandemic alone has shattered social bonds and consensus, if only on the value of science, and the growing spread of homelessness in cities would cause many to worry about social conditions.
“Things are out of control,” concluded some of the audience. No wonder they want to “repress” accordingly. The fact that any subsequent crackdown would likely come against the marginalized — especially people of color — only accentuates the historic willingness of some to ignore the discriminatory tradition of the criminal justice system.
So when you hear politicians or activists calling for a prosecutor’s recall, ask yourself what’s really going on. Is the problem a crime or a broader social discontent? Is the problem something prosecutors can control, or are there other factors, people or functions that have a more powerful influence? What are the activists’ motives, and who stands to benefit if the prosecutor is removed from office? Finally, will greater punitiveness really solve the problem or are we simply returning to an era of increased criminalization that ignores the trail of racial disparities in its wake?
It’s a complicated business. You must be the jury.
Jon Gould is Dean of the School of Social Ecology and Professor of Criminology, Law and Society at the University of California, Irvine. He is co-editor of the forthcoming book, Transforming Criminal Justice: An Evidence-based Reform program.