Issues

San Francisco D.A. Announces End to Cash Bail

Chesa Boudin
Chesa Boudin / Twitter

Chesa Boudin, San Francisco's notoriously progressive district attorney, announced Wednesday that his office will no longer support cash bail, becoming the latest law enforcement figure to come out against the practice.

Instead of asking judges to set cash bail as a condition of a defendant's release before trial, Boudin's office will instead proffer a "risk assessment" as to whether or not a defendant is likely to abscond or pose a threat to public safety. The abolition of bail was one of Boudin's main promises during his campaign for D.A. last year, the San Francisco Chronicle reports.

"For years I’ve been fighting to end this discriminatory and unsafe approach to pretrial detention," Boudin said. "From this point forward, pretrial detention will be based on public safety, not on wealth."

The move further marks Boudin—the son of jailed left-wing terrorists who campaigned on refusing to prosecute quality-of-life offenses—as at the forefront of the "progressive prosecutor" movement. It is also another milestone in the push for abolishing cash bail, a practice opponents call unfair and socioeconomically discriminatory. California criminal justice experts the Washington Free Beacon spoke to, however, cautioned that Boudin's decision was both outside of his discretion and will likely further embroil his city in a petty crime crisis.

Boudin's decision extends the work of his predecessor, George Gascón, who helped organize a pilot program to use a risk assessment algorithm to help judges make bail decisions. Boudin's office on Wednesday praised the tool, which was designed by the left-leaning Laura and John Arnold Foundation, a major player in the bail reform movement. Six percent of individuals released by the algorithm reoffended, KQED reports, while 20 percent failed to appear for subsequent hearings.

Boudin's announcement adopts a familiar argument from opponents of cash bail—imposing a monetary barrier to release discriminates on the basis of wealth, meaning that poor people are routinely locked up without even having been convicted. As Boudin's campaign put it on its website, "Money bail is the system where innocent people can be kept in jail because they're poor, while wealthy people who are guilty and dangerous go free."

At the same time, the end of bail may mean higher rates of release, particularly for petty criminals, i.e., those not judged dangerous by the algorithm, but are a nuisance to society. That could be a major issue for a city already struggling with quality-of-life offenses.

As the Free Beacon recently reported, San Francisco has faced a surge of transit crime, which a grand jury report linked to pervasive disorder and fare evasion. Such disorder extends to San Francisco's streets, which are increasingly strewn with "trash, needles, and human feces." Drug overdose is also on the rise, as preliminary data from the San Francisco Chronicle indicate that deaths involving the opioids fentanyl and heroin more than doubled between 2018 and 2019.

Amid this chaos, Boudin said during his campaign that he would not prosecute quality-of-life offenses like "public camping, offering or soliciting sex, public urination, and blocking a sidewalk," but would instead focus on police misconduct and corporate crime.

Kerry Jackson, a fellow at the Pacific Research Institute who has written on public safety issues, told the Free Beacon that Boudin's choice to end cash bail is part-and-parcel with his unwillingness to address San Francisco's crime problems.

"It fits with his decision to look the other way at the quality-of-life crimes that are driving the city downward," Jackson said. "I think people are going to say he's making the best effort possible to increase crime in San Francisco. That might not be his intention, but that's likely to be the outcome."

There's another concern about Boudin's decision: whether he has the discretion to unilaterally abolish cash bail. Although San Franciscans elected Boudin knowing his plans for money bail, a larger controversy around bail reform is still brewing in the Golden State. In 2018, then-governor Jerry Brown (D.) signed legislation, S.B. 10, to abolish cash bail statewide. But a coalition organized to get a veto referendum on the 2020 ballot, putting S.B. 10 on hold until Californians decide if cash bail should be enshrined in their state constitution.

Kent Scheidegger, legal director of the Sacramento-based Criminal Justice Legal Foundation, told the Free Beacon that Boudin's move risks usurping this democratic process.

"California's Constitution and laws include cash bail in appropriate cases, and it is not for the district attorney to repeal these provisions by not requesting bail," Scheidegger said. "Judges should continue the present practice until the people vote on it in November, no matter what the DA says."

Both Boudin's decision and the California referendum play into the national drama of the ongoing "bail reform" debate. A number of states have implemented various alternatives to cash bail. Early evidence suggests that there have been successes, but some jurisdictions have also faced backlash. Alaska rolled back its bail reforms after violent crime rates soared (although whether the changes caused the increase is up for debate). New York state is facing its own crisis as its bail reform law, in effect since the start of the year, has been blamed for exacerbating the rash of anti-Semitic violence in New York City and outlying suburbs.