The Opportunity in Crisis: How 2020's Challenges Present New Opportunities for Prosecutors

As San Francisco District Attorney, I was elected in late 2019 on an ambitious platform focused on ending mass incarceration and decreasing racial disparities in the criminal justice system. . Little did I imagine that my first year in office would bring an acute national focus to the exact issues on which I had campaigned.<br><br>Two phenomena have, thus far, largely defined the year 2020. First came the COVID-19 pandemic, which had a grossly disparate impact on communities of color and on those living or working in prisons and jails. Second, a national Black Lives Matter movement arose in response to the murder of George Floyd—potentially the largest national movement in U.S. history —demanding police accountability and criminal justice reform with a focus on racial equity. The nation’s collective response to these developments—how the country navigates an unprecedented national health crisis and an unprecedented protest movement—will have lasting implications for myriad aspects of American life, including the criminal justice system.<br><br>COVID-19 and the recent growth of the Black Lives Matter movement created a tremendous impetus for wide-ranging criminal justice reform including decarceration and police accountability. Although some criminal justice policy makers have actively resisted change, and others have simply been unprepared for it, San Francisco was ready. After all, San Francisco residents had just elected me on explicit promises to deliver many of the reforms now in the national spotlight, and we had begun changemaking even before the first case of COVID was diagnosed in the United States. <br> <br>Even before my election, the San Francisco District Attorney’s Office (“SFDAO”) was already ahead of the criminal justice reform curve nationally by virtually any metric. Since 1991, none of my three elected predecessors had chosen to seek the death penalty. In 2005, then District Attorney Kamala Harris launched the “Back on Track” program as an alternative to the war on drugs. Former District Attorney George Gascon advanced decarceration through state legislative reforms; launched a fully staffed Independent Investigation Bureau to respond to the scene of and investigate and prosecute police use of force cases; and initiated a series of “collaborative courts” and restorative justice programs as alternatives to traditional criminal prosecution. Well before George Floyd was killed, San Francisco leaders had implemented a wide range of police reforms, which included and went even further than the “eight can’t wait.” These reforms, and many, many more had contributed to San Francisco having an incarceration rate less than half that of the rest of California before I took office. And yet these reforms were still not nearly enough to undo the failings of past criminal justice policies; they were not nearly enough to build trust between impacted communities and law enforcement. The tensions, shortcomings, and distrust that the Black Live Matters movement brought to national focus will not be resolved through quick slogans, social media campaigns, quick fixes, or singular policies. The point, here, is not to analyze the history of reforms in San Francisco but rather to make explicit that no there is still much work to do in undoing the complex systems of oppression and racism baked into the criminal justice system. <br><br>This article focuses on policies implemented in one local jurisdiction, specifically one District Attorney’s office, in the context of the COVID-19 pandemic and the Black Lives Matter movement during the first six months or so in office of a newly elected District Attorney: me. In some ways, what follows is San Francisco-centric and yet most of the policies and initiatives described below serve as examples of new ways to approach common challenges for virtually any law-enforcement jurisdiction in the country.<br><br>An as yet unwritten part is the still unfolding historical context: the impact of COVID-19 on criminal courts, jails, and prisons, and the still ongoing story of how Black Lives Matter went from being a radical and isolated social movement to mainstream cause celebre. Rather than self-consciously seeking to write a first draft of a history that is very much still in the present, I will focus on the challenges of the moment and the SFDAO’s responses. A few years from now historians will surely have more perspective on the lasting impacts of these phenomena on the criminal justice system. But policy makers cannot afford to wait until a crisis has passed to formulate responses; instead we must be dynamic, make calculated risks, and hope that our ideas, vision, and political will are adequate to meet the challenges of the moment. <br><br>Parts II, III, and IV, respectively set out in detail many of the more than a dozen wide-ranging policy initiatives of the San Francisco District Attorney’s Office since I took the helm in January 2020 and the rationale underlying the policies. These policies are organized into three Parts: Victim support; Decarceration to improve public safety; and Police and prosecutor accountability. <br><br>It bears mentioning, before launching into these specific policy analyses, that the SFDAO aims to implement data-driven and data-informed policies. The SFDAO has nearly a dozen research partnerships to help track outcomes and trouble-shoot implementations as well as to generate new policy ideas. Meaningful data take time to collect and analyze. The SFDAO aims to continue to improve its policies in response to empirical data. Thus, what follows, is very much just a beginning. New policies which do not yet have enough of a track record to be analyzed critically for their empirical impact, successes, or shortcomings overt time. <br>