Family Separation Is Part of Incarceration. One DA Wants to Change That.

In 2019, Chesa Boudin won the San Francisco race for District Attorney. He ran as an unabashed progressive, promising to end cash bail on the campaign trail and fundamentally change the way that the criminal justice system in the Bay Area operates.

Boudin, who hails from a long line of leftist activists, historians, theoreticians, and attorneys, not only had progressive politics in his lineage, but also in the work he had done for over a decade. He graduated law school and by 2015, was working as a deputy public defender in San Francisco, and argued, that year, that cash bail was an unconstitutional system that kept the poor trapped in prison while the rich could buy their way out of it. It led to a landmark case in San Francisco that required that judges have to consider a defendant’s ability to pay when assigning bail.

And, of course, there’s the matter of his personal engagement with the criminal justice system. As a one-year-old, Chesa’s parents, Kathy Boudin and David Gilbert, who were members of the radical, leftist group the Weather Underground Organization — a militant faction of the Students for a Democratic Society — were convicted of a felony murder after robbing a Brinks truck in Nanuet New York. Chesa was raised by Bill Ayers and Bernardine Dohrn, also well-known activists, and grew up visiting his parents in prison. He knows what it’s like to be involved in the system — and he knows what it means when a parent is incarcerated.

So, shortly after taking office, he enacted the Primary Caregiver Pretrial Diversion program. Ten million American children have parents who are either currently incarcerated or have been incarcerated at some point. This bill would change that for many kids in San Francisco, allowing parents who are charged with a misdemeanor or a non-serious felony to avoid jail time and conviction upon the completion of some mandatory programming and education.

Fatherly caught up to Chesa to talk about what “public safety” really means, how his life experiences have shaped his worldview on incarceration, and what else he wants to do for the families of San Francisco.

The Primary Caregiver Pretrial Diversion Program would help primary caregivers charged with misdemeanors or nonviolent felonies avoid being convicted of the crime and subsequent jail time. What led you to help craft this legislation? And how do you think it will meaningfully help public safety?

The thing about public safety, and when we talk about public safety as it comes to this program, is that it’s really two-fold. Right? For too long, we’ve narrowly defined public safety as simply protecting private property rights or preventing a fight or a violent act. That’s important. That’s all important.

But it’s not just that. We need to remember that, across the country, approximately 10 percent of people we put in county jails will be sexually assaulted while they’re there. We need to remember that the act of incarcerating someone is, in and of itself, a violent act. It’s for that reason that our founding fathers built this country. The principles upon which the country stands on pretty simple concepts, one of which, what we call a fundamental right, is a right to liberty. It’s only in extreme, limited circumstances, after tremendous constitutional protections or procedures, that we can deprive people of liberty.

Right.

Because we recognize that deprivation [of liberty] is, and of itself, a violent act. And it’s one that doesn’t just affect the individual. We like to think that when we put people in jail, or send them to prison, it’s because we have a high degree of certainty that they caused serious harm to our community.

But even when that’s true — even putting aside wrongful convictions, and excessive punishment, and so on — even when that’s true, there are other people who are collateral consequences of that decision. Particularly, and the one that’s closest to home for me, are the children left behind. When you take a five-year-old child, who is dependent, for their daily emotional needs, their sustenance, getting to and from school, being tucked in at night and deprive them of their primary caregiver, even if you can totally justify the punishment for the person you’re punishing, you gotta remember there’s someone else in the picture.

If you don’t remember that, as we haven’t, for decades across this country, you create a intergenerational cycle of incarceration.

What do you mean?

You actually make it more likely that young kids, themselves, will be exposed to sexual abuse, physical abuse, hunger, instability. And that they will commit crimes down the road. We are creating future victims of crimes by ignoring the fact that the majority of people that we send to prison are parents.

And that’s the part of it that’s personal for me. But as far as public safety, the recognition that public safety is implicated when we put people in jail, and that there’s a longer, broader community impact, which also undermines the safety and integrity of our families and communities [is important]. This is a family values issue as much as anything else.

This family separation absolutely affects children, and the people around them.

My whole life, I’ve been thinking about the ways in which my life was changed by my parents’ mistakes. My parents participated in a really serious crime when I was one year old. I had no idea what was happening at that time. My earliest memories are visiting prison. Going through steel gates just to give my parents a hug.

As I became more self aware, and as I started studying history and sociology and political science, I started focusing on issues that had shaped my own life. The criminal justice system, generally, but specifically, the impact on families and communities, and the ways in which our system dedicates seemingly limitless resources to punishing people like my parents, who had done serious harm and participated in serious violent crimes, but does so little for the direct victims of the crime and ignores the impact and the ways it is creating collateral damage.

I lost my parents. Not as directly, or as completely as the families whose father was killed. There were three men killed in my parent’s case. But I also lost my parents that day, because of the way that we chose to respond to my parent’s crime. And especially for non-violent crimes, and lower-level offenses, especially in cases where we’re not dealing with loss of life? We should do a better job defending the integrity of the family, and finding ways to hold people accountable that doesn’t punish their kids, or their dependent parents, or their spouses.

I get why such a bill is needed. But could you tell me a bit about how it would work? What would a parent convicted of a misdemeanor do to avoid jail time?

Let me start by clarifying something you just said. You said “who are convicted of.” One of the benefits of this program is that it allows people who are arrested and accused of a crime to avoid conviction.

Of course. That is a massive distinction.

When you have people get convicted of either a misdemeanor or a felony, it can mean you lose your housing, it can make it impossible to get a job or a promotion. It can come, again, with all these long term collateral consequences that the whole family experience as a punishment, that keeps families trapped in poverty.

One of the great things about this program is that it creates a pathway for people accused of low-level offenses to earn a dismissal of their charges. It’s not easy, it doesn’t come automatically, it’s not just because you’re a parent, so you have no consequences or accountability, but it recognizes that you [can] hold people accountable in ways that don’t involve prison, or a life long criminal record. We should prioritize those mechanisms, those diversion pathways, for people who are playing critical social functions as primary caregivers.

So the rule provides for six-months-to-two-years of mandated counseling or programs to avoid being convicted of a crime. What might some of those programs look like? Are they parenting classes?

The statute is broad. It’s broad for important reasons. It applies to a wide variety of criminal conduct. It wants local jurisdiction to be able to come up with programming that’s specific to the individual and the offense that they’re charged with.

What we expect to see in every case is parenting classes, and classes related to the primary caregiver function, that we want to support and uplift through this program. But if you’re dealing with someone who is involved in shoplifting, we’ll also put in place anti-theft classes. Classes that make people understand who is harmed when they steal, that there’s a real victim there, even if it’s a big store, for example.

If we’re dealing with someone who is having fights, on the street, or in a bar, we’re going to involve them with anger management classes. The goal is to work with a really experienced nonprofit, The San Francisco Pretrial Diversion Project, who have been around for more than 40 years. They’re experienced in meeting people where they’re at and providing programming and services to help people avoid getting involved with the criminal justice system again.

That’s the goal here. To set people up, who are parents, and primary caregivers of kids, set them up to succeed in their critical social function as parents.

So what if a parent fails here?

The statute provides for that. There are obviously going to be some people who are unable to successfully complete diversion or who get arrested for a new case during the program. But we’ll do what we always do: take things case by case. Every case is different, and the facts matter a lot. But, in the big picture, we need to all be held accountable. This is a really unique opportunity that we’re offering to people who have been arrested and we believe who we can convict of a crime. If they are unable, or unwilling, to take advantage of it, then the default is going to be to go back to the traditional criminal process for them.

How has the roll-out been?

It went into effect my first week in office, but as with any new initiative, there are a lot of details that have to be worked out during the implementation process. There are questions from judges, and other stakeholders, about important details. How do we determine eligibility, for example? I don’t know how my brother, a proud, active father of three kids, would come to court and prove that he’s a primary caregiver to his children. That would be difficult. What document would he have to show? What testimony would be required?

So we’re working on a streamlined, efficient process, for Defense Attorneys, my District Attorneys, and for the judges, and the person they represent, to prove they are actually eligible. That’s something that has been a work in progress.

The other thing is to make sure the programs people are doing is rigorous, appropriate, and we get good, accurate, timely reporting to the court on their progress, so that if they’re not doing what they’re supposed to, we can re-initiate criminal proceedings.

That all makes sense. What other policies have you been considering, or enacting, that would be very helpful to parents in your city?

We’ve been working on lots of policies. We definitely want to make changes in how we approach sentencing and how we approach victims. The advantage that I have, having been affected both by my parent’s incarceration, and now, working as a public defender and as a district attorney, is that I bring a lot of different perspectives to the challenges that criminal cases present.

One of the lessons I’ve learned is how often people who are being prosecuted today were victims of a crime yesterday or will be tomorrow. Finding ways to remember that though we of course want to hold people accountable, often, our collective failure to do that in the past has set people up to get arrested and to commit crimes in the future. We need to remember the ways in which people are cycling through. And many of those people are parents or have family members who are justice-system involved.

We can do a better job uplifting victims, of healing the harm that crime has caused victims, of providing support for the trauma that crime causes. [When we do that,] the less likely those people are to end up committing crimes themselves down the road. We really need to move upstream with our service provision. We can’t wait until someone catches a felony to give them mental health services.

Right.

Right now, the county jail is the number one provider of mental health services in San Francisco. It’s not a therapeutic place. It’s not a family friendly place. It’s not a cost effective place for us to deal with the public mental health crisis. So, my commitment — and this is true of all of the public health aspects of the work, whether it’s parenting and families, whether it’s substance use, whether it’s mental illness — is to find ways to support the work being done further upstream. Both within my office, as soon as we have police reports, but also, within the broader array of city services that are being offered. I want to uplift the best programs within the Department of Public Health and within community based organizations that are actually responding to the needs, before someone does something violent.

To your point about going upstream. Many primary caregivers who have addiction problems are less likely to seek help because they’re scared they’ll be separated from their kid, because they have addiction problems. How can primary caregivers in San Francisco seek help, when they might get in trouble for the help they need?

That raises a whole other issue we’re working on with the family courts around this program. We want to make sure that we have good communication between different judicial branches that are potentially concurrent cases. You could have someone who was charged with a crime who is in a custody dispute with their spouse. We want to make sure we’re communicating about what the best interests are [of the family], not punishing or penalizing people or their parental status, but rather, finding ways to ensure that if they’re able and willing to be caregivers to their kids, and it’s in the best interest of the child, that we’re supporting and enabling that, rather than inhibiting it.