Slate- The Wrong Prosecutors Are Being Recalled

 

An Illinois state representative just introduced a bill to authorize a recall against State’s Attorney Kim Foxx for creating “a crisis of confidence in the Cook County judicial system.” In June, San Francisco residents will decide whether to oust District Attorney Chesa Boudin, elected in November 2019. And in Los Angeles, an effort to recall DA George Gascón, who took office less than 18 months ago, has support from the Association of Deputy District Attorneys for Los Angeles County, a group representing local prosecutors. (Initial recall attempts against Gascón and Boudin, both launched in 2021, failed to gather enough signatures to qualify for the ballot.)

While it is true that any California elected official can be recalled for any reason, the provision authorizing this remedy in the state constitution was designed as a bulwark against corruption and malfeasance. Should the Illinois bill become law, it would do the same in Foxx’s case. What have these prosecutors done to warrant a recall?

Tim Butler, author of the Illinois bill, said Foxx gave “preferential treatment” to defendants like Jussie Smollett, who faked a hate crime more than three years ago. But Foxx said she used her discretion not to pursue charges against Smollett to focus on prosecuting serious violent crime—a routine decision in an extraordinary case. Responding to the special prosecutor’s report that she abused her discretion and misled the public about her decision-making, Foxx denied wrongdoing, saying that “differences of opinion as to how a case was handled do not signify an abuse of discretion.” Butler’s focus on Smollett is particularly strange because Smollett is being punished for his crime: After Foxx recused herself, he was tried by a special prosecutor, convicted on five counts of felony disorderly conduct, and sentenced to serve 150 days in jail and 30 months’ probation, and must pay nearly $150,000 in fines and restitution. (A judge just ordered Smollett’s release pending his appeal.)

Butler also said that Foxx’s refusal to file charges in a recent murder case exemplified her mistreatment of crime victims. But in that case—a 2021 exchange of gunfire in Chicago that left one person dead and two injured—Foxx’s office said it lacked sufficient evidence to prove the case beyond a reasonable doubt and added that the police agreed with her decision. In the Gascón recall, proponents simply point to his policies such as refusing to seek the death penalty, demand cash bail, or charge juveniles as adults—the very positions he told voters he would take. (Gascón has since modified some of his positions.)

A statement from one of the campaigns to recall Boudin is similarly centered on an individual case, Troy McAlister’s. On Dec. 31, 2020, McAlister was on parole when he stole a car at gunpoint in another city and then drove to San Francisco, where he struck and killed two women. The statement blames Boudin for referring his previous arrests to the parole division instead of filing new charges. Since then, Boudin has been blamed for many tragedies—and for public health problems that the criminal legal system is ill-equipped to handle—by those who want to recall him. Safer SF Without Boudin claims that car break-ins and burglaries are at a “crisis level in San Francisco.” But it’s the police—not prosecutors—who make arrests, and the performance of the San Francisco Police Department (which has a nearly $700 million budget) is dismal. Arrests have declined by an average of 60 percent per reported offense from 2010 to 2021, according to a recent report from the Center on Juvenile and Criminal Justice, a nonpartisan nonprofit organization. The SFPD’s rate of reported offenses solved by an arrest—8.8 percent—is extremely low compared with other major city departments’, and the SFPD arrests Black residents at nearly 10 times the rate it arrests people of other races. (Editor’s note: In 2020, Chesa Boudin launched the San Francisco District Attorney’s Innocence Commission, which is chaired by the author.)

Whatever one thinks about the policies of progressive prosecutors like Boudin, Gascón, and Foxx, the recall movements are not about misconduct in office but rather about outrage over their policies, which the voters elected them to carry out. The usual remedy for disapproval of an elected official’s performance is to vote for another candidate at the next election. Recalls—which circumvent that process—are an extreme measure that should be reserved for extreme cases.

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