California voters' Election Day moves to throw out progressive prosecutors and enact purportedly tough-on-crime ballot measures point to a broad conservative swing in criminal justice, a movement that San Francisco's ousted District Attorney Chesa Boudin and other reform proponents told Law360 they intend to fight in coming years.

Golden State voters delivered multiple blows this month to the progressive prosecution movement, which touts rehabilitative justice policies that seek alternatives to incarceration, after the movement's critics backed multimillion-dollar campaigns that attacked the policies as too lenient on crime.

In Los Angeles, more than 61% of Los Angelinos voted for tough-on-crime candidate Nathan Hochman to unseat incumbent progressive prosecutor LA County District Attorney George Gascón, who had previously fought off two efforts to initiate a recall election.

In San Francisco, incumbent DA Brooke Jenkins beat Ryan Khojasteh, a prosecutor who once worked under Boudin's leadership, and across the Bay, more than 64% of voters in Alameda County, which includes the cities of Oakland, Alameda, Fremont and Berkeley, recalled progressive District Attorney Pamela Price.


Voters across the state also overwhelmingly passed a controversial ballot measure, Proposition 36, which allows prosecutors to bring felony charges against defendants for possessing certain drugs and for thefts if the defendant has two prior drug or theft convictions.

Voters additionally rejected a proposed amendment to California's constitution called Proposition 6 that would bar involuntary servitude, including slavery, as a punishment for crime.

Anne Irwin, founder and director of Smart Justice California, a group backed by the left-leaning Tides Foundation that endorsed Gascón in 2020, acknowledged that the losses were felt hard among criminal justice reformers.

"Defeatism is tempting," she said. "But we all need to give ourselves grace."

Boudin, who became executive director of the University of California, Berkeley School of Law's new Criminal Law & Justice Center after San Francisco voters recalled him in 2022 following a campaign accusing him of being too lenient on crime, also acknowledged that the results were a clear setback. But he said it shouldn't be a surprise in an election cycle where the entire country cycle shifts to the right.

"In this electoral environment, it's hard to be a progressive," he said.

Even so, Boudin noted that the progressive prosecution movement also saw major wins in local elections outside of California, including in DA races in Orlando, Florida and Austin, Texas, where Democrats Monique Worrell and José Garza won their respective races despite fierce opposition from Florida Gov. Ron DeSantis and billionaire Tesla CEO Elon Musk in Texas. Those victories suggest the battle over criminal justice reform has just begun, he said.

"To say criminal justice reform is dead would require people to ignore those very real and very serious victories," he said.

California's Rightward Shift

Criminal Justice Law U.C. Berkeley Law Professor Jonathan Simon described this year's election as a "prime panic election cycle" driven rightward in part by voters erroneously assuming that crime is out of control across the Golden State despite the absence of data showing such broad increases.

As a result of that misconception, voters turned against DAs who were not following a "typical tough-on-crime playbook," Simon said.

While the outcome of the DA races and Proposition 36 were somewhat predictable based on preelection polling, California voters' rejection of Proposition 6 came as a surprise to many reformers, particularly given that the ballot measure received bipartisan support before the legislature, and that it had received no formal opposition.


Simon suggested that the legislature should stop sending such civil rights issues to voters, and he noted that even Alabama, which has a history of racial segregation, is one of four states that passed measures in 2022 to outlaw unpaid, forced labor of incarcerated people.

"It's embarrassing," Simon said of Prop 6's rejection. "We're behind Alabama? What the hell?"

Simon also considers Proposition 36, which passed with 69% of the vote, to be largely a symbolic gesture given that under it felony sanctions only kick in on third misdemeanor convictions and the criminal code already gives courts significant power in issuing tough sentences.

"It's unlikely to have a very strong direct effect on sentencing," Simon said. "There's plenty of power in the criminal code as it existed."

Simon noted that the United States has a long history of enacting criminal justice policies that prop up "institutionalized myths" that tough punishments will improve the well-being of citizens and lift up victims while allowing society to remove allegedly dangerous citizens from the population.

This way of thinking hearkens back to the eugenics movement in the early 20th century in which there was a belief that societies could identify a population of criminally inclined people and stop them from reproducing with forced sterilization, Simon said. He noted that even to this day, the U.S. Supreme Court's 1927 holding in Buck v. Bell affirming a state sterilization law — in which Justice Oliver Wendell Holmes Jr. notoriously wrote "three generations of imbeciles are enough" — remains good law and has not been overturned.

"The basic idea that — as a number of our currently elected politicians have suggested — we can sort of breed the right people and eliminate problematic people has never been eliminated from our public policy stream," Simon said.

Simon added that such misconceptions fueling public policies are propped up by inaccurate assumptions promoted by criminal reform critics that crime rates are out of control across the state despite the lack of accurate data revealing such trends.

The Trouble With Crime Rates

Simon pointed out that crime trends are particularly difficult to assess due to the lack of accurate reporting. But even so, criminal justice reform critics have used viral videos of brazen thefts posted on social media and published in local news outlets to perpetuate a perception among voters that retail crime is surging.

As a result, DA candidates have more to lose if they're running on a campaign that promotes anything other than a tough-on-crime stance, he said.

"What's clear to me is that if a DA has decided to be very punitive and is seeking to push a more aggressive sentencing crime policy, they're relatively immune from the perceptions that crime is going up," Simon said. "[The public] thinks 'it could have been worse.' But if you promote alternative approaches, you're going to be blamed if crime goes up, and the media has played into that to a large extent."

According to the most recent crime data published by the Public Policy Institute of California, violent crime increased statewide last year, but property crime rates decreased in most of the state's 15 largest counties — although it jumped in Alameda County by 28% and in Los Angeles County by 4.7%.

Overall, however, PPIC data shows that California's property crime rate remains historically low, while the state's violent crime rate is above its prepandemic level.

The latest California Department of Justice data also shows that after Proposition 47 was enacted in 2014 recategorizing some nonviolent felony offenses as misdemeanors, property crime rates in Alameda County saw a brief uptick, but then dropped to 10-year lows before its more recent two-year surge.

Meanwhile, property crime in San Francisco County has steadily dropped since 2017 with only a short-lived jump in property crime rates following the pandemic, according to the CDJ data.

The New Anti-Reform Playbook

Smart Justice California's Anne Irwin pointed out that there isn't data showing that crime rates are linked to who is the elected DA, or whether a local DA is progressive in his or her approach. And yet, Irwin said, the DA's office has become a scapegoat for a broad range of crimes, as well as for problems stemming from complex public policy issues like homelessness and the opioid crisis.

"A big piece of why this office and these races are much easier to manipulate is because the criminal justice system is a black box for the vast majority of Californians," Irwin said. "The vast majority of Californians don't have a nuanced understanding of what goes on in the criminal legal system and that makes it very susceptible to manipulation by political opportunists."

To that end, Irwin said the recent election results have provided anti-reformers with their own new "playbook" on how to oust progressive prosecutors by praying upon the public's fear and their sense of disorder, while also collaborating with "deeper-pocketed" corporate interests to oust progressive prosecutors.

"They drum up those fears and sense of disorder and point the finger at a newly elected prosecutor who runs on a platform of doing things differently," she said.

Although police unions typically have been the largest campaign donors in local DA races, this year, more corporations donated to candidates campaigning against criminal justice reform, Irwin said. Those retailers include Target, Walmart and Home Depot, which each gave seven figures to local DA races, according to Irwin, who also noted Hochman's top donors include entities with real estate interests.

Irwin added that she believes that retailers were also likely misled by the false narrative that tougher prison sentences will deter retail crime, even though current research shows that only the certainty of punishment, rather than the severity of punishment, deters crime.

"Retail corporations bought into that false promise," she said. "Walmart isn't an expert in criminal justice, and probably hasn't looked at decades of social science of deterrence."

Criminal Justice Reform's Future

Despite this year's election results in California, reformers agree that the progressive prosecutor movement, which Boudin pointed out is just one aspect of a larger push for criminal justice reform, has a future. Boudin also noted that the concept of criminal justice reform has become normalized in prosecutor races across the country, which he said is a win in itself.

Irwin agreed that the push to rethink how elected prosecutors approach their work has really just begun, and she pointed out that the progressive prosecutors movement started less than 10 years ago, and that even Hochman and Jenkins campaigned on platforms that underscored the need for certain reforms.

"The movement is alive and well," Irwin said. "What we'll do is regroup and harvest the myriad of lessons learned over the last seven years, and come back stronger during the next election."

Simon also noted that underlying issues like prison overcrowding and racial disparities that have led to calls for criminal justice reform and spurred the progressive prosecution movement are not going away, and prosecutors' tough-on-crime approach will continue to be problematic as prisons fill. He added that racial injustices like George Floyd's murder in 2020 are bound to happen again in the future, further pressuring reforms.

For his part, Boudin strongly disputes the notion that the recent election results suggest the progressive prosecution movement is dying, and he pointed to recent polling that shows more than 80% of respondents support criminal justice reforms and 72% of voters support reducing incarceration.

Boudin said the recent election results merely indicate that there's more work to be done, particularly in the way reformers combat misinformation and communicate with the public.

"This is no more the end of progressive prosecution movement than it is the end of [the] Democratic party," Boudin said. "For every action, there is a reaction."

--Graphics by Ben Jay. Editing by Jay Jackson Jr.

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