Pierce the Veil of Racism

San Francisco is in the midst of an unprecedented spate of car break ins: more than 26,500 reported in 2016, up from just 10,400 in 2011, which makes San Francisco the leader in the country, per capita, in car break ins.[1] I know about the epidemic first hand — both because my parents’ car window was smashed, and also because I’ve seen a significant increase in the auto burglary cases I handle in my work as a San Francisco public defender.

The police and district attorney are under public pressure to respond. They have taken some prudent steps: increased surveillance; decoy operations; and public awareness campaigns. However, law enforcement is also responding in ways that are counterproductive and racially biased: charging run-of-the-mill auto burglaries as felonies rather than misdemeanors, intentionally letting burglars get away with stolen property to build a “bigger case” with additional charges, and, most troubling, adding gang charges or enhancements to burglary charges.

California law gives police and prosecutors broad discretion. For example, auto burglaries, as the Penal Code defines them,[2] are “wobblers,” meaning the same conduct can be charged as either a misdemeanor or felony. I recently handled a case in which my homeless African-American client had virtually no prior criminal record and actually led the police to his tent in order to return the stolen property; yet the case was inexplicably charged as a felony rather than a misdemeanor. The legislature has determined at least some auto burglaries are misdemeanors. If an auto burglary committed by a person with virtually no criminal record who voluntarily returns the stolen property is not a misdemeanor, then what is?

In numerous other auto-burglary police reports I’ve read this year, police describe watching a known suspect break a car window and steal someone’s backpack or laptop while officers make no attempt to arrest the person or reclaim the property. The police simply want to document the activity and then continue surveillance of the suspect to build a bigger criminal case with additional charges. Most egregiously, the police and the district attorney increasingly decide that auto burglary spree suspects, always black in my experience, are gang members and that the car break-ins benefit the gang.

A gang allegation turns an otherwise ordinary auto burglary into not just a felony, but also a strike.[3] A gang enhancement[4] to a felony auto burglary adds up to an additional four years in prison, while the charge of being a gang member[5] carries up to an additional three years in prison along with lifetime registration as a gang member. A gang allegation opens the door to a vast array of prejudicial and irrelevant evidence—encouraging police to surveil our clients’ social media, for instance.

In one of my gang-auto burglary cases, a judge ruled as admissible old photos of my client as a juvenile from an unknown Instagram account. The shots showed him in his neighborhood with other young black men who, according to the white police gang “expert,” had gone on to become gang members. Notably the expert did not opine that the young men in the photo were gang members at the time of the photo—he didn’t have any idea when the picture was taken—nor that my client knew they had become gang members at some future date.

Similarly, the judge ruled that my client’s appearance in a few frames of a music video made at the community memorial service for a murdered neighbor was probative of his gang membership. Literally hundreds of people from my client’s housing projects appeared in the video: men, women, and children. Thus, between the drastically increased punishment and the flood of prejudicial evidence—literally criminalizing black youth because of their poverty, neighborhood and association with neighbors—a gang allegation puts tremendous pressure on our clients to waive their rights and to cop a deal. This is over-charging with an overt racial bias.[6]

Law enforcement justifies and proves up these arbitrary and racially biased charging decisions largely through white police gang “experts.” Even under oath these so-called “experts” (many of whom admit they have never read a single book or article about gangs) refuse to provide any reproducible standard for what makes a person a gang member or a violation a gang crime. Rather, they know a gang member when they see one. Too often, this false expertise is a thin disguise for explicit racial bias in law enforcement and overt criminalization of urban black culture. In essence, young black men who are friends with each other and engage in any unlawful activity, even as innocuous as car break-ins, or loitering in their neighborhood smoking weed, are branded “criminal street gangs.” And make no mistake about it: law enforcement in San Francisco is focusing intense, disproportionate attention on the city’s dwindling, segregated African-American population. Less than 6 percent of the city is black yet more than 50 percent of public defender clients are black.[7] In fact, the group of prospective jurors called for a particular case often does not include a single African American.[8] Meanwhile San Francisco Police Department “experts” like Sgt. Leonard Broberg have been recorded calling our African-American clients “fat,” “retarded,” and conspiring to “load [them] up” with additional charges.[9]

When judges refuse to serve as a check on this sort of pervasive racial bias in law enforcement, our office fights back. San Francisco Public Defender Jeff Adachi and the rest of management at the San Francisco Public Defender encourage a three-pronged response to the racial bias confronting our clients on a daily basis. First, don’t hesitate to exercise our challenge, in cases in which judges have a record of biased rulings.[10] Second, make racial bias an explicit theme in our advocacy from bail motions, to motions to suppress, to voir dire.[11] Third, hire cultural experts to help our mostly white and Asian jurors understand the reality of our mostly black clients.[12]  

As public defenders we have no control over police practices or prosecutor charging decisions. We can’t choose our clients, our cases, or our facts. We can’t prevent law enforcement from turning an auto burglary into a gang case. But we can pierce the veil of racism behind that charging decision. We can empower our clients to exercise, not waive, their rights.