Former San Francisco Police Chief George Gascón’s “conflict of interest challenge” continues to grow with yet another allegation of police misconduct by officers serving under his command.

The latest allegation stems from a video showing officers allegedly improperly searching a  residential hotel room and taking property from the room that was not marked into evidence – and then allegedly lying about it under oath.

These serious allegations of police misconduct require a serious response – and Interim District Attorney George Gascón can’t be serious if he proposes to investigate officers who were under his command at the time of the alleged misconduct.

When similar allegations arose last month, Gascón said he was under no obligation to recuse his office from any potential criminal prosecution. After the Federal Bureau of Investigation stepped in to review the allegations of misconduct, Gascón said he was stepping away from investigating those earlier allegations because of “resource” issues while continuing to insist that he had no conflict of interest. He has not defined what resources he was lacking.

From day one, Gascón had the clear obligation to recuse himself from investigating the Police Department he so recently led. And that obligation only becomes more pressing as the number and scope of allegations of police misconduct during Gascón’s tenure as police chief widens.  

The National District Attorneys Association’s National Prosecution Standards clearly states:

“The prosecutor should excuse himself or herself from any investigation…where personal interests of the prosecutor would cause a fair-minded, objective observer to conclude that the prosecutor’s neutrality, judgment, or ability to administer the law in an objective manner may be compromised.”

In my career as a criminal justice expert I have learned that our community is safest when the police and prosecutors earn – and keep – the public’s trust. Our appointed District Attorney undermines years of progress in building trust when he refuses to acknowledge his clear conflict of interest.

Gascón’s failure to address conflict of interest issues was also highlighted by recent disclosures that his former campaign consultant potentially violated city ethics laws by lobbying him on behalf of the San Francisco Police Officer’s Association, the police union. The campaign consultant also potentially violated the same ethics rules in lobbying another former client, San Francisco’s City Attorney. The City Attorney acted quickly to recuse himself from any investigation regarding the matter. Gascón has taken no action to recuse himself, despite the nearly identical fact set.

The people of San Francisco deserve and demand a District Attorney who will avoid clear conflicts of interest as a matter of policy – rather than personal whim. Gascón must recuse himself as a matter of policy from police misconduct cases of officers who served under his command. And Gascón is under an ethical obligation to develop and publish a clear conflict of interest policy.

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David Onek is a Senior Fellow at Berkeley Law School, former Commissioner on the San Francisco Police Commission and candidate for San Francisco District Attorney.

Last September, the San Francisco Police Department – under the command of former chief George Gascón – submitted a proposal responding to the uptick in violence outside a handful of San Francisco nightclubs.

The proposal was supposed to be heard this week by the city’s Entertainment Commission, but Mayor Ed Lee appropriately delayed the hearing for more debate.

The violence outside of nightclubs is a serious problem that must be addressed in a thoughtful way. But the SFPD’s flawed proposal is a knee-jerk response that will not make us safer and will violate our privacy rights. We need to understand why a city as progressive on policy as San Francisco is being offered flawed political solutions to serious public safety challenges.

A Plan Likely to Backfire

The SFPD proposal mandates venues to swipe patrons’ identification cards and keep this personal information on record for subsequent police review and to place metal detectors at some venues with occupancy levels exceeding 100, among other requirements.

This proposal is extremely problematic on a number of levels – the first of which is that it will likely backfire. Most nightclub violence takes place outside, not inside the clubs. Creating bottlenecks and barriers to entry will have the effect of keeping more trouble outside. And creating an environment so unwelcoming that many law-abiding people will stay home or go to other cities, while some potential troublemakers will simply go to unregulated clubs, could make our streets more dangerous at night.

The police proposal has been rightly criticized by the California Music and Culture Association (CMAC), which is proposing more sensible reforms. The SFPD proposal has also come under fire from the American Civil Liberties Union, which has weighed in on very real First Amendment and privacy concerns. Choices of art and music venues often reflect private political and personal preferences; requiring that venues store patrons’ identification information thus raises serious constitutional issues.

As the father of two young daughters, I don’t make it out to clubs as much as I used to. But I know what a vital role nighttime venues play in our culture, our identity and our economy.

We don’t want to put responsible club owners out of business with costly proposals that do not improve public safety. Instead, we should be working collaboratively with these responsible owners on real solutions, such as enhanced training of security personnel, improved lighting and better coordination with the SFPD. I also believe we should look more closely at the licensing status of clubs where crime patterns emerge – and be more aggressive about revoking the permits of those operators who don’t provide a safe environment for their patrons and neighbors.

These are practical steps that would make us safer by targeting the problem clubs, not every venue, and they are steps that would not violate the First Amendment and privacy rights of people who patronize San Francisco’s clubs.

A Political Proposal

But instead of practical solutions, the nightclub plan exemplifies the reactive “do something – do anything” mentality that so often creates “safety” policies that actually make us less safe. If it is adopted in anything like its current form, it will be yet another example of knee-jerk responses beating out thoughtful policies.

Our police chief at the time – George Gascón – was under pressure to “do something.” But instead of a reasoned and collaborative solution, what was proposed was simply more politics. The public and the politicians demanded action – so the police proposed action even though their proposals would not make us safer, would violate our constitutional rights and would be tied up in the courts for years.

The best tool to create a safer community is not to violate the privacy rights of San Franciscans who contribute to our culture and economy by patronizing our clubs, but to enlist club owners and the broader community to work collaboratively with law enforcement to support a safer environment around the clubs.

We need to reduce the violence outside of nightclubs. But let’s do so with thoughtful policies – not knee-jerk, political responses.

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David Onek is a senior fellow at the Berkeley Center for Criminal Justice, host of the Criminal Justice Conversations Podcast and a former Commissioner on the San Francisco Police Commission.

When San Francisco’s sitting police chief was chosen to become San Francisco’s district attorney, there were two clear schools of thought on such an unprecedented move.

Leaders of the American Civil Liberties Union and others wrote to underscore the conflict of interest inherent in elevating a sitting police chief to district attorney in the same city. They predicted that new District Attorney George Gascón would be terribly challenged by the conflict of interest posed by his tenure as police chief.

Other San Francisco leaders took a different view. They argued that Gascón had shown signs of being a reformer as police chief and that this was the same spirit necessary in the district attorney’s office. Conflict of interest issues, these thinkers argued, could be identified and isolated.

But the events of the past few months have highlighted just how significant the conflict of interest challenges faced by former chief Gascón are going to be. And his responses have not been encouraging.

San Francisco police officers have been accused of allegedly conducting illegal searches and committing perjury – incidents that occurred while they were under Gascón’s command as chief. Most of these cases occurred at Southern Station – the one station located in the Hall of Justice, the same building where Gascón worked as chief (and where he works today as district attorney). As chief, Gascón was responsible for the training and supervision of the involved officers.

When confronted with these facts, the former chief insisted he was perfectly capable of handling the investigation in his new office. He maintained he could fairly investigate the San Francisco Police Department for conduct that occurred when he led the agency.

Gascón maintained this position for nearly a week. Finally, after lawyers for the accused officers met with the police officer’s union, Gascón announced he was turning over the investigation to the U.S. Attorney’s Office – but insisted that it was due to unspecified “resource” issues, not because of a conflict.

His decision to turn over these cases to a third party, regardless of the motive, is a correct step. Yet something absolutely foundational is still missing – Gascón has not made it a policy to recuse himself from investigations relating to his own tenure as chief.

Gascón’s decision to continue – as a matter of policy – to investigate incidents involving police officers when they were under his command is fundamentally flawed on at least two basic levels. First, every suspect is entitled to a fair, objective investigation. When Gascón sits in judgment of his own service as police chief, this foundational principle of the law is undermined.

The second flaw underscores a management principle rather than a legal principle, but is vitally important if you are an advocate of reform in San Francisco or elsewhere.

When Gascón makes the decision to investigate the officers who served under his command, he is saying clearly that he himself holds no responsibility for their behavior. Such a position of inoculating the leader from the behavior of his agency undermines the basic tenets of reform – and frankly, the basic principles of sound management.

In the not too distant past, San Francisco saw the bulk of the police department command staff criminally indicted for allegedly covering up an incident involving off-duty officers on the street. Those charges were dismissed, but the underlying culture of top command looking the other way rather than embracing oversight and responsibility was identified as a problem that needed to be fixed.

The new chief after that incident was Heather Fong, who embraced a culture of responsibility starting at the top.

If former chief Gascón is now saying that he was not responsible for the actions of his own officers – he is saying he does not understand the foundational principles of how to lead a reform movement.

For the sake of justice – and for the sake of reform – former chief Gascón needs to implement a clear conflict of interest policy that would recuse him and the office he now leads from investigating the San Francisco Police Department.

David Onek is a Senior Fellow at the Berkeley Center for Criminal Justice, former Commissioner on the San Francisco Police Commission and candidate for San Francisco District Attorney.

California voters overwhelmingly passed the Three Strikes initiative in 1994 based on the promise that it would take repeat violent offenders off the streets.

But now, more than fifteen years after the initiative’s passage, we have the benefit of facts to help us understand the true impact of Three Strikes.

Most Californians already know that in the wake of Three Strikes the cost of corrections has soared. Our state prison budget is now so high that California spends as much on prisons as we do on higher education.

But many Californians are surprised to learn that, under Three Strikes, Curtis Wilkerson of Los Angeles was sentenced to life for petty theft of a pair of socks; that Shane Taylor of Tulare was sentenced to life for simple possession of 0.1 gram of methamphetamine; or that Greg Taylor of Los Angeles was sentenced to life for attempting to break into a soup kitchen to get something to eat.

In fact, the majority of those put away for life under Three Strikes – over 4,000 people total – committed a minor, non-violent third strike. These non-violent third strikers will, according to the California state auditor, cost the state at least $4.8 billion over the next 25 years – almost $200 million per year.

The people named above have an advantage that the vast majority of three strikers do not — they are all clients of the Three Strikes Project at Stanford Law School’s Mills Legal Clinic. Under the direction of Project co-founder Michael Romano, Stanford law students have helped get a dozen non-violent third strikers released from prison after having their sentences reduced.

They are not being released because they are innocent. As Romano said on the Criminal Justice Conversations Podcast,

“Our clients are, in almost every circumstance, absolutely guilty. We’re not going into court and saying that they didn’t do it. What we’re saying is that the punishment that they received for this petty crime is disproportionate.”

This disproportionate punishment is unjust, and it is bankrupting our state. We are wasting precious resources to unnecessarily incarcerate minor offenders who pose little threat to society for huge periods of time – and draining resources away from the law enforcement agencies, community organizations and schools that can truly prevent crime and keep us safe.

Simply put, it is time to reform Three Strikes – so that it is focused on the serious and violent repeat offenders we all agree society must be protected from. Because Three Strikes was passed by a voter initiative, it can only be changed by initiative. In the past, Three Strikes was viewed as untouchable. But now, with the state facing fiscal catastrophe, and Romano and his students bringing attention to the unjust extremes of the law with each new client that gets released, there is momentum for change.

Romano thinks that there is another ingredient necessary for successful reform: political leadership. He says that “with a few notable exceptions, there has been very little leadership on this issue from our elected law enforcement leaders.”

Now is the time to show the leadership what it will take to return to sensible, cost-effective and fair criminal justice polices in California.

David Onek is a Senior Fellow at the Berkeley Center for Criminal Justice, former Commissioner on the San Francisco Police Commission and candidate for San Francisco District Attorney. You can listen to Onek’s recent interview with Romano on the Criminal Justice Conversations Podcast.

After spending my career working to identify and implement the most effective public safety strategies, I have seen one constant – the community is safest when the police and prosecutors earn and keep the public’s trust.

That’s why I read with real concern that the San Francisco District Attorney’s office would not produce reports related to officer-involved shootings pursuant to a recent public records request from NPR-affiliate KALW.

As a former Police Commissioner, I have been briefed in closed session on the details of officer-involved shootings. But the public knows very little about these incidents. My fellow Commissioners and I often heard complaints from community members about how little public information was released about officer-involved shootings. This lack of transparency breeds distrust.

In all officer-involved shootings, the DA’s office conducts an independent review to determine if there is criminal liability. If such liability is found, the DA presses charges, which are public. But when the DA determines that there is no liability, it is equally important that the DA publicly explain the reasons for its decision.

As such, the District Attorney’s office should issue a very detailed report on every officer-involved shooting in which it does not file charges and should make the report publicly available on its website. The report should detail the facts, the law and the reasons for the decision not to file charges.

This kind of complete transparency will make the job of our police and prosecutors much easier by building trust between law enforcement and the community – making it more likely that community members will work in partnership with police and prosecutors, and that victims and witnesses will come forward to testify.

San Francisco is lucky that we are served by rank and file police officers who are second to none. Publishing detailed reports that clear officers when they acted within the law can dispel public misconceptions about what actually happened.

Of course, officers’ privacy rights need to be respected and investigations cannot be compromised. But once an investigation is complete, and an officer has been cleared, it is imperative that the District Attorney’s office share its findings with the public.

This is the standard that is already being applied in communities throughout California. The District Attorney’s office in San Diego, hardly a bastion of liberalism, actually lists these cases on its website. Many other counties – including Los Angeles, Orange and Fresno – also make them matters of public record and available on request.

Building trust with the community is the key to enhancing public safety. Let’s not violate that trust by refusing to release documents that the public has the right to see.

David Onek is a Senior Fellow at the Berkeley Center for Criminal Justice, former Commissioner on the San Francisco Police Commission and candidate for San Francisco District Attorney.

California will release an unprecedented number of prisoners back to their communities in the coming year, prodded by both the state budget crisis and the federal courts.

But those returning will be far less prepared to successfully re-enter society – due to severe cuts to rehabilitation programs in prison – and will be returning to counties that are far less prepared to assist them – due to massive budget deficits at the county level.

Many are concerned that this will lead to an increase in California’s already astronomical recidivism rate of 70%, costing the state even more in corrections spending and leading to further victimization in our communities.

What to do?

A new report by the Berkeley Center for Criminal Justice (BCCJ) points to a proven solution that will decrease recidivism and enhance public safety with significant cost savings to the state: increasing employment opportunities for people with prior convictions.

As BCCJ’s Founding Executive Director, I was privileged to convene the wide-ranging project advisory board that developed the report’s timely recommendations. The group consisted of an extremely diverse group of “unlikely allies” – with representatives from law enforcement, advocacy groups, employers, and other stakeholders from across the political spectrum and from all corners of the state. As advisory board member and East Palo Alto Police Chief Ron Davis recently said: “It was just an outstanding group, and it opened my eyes: it really showed me that even with the diverse group that was there, law enforcement to prosecutors to advocates for the formerly incarcerated, how closely aligned we were.”

The BCCJ report points to solutions as simple as providing a California ID card to everyone leaving prison – a prerequisite for applying for most jobs. This low-cost measure has been passed by the legislature but was vetoed by Governor Schwarzenegger. Governor-Elect Jerry Brown would be wise to call for and sign a new bill.

Other solutions do cost some money in the short run – but save many times that in the long run. Investing in prison vocational education programs has proven to save money: the Washington State Institute for Public Policy found that every dollar invested netted nearly twelve dollars in return. But California has gone in the opposite direction, cutting vocational education and other rehabilitation programs in prison by $250 million – close to half of the total rehabilitation budget. Governor-Elect Brown has said he wants to avoid quick fixes and budget gimmicks that save money in one fiscal year only to cost the state much more down the line. That’s exactly what these recent cuts have done. Governor-Elect Brown should increase spending on vocational education and related programs and can count on future corrections savings as a result.  

At the county level, the BCCJ report calls for the development of re-entry councils such as those begun in San Diego under the leadership of District Attorney Bonnie Dumanis, a BCCJ project advisory board member, and in San Francisco under the leadership of Attorney General-elect Kamala Harris and others, to better coordinate re-entry services at the local level. The councils cost little but can have a big impact.

Simply put, a small investment in helping formerly incarcerated people find jobs will have a huge payoff in reduced corrections costs, reduced recidivism and reduced crime in our communities.

As the BCCJ report shows, law enforcement leaders, advocates, and enlightened employers all understand this. Here’s hoping that our new Governor does too.

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David Onek is a Senior Fellow at the Berkeley Center for Criminal Justice, Host of the Criminal Justice Conversations Podcast, and a former Commissioner on the San Francisco Police Commission.

There is a healthy amount of attention being paid to California’s systemic fiscal challenges this election cycle – with a new state budget apparently out of balance even before it was signed.    

But as we debate how to restore fiscal sanity, we need to understand how the skyrocketing cost of our state’s criminal justice system is contributing to the downward spiral – and what we can do to reverse the fiscally unsustainable trend.    

During last year’s budget, California spent 11% of its general fund on the state prison system and only 7.5% on higher education.    

This level of spending on prisons requires raising taxes and fees while cutting other programs – and, ironically, the first targets are too often programs that help reduce crime. For example, the Department of Corrections and Rehabilitation is slashing $250 million – almost 45% – of the $560 million it had allocated to rehabilitation this year alone.    

We know that sending more kids to summer school lowers the drop-out rate, which is one of the single biggest predictors of future criminal activity. And, we also know that our state prison recidivism rate of nearly 70% could go even higher as proven prison rehabilitation programs continue to fall to the budget axe. And this recidivism rate has an immediate fiscal impact – with the cost of housing a single prisoner in California now reaching nearly $50,000 per year.    

Fixing this difficult and systemic problem will take bold new ideas and leadership. And nowhere is this issue more important than in the Attorney General’s race, where San Francisco District Attorney Kamala Harris has the chance to bring her reform-minded, and cost effective, policies to Sacramento.    

As NAACP President Benjamin Jealous said recently, Kamala Harris has been “a transformative force on all levels, really increasing the level of intelligence in the criminal justice conversation.”    

During Harris’ tenure, San Francisco has dramatically lowered crime rates by keeping more kids in school, teaching more young people job skills, creating living wage jobs and focusing police and prosecutorial resources on programs that make the most sense, not just programs that make for easy headlines.    

The numbers prove the success of these policies. With a very small investment San Francisco has seen a significant 33% drop in elementary school truancy in just the past two years. Since keeping kids in school keeps young adults out of prison, this improvement will not only help protect San Francisco families, it will help protect California taxpayers.    

One of the best examples of the effectiveness of the Smart on Crime approach is the Back on Track program Harris launched in San Francisco. The program directs non-violent, first-time drug offenders into job training and rehabilitation services. Since the program was launched, Back on Track graduates have just a 10% recidivism rate – a stark contrast to the typical 50% rate for similar offenders. This success, if it could be replicated statewide, would save hundreds of millions of tax dollars over the long term.    

Prison sentences – long prison sentences – are a powerful tool and should be used whenever required to protect our communities. And in San Francisco, conviction rates are up as prosecutors focus on violent and serious crimes.    

But the data show that by promoting a range of prevention and intervention programs, Harris has established a track record that can protect communities without bankrupting them.      

We tend to think of the Attorney General’s race as focused on issues that are separate from other political contests in California. But with budgets so tight this year, we must embrace an Attorney General who understands how to keep us safe from crime while helping to restore fiscal sanity in Sacramento.    

David Onek is a Senior Fellow at the Berkeley Center for Criminal Justice, Host of the Criminal Justice Conversations Podcast and a Former Commissioner on the San Francisco Police Commission.