Amid Politicized Elections, SF Judges Can't Defend Themselves. Here's Why

San Francisco voters are no strangers to tough-on-crime messaging in elections.

District Attorney Brooke Jenkins glided into office by telling voters she’d throw the book at the alleged criminals she claims her predecessor, Chesa Boudin, coddled. Mayor London Breed has repeatedly refuted assertions that crime has ballooned because of her leadership.

Soft-on-crime allegations may reverberate louder and carry more electoral sway in the race for two San Francisco Superior Court judge seats because the sitting judges aren’t allowed to utter a word to defend themselves.

Frustrated by the narrative that crime is out of control, some San Francisco residents have been searching for someone to blame. Judges Michael Begert and Patrick Thompson have been put in the crosshairs by Stop Crime Action. The bellicose group, aided by a similarly named sister organization, Stop Crime SF, has endorsed Albert “Chip” Zecher, who is running against Begert, and Jean Myungjin Roland, who is running to unseat Thompson.

Begert and Thompson have been accused of allowing “dangerous offenders” to roam the streets. The caustic rhetoric concerns Teresa Johnson, president of the San Francisco Bar Association.

“Given that understandable frustration, it is more important than ever from the standpoint of the rule of law that we respect the independence of the judiciary,” she said on a recent episode of KQED’s Forum.

“Effectively, judges are umpires. They’re calling balls and strikes, and they’re enforcing the rules. And their job is to be impartial.”

The impartiality makes Begert and Thompson easy marks for Stop Crime Action, which has adopted the playbook to oust progressives established by the recalls of San Francisco Board of Education members and Boudin, and the effort to topple San Francisco Supervisor Dean Preston.

The judges have been unable to substantively respond because of “judicial canons,” the state ethics laws that muzzle judges from speaking about how they’d rule on the bench for fear of injecting prejudice. The decades-old canons, which echo federal ethics codes concerning the judiciary, are unique to California.

“In some ways, it leaves judges as sitting ducks because we are unable to speak on matters and face an onslaught of attacks against our record and against particular decisions which, placed in context, we may have been able to address them or squelch concerns,” Thompson said.

The current hyper-partisan era has led to the politicization of the judiciary, multiple sources told KQED. San Francisco Supervisor Aaron Peskin said the pressure against the judiciary is led by right-wing forces, citing past donations to Stop Crime Action from a political group that received major funding from billionaire William Oberndorf.

“California needs to be very careful and vigilant about not allowing that right-wing takeover of the judiciary to happen here,” Peskin said, but in the meantime, “the judges are, by definition, fighting with both their hands tied behind their back.”

Peskin noted that Begert has spent the majority of his time in diversion courts, which, by design, are not courts that sentence people to prison because, he said, “that is not their function under the law.” Begert has since been assigned to Newsom’s CARE Court, part of the state’s effort to address the homelessness crisis.

John Trasviña, a Stop Crime SF volunteer who is the immediate past dean of the University of San Francisco School of Law, said judges staying mum on their process is, in part, what drove the organization’s involvement in the race. Stop Crime SF has placed “watchers” in San Francisco courtrooms to evaluate judges’ performance in criminal matters.

“So the court has a very big public relations problem on its hands. People don’t trust the courts,” Trasviña said.

That view has been bolstered publicly by Breed, Jenkins and Gov. Gavin Newsom. On an episode of Forum’s “Doing Democracy” series earlier this month, retired judge LaDoris Cordell scolded Breed and Jenkins.

“Shame on the mayor and shame on the district attorney for pointing the finger at judges and saying judges are the problem,” Cordell said. “People who know better are really taking a stance opposing the independence of the judiciary. And it is so, so harmful.”

Judicial contests are usually low-information races where voters struggle to know the records of the candidates, Michael Kang, a professor at the Northwestern School of Law, said on the Forum episode where he was a guest alongside Johnson and Cordell. There are roughly a dozen other San Francisco Superior Court judges up for reelection, but they won’t appear on ballots because they are unchallenged.

Not every state has similar ethics rules to California’s. Some states have partisan judicial races, while others don’t elect their judges at all.

Kang’s research at Northwestern, recently published in a book titled Free to Judge: The Power of Campaign Money in Judicial Elections showed that when judicial races become a matter of politically charged messaging, judges hand down harsher punishments.

“The money matters,” Kang said. “And the more competitive the election — the more partisan, the more politicized — the more the money comes into the elections and affects judges.”

Judges sentencing more punitively have largely hurt Black and brown communities, said Tinisch Hollins, executive director of Californians for Safety and Justice, a criminal justice reform group. During the era of the three-strikes law, the state’s prison population grew so large it caused “irreversible damage to the community,” according to Hollins.

Putting more people in prison just leads to higher rates of crime, she said.

“We have evidence — decades and decades of evidence and research — not just from crime data, but in looking at recidivism rates and whether or not these tough-on-crime approaches actually lead to more safety,” she said. “It didn’t.”

In a post on its website, Stop Crime Action accused Thompson of releasing an alleged drug dealer pending trial last year “despite the fact police arrested the defendant with enough fentanyl to kill as many as 85,400 people.” In an opinion piece for a neighborhood newspaper, the group’s leader, Frank Noto, called the drug dealer’s release a “catastrophic failure.”

In an interview, Thompson said he could speak in a limited fashion on matters of public record. He explained he imposed stricter requirements on the alleged drug dealer than were handed to him in a court recommendation.

The judicial canons forced the candidates to tiptoe around questions about their records at a recent debate hosted by Stop Crime Action. Roland and Zecher told KQED they are cognizant of trying to represent their worldview to voters while staying within the bounds of judicial ethics rules. Zecher, a civil attorney, was appointed by Newsom to serve on the board of UC Law San Francisco. Roland, who has been a prosecutor for 22 years, is an assistant district attorney in Jenkins’ office.

“I believe that we’re all discovering that the judges play a role in what’s going on in our streets,” Zecher said. “They are the public guardians. And we do want to make sure that our judges are looking at the accountability factor for bad actors on our streets.”

Roland said San Francisco is less safe now than when she was attending Lowell High School.

“This is just not the same city. And my elderly mother, she won’t even walk down the street because she’s scared,” she said. “I want to have my voice heard, and I want to make a difference so that people can feel safe on the street.”

Retired San Francisco Superior Court Judge Lillian Kwok Sing, who supports the incumbents, said she’s concerned the Stop Crime Action campaign may push the boundaries of democracy.

“This Stop Crime (group) is a test on the courts in general,” she said.

A presiding judge must assign superior court judges to particular courts. Given Stop Crime Action’s support of the current challengers, retired San Francisco Superior Court Judge Harold Kahn, who supports Begert, said any presiding judge may not ever assign Zecher and Roland to a courtroom that handles criminal conduct if they win.

“Let me ask you to put your feet in the shoes of somebody who was accused of being a drug dealer, and you walk into Judge Zecher’s courtroom,” Kahn said. “Do you believe you are going to be treated impartially? I submit you won’t. At least not necessarily because of what he has said, but because of what he has allowed himself to represent.”