LA’s Head Prosecutor is On the Right Side of the Law and Morality

gascon lawsuit

It’s been a month since the Association of Deputy District Attorneys of Los Angeles (ADDA) filed suit against LA County DA, George Gascón because of new policies put in place to lower the over-crowding of jails caused by sentencing enhancements and strict parole policies. According to the ADDA, the directives put prosecutors in an unfair position, forcing them to break California law or risk being fired for not complying with Gascón’s more humanistic measures.

The ADDA is asking for a judge to (1) Declare illegal and unenforceable the “offending portions” of the special directives; (2) Enjoin Gascón from commanding DDAs to enforce “offending portions” of the special directives; and (3) restore “status quo ante,” by which DDAs may continue to charge and not be compelled to move to dismiss sentencing enhancements. In asking a judge to rule on these measures, they are claiming that the DA’s directives are not in compliance with the law. All directives given to the prosecutors, however, were based in the law and actually illustrate the ways in which laws can and should be interpreted with leniency so as to avoid the over-population problems we are seeing in our prisons and jails.

To answer whether or not these directives go against the law, it is necessary to delve into a analysis of the policies and the complaint filed by the ADDA.

  1. Sentence Length & Sentencing Enhancements

The Special Directive issued from the District Attorney on the subject of Resentencing made clear its goals from the start. In asserting these new policies, he is hoping that his office can stop the trend of over-incarcerating people of color, young people, people who suffer from mental illnesses and people who are poor- all classes of people that make up a large percentage of the prison population. (SD 20-14) He takes particular issue with the lengths of the sentences imposed and cites to research which notes that there are no benefits to long sentences to compensate for the problems caused by the high costs and the community harm that follows. Following the Model Penal Code’s suggested methods, Gascón affirmed that his office would “reevaluate and reconsider for resentencing people who have already served 15 years in prison” while referencing parole experts and other academic studies. (SD 20-14)

Special Directive 20-08 states that “sentence enhancements or other sentencing allegations, including under the three-strikes law, shall not be filed in any cases and shall be withdrawn in pending matters.” According to the ADDA, this directive, among others, requires the county prosecutors to violate California law as well as their ethical and professional obligations (Compl. 20). The problem with the ADDA’s complaint is that prosecutors and judges can and do choose to remove strike allegations, and so this policy directive from Gascón merely aims to allow for the person being charged to serve their time for the crime committed, not double the time or mandatory 25 to life. The fact that the ADDA feels that their ethical obligations are under attack speaks to the “tough on crime” style of criminal justice that caused California’s prison population to balloon over the last decades. (SD 20-08, Appendix).

In the ADDA’s complaint, they point to Gascón’s policies as an example of the DA taking matters into his own hands, acting as a legislator and unnecessarily questioning the constitutionality of the three-strikes law. (Compl. 21) The biggest problem with this argument is that the constitutionality of three-strikes laws has already been questioned, leading to Prop 36 being passed in California, which changed the type of felony one had to commit to trigger the sentencing enhancements. Stanford Law School’s Three Strikes Project focuses on this very question, and challenges policies like the three-strikes law mandatory enhancements every day. As studies are done, society is learning that the longer someone is put in prison, the more likely he or she is to commit another crime. (Stanford Project Cite) The people of Los Angeles chose DA George Gascón because of his promises to make these very changes to the criminal justice system. His policies are not to allow criminals to walk free, but to approach the law with justice in mind for all involved. A prosecutor’s job is not simply to put people behind bars, but to act with integrity and to work towards the greater good of society.


  1. Petitioner’s Specific Duty to Prosecute Violations of General Laws

The ADDA’s complaint alleges that the DA’s Directives to not file sentence enhancements violates the specific duty to prosecute violations of general laws. (Compl. 23) According to the California Government Code section 26500, this duty is mandatory but up to the DA’s discretion. This interpretation of what both DA Gascón’s directives require, and what the relevant case law says, is incorrect. The District Attorney is not refusing to prosecute any crimes whatsoever, which is what the court explicitly prohibits in People ex rel. Becerra v. Superior Court. Instead, he specifically details situations wherein his policies will not apply (Directive 20-08) and creates a chain of command scenario to offer his prosecutors a way to argue for prosecution of specific crimes in specific circumstances. (Directive 20-14). While this might seem overbearing for his staff, it is hardly the exaggerated circumstance outlined in their complaint. The court in People ex rel. Becerra v. Superior Court specifically states that the duty that is mandatory to the District Attorney is the duty to exercise discretion to prosecute crimes.

What the prosecutors are objecting to is actually the requirement to communicate their reasoning behind sentencing young adults to decades in prison for non-violent criminal charges, but this is how you change a culture of over-sentencing which is exactly what DA Gascón promised his constituents as he ran for office. Study after study shows that punitive practices do not lead to less crime. California is the perfect example of what “tough on crime” policies can do. Instead of lowering crime rates, they’ve skyrocketed. George Gascón has a history of relying upon technology and empirical studies to change the way we look at the criminal justice system. His work in San Francisco shows that there are better methods, and so why keep using the ones that are known not to work? (SF Chronicle Article)

  1. Striking Prior Convictions “in furtherance of justice”

According to the ADDA’s complaint, “the Special Directives demand that County prosecutors violate the law by requiring them to bring a motion – and to refuse to oppose a motion at resentencing—to strike prior convictions and special circumstances resulting in a sentence of life without parole in all pending cases in which they have already been alleged.” (Compl. 26). They explain that prosecutors are not able to strike prior convictions in certain situations, like those in accordance with three-strikes laws, unless it is in pursuance of justice or if there is insufficient evidence to prove the allegations. The complaint cites to People v. Orin where the court clarifies that the “in furtherance of justice” language relates to both the constitutional rights of the defendant and the interests of society represented by the people. (Compl. 26) Considering that DA Gascón was elected by the people while running on this platform, it would seem that the people’s idea of justice has shifted to be what is in line with the constitutional rights of the defendant.

Special Directive 20-14 speaks directly to the idea of justice while explaining the office’s new position. “Life Without the Possibility of Parole, an increase in mandatory minimum sentences for indeterminate sentences, Three Strikes sentencing, and requirements that restrict people to complete 85% of their imposed time now keep people in prison for longer than ever before, long after they pose any safety risk to their community.” (Directive 20-14, p. 12) The shift in policy is in order to address the overpopulation in California’s prisons which, especially during a global pandemic, is neither justice-oriented nor economically prudent. California spent $15.7 billion on prisons in the last year alone while poverty ran rampant and schools were left underfunded, so as the DA of one of California’s largest counties, Gascón’s interpretation of “in furtherance of justice” is not only a thought to the defendant’s constitutional rights but to the larger society which foots the bill for prisoners serving life sentences without the possibility of parole. Once again, while the directives call for the prosecutors to strike prior convictions, it creates a chain of command scenario wherein they are able to request certain sentences for individuals they believe should not be included in this blanket policy. Instituting checks and balances is not against the laws of California and does not require the county’s prosecutors to violate their oaths of office or ethical duties. If anything, the ethical duty of a prosecutor is to find the most judicious path forward for every individual involved in the criminal justice system, not simply follow trends that have put California’s prisons in the position they are in today.

  1. Special Directives wrest from the judiciary its legislatively mandated role

The fourth and final issue raised by the ADDA’s complaint speaks to the separation of powers between the District Attorney’s office and the Judiciary. People v. Roman clarified that when a prosecutor moves to strike a prior conviction, ultimately the court and not the prosecutor decides whether doing so would be in pursuance of justice. (Compl. 29) This argument from the ADDA is questionable considering their previous argument that the Special Directives require the prosecutors to violate the law by directing them to ask the court to strike previous offences. If it is, in fact, a job of the presiding judge, then the prosecutors are not in violation of the law in moving to strike prior convictions, they are merely taking umbrage to the reactions that a few judges have had when these motions have been made. According to the complaint, the prosecutors are in an ethical dilemma, having to choose between their oaths and following their superior’s orders. (Compl. 30). Statements outlined by the complaint, however, paint a different picture. In some cases where a prosecutor has moved to strike prior convictions, judges have denied the motions and expressed discomfort with the new directives. This is not proof that the directives are illegal, it highlights exactly what DA Gascón is attempting to change with regards to the culture of sentencing. To some of the judges, veterans of the bench, who have come to expect a certain energy from the DA’s office, these new directives are questionable, but each statement shows they understand that the new policies come from the top and not a single prosecutor has been punished for following the directives. To be clear, the ADDA is attempting to use a few potentially embarrassing moments to claim that the prosecutors’ “deep ethical conundrum” is the same as illegality. It is not.

As District Attorneys are elected, policies change. That is the simple truth of this situation, and while it might be uncomfortable for the prosecutors who must now change their modus operandi drastically, it is not illegal. Each Special Directive handed down from George Gascón is cited heavily with California law and empirical, peer-reviewed studies of leading criminal justice experts. As the pandemic rages on, and America is confronted with its historical and present-day truths, society is shifting to a justice-oriented future. If the protests over the summer and the District Attorney run-off elections showed us anything, it is that there is a shared sentiment that the method of policing and prosecuting crimes must evolve. The people elected someone who ran on a platform of shifting the systematic and cultural norms, and growing pains are to be expected, but George Gascón’s legacy in San Francisco shows that through hard work collective buy-in, real change can be achieved.

Author: Simone Bradley on behalf of the social equity coalition, a 501c3 organization

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