LA County Prosecutors Sue DA Gascón Over Criminal Justice Reforms

New Los Angeles County District Attorney George Gascón takes the oath of office on Dec. 7, 2020. (Photo courtesy George Gascón)

LOS ANGELES (CN) — A Los Angeles County judge on Wednesday ordered new District Attorney George Gascón to show why criminal justice reforms he enacted — which county prosecutors say conflict with state law — should not be blocked.

The order by LA County Superior Court Judge David J. Cowan stems from a lawsuit filed Wednesday by the Association of Deputy District Attorneys of Los Angeles (ADDA). The union’s lawsuit comes less than a month after Gascón took office and enacted reforms prosecutors say run afoul of state laws including the state’s Three Strikes Law.

In a statement following Cowan’s order, Gascón acknowledged the criminal justice system will take time to adjust to his reforms — which he said voters demanded by electing him over the incumbent DA Jackie Lacey.

“The will of the voters must not be mistaken as a commentary on the hundreds of deputy DAs who labor, day in and day out, to protect the public,” said Gascón. “They are public servants who have earned our utmost respect and gratitude.  They certainly have mine — and a sincere invitation to join me in making these much-needed changes.”

Gascón became the county’s top prosecutor in the wake of a tumultuous year that saw the fatal shootings of unarmed Black people by police that galvanized protests across the country. Throughout his campaign, Gascón promised sweeping changes which he delivered Dec. 7 — his first day in office — when he eliminated cash bail for misdemeanor charges and told prosecutors to stop seeking the death penalty.

He also ordered prosecutors to stop filing charges with criminal enhancements, which can make for harsher penalties. Under California’s Three Strikes Law, anyone convicted of two criminal charges can see an enhancement that can increase their sentence to 25 years to life in prison.

His day-one actions garnered immediate pushback.

LA City Councilman Paul Koretz claimed Gascón missed the mark by doing away with hate crime enhancements, calling attention to the record number of hate crimes against the transgender community. Gascón backpedaled and said prosecutors could file enhancements for crimes committed against the “most vulnerable” including children and the elderly, and for hate crimes.

But that left in place directives that violate California’s Three Strikes Law, according to the deputy DAs’ lawsuit. They claim Gascón’s reform policies violate prosecutors’ “oaths of office” to uphold state law and overrides their discretion to apply enhancements for prior strikes.

“Simply put, none of them may be alleged or proven by county prosecutors under any circumstances, regardless of the evidence or other circumstances,” the deputy DAs say in their 18-page complaint. “Accordingly, prosecutors have a ministerial duty to allege all prior convictions under the Three Strikes Law. Respondents have refused, and are refusing, to perform this duty.”

Gascón may have the discretion to decide what charges are filed, his deputy prosecutors say, but he cannot decline that authority indiscriminately.

“Simply put, respondents have a ministerial duty to enforce the law and to exercise their prosecutorial discretion in particular cases,” the deputy DAs say.

Their union vice president, deputy DA Eric Siddall, said LA prosecutors are “in an impossible position.”

“Do we follow our legal and ethical responsibilities and risk getting disciplined, even fired, by our new boss? Or do we follow his policy directives and risk losing our California State Bar cards and, by extension, our ability to practice law anywhere in the state? We’re asking a court to answer those questions,” Siddall said in a statement.

The prosecutors’ union is represented by Eric George from Brown George Ross O’Brien and said it’s gratified by Cowan’s order. The parties will be back in court Feb. 2.

While a spokesperson said the county does not comment on pending legal matters, they noted the Board of Supervisors “has made it clear that justice reform continues to be one of its six major priorities with the goal of reducing the number of inmates with mental health and/or substance abuse disorders.”

The lawsuit also received immediate condemnation from reform-minded legal experts.

University of California, Berkeley Law School dean Erwin Chemerinsky, Stanford Law School professor David Mills and Michael Romano, director of Stanford Law School’s Three Strikes Project said in a joint statement the California Supreme Court gives district attorneys complete authority on how to enforce state criminal law in their counties.

“The Deputy District Attorneys Association’s concern over striking enhancements is inconsistent with their decades-long silence when former district attorneys often dismissed enhancements and Three Strikes allegations in the interests of justice,” they said. “That the association now claims the practice to be unlawful is more reflective of their longstanding opposition to reform and the will of millions of Angelenos than it is the legality of DA Gascón’s directives.”

In a phone interview, Gil Garcetti — LA County’s DA from 1992 to 2000 — said he understands why Gascón’s reforms are being met with opposition. He said that he met with newly hired prosecutors and answered their questions but also laid down how he wanted the office run.

“I had to let them know that I am the elected DA and I am the only one who has been elected,” Garcetti said. “These are the things I have told the public I want to do.”

One policy he instituted while in office was following through on charges in domestic abuse cases, even if a victim recanted and refused to testify. Prosecutors, judges and police welcomed when a victim got cold feet and made up with their abuser, because that meant the case would be thrown out, Garcetti said.

There was pushback to his efforts to pursue those cases, but Garcetti said he believes prosecutors should uphold justice and break the chain of domestic violence so children don’t think that violence is part of every home life.

“My responsibility was one to the victim, and the children in that family. They’re the ones who mimic the mother and there was great reluctance in the office,” Garcetti said. “That’s what George is going through. It takes some time, but he’s malleable to change policies for the better.”

And Miriam Krinsky, executive director of Fair and Just Prosecution — a network of reform-minded prosecutors — said that while the prosecutors might view Gascón’s reforms as radical, those are exactly the policies that put him in office.

Krinsky, a former federal prosecutor in LA, said the criminal justice system has wasted billions of dollars to incarcerate people for decades rather than invest in prevention programs and provide positive support in communities most impacted by aggressive policing.

“We spent a lot of money and destroyed a lot of communities and didn’t make our communities safer in the process,” Krinsky said in a phone interview. “Not everyone is going to like it, but at the end of the day we’ll all be better off.”

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