by Erwin Chemerisnky and Miriam Aroni Krinsky
Deputy district attorneys in Los Angeles County are trying hard to undermine the efforts of George Gascón, who was elected Los Angeles County district attorney on a vision of reforming the criminal justice system. Just weeks after he assumed office, the Assn. of Deputy District Attorneys filed a lawsuit to stop Gascón from fulfilling this promise.
The union is attempting to derail Gascón’s new directives that create a more sensible, humane and effective starting point for charging offenses by ending the use of most sentencing enhancements, including gang and “three strikes” penalties that mandate additional time on top of already significant sentences.
Gascón’s new policies — which were exactly what he told the voters he planned to put in place — move the office away from excessive “tough on crime” charging and sentencing practices that did not enhance public safety but instead have produced overcrowding in prisons and jails at great cost to the community and taxpayers. The deputies union now wants to thwart the will of the voters by suing to prohibit him from carrying out his agenda.
Gascón, who was previously police chief and then district attorney in San Francisco, was crystal clear in his campaign against the incumbent district attorney, Jackie Lacey, about his view that over-policing and harsh criminal charging and sentencing practices have not made communities safer. Sentencing enhancements and three-strikes laws were imposed because of the idea that they would be a deterrent to crime, but decades of data and research have shown that they have not worked.
These approaches have exacerbated recidivism, creating more victims of crime. The reality is that the certainty of being caught is a vastly more powerful deterrent than punishment. And Gascón’s approach is based on evidence and the experience of other cities and countries that don’t embrace decades-long sentences as an autopilot starting point.
Since his election in November, Gascón has followed through on his promises. Under his directives, no longer would every prior crime need to be included by the prosecutor in the charging documents or every possible enhancement of a sentence sought. Instead, his policies seek to achieve sensible results supported by data and decades of research.
Even Gascón’s predecessors, Lacey and Steve Cooley before her, did not insist that every prior crime be included in the indictment or every sentence enhancement sought. Although they did not go as far as Gascón, they nonetheless recognized the need for discretion in charging cases and seeking punishment. Yet no one challenged their policies in court.
No district attorney, or prosecutor at any level, has the resources to prosecute every crime, nor is it a smart use of limited resources to seek the maximum punishment for every offense. Adultery in some states is unlawful, and driving even a mile over the speed limit violates the law. But thankfully, prosecutorial discretion exists to allow the criminal law to be enforced in a sensible way — and in a manner that promotes the best interests of the community.
Gascón, as the elected D.A., is responsible for making policy decisions on how and whether to charge cases and what sentences to recommend, not deputy district attorneys or even the courts. Indeed, the reason for having an elected district attorney is precisely so that the voters can have a say over the direction of our criminal legal system and key decisions about where and how limited resources are best used.
If Gascón’s policies fail or if the voters decide they don’t approve, he can be voted out of office at the next election. But stripping him of control over officewide policymaking — as the lawsuit is trying to do — rejects the agenda the voters of Los Angeles County chose, erodes the discretion vested in the district attorney and sets a bad precedent for judicial control over the prosecutor’s office.
Reasonable people may differ about the best approach for a D.A.’s office to take. But that is not for the courts to resolve, nor is it the prerogative of individual line prosecutors to decide. The court should reject this legal challenge and make clear that the elected district attorney alone has the power to run that office.
Erwin Chemerinsky is dean of the UC Berkeley School of Law.
Miriam Aroni Krinsky is the executive director of Fair and Just Prosecution.
Originally published in the LA Times
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