Commentary: California’s Leading Reformer DA’s Find Themselves Under Fire


By David Greenwald

Yesterday in Los Angeles, Judge James Chalfant handed down a decision that dealt a massive blow, potentially, not just to the reform agenda of George Gascón, but every reform District Attorney in the state.

Like Boudin did nearly a year ago, the directives by Gascón instructed his deputies to not seek Strikes and other sentencing enhancements.

Chalfant writes,  “Although a district attorney has discretion to determine what charges to file (if any) in a particular case, the district attorney cannot wholly decline to exercise that discretion by indiscriminately prohibiting the prosecution of all violations of certain offenses.”

The judge seemed to reject Gascón’s argument that he had “no ministerial duty to plead the relevant sentencing enhancements under the Three Strikes law.”

While acknowledging that prosecutors “in every jurisdiction of the United State have considerable discretion,” the judge argued, “A district attorney’s discretion is not unlimited.”

It’s not clear how far this goes. The last line seems to limit the decision, but a closer read puts it more ominously: “The preliminary injunction will not enjoin the District Attorney from preventing deputy district attorneys from charging enhancements in new cases where not required by the Three Strikes law.”

The language here is tricky. iI appears that this might have only limit them from being compelled to remove already charged enhancements, but the ruling itself suggests that the “plead and prove” requirement may be mandatory and if, “where not required by the Three Strikes Law,” might be overly broad.

In a scathing editorial, the LA Times Editorial Board wrote that “Archaic ‘tough-on-crime’ holdouts are refusing to let George Gascón do his job.”

The Times argued that the judge left out some things from his ruling.

The Times noted the failure to consider mass incarceration by the judge. But perhaps even worse is the failure by the judge to understand that Three Strikes dramatically increases disproportionate incarceration in our system.

It is here that a year ago, Chesa Boudin at a press conference was particularly eloquent in announcing his office would no longer seek sentencing enhancements including a reduction in charging third strikes (Gascón’s policy goes a bit further).

Chesa Boudin stated, “Three Strikes is a policy that is a testament to the state’s tough-on-crime era. It was a policy that resulted in harsher and harsher punishments almost every week there were new laws adding prison time… with no data suggesting those sentences decreased crime, increased healing, or increased rehabilitation.”

“We are stuck with those laws on our books,” he said.  “They do not keep us safer.”

He said today “the announced policy is we will not charge status enhancements —three strikes, five year priors, or gang enhancements.”

The most stunning part of Three Strikes – how much it impacts the Black community.

“Forty-five percent of the prison population under the Three Strikes sentencing regime are African American,” Boudin said.  “These are policies that have a direct connection to racial disparities.”

Should we operate with evidence-based approaches to law and order?

Boudin has repeatedly cited data showing that these policies are not only unfair and biased but they fail to make us safer – in fact, they may undercut public safety by sinking in vast amounts of resources – $85,000 per year to incarcerate someone well past the point where they are actually dangerous.

And yet the critics don’t appear to see this problem.

A piece in the “Stanford Review” for example is filled with invectives and accuses Boudin as “a Pro-Crime Prosecutor.”

It is easy to dismiss such narratives as polemics, harder is to dismiss Michele Hanisee, the leader of the Los Angeles Association of Deputy DA’s – the group that filed the lawsuit that Judge Chalfant granted the preliminary injunction for on Monday.

Yet a deeper dig into Michele Hanisee finds she skirts the line – avoiding reference to Trump while at the same time incorporating the language and villains of the right – particularly dividing into the Soros fixation.

For example last fall, in “The Attempt to Buy District Attorneys Continue,” she blew the George Soros dog whistle writing, “Special interest groups, funded by George Soros, pumped millions of dollars into district attorney races across the country. Their mission was to use Soros’s wealth to radically reshape the criminal justice system.”

And then dutifully connects the spending of Soros to Gascón and the increase of crime.

She writes, “In Los Angeles County, we can expect big money to be spent on the District Attorney’s race. George Gascón will attract Soros PAC money by promising not to enforce the laws that voters enacted. Gascon, however, will need to answer for his track record. San Francisco’s property crime rate was twice as high as Los Angeles’ during his tenure. Gascon’s policies have earned San Francisco the distinction of having the highest property crime rate of America’s 20 largest cities.”

Chesa Boudin and George Gascón believe that they can create a system that is less punitive but just as safe, if not safer, for the public.

Punishing people beyond the point where they are a threat is not only expensive – it is counterproductive – and yet that is precisely what Three Strikes does.  Not only that, but it disproportionately affects people of color – Blacks and Latinos.

Yes, critics can point to rising crime rates – particularly violent crime and murder – as a concern. But, the problem with that view is that while we know that during a pandemic more people are dying or having their lives turned upside down by crime – what we don’t know is whether that is due to progressive policies – the fact that crime and murder is increasing in places that have and have not enacted reforms suggests another culprit.

An evidence-based approach can help cool the temperature in the room. Unfortunately, right now, too many people are throwing gas on the fire.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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11 thoughts on “Commentary: California’s Leading Reformer DA’s Find Themselves Under Fire”

  1. Eric Gelber

    This whole issue will no doubt be addressed through legislation this year. Senator Skinner already amended two bills on the subject just yesterday—SB 81 and SB 82.

    I will discuss these bills in an upcoming installment of California Capitol Watch, once the bills are set for hearing in a policy committee.

  2. Chris Griffith

    Correct me if I’m wrong but didn’t we vote on the three strikes law back in 2012 I think that was called prop 36 if I rightly remember and I thought it was overwhelmingly passed by 69% or 70%. so why do we have to State legislature having to do anything on this the voters have spoken.



    1. David Greenwald Post author

      Prop 36 modified Three Strikes requiring the third strike to be violent or serious in order to be sentenced to life. So I’m not sure why you think the voters have spoken when the last time they spoke, they overwhelmingly voted to modify the law.

    2. Bill Marshall

      Voters, their knowlege, opinions change… but you raise a good point… all the legislators should be able to do is pass a measure to be submitted to the voters again… not overturn a voted upon issue…

      Courts may be able to do that, if found unconstitutional, but the legislature should not attempt to overturn an intiative, unless it is a proposal for the voters to overturn it.

      I’m not wedded to the 3 strikes law… but I want to be convinced, and able to vote on a change… depending on the wording, might very well vote for a change… I actually voted “no” back then… but it is the principle of the thing…

      1. Bill Marshall

        The ‘shot clock’ expired 1:30 minutes early… what I meant to add was “My 6:06 post is not inconsistent with DG’s 5:54 post… but had not seen that when I posted… I still 100% stand by what I posted @ 6:06″…

      2. David Greenwald Post author

        Bill – the question before the voters was whether to modify three strikes in order to eliminate non-violent third offenses. A yes vote was modified. A no vote was the status quo. That is not an expression of support for three strikes in any way.

  3. Chris Griffith

    That is not an expression of support for three strikes in any way.

    Then it should be brought before the voters not the state legislature.

    So a bunch of people underneath that dome in Sacramento don’t like what the voters do so they go change things because they don’t like the voters decisions. I call BS on that one.

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