By David M. Greenwald
A lawsuit by the Association of Deputy District Attorneys in the County of Los Angeles was heard by a Los Angeles County judge on Tuesday. The Deputy DAs are challenging the reforms newly-elected District Attorney George Gascón announced when he took office, which include new directives seeking to end the practice of charging and seeking sentencing enhancements that result in decades-long sentences, which have been cited by reformers as a leading cause for mass incarceration.
“We’ve started fulfilling many of the campaign promises, but change never comes easy,” newly-elected DA George Gascón told the media earlier this week. “These enhancements have never been uniformly applied, meaning that prosecutors in this office, as well as other offices around the state, often pick and choose when they’re going to use this.”
The Deputy DAs pushed back, filing a lawsuit and a recall campaign (that they are barred from undertaking just yet).
The union is calling for case-by-case discretion when it comes to seeking enhancements.
“What we’re asking basically is that the DA follow the law,” said Eric Siddall, the Vice President of the LA Association of Deputy District Attorneys as reported by a local radio station. “And that while we recognize, and I think all courts recognize, all parties recognize, that there is wide discretion [for the DA], there are certain things a DA must do, and this is one of those laws that he must follow.”
Now the question is before a judge, who said on Tuesday that no ruling would be given that day.
Live Tweeting the proceedings, LA Justice Defender (LADefenders2020) reported that the ADDA argued the “touchstone of prosecutorial discretion is case by case discretion” and would not accept a “facade of discretion” whereby certain enhancements are enforced, only subject to approval from highest level of the office.
The ADDA argued that a preliminary injunction in this case, which would prevent the policy from taking effect, was important, because the policy by the DA put the deputies in the position of “violating the law.”
Meanwhile, Gascón’s legal team countered, asking whether the ADDA has standing to even argue this matter. The associational standing under California labor law is in question.
“The County has rights to set policy, and the Union has rights as a bargaining unit. The Union does not have a right to bargain criminal justice policy, he argues. There’s nothing in the ADDA bylaws that authorize the union to bring litigation to challenge its employer’s policies,” LA Justice Defender tweeted.
The broader issue, however, focuses on prosecutorial discretion and a separation of powers issue.
“There is no law that compels prosecutors to file enhancements, and the law on Three Strikes impinges on discretionary rights of the executive,” LA Justice Defender reported.
The DA’s counsel argued, “The legislature cannot eliminate prosecutorial discretion: they cannot force a prosecutor to make a charging decision. Under the doctrine of constitutional avoidance, the statute must be read as permissive rather than restrictive, i.e. ADDA is arguing something unconstitutional.”
The judge asked, “Is there not a distinction between the charge for an offense and a sentencing enhancement? Charging is for prosecutors and sentencing is for judges.”
The DA responded, “Case law recognizes charging decisions on sentencing enhancements, that’s where the prosecutor has the most discretion.”
The judge appeared to see a distinction between the charge and the enhancement, and the DA countered that “it doesn’t make any sense to eliminate all of prosecutor’s discretion in those cases, and that would be clearly unconstitutional.”
Miriam Krinsky, who is the executive director of Fair and Just Prosecution, an organization that seeks to bring reform and accountability to prosecutors, issued forth a lengthy statement in response to the unprecedented proceedings on Tuesday.
“As we saw during today’s hearing, some groups and individuals are intent on undermining reforms implemented by District Attorney George Gascón, who was elected by the people of Los Angeles County on a mandate to transform the criminal legal system,” she said.
She argued, “DA Gascón’s new directives create a more sensible, humane and effective starting point for charging offenses by ending the use of certain sentencing enhancements that mandate additional time on top of already significant sentences and have fueled mass incarceration in our overcrowded county and state correctional facilities.”
Moreover, she echoed the sentiment of many reformers—Gascón is merely carrying forth the policies that “he told the voters he would implement if elected.
“We now know that ‘tough on crime’ policies of past decades failed and that excessive incarceration doesn’t make people safer—instead, it increases the risk of future crime, at an enormous cost to individuals, communities and taxpayers,” Krinsky said.
Moreover, in her view, “This lawsuit reflects a deeply disturbing infringement on the rights of Los Angeles County voters by seeking to block DA Gascón from following through on the promises and vision that got him elected.”
The ADDA has long opposed reform and also vigorously campaigned against Gascón during the campaign last year.
“It’s time for the ADDA to accept that George Gascón won the election and, as such, is the appropriate individual to chart the direction for the DA’s office in this county,” she said, offering that she hoped the judge here would steer clear of setting such a dangerous precedent by interfering with the DA’s well-settled prosecutorial discretion.
The judge indicated that he would likely make a decision by the end of the week, but the case could end up going to the California Supreme Court.
—David M. Greenwald reporting
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