Unprecedented Arguments As Deputy DAs Push Lawsuit Against Gascón’s Reforms, Gascón Stands Behind Prosecutorial Discretion

George Gascón at a candidate’s forum in February

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.”

Gascón countered, “It is clear that the law gives wide berth and a great deal of discretion to the elected prosecutor.”

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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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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        1. alesha monteiro

          51 years later, yes we still have sympathy for the families of those murders, of course.  However, there are people here, now that are sitting in prison that are not a threat to society.  You can’t keep people in prison based on whether or not the family is ready to move on, that’s not how the law works.  My sons mother was brutally murdered in front of him when he was 19 months old, she was a friend of the family and my little sisters best friend.  I adopted her son after his father killed her.  I do not agree with the “50 to life” that he was sentenced to because I don’t think that will change anything and I don’t think that 50 is the magic number that will make him change and I think it’s crazy that he won’t be allowed to prove his rehabilitation before 50 years – it’s a set up for disaster.  Not being eligible for parole until he is 76 years old is cruel and unusual punishment and will never give him a chance to rehabilitate and reenter society, so basically, it’s just another wasted life.  Survivors are going to feel differently, some will be outraged and of course I feel bad that they can’t see that their anger is telling them that taking another life is okay when it’s just not.  Grieving is one thing but if after 51years and they are still this angry, I highly recommend some therapy because holding on to hate for 51+ years is not healthy.  On another note, before the pandemic, I would see one of the Manson followers – Bobby Beausoleil quite often when I would visit the facility that he is housed at.  This is not the face or soul of a murderer – A gentle man with a gentle spirit.  I’m sure you’re wondering how that is possible – well, it’s simple – just like you and I, he is nothing like he was 51 years ago and that is the problem with holding people in prison for life, based on the worst mistake they ever made.

          We are the only country that incarcerates at the rate that we do and the only country that gives out these ridiculously long sentences like we do.  We also have the 3rd highest in recidivism rate in the world – so you tell me, what is this accomplishing besides the punitive benefit of taking away ones life? And if that is ALL it is, just to make someone pay, that is not okay.  Regardless of your own personal feelings, that is not the soul purpose of prison and helps absolutely nothing.

          So I think Mr. Greenwald was implying that, “yes, we know the family is upset, that is a given.  It’s not something that needs to be said”.  Whether or not he was implying that is good or bad, I’m not sure, but the obvious is that the family would be upset. I understand their pain and they are absolutely entitled to their pain, and, people, regardless of a mistake made decades ago should be give the chance at rehabilitation and real hopes of freedom again – these two things are not mutually exclusive and we really need to stop acting like they are.

      1. Bill Marshall

        Alesha makes a good point… there are differences between ‘justice’, ‘rehab/public safety’, and ‘revenge’… ‘justice’ and ‘revenge’ oft get confused… main goal should be ‘rehab/public safety’… let the philosophers, moralists, “aggreived parties”, argue ‘justice’ vs. ‘revenge’… society’s role is to focus on ‘rehab/public safety’…

        The grieving families of murder victims always have another choice… ‘retribution’… they could always kill/maim the released perp… might make them feel better, but that choice would have consequences, too… but at least they’d be honest in defining the difference to them, between justice and revenge…

  1. Ron Oertel

    Meanwhile, in San Francisco:

    Breed acknowledged that there has been an uptick in violent crime in San Francisco, saying that it reminded her of her childhood growing up in public housing when she sometimes lived in fear over street shootings.

    San Francisco Mayor, Police Chief, DA Condemn Fatal Assaults On Seniors; Vow To Address Violence – CBS San Francisco (cbslocal.com)

    I see that the mayor and DA are talking pretty tough, this time.  But I suspect that as crime rises, DAs such as Boudin are going to have a tougher time justifying their direction.

    I saw a surviving family member describing one of these incidents as a racially-based hate crime (or words to that effect). I don’t think the alleged assailants are being charged that way, so far. But clearly, some in the Asian community believe that they are being targeted, and not by “white” people.

    1. David Greenwald

      Getting off topic fast here. But I did an interview yesterday with the head of the Prosecutor’s Alliance – one point to make here on the “rising crime” data which no one knows what to make is that it’s uniform across jurisdictions – it is going up in places where DA’s have implemented reform and places where DA’s have kept the same policies in place.

      Also on a Vanguard note, just hired a reporter to cover SF.

      1. Ron Oertel

        The issue goes to the heart of what’s near-and-dear to you – criminal justice reform.

        The article mentions the backlash against the DA regarding another incident, as well.

        Seems like there’s a reality check going on, which was entirely predictable based upon some of the reforms. (Including not keeping people incarcerated, when they represent an ongoing danger to the public – as noted in the other incident mentioned in the article.)


        1. David Greenwald

          I would prefer we stick to LA which is a fascinating issue in its own right. The Deputy DA’s are suing the new DA and a key question is whether the DA has the discretion as to whether or not to charge enhancements.

      2. Alan Miller

        Getting off topic fast here. But . . .

        As long as you use a “but” . . .

        “rising crime” data which no one knows what to make is that it’s uniform across jurisdictions – it is going up in places where DA’s have implemented reform and places where DA’s have kept the same policies in place.

        I know what to make of it.  Lots of people who were in prison are being let out en masse, and settling in jurisdictions everywhere and committing crimes.

        1. Keith Olsen

          I know what to make of it.  Lots of people who were in prison are being let out en masse, and settling in jurisdictions everywhere and committing crimes.

          Yup, the inconvenient truth that the criminal justice activists want to deny.

        2. Alan Miller

          Is there data to back that up?

          There are some things so obvious you don’t need data to back them up (here come the beer bottles being thrown at the concert stage).

          And why would it all of a sudden happen in 2020?

          I would imagine Covid-19 inspired mass releases.

          1. David Greenwald

            There has been surprisingly fewer releases than many had hoped. Newsom didn’t do any despite a court order demanding it for example.

          1. David Greenwald

            One piece of data that might back up your assertion is if the red state crime increase were driven by formerly convicted from blue states, but to my knowledge, there is no evidence that this is what’s happening. In short, despite your claims that we do not need data, we actually do to confirm or refute your assertion about the cause of crime increase.

        3. Alan Miller

          Have at it . . . and remember these quotes while you have at it:

          “There are three types of lies — lies, damn lies, and statistics.”
          ― Benjamin Disraeli


          “A single death is a tragedy; a million deaths is a statistic.”
          ― Joseph Stalin


          “Statistically speaking, there is a 65 percent chance that the love of your life is having an affair. Be very suspicious.”
          ― Scott Dikkers


          “Facts are stubborn things, but statistics are pliable.”
          ― Mark Twain


          “A recent survey or North American males found 42% were overweight, 34% were critically obese and 8% ate the survey.”
          ― Banksy

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