The union representing Los Angeles County prosecutors filed a lawsuit Wednesday challenging newly seated District Attorney George Gascon’s directives to eliminate three-strikes allegations and some sentencing enhancements, alleging the moves are “unlawful.”
The Association of Deputy District Attorneys for Los Angeles County contends the directives — handed down the day the county’s top prosecutor was sworn into office just over three weeks ago — violate state law.
A directive that calls for dismissing, withdrawing or not filing special circumstance allegations that could result in a life prison sentence without the possibility of parole for defendants charged with murder is among those targeted in the lawsuit, which also challenges Gascon’s directive to dismiss gang enhancements and firearm allegations that can add more time to prison sentences.
The prosecutors’ association asked a judge for a temporary restraining order barring Gascon and the District Attorney’s Office from “forcing compliance by this county’s deputy district attorneys with unlawful portions” of the recently enacted directives. But attorneys withdrew the request when Los Angeles Superior Court Judge David Cowan expressed skepticism about the need for an immediate order and the union’s claim of imminent irreparable harm.
The association will instead seek a preliminary injunction in a hearing set for Feb. 2 before Judge James C. Chalfant.
In a lengthy statement released several hours after the lawsuit was filed, Gascon said he has “spent my life ensuring those who pose a threat to our community are held accountable and kept away from the rest of us” but added that “enhancements and strike allegations have never been shown to enhance our safety” during those years.
The district attorney said he has “asked deputy district attorneys entering an appearance `for the people’ to end excessive sentencing practices” and that the new approach “will take some fine-tuning and a tolerance for change.”
“I invite open and respectful debate based on the facts, however, the people have spoken, the direction is clear and, in the end, we all want the same things — safety and equal justice under the law,” Gascon said. “Despite today’s legal challenge, I believe a collaborative path exists to achieve these goals based on what research shows, what voters want, and what L.A. County deserves. I commend the court for its decision today, but ultimately it will take all of us, working together, to get this done.”
The lawsuit alleges that Gascon, “within weeks of his investiture as Los Angeles County’s district attorney, has issued special directives that are not merely radical, but plainly unlawful. They command the deputy district attorneys of respondent Los Angeles County District Attorney’s Office to violate California’s constitution and laws.”
Gascon “may not ignore, but must enforce California’s mandatory sentencing laws,” according to the lawsuit, which alleges that the Los Angeles Superior Court is “both empowered and obligated to enjoin this abuse of discretion” by declaring the challenged directives “illegal and unenforceable.”
The lawsuit also alleges that the District Attorney’s Office has “dispatched agents to monitor prosecutors at their hearings to ensure that they abide by the special directives rather than the law.”
“While an elected district attorney has wide discretion in determining what charges to pursue in an individual case, that discretion does not authorize him or her to violate the law or to direct attorneys representing the District Attorney’s Office to violate the law,” ADDA President Michele Hanisee said in a statement released by the association.
The lawsuit includes copies of court transcripts in four recent cases in which three judges refused the prosecution’s request to dismiss the challenged sentencing enhancements, including one in which Superior Court Judge Laura Priver said she understood the directive “came from the top” but told a prosecutor that “you have an ethical duty to do your job and proceed with prosecution.”
Another judge, Douglas Sortino, said in another case that it is “not in the interest of justice to strike any allegation or enhancement,” according to a transcript of another court hearing.
In a jointly issued statement Tuesday, a trio of legal experts from Northern California said they are “confident this attempt to obstruct the will of the voters will be struck down.”
“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,” said UC Berkeley Law School Dean Erwin Chemerinsky, Stanford Law School professor David Mills and Michael Romano, director of Stanford Law School’s Three Strikes Project. “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 D.A. Gascon’s directives.”
Gascon bowed to pressure this month by amending his directive to eliminate sentencing enhancements and instead allow them in cases involving the most vulnerable victims and in specified “extraordinary” circumstances. He said then that his office would seek sentencing enhancements in hate crimes, crimes against children and the elderly, and other crimes that meet certain criteria.
Gascon met significant resistance both from within and outside the District Attorney’s Office in connection with the directives that were issued Dec. 7, the day he was sworn into office after defeating two-term incumbent Jackie Lacey in a runoff election.
“Nearly all of the concerns I have heard center around my policy of ending all enhancements,” Gascon wrote in a letter released Dec. 18. “To be responsive to your input, I have decided to make some adjustments to my initial directives.”
The revised policy came after extensive discussions with crime victims, their advocates, members of the community and career prosecutors in his office, the county’s top prosecutor said.
The amended policy addresses concerns raised by vulnerable victims — children, the elderly and groups that are targeted because of their actual or perceived race or ethnicity, nationality, religion, sexual orientation, gender or mental or physical disability.
The office, however, will continue with its policy to cease seeking gang and other sentencing enhancements, including those made available to prosecutors by California’s 1994 “three strikes” law. There are more than 100 enhancements in California’s penal code.
“Over-incarceration — the practice of sending people to jails and prisons for too long — does not enhance safety,” the district attorney said shortly after being sworn into office. “It actually hurts our safety.”
Gascon — who told reporters earlier this month that he had a “mandate from the public” and intended to “follow that mandate” — said that tough-on-crime policies of the past “undermine rehabilitation, exacerbate racial and other inequities in our justice system and they decimate families and communities. They also are crowding jails and prisons and exacerbating the COVID pandemic behind bars.”
Black Lives Matter Los Angeles released a statement in support of Gascon on Wednesday, saying Angelenos elected him “because they want transformative change, which means an end to mass incarceration, the prison-industrial complex, and a system that unjustly criminalizes, targets and harshly penalizes Black people, Indigenous people and other people of color.”
“Gascon ran and won on a platform of progressive change that reaffirms the presumption of innocence and restorative approaches to the criminal legal system, values that are at the core of social justice and civil rights. Chief among the reforms are an end to sentencing enhancements and punitive sentencing — like three-strikes — which has been used to harm Black defendants and communities disproportionately,” the statement reads.
Meanwhile, victims of violent crime are set to gather for a New Year’s Eve candlelight vigil that was organized by the Recall George Gascon page on Facebook, which has nearly 35,000 members. Gascon’s opponents note that they can begin a recall effort on March 7 — 90 days after he has been in office.