The Association of Deputy District Attorneys for Los Angeles County contends that the directives — handed down the day the Gascon 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 suit 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.”
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,” the statement says. “D.A. Gascon’s policies will enhance health and safety in Los Angeles and begin a much needed process to reduce epidemic levels of mass incarceration.”
Gascon bowed to pressure fewer than two weeks ago 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, Gascon 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,” Gascon said shortly after being sworn into office. “It actually hurts our safety.”
Gascon, a former Los Angeles Police Department assistant chief and former San Francisco district attorney, called gang and other sentencing enhancements “a principal driver of mass incarceration.”
“They are outdated, incoherent and applied unfairly,” he said. “Plus, no compelling evidence exists that they improve public safety.”
Research indicates that people who serve excessive sentences are more likely than those who serve proportional sentences with a rehabilitative or restorative purpose to commit crimes when they are returned to the community, creating more victims in the future, according to the District Attorney’s Office.
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 BLM statement reads.
“… Police and Deputy District Attorney Associations are working to undermine the will of the people and democracy in order to preserve a fundamentally unjust system that overcriminalizes Black people and other marginalized groups. This effort directly counters the will of the people, professional ethics, and the law,” according to Black Lives Matter Los Angeles.
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