By Kathleen Cady
There are essentially two types of crimes: felonies and misdemeanors (Penal Codes 18 and 19). Felonies include murder, robbery, rape and other more serious crimes. Misdemeanors are often referred to as “quality of life” crimes. All these crimes are governed by legislation passed by legislators in Sacramento. In December 2020, however, several crimes were effectively legalized in Los Angeles County when District Attorney George Gascón took office. He simultaneously swore an oath to uphold the laws of California and issued a policy that his office would not prosecute 13 misdemeanor crimes. He issued another policy that his office will never prosecute anyone under 18 who commits a misdemeanor.
Many minor violations of law, when kept in check, help ensure public safety, minimize damage to property and protect victims. Gascón’s policy does none of these things and ignores the important misdemeanor violations that improve quality of life issues for the residents of Los Angeles County. With a few narrow exceptions and supervisor approval, Gascón’s policies do not allow prosecution of: Trespass (residential and business districts); disturbing the peace; driving without a license; driving with a suspended license; public intoxication; criminal threats; being under the influence of drugs; possession of drug paraphernalia; minor in possession of alcohol; drinking in public; loitering; loitering to commit prostitution, and resisting arrest.
Generally, police present a case to the District Attorney’s office and prosecutors evaluate whether a crime was committed and if sufficient evidence exists to file criminal charges. Gascón’s policies mandate that even if a misdemeanor is committed, perhaps even caught on camera, and sufficient evidence exists to prove the crime beyond a reasonable doubt, charges will be declined. The person will receive no consequence for the criminal action.
One recent example of the devastating consequences of Gascón’s misdemeanor policy is the widely publicized cargo thefts at the Union Pacific railroad tracks. In the past, this situation was kept in check because officers could respond to arrest people for trespassing on the tracks. However, under Gascón, thieves know they can trespass on the tracks to wait for the opportunity to break into the cargo containers and steal packages. Union Pacific employees were confronted by these thieves and threatened with crowbars. As if that were not bad enough, dozens of handguns and shotguns were among items stolen from the cargo containers. Had the District Attorney’s Office initially filed trespass charges, those responsible would have been held accountable without the crimes escalating. Union Pacific employees would not have been threatened. Perhaps most importantly, dozens of handguns and shotguns would not now be in the hands of criminals.
In addition to the above crimes that will not be prosecuted, Gascón’s policy requires that pre-plea diversion shall be presumptively given for all other misdemeanor crimes except for driving under the influence, domestic violence or stalking. When a person is diverted, they are not convicted of a crime nor are they sentenced. Instead, once they have completed diversion, the charges are dismissed. So despite Gascón’s public comments about wanting to reduce gun violence – when a person with a mental disorder or illness illegally possesses a gun, or illegally possesses a gun in violation of a domestic violence restraining order, or possesses a ghost gun (which is always illegal) – they get pre-plea diversion. To come full circle, the people who stole the guns from the Union Pacific cargo containers would likely not be held accountable, but rather would get pre-plea diversion and have the criminal charges dismissed.
Gascón’s policy deprives victims of their right to restitution
“It is the intent of the Legislature that a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime.” Penal Code 1202.4. When crime victims sustain financial loss because of the crime, for instance hit and run, theft or embezzlement, they have a constitutional right to restitution. California Constitution Article I, Section 28(b)(13). The only way victims can receive restitution, however, is when a defendant is convicted of the crime. Gascón’s policy allows for defendants to be diverted, meaning there is no conviction. If there is no conviction, there is no sentence and without a sentence, victims cannot get restitution.
Essentially, defendants are given no consequences and are provided resources for programs while victims receive nothing.
Not only are victims being left in the lurch by Gascon’s policy, but no one is monitoring the success of these diversion programs. The last time Gascon implemented this social experiment in San Francisco, it failed miserably. A 2020 report out of San Francisco analyzed diversion outcomes between 2008 and 2018, and noted that Gascon’s diversion programs were in deep trouble.
Some independent cities take action
At last count, 34 City Councils have voted “no confidence” in Gascón. Palmdale, Manhattan Beach and Whittier have gone further and asked Gascón for permission to prosecute their own misdemeanors. Inexplicably, although Gascón has abdicated his responsibility to prosecute most misdemeanor crimes, he refuses to relinquish control of misdemeanor prosecution to another agency that stands ready to take over that task.
Several city councils asked their police department to present information on how crime is impacting their communities because of Gascón’s policies. In the three examples below, the person giving the report clarified they were only reporting facts and not taking a position on Gascón. They also made clear that the officers in their department continued to work hard every day to protect the residents in their city:
On Aug. 17, 2021, Glendale Police Captain Robert William gave a presentation at the Glendale City Council meeting on the DA special directives and impacts. He shared that misdemeanors impact quality of life for residents and the business community. When officers make an arrest, they have exhausted all other resources. Ninety percent of the 825 misdemeanor arrests did not result in charges being filed solely because of Gascón’s policies. Reckless driving, speed contest (street racing), petty theft and vandalism were also not filed because Gascón’s policy required the prosecutor to proceed with diversion. Officers still make arrests for possession of illegal drugs, but charges are not filed and there are no treatment programs available. The result of Gascón’s policy is that a basic traffic ticket carries more consequences than an arrest for reckless driving or street racing.
On Oct. 12, 2021, Claremont Police Captain (now Chief) Aaron Fate gave a presentation at the Claremont City Council meeting on the DA’s special directives and enforcement challenges. Captain Fate shared that business owners have called to report trespass when someone repeatedly was sleeping near their business. Business owners are concerned their property will be damaged. Officers responded and took the person away, yet the person kept returning because no charges were filed. The same situation occurs if a person trespasses on a school. People who are under the influence of cocaine, methamphetamine or heroin or who have glass smoking pipes or needles will never be charged with a crime and officers keep coming across the same people committing the same crimes. In one instance, officers responded to a call of a naked man covered in blood, running through the streets. He was under the influence of a controlled substance, yet Gascón’s policies will not allow criminal charges to be filed. These individuals also do not receive treatment because these resources do not exist.
On May 9, 2022 Alhambra Police Chief Kelly Fraser gave a presentation to the Alhambra City Council on crime rates and case filings from 2019 through 2021. She shared that in 2020, of the 235 misdemeanor cases declined for prosecution, 98, or 41%. were declined because of Gascón’s policies. In 2021, of the 762 misdemeanor declined cases, 351, or 46%, were declined because of Gascón’s policies. Chief Fraser highlighted that the time officers spend for each misdemeanor arrest and preparing the case for criminal filing takes about 9-10 hours. The specific statistics she reported included that 19 cases of trespass were declined; 270 drug and paraphernalia possession cases were declined; and 15 resisting arrest cases were declined. Between 2021-2022, one person was arrested 30 times for narcotic violations. He was offered services 24 times, accepted 4 times but absconded all 4 times. Criminal charges were never filed.
Gascón’s continued refusal to prosecute quality of life crimes is negatively impacting Angelenos. Residents and business owners are left with no recourse when misdemeanor crimes are committed. San Francisco stores have recently closed because of retail theft, leaving folks in disadvantaged communities with fewer resources. Hopefully, Los Angeles businesses will not be forced to make similar decisions. Unfortunately, most residents of Los Angeles, who live here because of jobs, children’s schools, places of worship and other social connections, do not have the option of just picking up and moving.
About the author: Kathy Cady is one of several former prosecutors who are providing pro bono assistance to crime victims in response to Gascón’s policies.