Gascón commits to massive changes in criminal sentencing

On his first day in office after winning the 2020 election for Los Angeles County District Attorney, George Gascón released nine “special directives” to all deputy district attorneys under his supervision. These directives lay out sweeping changes to the district attorney’s office’s policies on a wide variety of topics including juvenile court proceedings, cash bail (or lack thereof), and standards of review for habeas corpus petitions. Of particular interest, however, are the changes to the office policies regarding sentencing and resentencing of adult criminal defendants. Under the new policies, both defendants whose cases are pending in criminal court and those who have already been sentenced can expect to see substantial reductions in their maximum confinement time.

Due to the nature of California’s determinative sentencing system, which provides for much less discretion at sentencing than, for example, in a federal proceeding, the sentencing exposure of a defendant is largely a product of the prosecutor’s charging decisions. This is particularly true when one considers the impact of “enhancements,” and “special allegations.” A hypothetical will illustrate how impactful these charging decisions are on a defendant’s exposure.

Suppose our defendant is accused of assault with a deadly weapon, a firearm, pursuant to California Penal Code Section 245(a)(2). We can assume that no one was seriously injured, much less killed, which is why the defendant is not charged with a more serious offense. However, because the defendant personally used a firearm, the crime is a “serious felony,” under Section 1192.7(c)(8). The base charge alone carries a sentence of two, three or four years. A sentencing court is bound by law to select one of these three options based on a number of factual and equitable factors. If the prosecutor alleges that the defendant suffered a prior conviction for a serious felony in California or any other jurisdiction, however, Section 667(a)(1) mandates a consecutive five-year prison term on top of the base sentence. If the prosecutor alleges that the prior conviction was a “strike” within the meaning of California’s three-strikes law, Section 667(e)(1) requires the doubling of the base term. If the prosecutor alleges that the defendant committed the assault for the benefit of a criminal street gang, an additional five-year consecutive term applies under Section 186.22(b)(1)(B).

As we can see, with enhancements and special allegations our defendant’s four-year case becomes an 18-year case. District Attorney Gascón’s Special Directive 20-08, issued on Monday, finds that “the current statutory ranges for criminal offenses alone, without enhancements, are sufficient to both hold people accountable and also to protect public safety.” In a sweeping move, Gascón has directed all deputy district attorneys to not file any new cases which include sentencing enhancements or special allegations of any kind, and to move to dismiss such enhancements and allegations in all pending cases at the earliest available opportunity. As our hypothetical illustrates, this change is a massive windfall for defendants currently charged with serious or violent felonies, especially those with prior felony records.

The special directive enumerates some of the most commonly used enhancements — prior-strikes, the “five-year prior” and “three-year prior” provisions, and gang enhancements — among others. The directive makes clear that the enumerated provisions constitute a non-exhaustive list. In the directive itself, and in public statements, Gascón has committed to not seeking any enhancements or special allegations of any kind against criminal defendants. This includes special circumstances allegations in murder cases, which trigger a sentence of life without the possibility of parole, and firearm enhancements which can likewise result in life sentences depending on how the firearm is used in the commission of a crime.

While the greatest impact will be for felony defendants charged with serious offenses, low-level felony and misdemeanor cases will also be impacted. The directive also states that in all probation-eligible cases, probation shall be the presumptive offer except in extraordinary cases. Deviations from this policy must be specifically approved by the bureau director. The directive implements numerous changes to misdemeanor case management including, as relevant here, that prosecutors will presumptively be required to offer diversion to misdemeanor defendants, with the additional presumption that the diversion offer not require the defendant to enter a plea beforehand or waive any statutory rights other than the right to speedy trial. Once again, deviations from the policy in extraordinary circumstances must be approved in writing by a supervisor.

These sentencing policy changes are even more impactful when considered in conjunction with Gascón’s Special Directive 20-14, issued the same day, which addresses resentencing. Under Penal Code Section 1170(d)(1), a court may, at any time, recall the sentence of a state prison inmate upon the recommendation of the district attorney and resentence the defendant. This is one of the only mechanisms by which a defendant whose case has reached final judgment, meaning appellate opportunities have been exhausted or are time barred, can “re-open” their case and seek relief from a court. As readers will imagine, the cases in which the previous district attorney administration voluntarily moved the court to reduce a previously imposed sentence were very limited.

Gascón has committed in his resentencing special directive to reviewing all 20,000 to 30,000 cases which his office identifies as having resulted in sentences inconsistent with the new policy guidelines. This presumably means that prosecutors will be moving courts pursuant to Section 1170(d)(1) for resentencing in all cases which resulted in state prison sentences based on sentencing enhancements, whether obtained after jury trial or by plea agreement. Given the practical impossibility of accomplishing such a task all at once, the special directive provides a list of factors to prioritize the review of cases. Priority will be given to inmates who have served over 15 years in state prison, are elderly, are at increased COVID-19 risk, and have been recommended for resentencing by the Department of Corrections and Rehabilitation, among other factors.

It remains to be seen how the policy changes announced this week will play out in everyday practice in Los Angeles’ criminal courts, particularly when courts have their opportunity to weigh in, such as at resentencing. Nevertheless, on their face the special directives announced by Gascón appear to herald a sea change in the district attorney’s office’s approach to charging and sentencing which will provide substantial benefits to criminal defendants. 