Los Angeles DA is believed to be rewriting directives

Los Angeles County District Attorney George Gascón and his executive team began drafting new special directives after a superior court judge enjoined several of his policies that prevented prosecutors from seeking increased prison sentences under California laws, according to deputy DAs familiar with the matter.

It’s unclear what shape the newly drafted directives will take, but deputy district attorneys with knowledge of Gascón’s executive team’s actions say they will be centered around the court’s decision.

That decision was handed down Monday by Judge James C. Chalfant, a former federal prosecutor who was appointed to the bench by Gov. Pete Wilson in 1996, two years after Wilson signed the three strikes law. Chalfant’s 46-page ruling favored arguments by the union that represents more than 800 of Gascón’s line prosecutors and enjoined the directives that prevented them from charging prior strikes or special circumstances that would result in a life without parole sentence.

Gascón said he would appeal the decision. But until the appeals are finalized, questions loom about how the largest local prosecutorial office in the nation will operate under Chalfant’s ruling.

DA’s office employees who spoke on the condition of anonymity to discuss personnel matters have described the office as being in a state of disarray following the decision. They said there has been no guidance given on how to proceed with active cases that the court’s ruling affects and that management hasn’t done anything to build confidence among line prosecutors and their supervisors in the DA’s leadership.

Los Angeles County Public Defender Ricardo Garcia said in a phone interview Tuesday that it’s too early to say how the ruling will affect indigent clients with active cases whom his office represents. “We’ve managed to work through numerous tough on crime laws over these last couple decades, and we’ll work through the superior court’s decision,” he said.

“It’s unfortunate that George Gascón’s initiatives have been met with such vitriol and resistance, including this ruling,” Garcia said. “These changes are things that public defenders up and down the state have been asking for, pushing for and advocating for in courtrooms for decades. And that is the understanding that severe punishment alone doesn’t make society any safer, and it even tends to worsen outcomes for our clients when they’re released from prison.”

Gascón’s office did not respond to a series of questions Tuesday, including what his policy is for refiling strikes that were previously dismissed and how he aims to build confidence among his attorneys as he guides the office forward. His office also did not respond to questions regarding the drafting of new special directives that several prosecutors confirmed Tuesday were in the works.

Gascón, the self-described reformer who ran on a platform of reducing incarceration levels in Los Angeles in favor of rehabilitation for criminals, isn’t the first progressive prosecutor to embrace lenient criminal policies in California. But he is the first to have a court step in and reverse several of them in this fashion.

Some legal experts say this dynamic can be explained by the current political climate surrounding the criminal legal system, not just in LA but across the nation.

“It’s no accident, I think, that the rise of the progressive prosecutor as well as the more lenient criminal justice policies in recent years occurred in a time of historically low crime levels,” said Lawrence Rosenthal, a former federal prosecutor and professor at the Dale E. Fowler School of Law at Chapman University.

Rosenthal said a decline in violent crime in the U.S. after the turn of the century offered credibility to the progressive prosecutor movement that has led to the rise of the likes of Larry Krasner in Philadelphia, Kim Foxx in Chicago and Chesa Boudin in San Francisco. “Crime became less salient as a political issue, and a more progressive and reformative criminal justice system became more attractive,” he said.

But in a report he wrote last year following the death of George Floyd, Rosenthal documented a spike in violent crime, particularly homicides, in major cities across the U.S. He said that spike is now arguably making progressive criminal policies harder to defend.

“Political views, like ocean liners, don’t change on a dime,” he said. “But what that crime spike that began in late May set in motion was some forces turning the ocean liner. And those forces are going to progressively get more powerful as fear of crime increases.”

Rosenthal added, “So we could say Mr. Gascón was unlucky in the sense that he got elected at a time when the political trends were reversing themselves.”

California prosecutors had mixed reactions to Monday’s ruling, with some traditional DAs praising it and others warning that it may set an unconstitutional precedent.

“I believe this ruling will be overturned as it is unconstitutional and unethical and limits the broad discretion prosecutors are afforded in pursuing justice,” San Francisco County District Attorney Chesa Boudin said in an email Tuesday.

Others such as Sacramento County DA Anne Marie Schubert and Fresno County DA Lisa Smittcamp, both of whom recently sent letters to Gascón stating they wouldn’t grant him jurisdiction in cases involving both counties, called Chalfant’s decision a win for crime victims.

The California District Attorneys Association, which took the unusual move of filing an amicus brief in support of Gascón’s deputies, said the decision sends a clear message that prosecutors cannot usurp the voters or the Legislature in implementing so-called criminal justice reforms.

“We support criminal justice reform, but you cannot simply disagree with existing laws that protect crime victims because you decide you disagree with them,” said El Dorado County DA Vern Pierson, president of the DAs’ association.

Gascón’s policies that were reversed largely mirror those that Boudin implemented after succeeding Gascón last year. But Boudin pointed out that his enhancement policies are not blanket directives, unlike Gascón’s. While he ended the filing of prior strikes and gang enhancements in his office, Boudin does not have a policy limiting filing special circumstances such as gun or other conduct enhancements. And he said unlike Gascón, he will allege enhancements that his policy prohibits if he believes they are warranted.

“Our policy is materially different from the policy in LA addressed in this ruling,” Boudin said. “Our office’s policy is limited to status enhancements, not all sentencing enhancements. Our office’s status enhancement policy is also not absolute. It is a presumption in favor of not charging prior strikes, but I decide whether to allege them on a case-by-case basis.”

Garcia, the public defender for Los Angeles County, said regardless of the appellate court’s decision in the case, he appreciates Gascón’s approach “to creating a more fair system in sentencing.”

“I’ll wait to see how he implements the decision of the reviewing court and the decisions of the superior court, but the reality is at the end of the day, we’re going to continue to seek justice for all of our clients,” Garcia said.