A sharp rebuke to some of Gascón’s most controversial policies

Newly elected Los Angeles County District Attorney George Gascón ran on a platform of progressive-minded reform. Immediately after entering office, Gascón implemented a series of "special directives," to his deputy district attorneys, the line prosecutors tasked with representing the people of the state of California in most felony, and some misdemeanor, criminal proceedings.

These special directives touched on diverse areas of the criminal justice system from the setting of bail to the prosecution of juveniles. Perhaps most controversially, the policies directed line prosecutors to no longer file sentencing enhancements or special allegations, including under California's three strikes law, and to move to dismiss such enhancements in all pending cases. If the judge refused to grant a motion to dismiss an enhancement, deputies were further instructed to move to amend the complaint to remove the enhancements.

The Association of Deputy District Attorneys for Los Angeles County, the collective bargaining organization which represents line prosecutors in the DA's office, applied for a preliminary injunction against Gascón on several bases. ADDA argued that the special directives require line prosecutors to violate California law, their oaths of office, and their professional obligations. Gascón's opposition to the injunction application argued that, as the elected district attorney, he enjoys substantial discretion in setting office policy, that his deputies were attempting to effect an end-run around the voters and the internal office grievance procedure, and that the ADDA lacked standing due to its limited role as a collective bargaining unit. In his Feb. 8 opinion, Judge James Chalfant agreed with ADDA's arguments regarding some of the most controversial special directives.

The court first disposed of Gascón's standing objections. Gascón correctly noted that the ADDA's scope of representation of its roughly 800 prosecutor members is limited by statute to exclude managerial decisions. However, the court held that the present suit was not challenging managerial decisions, but working conditions of the members. For that reason, the ADDA could sue under a theory of associational standing. As a separate, but also sufficient, ground for standing the court found that ADDA could sue to vindicate the public's interest in compelling the district attorney's office to follow the law.

On the merits, the analysis focused on the collision between prosecutorial discretion and the relevant provisions of California law. The court acknowledged that prosecutors enjoy considerable discretion in who to charge, with what to charge them with, and what, if any, plea offers to make to a defendant. Ordinarily, a limitation on these traditional powers would pose a significant separation of powers issue.

However, the Legislature may enact laws which limit the powers of the other branches so long as it does not impair another branch's "core function." The court found that the core function of the district attorney's office is to prosecute the guilty. In doing so, the prosecutor must be sensitive to other concerns, such as fairness to the accused and the rights of victims. Nevertheless, the prosecutor's essential purpose is to prosecute crime. As the court found, a prosecutor who simply refused to prosecute crimes "indisputably would be subject to mandamus."

California's three strikes law contains an explicit legislative limitation on the prosecutor's traditional discretion. It requires that the prosecuting attorney "shall plead and prove each prior [strike]." ADDA argued that this language creates a ministerial duty for prosecutors to file prior strike allegations in every case in which they are applicable. Gascón, and amicus ACLU, countered that requiring a prosecutor to file a prior strike enhancement in every applicable case would be an unconstitutional limitation on prosecutorial discretion. Gascón added that the practice of district attorneys in Los Angeles and other counties has been to routinely exercise discretion in the pleading of strike allegations. Gascón supported this assertion by referencing declarations from several criminal law practitioners. In one of the opinion's more memorable quotes, Judge Chalfant wrote that "[t]he perceptions of two public defenders, a defense attorney, and one prosecutor that some prosecutors do not follow the law cannot demonstrate the law's requirements." The court found that prosecutors have a ministerial duty to plead and prove strike allegations where applicable.

The court next addressed the issue of pending three strikes cases, in which Gascón had ordered his deputies to move to dismiss all prior strike allegations. The court found that the script Gascón required deputies to read into the record was both "inaccurate and inconsistent." The court found that mere antipathy towards the law was not a proper basis to move to dismiss a strike allegation "in the interests of justice," under Penal Code Section 1385. The court also found that moving to amend the information, presumably due to a court's refusal to dismiss a strike allegation under Section 1385, would violate Section 1386, which forbids a prosecutor from abandoning a prosecution once initiated without the trial court's permission. The court concluded by finding that the three strikes special directive unlawfully compels ADDA's members to violate the law by failing to plead and prove prior strikes, dismiss strike allegations in violation of Sections 1385 and 1386, and read an incomplete and inaccurate script to trial courts.

The court's analysis with respect to other sentencing enhancements besides those created by the three strikes law differed in an important way. For pending cases, the court also enjoined the special directives because they required prosecutors to move to dismiss all enhancements in all pending cases without regard to the particular facts and circumstances of each case. This violates Sections 1385 and 1386 for the same reasons the Three strikes directive does in pending cases.

The ADDA also sought relief from the enhancement special directive with regard to future cases yet to be filed. ADDA argued that Gascón could not have a "blanket policy" of not filing sentencing enhancements, submitting that such a policy is a refusal to exercise discretion. The court disagreed, at least at the preliminary injunction stage. Both sides agreed that general guidelines severely restricting the use of enhancements or requiring supervisor approval would be lawful. The court was unwilling to distinguish such guidelines from a "blanket policy," at the preliminary injunction stage and left the enhancement directive undisturbed for future cases yet to be filed.

Finally, the court addressed "special circumstances," allegations, which trigger sentences of life without the possibility of parole in murder cases. Here, the court again affirmed that Gascón can prohibit the filing of a special circumstances allegation in a future case, but cannot require dismissal of special circumstances in pending cases, which would violate Sections 1385 and 1386. The court also enjoined the provision of the special directive that required that special circumstances "will not be used for sentencing," as that provision is directly contradictory to Penal Code Section 1385.1's requirement that an already admitted or proved special circumstance must be used for sentencing.

Overall, the court's injunction order is a partial win for ADDA in their pushback against District Attorney Gascón's reform agenda. The court's order confirms that three strikes cases must be filed and prosecuted, and that pending special circumstances cases and other cases with already-filed sentencing enhancements and special allegations will go forward. However, Gascón's anti-enhancement policy will remain in effect for future cases, including those involving special circumstances.

Perhaps more importantly, the other major components of the Gascón reform agenda which were not at issue in this case -- severely limiting the use of cash bail, moving for resentencing for inmates who have served long prison sentences, deferring prosecution for juvenile offenders, and prioritizing diversionary or probationary sentences in all but the most serious felony offenses -- remain in place. Our law firm has not seen any material changes in our practice in the way most cases are actually being handled by trial prosecutors in Los Angeles County Superior Court: resentencing of offenders has not started, bail is being requested on more serious matters or with someone who has a prior record, and murder cases are being prosecuted without the dismissal of the special circumstance allegation. 