Last Friday, May 14, nearly 70 current and former elected prosecutors and Attorneys General filed an amicus letter brief in support of Los Angeles County District Attorney George Gascón and his ability to set his own prosecutorial policies within the law.
The brief, addressed to the California Supreme Court, which has — as the LA Times Editorial Board noted last week — become “interested in the question” that presently roils around LA County’s high profile head prosecutor, about whether or not elected district attorneys have the right to decide what charges to file and what punishments to seek.
The signers of the new letter brief hope that Chief Justice Tani G. Cantil-Sakauye, and her associate justices, will see fit to order a particular trial court judge to stop opposing the reforms instituted by the new DA, which the judge appears not to personally favor, In the case of the particular judge, this would mean letting him drop the “sentencing enhancement” that Gascon wanted his office to no longer employ.
In so doing, the high court will “vindicate a district attorney’s power to decide what charges to file and what punishments to seek — and vindicate the right of the people to set the proper course for their criminal justice system.”
Specifically, the list of prosecutor signatories want the Cal Supremes to review the case of Nazir v. Los Angeles County Superior Court, a case in which, earlier this year, a trial court judge denied a motion from DA Gascón’s office to withdraw any sentencing enhancements filed under previous DA Jackie Lacey, against the defendant in the case, Rehan Nazir.
At the time, Nazir was charged with a list of serious crimes including kidnapping, extortion, carjacking, criminal threats and six counts of assault with a firearm, charges that together would mean a lengthy prison sentence for the defendant if he was convicted. Yet, back when the charges were originally filed, Lacey’s office added a sentencing “enhancement” for the use of a firearm, on top of the multiple charges of assault with a firearm, plus the other significant charges Nazir was facing.
Under Gascón, the DA’s office was pursuing all of the same serious charges against Nasir. But, in keeping with the new policies the newly-elected district attorney had just instituted, his office asked the trial judge to drop the extra add-on of Lacey’s firearm “enhancement.”
The judge, however, declined to allow the enhancement to be withdrawn.
In the hope of helping to persuade the Cal Supremes to reverse this potentially precedent-setting decision — which arguably appeared to allow Lacey the prosecutorial discretion to add the enhancement, but denied Gascón his discretion in removing it — the 69 district attorneys and attorneys general who signed the brief supporting Gascón, lay out a legal argument for the LA DA’s right to put his reforms into operation, including why the judge shouldn’t have meddled with them, along with a moral and practical argument regarding why Gascón reforms are urgently needed.
Reform v. the tough-on-crime status quo
Before we explore the new brief further, a quick recap of how we got here.
As most WLA readers know, when George Gascón ran against Jackie Lacey last year to become the next Los Angeles County District Attorney, he did so on a platform that was unambiguously reformist. Thus, after he defeated the two-term Lacey by a more than a quarter million votes, it should have come as a surprise to exactly no one that, right after he was sworn in on December 7, 2020, Gascón announced a list of reforms in keeping with his campaign promises, which he posted on the LA District Attorney’s website that same day for all to examine.
These reforms included such significant changes in office policy as no longer seeking the death penalty. Another change was not to seek charges for certain low level misdemeanors, except when public safety is at risk, or the actions by the potential defendant are chronic.
Another significant new directive on Gascón’s December 2020 list, was an official “bias” toward “keeping youth out of the juvenile justice system when possible, and when they must become involved, to employ the “‘lightest touch’ necessary in order to provide public safety.”
The most significant feature of this new light touch with kids, was the decision to end the practice of sending youth to be tried in the adult system altogether.
Among the most controversial of the new directives was Gascón’s decision to eliminate the use of most “sentencing enhancements,” add-ons like the one applied in the Nasir case, which could tack on a bunch of additional years to the lengthy prison terms that, in the case of serious crimes, were already demanded.
These sentence-lengthening strategies, could be added on for an array of reasons, such as if defendant could be shown to be a member of a gang, or if he or she had used a gun during a crime, or had a previous “strike,” on his or her record, no matter how far in the past the strike-worthy event had occurred.
The sentencing enhancement issue — along with some of the other directives, such as the elimination of the death penalty, and Gascon’s decision not send kids into adult court — has been angrily rejected by an unidentified number of those working in the office Gascón came to lead in December 2020.
The dissenting prosecutors have been joined by their local union, the LA Association of Deputy District Attorneys (the ADDA), plus some of the LA County residents who have lost family members to violent crime, along with Fox News commentator Tucker Carlson, the California District Attorney’s Association, and several conservative-leaning DA’s in other California counties.
Also, eight local city councils (at least that’s the number at last count) have passed votes of “no confidence” against the still new Los Angeles County DA.
Some of these opponents, who include LA Sheriff Alex Villanueva, are working on a recall effort to remove George Gascón from office, an effort that also is supported by several conservative-leaning former public officials, such as former LA DA Steve Cooley, former LA City Council member Dennis Zine, former LA County Supervisor Mike Antonovich.
Yet, as much noise as Gascón’s opponents are making, it does not change the fact that he is doing precisely what he said he would do when he asked the voters of Los Angeles County to elect him.
As the DA overseeing the nation’s largest local justice system, among those promises was to reverse many the choices made by the county’s last couple of tough-on-crime DA’s, which resulted in LA County’s state prison incarceration rate being higher than 56 out of the state’s 58 counties, according to the California Sentencing Institute, and nearly “five times that of San Francisco.”
All this brings us back to the new Amicus letter brief.
DA’s discretion v. trial judge’s discretion
When it came to the case of Rehan Nazir, the brief makes the point that LA’s new district attorney appropriately exercised the discretion given his office when, through the prosecutor assigned to the case, he moved to withdraw any previously-filed sentencing enhancements against Nazir. Thus, say the signatories, it is important for the Cal Supreme Court to reverse the trial court’s denial of the DA’s motion.
Doing so, will “not only preserve the separation of powers between elected prosecutors and the judiciary, it will make clear that trial courts are not permitted to thwart the will of voters and the district attorneys they elect.”
The case “merits review” say those who signed the brief, so that the high court “can clarify the authority of elected prosecutors to implement new and lawful criminal justice policies,” which are, according to the brief’s writers, aimed at “unwinding decades of mass incarceration that have adversely impacted people of color.”
The trial court’s decision, if left intact, the brief further states, “will set a dangerous precedent and undermine well-settled discretion uniquely vested in our nation’s elected prosecutors.”
The writers of the brief also point out that they could not find a single case in California where a trial court had overridden a prosecutor’s decision not to file charges or sentencing enhancements.
“For many decades, the courts have stood by and respected prosecutorial discretion when elected prosecutors sought harsh sentences that studies show disproportionately impacted communities of color,” Garcetti said in a written statement. “There is no reasonable explanation as to why the judicial branch should erode that separation of powers now and intrude on decisions clearly within the district attorney’s purview.”