The past week Los Angeles County District Attorney George Gascón unexpectedly began making a series of tweaks and changes to some of the high profile justice reforms he put in place after he defeated two-term DA Jackie Lacey in the fall of 2020.
The week of tweaking and amending two of his previous reforms began on Tuesday, February 15, with the first of what would be a series of six office-wide memos, each of which outlined newly crafted exceptions to two of Gascón’s high profile reforms, namely his rule against trying kids as adults , and the office’s prohibition agains the use of the “special circumstances,” designation for certain kinds of murder cases.
When by Friday afternoon, all six of the memos had leaked to the press, on Sunday night, Gascón released an explanatory statement about his decision to reform the reforms.
“I want to address some policy changes that we are making in our office,” he wrote in the Sunday statement.
“I want to reaffirm my commitment to the core values I expressed when I took office. We do not believe that children should be tried as adults. We should treat kids like kids and give them every opportunity to grow and change.”
He and his staff are also against sentencing people to die in prison, Gascón wrote. “People change and evolve – most often, for the better.”
Yet, while the DA said he firmly believes in the aforementioned principles, in Sunday’s memo, Gascón admitted that even the best intentioned one-size-fits-all rules don’t always work when it comes to the complexities of the criminal justice system.
“Some cases and situations that require a different response,” he wrote. “We have made some adjustments to our policies to account for these exceptions.”
The Hannah Tubbs factor
In his message, the DA also conceded that one case in particular had a measurable part in triggering the adjustments he was announcing.
The matter in question was the controversial and painful case involving 26-year-old woman named Hannah Tubbs, who pleaded guilty to sexually assaulting a 10-year-old girl in the bathroom of a Palmdale Denny’s restaurant, when Tubbs, who is transgender and identifies as a female, was still seventeen years old.
For a variety of reasons, Tubbs was not arrested until she was 26, for the crime she had committed as a teenager. By that time, Tubbs had gathered several additional charges on her record in other counties.
Concerned that Tubbs would herself be victimized in the adult system, Gascon and his office pushed for her to be tried in juvenile court, despite the fact that she was, by then, well into adulthood.
Matters were further complicated by the fact that, according to the LA Times, Tubbs had been diagnosed with an interweave of mental illnesses, and possible developmental disabilities matters.)
In any case, Tubbs was given a two year sentence in the LA County juvenile system, and is presently residing in Barry J. Nidorf Juvenile Hall, due to the fact that the county has not yet figured out where it going to house the youth and young adults who, in the past, would have gone to one of the youth prison facilities overseen by the state’s Department of Juvenile Justice (DJJ).
But, DJJ—as WitnessLA has repeatedly reported—is in the midst of being shuttered, a process that has its own growing problems. Meanwhile, LA County is thus far struggling, without any kind of definitive conclusion, to figure out where it is going to put those youth who formerly would have gone to DJJ. Thus, there was no appropriate place to house Hannah Tubbs when she was to begin to serve her sentence in some facility where presumably she could also get some help.
On Sunday night, Gascón admitted that the choices he and his office made in the case of Hannah Tubbs were a mistake.
“After her sentencing…,” he wrote, “I became aware of extremely troubling statements she made about her case, the resolution of it and the young girl that she harmed.”
Unfortunately, he added, the present juvenile system “in its current iteration does not provide adequate support to help someone at 26 with this level of challenges except through the adult system.”
If he’d known what he knows now, the DA said, he would have handled the Tubbs case differently.
The complex issues and facts of her particular case were unusual, wrote Gascón on Sunday. “I should have treated them that way.”
Some of those new issues and facts appear to pertain to recordings of disturbing jailhouse telephone conversations between Tubbs and her father, the details of which Fox News has recently released. (Tubbs, among other things, bragged from jail about her lightweight sentence, and spoke dismissively about his then 10-year-old victim.)
For these and other reasons, Gascón and his office have now implemented policies to “create a different pathway for outlier cases, while simultaneously creating protections to prevent these exceptions from becoming the rule.”
A rocky road to change
To have a fuller view of Gascón’s changes of the past week, it helps to rewind to December 7 2020, the day that the new DA was sworn in to office, and also the day he and his team launched his list of justice reforms.
Prominent among those reforms was the commitment to “end the practice of sending youth to the adult court system.”
This and Gascón’s other December 2020 reforms—such as doing away with most “sentencing enhancements” (sentencing add-ons, which are added on top of the base sentence for the crime committed), and the commitment to never file a “special circumstances” case—were, in most instances, based on the promises he made to voters in the course of his campaign during runoff election to unseat two-term DA Jackie Lacey.
The list of changes were labeled Special Directives, and were posted on the DA’s website, for all to read..
Many of LA’s rank-and-file prosecutors welcomed most of these reforms, describing their weariness with an office culture, which some prosecutors said valued “winning big,” over seeking justice.
But these new Special Directives infuriated a list of others, including the bargaining entity known as the Los Angeles Association of Deputy District Attorneys. (LAADDA).
The reforms brought a lawsuit from the LAADDA, before the end of December 2020.
In those early days, the LGBTQ+ community and other vulnerable groups felt blindsided when they learned of the blanket prohibition against sentencing enhancements, which also included the enhancement for those who commit hate crimes.
“Since hate violence has a unique serious impact on the community, it is entirely appropriate to acknowledge that this form of criminal conduct merits more substantial punishment,” wrote Anti-Defamation League Los Angeles Regional Director Jeffrey I. Abrams, after the directives were released.
Yet, Gascón met with various community groups and, by the end of December 2020, he and his office had tweaked the enhancement directive to allow prosecutors to file enhancements for “hate crimes, specific crimes against children, crimes against elders, and human sex trafficking,” and crimes against similarly vulnerable populations.
Still, many of those who disliked Gascón’s reforms were not mollified, and their criticism grew louder.
Among most vocal of those critics inside the DA’s office was—and often still is—prosecutor Jon Hatami, who became a semi-regular guest on Fox News where he described his boss as “pro-criminal, anti-victim,” and someone “who refuses to follow the law.”
Next came the recall efforts, the first of which did not make it to the ballot. Yet, a newer recall, which birthed itself out of the ashes of the first, appears to be far better financed.
In one of the memos that ushered in the new policy adjustments, Gascón modified his initial directive to never seek “special circumstances,” allegations which would make possible death penalty, or a sentence of life without the possibility of parole.
While the office was still “committed to never seeking the death penalty, eliminating mass incarceration, and fostering rehabilitation for those charged with crimes,” wrote Gascón, “after listening to the community, victims, and colleagues,” he understood, he said, there may be the rare occasion “where the filing of special circumstance allegations may be necessary.”
Thus, in order to figure out which “rare occasion[s]’ ought to qualify he had created a special committee “to review the appropriateness of filing such enhancements in an extremely limited number of cases where the underlying facts are extraordinary and/or the victims are uniquely vulnerable.”
In yet another memo, the DA similarly clarified his office’s modification of its initial blanket prohibition against trying kids in the adult system.
“DDAs and Juvenile Division supervisors are reminded that our Office policy remains that juvenile offenders should be handled within the juvenile court system,” Gascón wrote Now, he said, there could be “selective transfers of juveniles to the adult court system,” but only in the “most egregious cases that warrant a state prison commitment, where it is abundantly clear the minor poses a danger to the public and has serious difficulty controlling their dangerous behavior…”
Alex Bastian, Special Advisor to Gascón, disputed the take by Fox News and other conservative media outlets, which wrote that LA’s progressive DA was “backpedaling” due to a “crime wave” and “public blowback.”
The District Attorney is “firmly committed to his principles,” said Bastian in an email to WLA. “One of these underlying principles is to constantly refine what we are doing so that we can continue to enhance public safety in a thoughtful manner.”
The matter of the CAL Supremes
Both Gascón and Bastian said that another element that necessitated the recent changes is the fact that several appellate cases, which will soon be argued in front of California’s Supreme Court, could result in a new flow of complex cases “returning to our jurisdiction as a result.”
“We want to be aware of these cases as they return so that we can add another layer of review to evaluate each case individually,” Bastian told WitnessLA.
Prominent among those new cases is The People v. Padilla, which will be argued in front of the California Supreme Court on March 1.
The case pertains to Mario Padilla, who, in 1998, when he was sixteen years old, confessed to stabbing his mother to death, ostensibly because he believed she was too strict. Padilla was convicted in 1999, and sentenced as an adult to a term of life without the possibility of parole (LWOP).
In 2015, Padilla’s LWOP sentence was vacated on federal constitutional grounds, which meant he needed to be resentenced. While Padilla was appealing his sentence, and a new sentence was pending, California passed Prop. 57, which—among other things—requires the juvenile court to hold a transfer hearing to determine whether a juvenile offender should remain in juvenile court or be transferred to adult criminal court.
On March 1, Padilla’s attorneys will argue that under Prop. 57 their client, who has served more than 23 years in prison thus far, is eligible for such a transfer hearing to see if he can be moved to juvenile court for his upcoming resentencing.
(Just to be clear, no one suggests that Padilla is not guilty of murdering his mother.)
If the Cal Supremes agree, this could potentially send Padilla, along with other similarly complex cases, back to Los Angeles for these transfer hearings, meaning the L.A. County DA’s office would have to decide, in each case, whether to not they intend to oppose such a transfer.
“When I started in policing 40 years ago,” Gascon wrote on Sunday, “I believed that arresting and jailing people would bring us safety.”
Yet, after several decades of work as a cop, it it became clear to him, he said, that a “more nuanced approach,” was required for good policing.
“The same is true now,” wrote Gascon.
“As a result, we are making minor adjustments to our policies on juveniles and LWOP to allow for exceptions in the most extraordinary of cases.”
More as we know it.