Reform at the LA DA's Office

What Did Monday’s Ruling About DA Gascón’s New Justice Reform Policies Really Mean?

Celeste Fremon
Written by Celeste Fremon

On Monday morning, February 8,  Superior Court Judge James C. Chalfant issued his ruling on the legal filing by the LA Association of Deputy District Attorneys in which the local DA’s union asked Judge Chalfant to slap down Los Angeles District Attorney George Gascón’s reform-minded “directives,” most particularly the DA’s directive that instructs all the prosecutors who now work for him to stop using “sentencing enhancements,” with a very few exceptions.

Sentencing enhancements, as readers may remember, are sentencing add-ons like the California STEP Act (which can lengthen a sentence if the defendant is believed to part of a street gang), 10-20-life (which drastically lengthens sentences if a gun is involved, even if the defendant never held or fired the gun and didn’t commit the underlying crime, but was present),  plus other sentencing strategies that can pile on years or decades, to someone’s prison term, in excess of what the range of sentences that the commission of certain crimes, particularly serious crimes, already requires.

The hearing on the matter took place last Tuesday, Feb. 2, and Judge Chalfant’s ruling finally appeared at around 10 a.m. Monday morning of this week.

After the ruling was released, the prosecutors’ union almost immediately declared victory via Twitter.

“The judge presiding in the case between the Association of Deputy District Attorneys and the Los Angeles County District Attorney has ruled in the ADDA’s favor,” the union tweeted a little under an hour after the ruling surfaced.

But was that true?  Well, yes.  And no.

Not so fast

Counter to what the ADDA’s announcement declared, in his 46-page ruling,  Judge Chalfant did not award victory to one side or the other, but instead seemed to attempt to split the baby, so to speak.

(You can read the ruling yourself right here: 20STCP04250 Gascon prelim inj)

Chalfant gave the union a partial victory by issuing the requested preliminary injunction to prevent the new LA District Attorney from ordering his prosecutors “not to plead and prove strike priors under the Three Strikes law.”

(California’s controversial three-strikes law was one of those sentencing enhancements most criticized in the union’s legal filing.)

In other words, the preliminary injunction does say that when it comes to existing three strikes cases, where the prior strikes have already been “proved,” Gascón can’t tell his prosecutors to eliminate those strikes and the lengthier sentences they carry with them, from a case that is already in process.

There is a similar prohibition on existing cases involving “special circumstances” allegations, which can carry with them a death sentence or life without parole.

The exception to the terms of the injunction, the judge also seemed to suggest (although his writing on the matter was slightly tangled), may or may not be found in CA penal code section 1385, which allows a a judge to dismiss a case, or get rid of previous strikes, or dump special circumstances, et al, “in furtherance of justice.”

But — and now here’s where the splitting of the baby comes in — Judge Chalfant wrote at the conclusion of his ruling that his temporary injunction did not prevent DA Gascón from “keeping deputy district attorneys from charging sentencing enhancements in new cases where not required by the Three Strikes law.”  (Italics ours.)

To put the above statement in slightly clearer terms, here’s the deal:  When it comes to past cases, or cases that are already in process, many of the DA’s prohibitions against sentencing enhancements won’t fly, according to the judge.  In new cases,  however, DA Gascón’s instructions against the use of sentencing enhancements are okay.

That is, unless the cases involve three strikes, where it appears more complicated in terms of Judge Chalfant’s reading of caselaw.

And, furthermore, since this is a preliminary injunction, that means that it has only temporary application.  Its purpose, as the judge wrote,  is to “preserve the status quo pending final resolution upon a trial.”

The DA’s office reportedly will appeal the ruling.

Judicial reasoning

So what else should we take away from Monday’s ruling?

Well, since Judge Chalfant’s actual conclusion only takes up a short paragraph on the ruling’s last page, the rest of the 46 pages arguably provides some windows into the judge’s thinking in arriving at his decision.

Furthermore, many of those windows suggest that the judge may have been, at least in part, viewing caselaw through a tough-on-crime perspective of 20 or 30 years ago, judging by some of the things he cites. (For examples, see pp 21-23 in his ruling.)

It is a perspective that purported to protect victims of crime and support public safety, although research has long ago demonstrated that, by and large, it did nothing of the kind.  Instead it produced collateral damage to many of our most vulnerable communities, and filled up our prisons.

(LA Times editorial board member, Robert Greene, has a terrific essay that relates to this perspective of the judge’s ruling.)

As inpatient psychiatrist Christine Montross, MD, puts it in her remarkable book, Waiting for an Echo: the Madness of American Incarceration, “As a society we don’t see through the political rhetoric to acknowledge that tough on crime policies have not augmented safety.”

We say we want “safety, justice, accountability,” she writes, “but our practices reveal that we actually want revenge.”

Judge Chalfant seems to suggest this thought when he references the Amicus Brief supporting the ADDA’s case, from the notoriously anti-reform, California District Attorneys Association.  Chalfant noted that the CDAA characterized DA Gascón’s Special Directives  as “wrongly [protecting] the convicted criminal defendant.”

On the other hand,  Judge Chalfant wrote, “Gascón’s Special Directives cannot come as a surprise. He was elected with more than 1.6 million votes on a platform of reform-minded and less punitive approaches to a variety of conduct, including serious offenses previously punished with extreme prison terms.”

On this same topic, the judge quoted from another amicus brief, this one supporting the Los Angeles DA.  (This particular brief was the one WLA wrote about previously, which was signed by a list of present and former prosecutors.)

This brief,  noted the judge, argued that the injunction request “is at bottom an attempt by ADDA to prevent the [LA district attorney] from making policy decisions with which they do not agree. Yet, district attorneys, not their deputies,” Chalfant concluded, “are accountable to the people and community they serve.”

Well, yes.

Gathering data and changing culture

Meanwhile, there is another piece of news regarding the justice reform strategies being introduced the LA District Attorney’s office.  We have learned that the Loyola Social Justice Law Clinic, the umbrella organization under which Loyola Law School’s other highly-regarded pro-bono law clinics live, will be instituting a new database under the direction of the clinic’s executive director, Elizabeth Bluestein, which will be a repository of data, the purpose of which will reportedly be to keep track of the effects of Gascón’s new reform strategies.

“George made a promise to be transparent,” said Loyola Law Professor Chris Hawthorne, who is the director of Loyola’s Juvenile Innocence and Fair Sentencing clinic, and one of the cluster of attorneys whom WitnessLA consulted about Judge Chalfant’s ruling, and the fate of the new reforms.

“Part of that transparency,” said Hawthorne,  will be “keeping data on how the rollout of these policies work.”

For those of us with an attachment to facts and data, this sounds like a cheering concept.

As for the ruling, Professor Hawthorne had this to say.

“It is a partial victory for the ADDA, but a lot of directives still remain in place,” he told us. “And going forward the culture of the office will indeed change — directives or no directives.”

Post Script

Interestingly, in reference to the topic of Judge Chalfant’s ruling on cases involving the special circumstances designation, earlier this week, California state Senator Dave Cortese, backed by a list of justice reform organizations, announced SB 300, The Sentencing Reform Act of 2021, which intends to reform the state’s “felony murder special circumstance” law.

This is in order, said the statement from Senator Cortese’s office, to “ensure that the death penalty and life without the possibility of parole cannot be imposed on those who did not kill,” and those who did not “intend that a person die, during a crime.”

If passed, SB 300 will reportedly provide recourse to hundreds of people convicted under the “felony murder special circumstances law” that are currently awaiting execution or condemned to die in prison.


Photo at top of District Attorney George Gascón visit to LADA Office’s Norwalk Branch Office/via LADA Instagram

10 Comments

  • In other words..he has to follow current law, regardless of his personal theories. i.e. 3 strikes enhancements. He cannot just make up his own laws. If the legislature wants to change the law, so be it. But in the meantime, it is what it is.

  • Thanks for the long attempt at making a nuanced face saving explanation for the “power check” Gascon was handed. I’m sure this was a blow to all the SJW’s and pro-criminal advocates.

    Let’s see if the BOS tries to have the judge removed for blocking DA Gascon’s efforts at “Reimagining” the cities criminal justice system? DA’s have boundless uimited judicial discretion and do not have to abide by the law do they not? They are in essence are above the law. So he (they) thought. What about BLM? Will they now launch protest at the courthouse or show up at the judges home to protest?

  • Judge Chalfant’s ruling is neither the victory that the ‘tough on crime’ mob are celebrating, nor is it the setback that Gascon is personally fuming over. Of course it is a major embarrassment for Gascon, and one that will probably be hyped-up during the recall campaign, but Gascon has already fixed the problem and under his revised orders, strike allegations will be allowed, but only after a deliberative process that will require senior level supervisors to approve them. The default position will be to deny request to file strike allegations. Also, Gascon’s upcoming Netflix documentary will go a long way to take the sting out of the humiliation.

    But the writing is nevertheless on the wall for Gascon. His recall will be lumped together with Governor Newsom’s and just as Gascon benefited from the anti-Trump sentiment in the 2020 election, so too will he be tarred with the same brush of shame over Newsom’s mismanagement of the pandemic. Add into the mix the way that Democrats were misled about Sheriff Villanueva and it won’t be hard to make the case that Democrats were misled about Gascon. Hopefully the Biden administration will recruit Gascon and give him an exit strategy.

  • Gascon was elected by the citizens of Los Angeles County to do exactly what he is trying to do to reform the failing criminal justice system.

  • So was Gascon’s goal to be the poster boy for “Reimagining” the Los Angeles County criminal justice system or to have a documentary on Netflix? If the later, it’s very telling regarding the national aspirations for the “Progressive Socialist Communist Democratic” agenda. Clearly he only looked at winning the DA election as a stepping point and launching point for the movement and can care less about fixing the problems in the LA County Criminal Justice System. Thanks for clarifying this, the public needed to know.

    Well, many people have been elected by the people (President Trump, Sheriff Villanueva) to do their will, but this has not been a “shield of invisibility” against constant attacks by opponents or political enemies.

  • This was in the LA Times……

    https://www.latimes.com/california/story/2021-02-12/l-a-d-a-seeking-to-hire-former-rodney-king-prosecutor-to-oversee-police-misconduct-cases

    Is this meant as a scare/intimidation tactic directed at law enforcement, or a means of keeping their actions in check? Many who voted for Gascon are already having major buyer’s remorse as they were guided by emotion and swept along by a wave of anti-police sentiment fueled and cultivated by opportunistic politicians, media outlets and “Re-imagineers”. As law enforcement agencies throughout LA County continue to do the work they are duty bound, entrusted and swore an oath to do (keep life, property safe and enforce the law) crimes will be commuted, investigated and arrests will continue to be made. Once the public starts to see and experience a trend of not only increased crime but a perpetual cycle of “arrest, re-lease, commit crime, arrest, release, call not crime, etc.,etc.”, the fingers will point straight to the DA’s office for not fulfilling their duty to protect the people. No amount of parroting the mantra, “he’s simply doing what the people elected him to do” will shield the DA from ridicule and criticism. People are fickle, the news cycle is short and once they feel their personal space is directly violated, even the “most woke SJW” will take pause and be ready for a change.

    It sure doesn’t look like San Francisco is a glowing example of the DA Gascon’s work product. Crime on the rise, elderly Asian Americans being targeted and assaulted by repeat offenders and people fleeing the area like there’s no tommorow. What does the “research show” about that?

  • Love the subtle way the left uses the word “reform” whenever they want to change something they don’t like or agree with. They way they use it implies the changes are for the good. Maybe in their eyes they are, but that isn’t necessarily the case. For instance, how can we have laws on the books, like say trespassing and you have a District Attorney who orders his prosecutors not to file cases for individual charged with violating one of the basic rights of property owners. Now is that a “reform” for the better? I’d like to see how a property owner, oh say like Celeste Freeman, would react if someone were to take up residence on her patio. Of course said “intruder” is “trespassing” by the letter and spirit of the law, but evidently you have a D.A. who thinks it is just fine and this intruder-turned-neighbor has some sort of right to set up their domicile wherever he/she feels like it. In fact, maybe Ms. Freeman might have a very fine patio and said new neighbor invites more of their friends to share the delights of Ms. Freeman’s luxurious barbecue, spa and, of course, her Olympic size swimming hole. Now, in my eyes that is real reform, sharing one’s hard earned space and privacy with individuals who have taken a different road in life. Perhaps Ms. Freeman would agree, perhaps not.

    The bottom line is that when throwing out the sanctimonious word “reform,” one must keep in mine that word has many meanings for many folks, but for me, it ain’t always for the good.

  • How about telling the people the truth about enhancements. I have a friend in prison who was convicted of 2 counts of robbery in 1994 and went to prison for 3 years and received two strikes. In 1998 he was pulled over and had a gun on him a crime that carries 3 years max. Thanks to the three strikes law my friend has been in prison for 24 years serving 26 years to life. For a gun.Really? Get woke people sentencing enhancement are not justice. Give people the time for their crime only. Why waste tax payers money and overcrowd prisons with enhancement years.

  • Exactly, do your research people before posting senseless comments that undermine criminal justice reform. You have not been in the shoes of the convicted. DA’s have been overusing their powers for ages when it comes to dishing out sentences with enhancements. Most of these enhancements are well over the base term and make no sense. Three strikes law has ruined plenty of lives look at the case of Tony Arroyo https://law.justia.com/cases/california/court-of-appeal/2019/g056020.html This is just one of many. This system is not correct and checks and balances must be in place. No we should not let the someone who committed a crime not deal with the repercussions but the sentencing has to match the crime. Simple as that.

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