DA Gascón's Push For Shorter Prison Terms Runs Into Resistance From Judges, Prosecutors
In office less than a month, L.A. County District Attorney George Gascón has brought dramatic changes into the criminal courts with his progressive agenda. In his biggest move so far, he has directed prosecutors to seek shorter prison sentences for most criminal defendants by eliminating sentencing enhancements.
While winning plaudits from some quarters, the new policy has run into opposition from some of Gascón's deputy DA's and some judges. Some prosecutors reportedly are not making a forceful case to drop enhancements, and in at least a handful of cases judges have refused their requests.
Gascón says his move is designed to address two huge problems in the criminal justice system: There are too many people in prison and too many of them are Black and brown men. "California's mass incarceration problem can be tied directly to enhancements and the extreme sentencing laws of the 1990s," he declared on his first day on the job.
Under Gascón's sweeping directive, his office will no longer seek sentencing enhancements for things such as using a gun, belonging to a gang, or committing a second or third strike. His prosecutors are also prohibited from seeking the most severe punishments: the death penalty and life in prison without the possibility of parole.
L.A.'s Public Defender Ricardo Garcia applauds Gascón's decision to roll back what he sees as overly harsh and inhumane penalties. "I have been asking for, hoping for, and at times praying for these changes," said Garcia, who runs the office of more than 700 public defenders.
Garcia and other criminal defense attorneys say they're in awe of the breadth of changes ordered by Gascón, who also plans to seek the resentencing of as many as 20,000 prison inmates who had enhancements add many years to their sentences.
"These are really unprecedented changes," Garcia said. "We are in uncharted waters."
"It's a tsunami," added Criminal Courts Bar Association President Carey Caruso.
Garcia even said he intends to form an unusual alliance and work with the DA to help him implement his new policies.
"We want to make this happen," he said.
But some judges and more than a few of Gascón's own prosecutors appear to be resisting the DA's effort to bring a new philosophy of justice to the largest local prosecutor's office in the nation. They fear that locking people up for shorter periods of time will lead to more crime.
IN THE INTEREST OF JUSTICE? 'I DON'T BELIEVE THAT'
The usually loquacious president of the prosecutors' union, Michele Hanisee, would not talk about Gascón's changes. The union — the Association of Deputy District Attorneys — joined police unions in staunchly opposing Gascón's election. We spoke with half a dozen other prosecutors. All were critical of the new policy. They all declined to talk on the record for fear of retaliation from the DA — except for one.
Veteran Deputy DA Richard Ceballos, who supported Gascón in the election, said his new boss has gone too far. He argued that he and his colleagues face an ethical question because Gascón is asking them to go against their belief that longer sentences keep the public safer.
"I have to represent to the judge that I believe dismissing the enhancements and allegations are in the interest of justice," Ceballos said. "I don't believe that."
In three strikes cases, prosecutors believe Gascón is asking them to break the law, which requires them to seek longer sentences. Gascón argues the law is unconstitutional.
Some prosecutors in the DA's office support his changes. In fact Gascón named one — Joseph Iniguez — as his interim chief deputy.
FOR JUDGES, THIS IS A 'SEA CHANGE'
It's unclear how many of the county's more than 400 judges and 1,000 prosecutors are resisting the new policy.
Some prosecutors have subtly made their unhappiness with the change known in court, said longtime criminal defense attorney Robert Schwartz. He said he's witnessed deputy DA's asking judges to drop enhancements "with the same degree of enthusiasm as a North Korean political prisoner would have in giving a videotaped confession of wrongdoing."
Some judges have granted Gascón's motions, including two who dropped enhancements that could have resulted in the death penalty.
In at least three cases, judges have rejected prosecutors' motions to dismiss enhancements, according to defense attorneys.
For judges, this is a "sea change," said Loyola Law School Professor Laurie Levenson.
"We have to remember that judges have been imposing harsh sentences with enhancements for decades now," she said. "They are going to take a close look at what's being requested."
L.A. Superior Court Presiding Judge Kevin Brazile declined to comment for this story.
Levenson said judges could be rejecting motions to drop enhancements for legal reasons. "They have the right to ask for a legal explanation and when they don't get the explanation they want, they are not likely to go along with it," she said.
'WE DO HAVE SOME DETRACTORS'
The DA acknowledges he's up against "deeply entrenched" ideas about punishment among prosecutors and judges.
"They believe that a highly punitive approach is the path to community safety," Gascón said. He also noted many judges are former prosecutors.
Without elaborating, Gascón added he has had a "wonderful" conversation with the presiding judge and expects a positive working relationship.
As for his prosecutors, the DA described their reactions as mixed. "We do have some detractors," he said.
Gascón, a former LAPD officer and former San Francisco DA, believes locking people up for longer diminishes public safety. He points to studies that show longer prison sentences have a negligible impact on crime and can make someone more likely to reoffend when they get out.
"If long prison sentences were the answer to safety, L.A. County would be the safest county in the country," the DA told us.
To the argument that reducing sentences does not serve the cause of justice, Gascón replied that the current sentencing structure is racist — that people of color comprise 90% of those behind bars.
"I ran on a very clear platform," he said, adding that the "drastic changes" he instituted constitute "my contract with the community."
At the same time, under pressure from his prosecutors and victim's rights groups, Gascón issued a directive modifying his enhancements policy on Dec. 18, just 11 days after he took office. The change allow enhancements in cases involving hate crimes, elder and child abuse, which represent a small fraction of the cases the DA's office handles.
NO MORE 'USE A GUN AND YOU'RE DONE'
Many enhancements were enacted during California's high crime period in the 1980's and 90's.
Besides adding 10 years for using a gun while committing a crime, California's "Use a Gun and You're Done" law has allowed prosecutors to pile on another 20 years if you fire the gun. You can get life in prison if your shots hit someone.
If you commit a crime and are in the state's gang database — or are assisting an identified gang member — prosecutors have been able to seek an additional 10 years. (Gang databases have been found to be unreliable and racist — 90% of Black and Latino adults in prison are serving additional time under the state's gang enhancement law, according to the California Department of Corrections and Rehabilitation.)
The state's Three Strikes law works a little differently but is still considered an enhancement. If you commit a second serious or violent felony of any kind, prosecutors have been able to seek to double your sentence. They've been able to request life in prison if you're convicted of a third felony that is violent.
For Gascón, the Three Strikes law starkly illustrates the racist realities he seeks to change. A Stanford University study found 45% of people serving life sentences under the law are Black, while Blacks comprise just over 6% California's population.
Some estimate Gascón's new policy could shave off thousands of years of prison time for hundreds of defendants currently facing charges ranging from robbery to murder. A convicted murderer would still be sentenced to 25 years to life in prison, but wouldn't get another life sentence for using a gun. Same for robbery: a convicted robber would still get up to five years in prison, but wouldn't get an additional 10 years for carrying a gun during the crime.
Gascón said academic studies back up his approach.
His policy directive quotes Fordham Law Professor John Pfaff: "There is strong empirical support for declining to charge those status enhancements. Long sentences imposed by strike laws and gang enhancements provide little additional deterrence, often incapacitate long past what is required by public safety, impose serious and unavoidable financial and public health costs in the process and may even lead to greater rates of reoffending in the long run."
ENHANCEMENTS 'INDUSTRIES' HAVE 'RULED THE ROOST FOR SO LONG'
Gascón's move to do away with most enhancements will disrupt what has become one of the foundations of the criminal justice system, said the criminal defense bar's Caruso.
"There's literally been industries that have grown up around all of these different enhancements," he said. "It's just ruled the roost for so long."
Prosecutors and defense attorneys have routinely hired professional witnesses who testify for and against enhancements.
Perhaps most importantly, enhancements can play a key role in plea negotiations.
More than 90% of cases end in a plea deal - and prosecutors have stacked up enhancements and used them as powerful bargaining chips to force defendants to plead guilty - "The DA's hand was on the scale when it came to negotiating," Caruso said.
Now all of that is eventually going away.
Prosecutors have long argued the families of victims want longer prison sentences. But the families are not unanimous in their views.
LaNaisha Edwards lost two brothers to murder and now leads Crime Survivors for Safety and Justice. She agrees with Gascón's approach to sentencing.
"If someone is sentenced to 300 years, you can't live that long," Edwards said. "So is it just to make a point?"
This story was updated on Dec. 29, 2020 to include more information on enhancements.