In the year since George Gascón became L.A. County District Attorney, his office has become ground zero for the national movement to end mass incarceration and address racial disparities in the criminal justice system. Among his most controversial policies are those aimed at reducing prison sentences for serious and violent felonies.
On Dec. 7, 2020, the day he took office, Gascón took aim at two common so-called sentencing enhancements L.A. prosecutors had used to lengthen prison time for tens of thousands of people accused of using guns while committing crimes and/or committing crimes for the benefit of a gang. The overwhelming majority of them were Black and Brown men.
Using the California Public Records Act, we obtained data on the filing of gang and gun sentencing enhancements — also called allegations — for the first half of each year from 2012 to 2021. The numbers reveal a tectonic shift.
The data shows the filing of gang allegations from January through June of this year plunged 99% compared with the average for the same time period over the previous nine years — from 2,289 to 30.
We're taking a closer look at how L.A. County District Attorney George Gascón has pulled back from seeking longer sentences for more serious crimes and stopped filing charges for certain low-level misdemeanors.
Read the other story in this series.
Prosecutors filed 731 gun allegations in the first six months of this year — that’s a 63% drop compared with the average of 1,973 in the first half of the previous nine years.
California adopted these enhancements in the 1980s and 90’s in response to an explosion of violence — much of it on the streets of L.A. and places like Compton. But they were draconian, Gascón said.
‘Raw Emotions And Fear Mongering’
“We were doing it completely, purely on raw emotions and fear mongering,” the DA told us in an interview. “It has created a tremendous amount of inequity.”
Gascón’s decision to upend decades of prosecutorial practice has sent shockwaves through the criminal courts, from the bench to the criminal defense bar. Even people who back his policies have been surprised at the pace of change.
[Gang information is] heavily polluted by bias and by fraudulent behavior — sometimes by police departments.
The DA’s critics, including a number of his own prosecutors, accuse Gascón of engaging in a dangerous experiment that threatens public safety. They say he is imposing policies for all cases that ignore the circumstances of individuals and the crimes they commit. Some blame the current spike in violence on his policies.
There’s no evidence to support that. The increase is happening around the country and began before Gascón took office.
Nonetheless, the rise in crime — especially high-profile murders like that of L.A. philanthropist Jaqueline Avant — may jeopardize Gascón’s agenda. Opponents of his policies Monday launched a second campaign to recall him from office after the first one earlier this year failed to gather enough signatures to place the question on the ballot. The most prominent among the recall backers are old-school lawmen: former DA Steve Cooley and L.A. Sheriff Alex Villanueva.
‘Heavily Polluted By Bias’
Under the 1988 California Street Terrorism Enforcement and Protection Act, prosecutors may file a gang allegation when they believe a crime has been committed for the benefit of a gang. It can add substantial prison time. You face up to five years for robbery — triple that with a gang charge. You face up to seven years to life in prison for shooting at a car or premeditated attempted murder — 15 to life if there’s a gang allegation.
Gascón said another reason he has all but ended their use is that police and prosecutors have wrongly identified people as gang members. Gang information is “heavily polluted by bias and by fraudulent behavior — sometimes by police departments,” he said.
Last year, six LAPD officers were criminally charged with falsely identifying young men as gang members in records garnered from field interviews.
There have been other abuses, said certified expert gang witness Alex Alonso, who is hired by defense attorneys. He recalled when a prosecutor tried to argue that a young man stole a PlayStation for the benefit of his gang so “they could sit down together and play video games.”
Deputy DA Eric Siddall acknowledges the problem. “For a long time, the gang enhancement was used indiscriminately,” said the one-time member of the Hardcore Gang Unit, which Gascón has re-named and downsized.
That’s a policy based on ideology, not on best practices.
But Siddall, who is also vice president of the Association of Deputy District Attorneys union, said that’s changed — a claim the data appears to back up. The number of gang allegations filed had steadily fallen over the last decade.
Gascón’s decision to almost entirely end their use is “extreme,” Siddall said. “That’s a policy based on ideology, not on best practices.”
One of L.A.’s most respected criminal defense lawyers has long lamented those practices. “The gang allegation in particular was too broadly applied and often filed when there was a thin factual basis for the allegation,” said Robert Schwartz, who has practiced for more than four decades.
Gascón’s policies “were long overdue and necessary corrective measures to balance the scales that weighed too heavily in favor of incarceration," Schwartz said.
Gascón Has ‘Taken Away Quite A Few…Tools’
While gang violence has fallen dramatically since the 1990s, Siddall argues the allegation remains an important deterrent and valuable tool for locking up gang leaders and their most violent followers for longer.
“Once you get rid of those bad actors, it’s kind of like a plant that has no water,” he said. “It just dies.”
The DA argued the most violent offenders will still face long prison terms — 25 years to life for murder. “That’s not enough,” said Siddall, noting Gascón no longer allows prosecutors to seek life without the possibility of parole.
Gascón believes everybody should have a shot at parole, no matter their crime.
He and his critics both have employed the families of victims of violent crime who agree with their views to support them.
In 1997, California enacted what remains one of the toughest gun laws in the nation. It is known as the “Use a Gun and You’re Done” or 10-20-Life law.
Once you get rid of those bad actors, it’s kind of like a plant that has no water. It just dies.
It allows prosecutors to seek an extra 10 years in prison for a person accused of using a gun during certain violent felonies, including robbery, kidnapping and rape. If the person fires the gun, prosecutors can seek an extra 20 years. If the person causes great bodily injury or death, they can face an extra life sentence.
That gun allegations fell by two-thirds rather than being completely eliminated suggests that the DA’s office “is exercising discretion and going after cases where the accused poses a real risk to the community,” said USC Law Professor Jody Armour. “Fairness to individuals demands more nuanced approaches to gun cases, one tailored to the differences between more and less serious cases.”
Armour said Gascon was elected on the promise that he would carry out justice differently. “This data shows him to be a man of his word,” he said.
In the past, prosecutors often used the gang and gun allegations together. That made the maximum sentence for an armed robbery for the benefit of a gang 20 years. Under Gascón, it's five years.
By rolling back use of these allegations, Gascón has “taken away quite a few of the possible tools that prosecutors have in trying to reach justice,” said Kathy Cady, a former deputy district attorney who worked in the office for more than three decades.
How Best To Ensure Justice And Protect The Public?
The question is, what is the right punishment to achieve justice and ensure public safety?
Cady uses the example of a person who faces a domestic violence charge for using their fist to give their partner a black eye — a crime with a sentencing range of one to four years in prison.
If they used a gun, they would face one to 14 years with the gun allegation. Under Gascón, they face the maximum of four years, even though it's “quite a different crime” with the gun, she said.
There have been no credible and conclusive studies. There’s an absence of evidence in either direction.
Because almost all criminal cases end in a plea bargain, Cady said prosecutors now have less wiggle room — and less leverage — negotiating deals with defense attorneys, which she considers part of the process of achieving justice.
“You don’t have any leeway,” she said.
The DA said justice can be achieved using the sentencing ranges of the base charge without the gun or gang allegation.
Simply put, Gascón has a different idea of what is a just punishment that achieves public safety.
Do Longer Prison Terms Help Or Hurt Public Safety?
In making his case for dramatically reducing the use of sentencing enhancements, the DA points to studies that suggest longer prison terms may increase the chances someone will commit a new crime when they are released. But none look at extended sentences for gang or gun crimes. One examines low level drug offenses, another one misdemeanors and a third juvenile crime in San Francisco.
Gascón’s critics maintain studies on the 10-20-Life gun law and other enhancements that correlate longer sentences to lower crime rates. But correlation is not causation.
In fact, it’s almost impossible to conduct a randomized controlled study of two groups of people with the same crime profile who serve different lengths of time in prison.
“There have been no credible and conclusive studies” to show extra prison time is good — or bad — for public safety, UC Berkeley Criminologist Frank Zimring said. “There’s an absence of evidence in either direction.”
When I asked him about prosecutors who vehemently argue that longer prison terms have played a big role in the historic drop in crime over the past two decades, Zimring laughed. “That’s rhetoric,” he said. “Where are the empirical results?”
Good public policy is a combination of addressing the harm of the individual at the moment but also addressing, overall, the well-being of a community over time.
Prosecutors often point to two studies that suggest sentencing enhancements work as deterrents to crime. One 2007 study suggested California's three strikes law reduced felony arrests of people who already have two strikes by up to 20%. A 2012 study found the average gun enhancement law results in a roughly 5% decline in armed robberies within the first three years of its passage.
“You make things painful long enough, people will do less of it,” said University of Pennsylvania Law School Professor David Abrams, who authored the 2012 study. “That being said, [the decline in robberies is] modest. It’s not a big impact.”
Cooley, who served as DA from 2000 to 2012, said enhancements at least work to incapacitate people.
“Incarcerate them for a lengthy period of time, they won’t commit more crimes,” he said.
At the same time, most criminologists point out people age out of crime by their mid-30s — an argument often used against longer sentences.
‘It’s Nuanced. It Requires Deeper Thinking’
“It’s nuanced,” Gascón said. “It requires deeper thinking.” He acknowledges a more lenient approach can be a hard sell. “It's easily attacked as being soft.”
The DA sees himself as taking a more holistic approach that considers the impact of imprisoning men of color for long periods of time away from their families and often with huge barriers to stable housing and a job when they return.
“Good public policy is a combination of addressing the harm of the individual at the moment but also addressing, overall, the well-being of a community over time,” Gascón said.
He also envisions shifting money from incarceration to rehabilitation and communities. That’s an equation that hasn’t added up over the past decade, as the prison budget rose to an all-time high of $15.8 billion even as the inmate population plummeted.
As part of his equation, Gascon is counting on people getting more help as they return home after serving shorter prison terms. He acknowledges L.A. remains sorely lacking in services for previously incarcerated people.
Gascón’s policies have angered a number of his nearly 900 rank-and-file frontline prosecutors — some argue he has made little effort to seek their buy-in on his initiatives. The Association of Deputy District Attorneys sued to block his restriction on the use of gun and gang enhancements.
A judge ruled in February that the DA could not drop enhancements from cases that were pending when he took office, but it allowed him to do so in future cases.
Gascón has remained undeterred by it or the new effort to oust him from office.
“What I will not allow is fear and intimidation to impact doing what I believe is right,” he said.
While he insists this is not an experiment, the nation is watching closely to see how his policies play out — something we may not know for years to come.