Will Recalling George Gascón Change Anything?

Big Picture

If you read the Los Angeles Times, or any other newspaper covering Southern California, you are probably like me, tired of reading stories about someone committing a crime against society and humanity. In most cases the crime is straightforward – there is one or more perpetrators and one or more victims. That is easy to understand.

Where it gets complex is how our criminal justice system prosecutes these individuals. District attorneys prosecute felonies, and some misdemeanors, while city attorneys prosecute most misdemeanors. And in most cases 97 percent of prosecutions do not go to trial, which means the use of discretion during the plea-bargaining stage is very influential in finalizing a conviction and determining length of incarceration. 

When George Gascón was elected LA County District Attorney in December 2020, he represented a new breed of district attorney who truly believe there were imperfections within a deeply entrenched system of police officers, judges, rank-and-file prosecutors and probation and parole officers. New research shows reforming the system to deter people from committing crimes and limiting their time of incarceration was effective.

His first order of business was sharing a memo with his staff mandating the end of seeking cash bail for misdemeanors (unincorporated areas of LA County), the death penalty, the sentence of life without parole and the prosecution of anyone younger than 18 as an adult. The last part is also being led by a reform-minded group of prosecutors, academics and activists who strongly believe prosecuting minor, non-violent crimes is not just overly punitive but counterproductive. 

The sad truth is most of society would agree that America’s criminal justice system has not always done a great job with the use of discretion during the policing and prosecution phase. The reality is, human beings are not perfect. The judgement calls that do get made, whether in a split second or overtime, end up having real impacts on human lives, no matter what side of the law one is on. 

But critics, including a large majority of his DA staff, felt that his blanket decree went too far because it violated a prosecutor’s oath to use discretion wisely. The thought is, mistakes get made, but not enough to change the past standard operating procedure. 

Then COVID hit, influencing a new wave of homicides, aggravated assaults, and robberies (gun-related) throughout more of LA’s neighborhoods. His reforms never got a chance to find their footing and became public enemy number one. 

The fact is violent crime has been more prevalent in years past, but it was the acceleration of crime during such a short period that was so profoundly dislocating. This sudden surge of violence made people feel the streets were chaotic and dangerous, deterring many people from venturing out. 

Government has its own challenges trying to figure out how to help a growing population of Angelenos who are suffering from mental illness and more likely one to commit violent acts on others in our community. Media and public officials decided to portray part of the escalating violent-crime problem as arbitrary, however, when one looks at the assailants and their targets, it is entirely predictable. Most victims of street assaults are generally vulnerable: women (often petite), older men, or the disabled or indigent. 

These two diverging issues – reforms and rising crime - caused Angelenos to pay more attention to how LA County’s DA was addressing crime. I found that most people still do not know the difference between the responsibility of what a County DA and city attorney does as it relates to a crime. 

For those who knew, they strongly felt that Gascón was acting less as a prosecutor, and more of a public defender and reformer, which conflicted with CA law. 

In search of my own education on this issue, I tried to put together some pieces of the puzzle to see what fair criticism of Gascón and what is not. The most visible evidence that reinforces a message of criticism can be found within several high profile stories about his office’s prosecution of criminals and repeat offenders.

They highlight how some offenders were granted lenient punishments due to his new policies, with grave outcomes, while others focused on linking his policies too few arrests for those committing crimes that are not violent and serious. 

I also spoke to some neighbors whose cars have been stolen and the lackluster response from local police who find there is no incentive to follow-up. The impact on our economy is palpable. A car is a lifeline to a job, day care, and general errands and no willingness to find and prosecute car thieves sets a horrible precedent.

Other nuisance crimes, such is catalytic converter thefts, theft of merchandise from local stores and muggings have added to a growing discontent with the enforcement of rule of law. Other victims have spoken up telling stories about the DA’s policy that does not allow his prosecutors to join victims at relevant parole hearings.

The courts have also weighed in on his policies, pushing back on his interpretation of CA’s “three strikes” law. His practices were deemed illegal by a Los Angeles County Superior Court Judge after the union representing rank-and-file prosecutors sued, seeking an injunction. 

Then in February, his rank-and-file prosecutors voted nearly unanimously to back his recall this February. The Recall George Gascon campaign received over 30,000 petitions in recent days, bringing them the 567,857 needed by July 6. 

In the face of growing criticism, Gascón reversed course on another initiative when he lifted an order that prohibited prosecutors from seeking cash bail for defendants charged with nonviolent crimes. Prosecutors can now request cash bail for defendants charged with misdemeanors, nonserious felonies, or nonviolent offenses who have committed crimes while awaiting trial and those who pose an exceptional risk to public safety.

But there is more to the story. Truth be told, way too many people are committing a crime against society every day in our communities and our public safety and criminal justice systems do not have the capacity to keep up. Crime stats no longer reflect the full story of what is happening - cars and car parts are being stolen, vandals are destroying buildings, thieves robbing stores in broad daylight, and drugs are more prevalent. 

Defense attorneys have told me that for many of those who are caught committing a crime (misdemeanor and felony), they know the odds of them going to jail are not high and behave accordingly. When, in fact, a day or two in jail would be a major wake up call for most. Or a direct mandate to go to jail and then rehabilitation. Or mandated rehabilitation. 

But the truth is, even if everyone was convicted and remanded to jail for a brief period, it seems like there is not enough room for them at the local level because of a shift California’s state leaders took more than a decade ago. 

• In 2009, the federal government ordered California to reduce its prison population and in 2011, the United States Supreme Court ruled that CA's prisons were overcrowded and violated the Eighth Amendment. (The reason for overcrowded prisons came from the trend in the 80’s for determinant sentencing, which was in response to a sense among voters and victims groups that sentences were too lenient so they needed to eliminate the Judges discretion. Now we’ve come full circle, except it’s the DA.)

• In 2011, Assembly Bill 109, known as realignment, passed to divert defendants convicted of less serious felonies to serve their time in local county jails rather than state prison. Realignment did not change how things work for more serious felonies, violent felonies or major sex crimes. People convicted of these offenses will still be eligible for state prison. A major weakness of AB 109 is the mandate for locally supervised probation rather than the more stringent jurisdiction of the Department of Corrections and Rehabilitation. 

• In 2014, voters approved Proposition 47, which now reduces the classification of most nonviolent property and drug crimes—including theft and fraud for amounts up to $950—from a felony to a misdemeanor. At the time, the LA County Public Defender and Alternate Public Defender estimate approximately 690,000 residents in LA County alone are eligible for reclassification under Proposition 47. Many arrests are linked to alcohol and drug abuse that leads to domestic abuse charges. But as more and more were released, the drug and mental health treatment and at-risk youth programs that Prop. 47 was supposed to provide for never really materialized.

• In 2016, voters approved Proposition 57, which now increases parole chances for felons convicted of nonviolent crimes and gave them more opportunities to earn credits for good behavior. It also allows judges, not prosecutors, to decide whether to try certain juveniles as adults in court.

• In 2017, California Senate Bill 54 passed to prevent state and local law enforcement agencies from using their resources on behalf of federal immigration enforcement agencies. The law allows for cooperation between local, state and federal law enforcement in cases of violent illegal immigrants, and is often referred to as a "sanctuary law" due to its resemblance of sanctuary jurisdiction policies. There are a number of cases in which non communication or not being allowed to ask one’s status has led to further crimes and one fleeing the country instead of reporting to jail. 

• In 2020 LAPD created a diversion program, which is part of a countywide effort launched to develop alternatives to incarceration, but is not mandatory. It is designed to cajole people into accepting treatment and housing at a moment when they are facing potential jail time. A recent report found that nearly three-quarters of the 283 people deemed eligible for the Alternatives to Incarceration Diversion Program since it launched at the Los Angeles Police Department’s 77th Street jail last summer declined to participate in it and dozens of others have failed to comply with the program’s requirements. A diversion program in LA designed to keep mentally ill, addicted, or homeless adults out of jail and instead provide treatment and housing is having little success. Defense attorneys tell me that those who commit crimes know that they may never have to serve jail time, so they just defer. 

To put this more simply, the state of California incarcerated too many people for too long and then forced their problem down to the local level, without the right level of resources and right level of oversight. Decisions had to be made on who stays in prison, who would go to a local jail, get placed on probation, into day treatment centers, counseling, education, and job training and who gets released. 

The reality is LA Central Jail System is outdated, underfunded and dysfunctional. Without the capacity and resources to hold those who deserve to be in jail, and the public health crisis of COVID, more and more criminals are on the streets. (Nearly two-thirds of the jail population have mental-health problems and many of them are accused of nonviolent offenses.)

So, we are faced with a new world where the role of public safety officer has increased – crime, homeless, domestic dispute resolution, mental health specialist, etc., and their incentive to make an arrest for any type of misdemeanor has decreased because reform minded DAs who are hesitant to prosecute and even when they do, which is still occurring every day, our local jails cannot hold them. Nor will they have the power to mandate rehabilitation, counseling, or work programs. 

Society is complex, because it is full of human beings. Whether Gascón gets recalled or not, we will still be left with many questions around policing and criminal justice reforms. No matter the outcome we must all agree that this ongoing narrative that LA is a lawless society cannot go on.

And no matter what a perpetrators status is in society – if they have done something that requires prosecution, we must act in a way that mandates a punishment that fits the crime and deters future acts.

I look forward to helping those who are seeking out the right balance and to reading better stories in the future.