Commentary: California’s Leading Reformer DA’s Find Themselves Under Fire

By David Greenwald

Yesterday in Los Angeles, Judge James Chalfant handed down a decision that dealt a massive blow, potentially, not just to the reform agenda of George Gascón, but every reform District Attorney in the state.

Like Boudin did nearly a year ago, the directives by Gascón instructed his deputies to not seek Strikes and other sentencing enhancements.

Chalfant writes,  “Although a district attorney has discretion to determine what charges to file (if any) in a particular case, the district attorney cannot wholly decline to exercise that discretion by indiscriminately prohibiting the prosecution of all violations of certain offenses.”

The judge seemed to reject Gascón’s argument that he had “no ministerial duty to plead the relevant sentencing enhancements under the Three Strikes law.”

While acknowledging that prosecutors “in every jurisdiction of the United State have considerable discretion,” the judge argued, “A district attorney’s discretion is not unlimited.”

It’s not clear how far this goes. The last line seems to limit the decision, but a closer read puts it more ominously: “The preliminary injunction will not enjoin the District Attorney from preventing deputy district attorneys from charging enhancements in new cases where not required by the Three Strikes law.”

The language here is tricky. iI appears that this might have only limit them from being compelled to remove already charged enhancements, but the ruling itself suggests that the “plead and prove” requirement may be mandatory and if, “where not required by the Three Strikes Law,” might be overly broad.

In a scathing editorial, the LA Times Editorial Board wrote that “Archaic ‘tough-on-crime’ holdouts are refusing to let George Gascón do his job.”

The Times argued that the judge left out some things from his ruling.

The Times noted the failure to consider mass incarceration by the judge. But perhaps even worse is the failure by the judge to understand that Three Strikes dramatically increases disproportionate incarceration in our system.

It is here that a year ago, Chesa Boudin at a press conference was particularly eloquent in announcing his office would no longer seek sentencing enhancements including a reduction in charging third strikes (Gascón’s policy goes a bit further).

Chesa Boudin stated, “Three Strikes is a policy that is a testament to the state’s tough-on-crime era. It was a policy that resulted in harsher and harsher punishments almost every week there were new laws adding prison time… with no data suggesting those sentences decreased crime, increased healing, or increased rehabilitation.”

“We are stuck with those laws on our books,” he said.  “They do not keep us safer.”

He said today “the announced policy is we will not charge status enhancements —three strikes, five year priors, or gang enhancements.”

The most stunning part of Three Strikes – how much it impacts the Black community.

“Forty-five percent of the prison population under the Three Strikes sentencing regime are African American,” Boudin said.  “These are policies that have a direct connection to racial disparities.”

Should we operate with evidence-based approaches to law and order?

Boudin has repeatedly cited data showing that these policies are not only unfair and biased but they fail to make us safer – in fact, they may undercut public safety by sinking in vast amounts of resources – $85,000 per year to incarcerate someone well past the point where they are actually dangerous.

And yet the critics don’t appear to see this problem.

A piece in the “Stanford Review” for example is filled with invectives and accuses Boudin as “a Pro-Crime Prosecutor.”

It is easy to dismiss such narratives as polemics, harder is to dismiss Michele Hanisee, the leader of the Los Angeles Association of Deputy DA’s – the group that filed the lawsuit that Judge Chalfant granted the preliminary injunction for on Monday.

Yet a deeper dig into Michele Hanisee finds she skirts the line – avoiding reference to Trump while at the same time incorporating the language and villains of the right – particularly dividing into the Soros fixation.

For example last fall, in “The Attempt to Buy District Attorneys Continue,” she blew the George Soros dog whistle writing, “Special interest groups, funded by George Soros, pumped millions of dollars into district attorney races across the country. Their mission was to use Soros’s wealth to radically reshape the criminal justice system.”

And then dutifully connects the spending of Soros to Gascón and the increase of crime.

She writes, “In Los Angeles County, we can expect big money to be spent on the District Attorney’s race. George Gascón will attract Soros PAC money by promising not to enforce the laws that voters enacted. Gascon, however, will need to answer for his track record. San Francisco’s property crime rate was twice as high as Los Angeles’ during his tenure. Gascon’s policies have earned San Francisco the distinction of having the highest property crime rate of America’s 20 largest cities.”

Chesa Boudin and George Gascón believe that they can create a system that is less punitive but just as safe, if not safer, for the public.

Punishing people beyond the point where they are a threat is not only expensive – it is counterproductive – and yet that is precisely what Three Strikes does.  Not only that, but it disproportionately affects people of color – Blacks and Latinos.

Yes, critics can point to rising crime rates – particularly violent crime and murder – as a concern. But, the problem with that view is that while we know that during a pandemic more people are dying or having their lives turned upside down by crime – what we don’t know is whether that is due to progressive policies – the fact that crime and murder is increasing in places that have and have not enacted reforms suggests another culprit.

An evidence-based approach can help cool the temperature in the room. Unfortunately, right now, too many people are throwing gas on the fire.

—David M. Greenwald reporting

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