Prosecutorial Institutionalism

Eric Siddall
Vice President of the Association of Los Angeles Deputy District Attorneys

George Gascón has publicly stated that he will refuse to enforce key parts of California’s Penal Code that are mandated by both constitutional and statutory authority. He recently promised certain fringe groups, including one that advocates for the abolishment of prisons, that he would not enforce gang crimes and enhancements, California’s Three Strikes law, or transfers of juveniles to adult court. This posturing is political and opportunistic, as evidenced by the fact that none of these positions were Gascón’s policies while he was San Francisco district attorney. 

The gang enhancement that Gascón now rejects was unanimously approved by the California Legislature. Later, 62% of California voters approved Proposition 21 that criminalized gang conspiracy and strengthened gang related laws. These laws have been scrutinized by the judicial branch at all levels. Our state’s highest court found “there is nothing absurd in targeting the scourge of gang members committing any crimes together and not merely those that are gang related. Gang members tend to protect and avenge their associates. Crimes committed by gang members, whether or not they are gang related or committed for the benefit of the gang, thus pose dangers to the public and difficulties for law enforcement not generally present when someone with no gang affiliation commits a crime.” People v. Albillar, 51 Cal. 4th 47, 55. (2010). Over 50 percent of murders committed in Los Angeles are gang motivated. 

A complete ban on use of the gang allegation, as Gascón promises, would have real consequences. Gang members have committed countless drive-by shootings and threatened to kill witnesses if they show up to court. Yet under Gascón, these crimes would be treated as non-violent felonies that are eligible for early release. Gang members who commit these crimes would be guaranteed early release without the parole board examining whether they were rehabilitated. No surprise that Gascón, who has zero courtroom experience, has not considered the consequence of this position. 

Consider, too, Gascón’s new position on repeat offenders. In 1994, 72% of California voters enacted what is commonly known as the “Three Strikes” law, to punish repeat criminal offenders differently than first-time offenders. In 2012, 69% of voters again approved the Three Strikes laws for serious and violent offenders while making some needed modifications to the law. Despite this constitutional requirement enacted by voters to punish habitual violent offenders differently from first time offenders, Gascón says he will refuse to enforce this law. His refusal to follow a common-sense law that treats a first-time violent offender differently from the second-, third-, or fourth-time offender will have serious consequences. It means that a habitual felon convicted of rape will serve approximately 6.8 years in prison, no matter how heinous his record — the same as a first time rapist. Again, it not surprising that a man with no courtroom experience has endorsed this policy.

Lastly, Gascón has stated that under no circumstance will any juveniles be tried as adults. The current district attorney rarely seeks to transfer a juvenile offender to adult court. But in certain cases, juveniles are transferred with judicial approval. Gascón advocates an end to this practice, no matter the circumstances, no matter how heinous the crime, no matter how incapable the juvenile system is of handling the case. 

Consider a juvenile who committed multiple brutal murders. In Gascón’s new world, this murderer will remain under the juvenile court’s jurisdiction, even if the court does not believe that the juvenile system is suited to deal with him. Gascón has taken this position despite the recent enactment of Proposition 57, which was championed by Gov. Jerry Brown and approved by 64% of voters. Prop. 57 permits this transfer of juveniles to adult jurisdiction under limited circumstances and when a judge has determined that the juvenile system cannot adequately handle the minor. The consequence of refusing to transfer any juvenile ever is that a 16- or 17-year-old who commits murder will be under the jurisdiction of the juvenile system. 

The integrity of the criminal justice system rests on the integrity of the prosecutor. Public prosecutors wield tremendous power to enforce the law. We expect them to do so justly, while preserving public safety. A good prosecutor looks to the facts of each case, the mitigating and aggravating circumstances, and uses judgement to make a determination as to the appropriate charges, and, in the case of a plea bargain, a just sentence. Public confidence requires that these decisions be made in an apolitical manner. Respect for the rule of law is critical. 

It is clear from Gascón’s statements and actions that he has neither the judgment nor the respect for the rule of law. This disregard for the law, and his faithlessness in discharging his duties in order to win temporary political support is troubling. His staking out political positions for opportunism runs afoul of what it means to be a public prosecutor.

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