Two Progressive Prosecutors Suffer Significant Defeats
Messing Adam & Jasmine LLP
Recently, two high-profile California prosecutors who outspokenly sought major criminal justice reforms, Los Angeles County District Attorney George Gascón and San Francisco District Attorney Chesa Boudin, suffered significant political and legal defeats. On June 2, the California Court of Appeal ruled that prosecutors may not enact broad policies that ignore mandatory sentencing procedures for convicted felons (Association of Deputy District Attorneys v. Gascón, 2022 WL 1797864). This was a setback for both DAs, as they made reduced incarceration rates a central goal of their administrations. To make matters worse for Boudin, his short career as San Francisco’s DA ended in a recall vote. (Note, though, that he may run again in November and have a chance of winning under San Francisco’s ranked-choice voting method.) These developments call into question whether prosecutors in California who advocate for progressive criminal justice reforms will be able to succeed in putting these plans into place.
Gascón, elected as DA in December 2020, enacted policy measures, known as the “Special Directives,” that prohibited deputy district attorneys from alleging, in most cases, that defendants had prior serious felony convictions (known as “strikes”). The aim was to prevent these allegations from triggering a harsher sentencing scheme for repeat felons under Penal Code § 667. Commonly known as the “Three Strikes” law, the statute was enacted in 1994 by a majority of California voters to deter crime by drastically increasing the sentences of recidivists. For example, it requires that convicted felons who already have two or more previous felony strikes be sentenced to 25 years to life and doubles sentences for those who already have one strike. Gascón’s stated reasoning for enacting the Special Directives was that long prison sentences “do little” to deter crime.
The Association of Deputy District Attorneys, the labor union representing deputy DAs, sued Gascón to prevent him from enforcing the Special Directives. The union argued that Gascón’s policies violated a prosecutor’s duty to plead and prove a defendant’s prior strikes as required by the Three Strikes law and to exercise their prosecutorial discretion to allege or move to dismiss prior strikes on a case-by-case basis. The union further alleged that these unlawful aspects of the Special Directives “placed [Deputy DAs] in an ethical dilemma — follow the law, their oath, and their ethical obligations, or follow their superior’s orders.” The union cited as examples several cases where courts declined to grant prosecutors’ motions to dismiss prior strikes and subsequently admonished them for not complying with their ethical and legal obligations under the Three Strikes law.
The trial court agreed with the union’s arguments and issued a preliminary injunction against the enforcement of certain Special Directives. Gascón subsequently appealed the decision. His primary argument was that as a prosecutor, he has unreviewable prosecutorial discretion regarding whether to allege prior convictions under the Three Strikes law or to refrain from doing so.
The Court of Appeal rejected this argument and, for the most part, affirmed the trial court’s decision. The appellate court concluded that the Three Strikes law required prosecutors to plead prior serious or violent felony convictions to trigger sentencing enhancements, yet the court refused to enforce the law’s requirement that prosecutors must prove these strikes. This choice, as the court reasoned, is left to a prosecutor’s discretion. Thus, the statute’s requirement that strikes must be proved is not enforceable by the court. This means that to the extent that a prosecutor has discretion to veer away from what is required under the statute, such discretion is only available on a case-by-case basis and cannot be applied, as Gascón did, on a blanket, countywide basis affecting most cases being prosecuted by his office. Thus, while Gascón cannot require his deputies to oppose three-strikes sentences in every case, his office can argue in individual cases, based on a defendant’s record and other factors, that a third-strike term would be excessive. It would be left to the judge to decide whether an increased sentence under the statute would apply.
Five days after this decision was handed down, San Francisco voters recalled Chesa Boudin as their chief prosecutor. His opponents’ recall campaign painted him as a “soft-on-crime prosecutor who doesn’t care about public safety,” and “tied his criminal reform policies to a wave of high-profile crimes, including a fatal hit-and-run involving a man on parole, a series of smash-and-grab robberies from high-end [stores] and a wave of attacks against elderly Asian American residents” (L. Nelson, et. al, “San Francisco voters recall progressive D.A. Boudin,” Los Angeles Times, June 7, 2022, latimes.com/california/story/2022-06-07/2022-san-francisco-district-attorney-chesa-boudin-recall-election-results).
Gascón may suffer the same political fate. He is facing his second recall attempt in two years, and his opponents are adopting the playbook used against Boudin, which includes characterizing his reform policies as “pro-criminal policies” (Id.). This second recall effort appears to be more successful than the first — it has gathered far more signatures than the previous campaign, though it is still short of the number required to effect a recall (J. Pimentel, “George Gascón recall supporters get major lift,” Spectrum News 1, June 8, 2022, spectrumnews1.com/ca/la-west/politics/2022/06/08/georgegascon-recall-supporters-get-major-lift). There may also be political fallout from the Gascón decision, which may further weaken him.
Meanwhile, other prosecutors who are seeking to reduce incarceration rates continue to win elections. On the same day that Boudin was recalled, reform-minded prosecutors in the populous Bay Area counties of Contra Costa and Alameda won their primaries (S. Dewan, “The Lessons Liberal Prosecutors Are Drawing From San Francisco’s Backlash,” New York Times, June 13, 2022, nytimes.com/2022/06/13/us/justice-reform-boudin-recall-san-francisco.html). Furthermore, Rob Bonta won the Democratic primary for California attorney general by a wide margin, despite being known as a criminal justice reform advocate and suffering repeated attacks claiming that he was soft on crime (Id.).
These developments in Los Angeles and San Francisco are certainly a setback for progressive efforts to reform the criminal justice system. The question remains, however, whether they reflect a turning point from which this agenda cannot survive or only temporary obstacles. Stay tuned.
About the Author
Matthew Taylor is an associate at the law firm Messing Adam & Jasmine LLP, which predominately represents public-sector unions and their members in labor relations. Matthew specializes in labor law and representing peace officers, firefighter, and other public employees. Matthew draws from his background in law enforcement and investigations. He served as a police officer in the NYPD and an investigator for the City of New York. He is also a PORAC LDF panel attorney.