Gascón appeals order that knocked down prior strikes directive

Los Angeles County District. atty George Gascón wants the California Supreme Court to decide whether he has the authority to prevent his prosecutors from asking for tougher sentences for repeat offenders.

After being elected in 2020 on a promise to radically change the way the country’s largest prosecutor’s office deals with crime, Gascón enacted a “special directive” prohibiting his MPs from looking at an accused’s criminal record for serious or violent crimes used to obtain longer prison sentences.

Under California’s three strikes statute, enacted in 1994, persons convicted of repeat crimes are subject to longer prison terms, up to 25 years to life for so-called third strikers.

Gascón also asked his MPs to withdraw allegations of strikes in cases brought under his predecessor, Jackie Lacey. Gascón said the policy was in the “interests of justice and public safety,” arguing that strikes and other law enforcement improvements did not deter crime.

The union, which represents about 800 assistant district attorneys working under Gascón, sued, claiming his orders forced prosecutors to violate their obligations under the Three Strikes Act.

Los Angeles Superior Court Judge James C. Chalfant sided with the union. He ordered Gascón to instruct his MPs to impeach previous strikes in new cases, as required by state law. Strikes in older cases would need to be assessed on a case-by-case basis, the judge said.

Gascón appealed the decision. His attorneys argued that he had discretion as district attorney to assert or waive strikes and withdraw them in cases pending under his predecessors.

An appeals court disagreed. “The district attorney is exaggerating his authority,” a panel of three judges wrote in an opinion released in June. “He is an elected official who must obey the law, not a sovereign with absolute, unverifiable discretion.”

In creating the three strikes law, the judges wrote, California voters and the state legislature gave prosecutors a “duty” to “punish certain repeat offenders more severely.”

The law’s impact on society — which left-leaning prosecutors, conservative district attorneys, civil rights groups and the Los Angeles County Public Defender’s Office all debated in amicus briefs — is marginal, the judges ruled. Changes to the three strikes law must come from voters or the legislature, the panel said, and “it’s not for us or for prosecutors to rewrite it.”

Gascón on Tuesday petitioned the California Supreme Court to review the earlier decisions. In a statement, Gascón framed his position as a “fight for fairness and rationality” and said the state’s constitution gives prosecutors the power to choose who to charge, what crimes to charge and what improvements to make.

“Courts cannot take away that power,” he said.

In seeking a reversal, Gascón hopes the state’s Supreme Court will be more accommodating to his views.

The Court of Appeal rejected his argument that the lower court’s verdict violated the state’s separation of powers. Legislatures, which define crimes and prescribe penalties, have always had the power to limit a prosecutor’s discretion in bringing charges and a judge’s discretion in sentencing, the judges wrote.

“Giving a prosecutor the discretion to decide whether to invoke prior convictions for serious or violent crimes would violate the separation of powers doctrine, given the clear intention of lawmakers and voters to eliminate such discretion, they do not.” comply,” they added.

In their petition to the Supreme Court, Gascón’s attorneys argued that the appeals court’s reasoning, if upheld, would limit a district attorney’s discretionary powers in such a way that the Three Strikes Act would be unconstitutional.

“Put simply,” they wrote, “courts will be forced to unlawfully order prosecutors to comply with an unconstitutional law and then, based on that information, impose unconstitutional sentences on dozens of defendants. This is a constitutional crisis in the making.”

In practice, the appeals decision would require every state attorney in the state to prosecute every justifiable strike, causing the number of people convicted under the three-strike law to “skyrocket,” Gascón’s attorneys claimed.

Nathan Hochman, an attorney representing the union suing Gascón, called it “shocking” and perhaps unprecedented for a district attorney to argue on behalf of the people of California that a criminal law is unconstitutional. Such a crusade is “the work of a defender,” he said.

Hochman, running as a Republican to unseat California Atty. Gen. Rob Bonta said the trial court and appellate panel after they got it right. “The courts basically ended the rule of King George Gascón,” he said, “the absolute sovereign who didn’t have to abide by the rule of law like everyone else.”

Gascón’s appeal to the state Supreme Court came as the LA County registrar continued his review of signatures filed in support of a campaign to remove the district attorney. An examination of a small sample of the more than 715,000 signatures found that about 22% of them were invalid, triggering a review of all signatures, the registrar announced on Thursday. Gascón appeals order that knocked down prior strikes directive

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