Emergency Bulletin #1: The New DA’s Directives – Overview

Stop the presses! That phrase was coined over a century ago when news of such paramount importance broke that the nationwide printing presses of all the major periodicals were literally stopped to make the announcement – such as the repeal of Prohibition, the ending of World War II, and the landing of the first man on the moon.

Well, on the afternoon of Monday, December 7, 2020 – only minutes after 2:00 pm, news that was no less monumental than these events hit the law enforcement and criminal law communities of Los Angeles County – George Gascón had been sworn in as LA County’s 46th District Attorney.

And shortly thereafter, Mr. Gascón released on the DA’s website nine “Special Directives” (orders) to his entire army of more than twelve hundred prosecutors.

These nine directives, coupled with Mr. Gascón’s press release, shocked these communities to their core. In short, the directives announced the immediate enactment of criminal justice reforms that were not only the most sweeping in their scope and substance than anything similar in the history of LA County, but in the entire United States itself.

I’ll write about each of these directives in much greater detail in forthcoming Emergency Bulletins over the next few weeks. But suffice it to say that this will have a huge impact on almost every defendant currently facing charges in the county, and for as many as twenty thousand prisoners who had been convicted in the county under the old, toxic regimes of Jackie Lacey and, before her, Steve Cooley.

In broad brush strokes, the Top Eleven major changes contained in the directives are as follows:

1) No More Cash Bail

Mr. Gascón is the first district attorney in the history of this country to eliminate the cash-bail system. Specifically, as of the first of the year (exactly three weeks from the date of this writing), prosecutors have been ordered by Mr. Gascón to no longer request bail for non-violent offenders, either for felonies or misdemeanors.

And as for violent-crime suspects, the DA’s Office will do away with the county’s bail schedule, meaning that no set bail amounts will be requested. Instead, defendants accused of violent and sexual offenses will only be required to post bail in an amount that is dependent upon their ability to pay.

In addition, public and private defense lawyers can now schedule hearings for their in-custody clients who are eligible for release under Mr. Gascón’s new pre-trial detention policy. Prosecutors have been ordered by him to not oppose to these motions. This is obviously outstanding news for hundreds of inmates currently incarcerated in the county’s jails.

See Special Directive 20-06 (“Pretrial Release Policy”).

2) No More Sentencing Enhancements – No More “Three Strikes” Prosecutions

The second-biggest bombshell Mr. Gascón announced – after the new no-cash-bail system – is the immediate elimination of sentencing enhancements and special allegations, including for strike offenses.

In other words, you no longer have to worry about being charged with gang enhancements, for example. This is particularly welcome – at least for defense attorneys and their clients – who have been falsely accused by police (particularly by the downtown Metropolitan Division) of being gang members.

See Special Directive 20-08 (“Sentencing Enhancements/Allegations”).

3) Potential Re-Sentencing for Those Previously Sentenced with Enhancements/Strikes

Commensurate with the new no-sentencing-enhancements policy is Mr. Gascón’s directive to re-sentence thousands of eligible incarcerated individuals who received enhancements as part of their prison terms when sentenced in the county. This could result in many of these inmates being released in the very near future.

Those “low-risk” offenders who were convicted of crimes not involving violence or sex-related offenses will be first in line to have their sentences examined for retroactive re-sentencing. And the first in line among those will be individuals who:

(a) have demonstrated sincere efforts at rehabilitation and good behavior in prison;

(b) would be particularly susceptible to the coronavirus; and/or

(c) had been juveniles sentenced as adults.

See Special Directive 20-14 (“Resentencing”).

4) Mandatory Probation or Diversion for Anyone Eligible; Otherwise, Low Prison Term

Effective immediately, prosecutors will recommend to the judge that any eligible defendant be granted probation or diversion (including mental health diversion) – i.e., typically first-time offenders for non-violent/sex offenses.

In other words, instead of seeking a conviction or otherwise pressuring the diversion-eligible defendant to take a plea, the Deputy DA will now be required to recommend to the judge that the defendant be entered into pre-trial diversion which, if successfully completed, would result in the dismissal of the case.

Alternatively, if the conviction merits a prison sentence, then the prosecutor will be required to seek only the low term thereof, absent extenuating circumstances to be determined by a special committee.

See Special Directive 20-07 (“Misdemeanor Case Management”).

5) No More Death-Penalty Prosecutions

Going forward, the DA’s Office will no longer seek the death penalty for capital murders (or other capital offenses), which always includes first-degree murders with special circumstances (such as laying in wait).

This means that even if you’re currently awaiting trial on a capital-murder charge (such as one of my current clients), then even if your prosecutor has previously announced that he or she will seek the death penalty, then he or she must inform the court that that is no longer the case.

See Special Directive 20-11 (“Death Penalty Policy”).

6) No More Charging Juveniles as Adults

The DA’s Office will no longer prosecute juveniles as adults, regardless of the nature of the alleged offense.

See Special Directive 20-09 (“Youth Justice”).

7) No More Prosecuting Minor, Non-Violent Misdemeanors

Prosecutors in LA County will no longer prosecute first-time offenders for low-level, non-violent misdemeanors. This includes possession of personal-use amounts of hard drugs, as well as for being under the influence of those drugs.

See Special Directive 20-07.

8) Reopening Police-Shooting Investigations

Mr. Gascón has created a special until to look into highly suspicious police shootings going back eight years (and will hopefully go back even further than that for possible murders by LAPD and sheriff’s deputies). For starters, he’s reopening four particularly reprehensible killings of innocent, unarmed individuals which, of course, his predecessor Jackie Lacey never gave a second thought to doing.

He also created a special review board to look into police shootings going forward, but unlike with his long line of tough-on-crime predecessors, this board will be compromised of non-police officers.

Specifically, the board will be comprised of police-policy experts/academics (namely, from UC Irvine’s Civil Rights and Criminal Justice Clinics), civil-rights lawyers (i.e., those who specializing in suing the LAPD and sheriff’s department for using excessive force), and esteemed members of local communities that are predominantly Black or Latino.

Mr. Gascón is the first DA in the state’s history to put together this type of on-duty-shooting review board. (Because having the LAPD police itself, for example, proved as effective for shooting victims and their families as having the big Wall Street banks police themselves.)

Finally, family members of those killed (and possibly murdered) by police will receive victim assistance as with victims of (typically violent) crime. See abc7.com.

9) Possible Habeus Corpus Relief

There are currently more than 20,000 Angelenos sitting in California prisons, many of whom may have been wrongfully convicted. As a result, Mr. Gascón’s newly revamped Habeas Litigation unit will, as quickly as possible, conduct in-depth investigations into those prisoners who appear to have been wrongfully convicted.

And, assuming the investigations reveal that the prisoner was indeed wrongfully convicted, the unit will move as quickly as possible to have that particular conviction overturned.

See Special Directive 20-10 (“Habeas Corpus Litigation Unit”).

10) No More Mandatory Cooperation by Crime Victims with Prosecutors to Receive Support

Did you know that before Mr. Gascón took over, if you were a victim of a violent crime – including domestic violence – you would not be entitled to victim’s compensation from the DA’s Office unless you testified and otherwise cooperated with the prosecutor against the defendant? So much for his predecessors’ prioritization of helping crime victims.

But now this is no longer the case. In addition, as stated above, immediate family members, including children, of police-shooting victims will now receive assistance from the DA’s Victim Services unit.

Finally, prosecutors will now no longer seek to have what are called “body attachments” for any crime victim, including domestic violence. In other words, if you’re such a victim, you no longer have to worry about being arrested for not testifying against, say, your spouse if you don’t show up to the preliminary hearing (for felony cases) or trial (felonies and misdemeanors) to testify against him or her.

See Special Directive 20-12 (“Victim Services”).

11) Formation of a Unit to Investigate Potential Wrongful Convictions

Similar to the DA’s reformed Habeas Litigation unit, the newly overhauled Conviction Integrity Unit has greatly expanded the requirements for what it considera is a wrongful conviction for non-prisoners – including racial injustice. In addition, the unit will review every potentially meritorious wrongful-conviction case.

See Special Directive 20-13 (“Conviction Integrity Unit”).

The District Attorney’s Office

Before I get into Mr. Gascón’s professional background and his underlying motivations in issuing these far-reaching, unprecedented directives, you should understand the enormity of the job he’s taken on.

In a nutshell, the LA Co. DA’s Office is the biggest in the country, with more than a thousand Deputy DAs and approximately 300 detectives (referred to as “investigators”). Many of the former and latter are highly trained in specialized areas, and work together in units that only focus on one particular type of crime.

Currently, these prosecutors and investigators work closely with more than nine thousand sworn LAPD officers, in addition to thousands of sheriff’s deputies.

Covering more than four-thousand square miles that stretch from Lancaster across to Malibu and all the way down to Long Beach, the DA’s Office average almost 72,000 felony prosecutions, as well as almost 113,000 misdemeanor cases, each year.

(Keep in mind that almost a dozen cities in the county – the largest being Los Angeles and Long Beach – have their own City Attorney’s Offices, which share authority to prosecute misdemeanors with the DA’s Office, which is the only prosecutorial entity empowered to prosecute felonies in the county.)

Finally, our county has a larger population – more than ten million people – than any other in the U.S. In fact, it has more residents than more than eighty percent of the fifty states (forty-two, to be exact).

The DA’s Office itself was established a full century-and-a-half ago, just after Valentines’ Day in 1850. See da.lacounty.gov.

Mr. Gascón has clearly taken on an awesome responsibility, but in the more than fifteen years I’ve been practicing law here, including my first four as a Deputy Public Defender, I’ve never seen a DA more suited to the job than Mr. Gascón. And by suited, I mean one who seeks to apply – in his words – “equal justice for all.”

Mr. Gascón’s Background and Motivations

His professional background – and his unique achievements – are now the stuff of legend. As a penniless Cuban immigrant, he was sworn in as an LAPD officer in 1978, working in Hollywood. This was only three years after the popular, all-white-cast series Adam-12 – about LA’s finest – had ended its long run. In other words, he was the opposite of what America saw as the quintessential LAPD officer.

As an intelligent, hard-working officer with an impeccable record and outstanding leadership qualities, he rose up the ranks and eventually made Assistant Chief.

This was an incredible accomplishment in light of the fact that he began walking his first beat only one month before the virulently racist Darrel Gates took over as the Chief of Police – a powerful and destructive official who would militarize the LAPD, and who would terrorize Black and brown communities over the next 14 years. It would take the 1992 Rodney King riots to finally dethrone him. See latimes.com.

Gates certainly learned from the best – his mentor, the legendary chief William H. Parker – who, if possible, hated Blacks and Latinos even more than Gates did. But I’m convinced that working under the insidious Gates taught Mr. Gascón lessons about how not to police his fellow Angelenos, particularly those who were disenfranchised and under-represented.

In 2006, Mr. Gascón was hired to be the police chief of Mesa, Arizona, where he went head-to-head against the truly vile Maricopa Co. Sheriff Joe Arpaio, who made Parker and Gates look like Ghandi in comparison to how he targeted Latinos in his hunting grounds.

Three years later, Mr. Gascón took the same job in San Francisco. (This was four years after I moved down here from S.F. after finishing law school to work for the LA County Public Defender’s Office.)

Two years after that, he became the first police chief in American history to become a District Attorney (in S.F., which is its own city and county). He was also the first Latino to serve as DA in “the City”. He would serve three terms as DA, after being re-elected twice by San Franciscans. (His first term came about after he was appointed by then-Mayor Gavin Newsom.)

His achievements as SF’s DA were impressive, and were brought about through his progressive policies. For example, he reduced the incarcerated population by almost a third and brought the City’s violent-crime rate down to an all-time low. See da.lacounty.gov.

My Own Personal Take on Mr. Gascón and His Directives

If you count the three years in law school I spent clerking for legendary civil rights/defense attorney J. Tony Serra and at the San Francisco County Public Defender’s Office (under the leadership of the late, great Jeff Adachi), then I have spent almost 19 years of my life immersed in the California criminal law community.

During that time, I have never been so moved watching a top official in that world being sworn in as I was with Mr. Gascón.

During his speech, he laid out the pain and suffering that endless generations of Angelenos of color have endured at the brutal hands of the LAPD, the Sheriff’s Department, and the DA’s Office – policies that he accurately pointed out have resulted in mass incarceration and recidivism, with no benefit to public safety.

(Indeed, under Lacey’s watch, in the last year, murders and shootings have skyrocketed to the highest levels in more than a decade.)

But as with all great leaders (and believe me, I never thought I’d be saying that about a District Attorney, much less one for LA County), he ended his speech leaving his audience (at least those who support him) with hope and promise. See msn.com.

In addition to issuing his directives, he also did two other noteworthy (to say the least) things on December 7th. First, he immediately met with leaders from the Black Lives Matters movement – something Lacey outright refused to do. (This myopic, self-serving worldview is why Mr. Gascón didn’t bother meeting with any of Lacey’s old guard before issuing his directives – what’s the point?)

The other amazing thing he did that day was send a letter addressed and disseminated to the entire Los Angeles County law enforcement community.

Contained therein were implicit promises that he would not only clean house of those cops and deputies who continued perpetuating harassment of, and violence against, under-represented Angelenos, but would actually prosecute them. (At least that’s how I interpreted his sentiments.)

In seeking “equal justice under the law” (his italics, not mine), he explained, “[T]hose who engage in unconstitutional policing have severely hindered the standing and safety of us all. We are all scarred by their misdeeds, leading many in our communities to perceive police as persecutors instead of protectors.”

Amen. In the immortal words of Bob Dylan, “The times they are a changin’.” See georgegascon.org.

The Los Angeles Criminal Defense Attorney Law Firm (LADALF)

Beginning with her first year of law school at Santa Clara University in the Silicon Valley, LADALF founder Ninaz Saffari has spent almost two decades immersed in criminal law. For her, it’s a calling, and not just an occupation.