Beware progressive prosecutors like George Gascón

George Gascon speaks at the University of San Francisco in 2014. Photo by Shawn Calhoun/Creative Commons License

By Chandra Bozelko

At his swearing in ceremony, Los Angeles District Attorney George Gascón announced he would eliminate cash bail for certain offenses, not seek the death penalty and not charge children as adults. He also promised to undo sentencing enhancements retroactively. 

Beware the progressive prosecutor like Gascón. He’s not the answer to all of mass incarceration’s problems. The hope for reform lies in reducing the power he used for these changes, not celebrating it when it’s used in agreeable ways. 

Just recently progressive prosecutors have banded together throughout California to create the policies that only they can implement.The movement to elect more of them has taken hold in a number of jurisdictions, moreso during the pandemic when public health interests favored smart decarceration. It’s motivated by the recognition that prosecutors control the process; they have more power than judges. Their decisions to proceed with charges aren’t reviewable and disciplinary forces rarely act on them when they engage in misconduct. 

There’s a difference between discretion and power. Power is the ability to do something and discretion is the choice to do it. 

Indeed, the accountability for sworn law enforcement agents who kill civilians depends on prosecutorial discretion. From 2005 to June 2019, 122 agents have been arrested for murder or manslaughter for deaths they caused from an on-duty shooting. That’s for about 1,000 officer-involved shootings per year. The Breonna Taylor case exemplified one way of using that discretion: keeping evidence from grand jurors so as to keep Louisville police officers from being charged with homicide. The Attorney General exercised his discretion in not presenting evidence. Alternatively,  San Francisco District Attorney Chesa Boudin’s choice to charge the officer who killed Keita O’Neill in 2017 with manslaughter is an exercise of the same discretion. Discretion is the direction but power is the hinge. It can swing where it likes.

The problem with Gascón’s actions is that they only reinforce the prosecutor as the most powerful person in the system. His are called “reformist reforms” meaning they “subordinate its objectives to the criteria of rationality and practicality of a given system.” All carceral complications flow from the fact that the entire system is flawed, not just the man or woman who gets elected.

Because the public is so used to a system that advertises itself as adversarial but is, in truth, overbalanced in favor of one side, it’s hard to imagine what a world with disempowered prosecutors looks like. It includes jury instructions that openly offer the option of jury nullification: fact-finders return a not guilty verdict even when a finding of guilt is supported by the evidence if the acquittal would better serve interests of justice; right now courts don’t have to disclose the option but they can. Serious consequences for professional malfeasance would work too, including removing sovereign immunity for prosecutors so they’re civilly liable for their misdeeds.

The best and most complete way to level the playing field is to eliminate plea bargaining thus requiring prosecutors to prove every case they bring. The trial penalty — the probability that a defendant will receive a longer sentence if he tests the state’s case with a trial — provides prosecutors with much of their power. In 2013, Human Rights Watch reported that federal prosecutors leveraged mandatory minimum sentences over federal drug defendants to extract guilty pleas from them. 

Jettisoning the plea bargain is an extreme solution — 90% of defendants accept these agreements and plead guilty. Bronx County, New York, tried it at the height of penal populism in the 1990’s with the expectation that judges would dole out longer sentences. Instead, judges became more lenient, plea bargaining dropped only 11%, and the dismissal rate —and the backlog — both increased by more than 20%. Any vacation from these agreements likely wouldn’t last. Indeed, in the few jurisdictions that experimented with removing plea bargaining as an option to resolve a case, all reversed their bans.

Gascón can’t undo sovereign immunity — even though it’s entirely a judicial construct. Besides, making these lawyers answerable in civil court assumes that harmful tactics by prosecutors are all actionable; they’re not — that’s the problem. He can’t rewrite jury instructions; that duty belongs to the Judicial Council. 

The new District Attorney can institute one change that would change the trial dynamic. LA County District Attorneys could inform sentencing bodies of what the proposed plea bargain was. Knowing exactly how much of a discount a defendant deserved in the state’s eyes may cause sentence lengths to drop. Right now, sentencing judges can’t know the proposed plea, a practice that must benefit the government otherwise prosecutors would have stopped it. 

It’s disingenuous to seek between five and 20 years when a defendant’s initial offer was just probation. That’s what happened to me. I don’t know if the judge would have sentenced me to an effective sentence of nine years if he knew the state’s attorney demonstrated that probation was appropriate through his plea offer.

Of course, drawing down prosecutorial power would end up preventing the good use of discretion. But evening out the power in the adversarial system would create a bigger, more wholesale change where defendants and constituents alike wouldn’t look to the grace of one person to get justice. That’s the problem of the progressive prosecutor. Benevolent or not, he’s still king of the system. 

It’s essential to remember that these changes might not even realize; Gascón’s revolution is a bit of a mirage. Dozens of “line prosecutors” who may not share his values and vision do most of the work. They’re the ones who made the calls on most of the 303,363 cases that appeared in Los Angeles County in 2019; they’ll resist losing that autonomy. 

When a similar elimination of cash bail was headed to New York state in 2020, one assistant district attorney trained lower tier prosecutors on how to circumvent the new rules. The pandemic’s effect on court proceedings prevents us from knowing how many even tried this, much less how many succeeded. They may try the same in Los Angeles. Sabotage lurks in the offices of many progressive prosecutors. 

Gascón's goals are laudable and he has the cojones to implement them, but the imbalance and rot in the system remains the same after his announcement. In fact, it might even be stronger.

Chandra Bozelko is a journalist and founder of the Trusted Opinion Project.