Gascón appeals order that knocked down prior strikes directive to California Supreme Court

Los Angeles County Dist. Atty. George Gascón
Los Angeles County Dist. Atty. George Gascón has asked the California Supreme Court to review the decisions by a trial and an appellate court to knock down one of his most controversial policies: an order barring his prosecutors from seeking harsher punishment for repeat offenders.

Los Angeles County Dist. Atty. George Gascón wants the California Supreme Court to decide whether he has the authority to bar his prosecutors from seeking harsher punishment for repeat offenders.

After being elected in 2020 on a pledge to radically change how the country’s largest prosecutorial office addresses crime, Gascón issued a “special directive” forbidding his deputies from using a defendant’s prior convictions for serious or violent felonies to obtain longer prison sentences.

Under California’s Three Strikes law, enacted in 1994, people convicted of repeated felonies are subject to longer prison terms, as much as 25 years to life for so-called third strikers.

Gascón also required his deputies to withdraw strike allegations in cases brought under his predecessor, Jackie Lacey. Saying the policy was in the “interests of justice and public safety,” Gascón argued strikes and other sentencing enhancements did not deter crime.

The union representing some 800 deputy district attorneys working under Gascón sued, claiming his directives forced prosecutors to violate their obligations under the Three Strikes law.

Los Angeles Superior Court Judge James C. Chalfant sided with the union. He ordered Gascón to instruct his deputies to charge prior strikes in new cases, as required under state law. Strikes in older cases had to be evaluated on a case-by-case basis, the judge said.

Gascón appealed the decision. His lawyers argued that, as district attorney, it was within his discretion to allege or forgo strikes and to withdraw them in cases brought under his predecessors.


An appeals court disagreed. “The district attorney overstates his authority,” a panel of three justices wrote in an opinion published in June. “He is an elected official who must comply with the law, not a sovereign with absolute, unreviewable discretion.”

In creating the Three Strikes law, the justices wrote, California voters and the state Legislature charged prosecutors with the “duty” to “prescribe more severe punishment for certain recidivists.”

The law’s effects on society — which left-wing prosecutors, conservative district attorneys, civil liberties groups and the Los Angeles County public defender’s office all debated in amicus briefs — is beside the point, the justices ruled. Changes to the Three Strikes law must come through the voters or the Legislature, the panel said, and “it is neither for us nor the district attorney to rewrite it.”

Gascón on Tuesday petitioned the California Supreme Court to review the previous decisions. In a statement, Gascón framed his position as “the fight for fairness and rationality” and said the state constitution gives district attorneys the power to choose whom to charge, what crimes to charge them with and what enhancements to allege.

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

In seeking a reversal, Gascón is hoping the state’s high court will be more receptive to his views.

The appeals court rejected his argument that the trial court’s ruling had violated the state’s separation of powers. The Legislature, which defines crimes and prescribes punishment, has always had the authority to limit a prosecutor’s discretion in bringing charges and a judge’s discretion at sentencing, the justices wrote.


“Giving a prosecutor the discretion to decide whether to allege prior serious or violent felony convictions, in light of the Legislature’s and the voters’ clear intent to eliminate any such discretion, would violate the separation of powers doctrine, not honor it,” they added.

In their petition to the Supreme Court, Gascón’s lawyers argued that the appellate court’s reasoning, if upheld, would so constrain a district attorney’s discretion as to render the Three Strikes law unconstitutional.

“Put simply,” they wrote, “courts will be forced to unlawfully mandate prosecutors to comply with an unconstitutional law, and then — relying on that information — will be called on to impose unconstitutional sentences on scores of criminal defendants. That is a constitutional crisis in the making.”

Put into practice, the appellate decision would require every prosecutor in the state to charge every eligible strike, causing the number of people sentenced under the Three Strikes law to “skyrocket,” Gascón’s attorneys claimed.

Nathan Hochman, an attorney who represents 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 statute was unconstitutional. Such a crusade is “the work of a defense attorney,” he said.

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

Gascón’s appeal to the state’s Supreme Court came as the L.A. County registrar continued its review of signatures submitted in support of a campaign to recall the district attorney. An examination of a small sample of the more than 715,000 signatures found about 22% of them were invalid, triggering a review of all the signatures, the registrar announced Thursday.