Court allows left-wing prosecutor to water down, but not abolish, penalties for repeat offenders

Court allows left-wing prosecutor to water down, but not abolish, penalties for repeat offenders
Los Angeles District Attorney George Gascón (Image: YouTube screen grab)

The California Court of Appeal has ruled that Los Angeles’s left-wing district attorney can’t completely ignore a state law requiring longer sentences for three-time offenders. But he can water down that anti-crime law.

The ruling involved District Attorney George Gascón, who has attracted notoriety for coddling repeat offenders. Gascón recently supported a short five-month sentence given to an offender who mowed down a mother and infant while on felony probation for poisoning someone. His prosecutorial decisions earlier led to a 26-year-old sexual predator being put in a juvenile facility for girls for a short stint, rather than being put in an adult prison. That biologically-male offender, who was convicted of violently sexually assaulting a 10-year-old girl, had committed violent crimes in multiple states.

The appeals court’s June 2 ruling was in response to a lawsuit filed against that district attorney, George Gascón, by his own employees — by the Association of Deputy District Attorneys for Los Angeles County. Gascón has attracted notoriety for coddling repeat offenders, such as supporting a five-month sentence for an offender who mowed down a mother and infant.

Crime victims badly needed a ruling against Gascón. As the Washington Examiner notes, “Gascón, one of a bevy of district attorneys elected with financial support from radical financier George Soros or his affiliates, is turning Los Angeles into a crime-infested danger zone, with homicides at a 15-year high.” Similar policies have been adopted by other left-wing prosecutors, resulting in “murder rates or violent crime rates likewise rising in Philadelphia, St. Louis, Chicago, and elsewhere.”

In December 2020, Gascón issued a “special directive” that told deputy district attorneys not to follow the state’s “three strikes” law. That law, passed in 1994, mandates a prison sentence of 25 years to life for someone convicted of a third serious or violent felony. The three-strikes law expressly states that the sentence for such serious, repeat offenses “shall be” imprisonment for at least 25 years and that prosecutors “shall plead and prove all known prior serious or violent felony convictions.” Despite that, Gascón imposed a blanket policy of refusing to introduce evidence of prior convictions, openly flouting state law.

His county’s Association of Deputy District Attorneys then sued him, seeking a preliminary injunction against him. The trial court largely ruled in favor of the association, but Gascón appealed the ruling. He argued that the three-strikes law violated executive-branch prerogatives by requiring prosecutors to enter prior criminal convictions into the record. He claimed that “the mandatory duty” to disclose prior convictions “violates the separation of powers doctrine by limiting a prosecutor’s discretion to determine ‘whom to charge, what charges to file and pursue, and what punishments to seek.’” He also took issue with the underlying policy behind the three strikes law, claiming that “there is no compelling evidence” that longer sentences “improved public safety,” but that they have “contributed to prison overcrowding.”

The state appeals court in Los Angeles rejected part of Gascón’s appeal, concluding that his constitutional separation-of-powers argument was meritless. It noted that the district attorney “is an elected official who must comply with the law, not a sovereign with absolute, unreviewable discretion.” However, it only ruled that the district attorney’s office has a duty to “plead” prior convictions, not that it has a duty to “prove” them.

Alarmingly, it also said that deputy prosecutors couldn’t sue Gascón for a writ of mandamus over his directive telling prosecutors to ask judges to dismiss prior convictions and penalty enhancements “in the interests of justice.” The appeals court said prosecutors retain a great deal of prosecutorial discretion, despite the seemingly mandatory language of the three strikes law. So, it gave Gascón a substantial win on that issue.

As the Washington Examiner notes, Gascón’s “claims about the worthlessness of tough sentencing are ludicrous. For the quarter-century before California voters enacted the three-strikes law in 1994, the rate of violent and property crimes exceeded 5,000 per 100,000 California residents.” After the three-strikes law was enacted, the crime “rate then dropped precipitously.”

But after Gascón took office, and issued Special Directive 20-08 blocking enforcement of the three-strikes law and other penalties for repeat offenders, “that good trend reversed,” and violence increased.

Gascón’s directive against sentencing enhancements for repeat offenders ignored studies finding that penalties for repeat offenders reduce crime. A 2008 Santa Clara University study found that “a Three Strikes law” is “associated” with “significantly faster rates of decline in robbery, burglary, larceny, and motor vehicle theft nationwide.”

Because a small number of repeat offenders account for a disproportionately large fraction of serious crimes, it is vitally important to increase penalties for repeat offenders. “Only a tiny fraction, as low as 1% of the population, commit most crime, especially violent offenses,” notes Sean Kennedy, of the Maryland Public Policy Institute. “Critically, criminals often escalate the seriousness of their offenses toward acts of violence over their criminal careers until they are ‘incapacitated’ or imprisoned for lengthy terms.”

Studies indicate that longer periods of incarceration deter many crimes from being committed, both by people who have never committed a crime before, and by potential repeat offenders. For example, a National Bureau of Economic Research study found that longer sentences for second-time offenders and other repeat offenders contained in a 1982 California law deterred people from committing murder, robbery, and rape.

Letting inmates out earlier results in more crimes being committed. This February, the U.S. Sentencing Commission issued a 116-page report titled “Recidivism of Federal Violent Offenders Released in 2010.” Over an eight-year period, violent offenders returned to crime at a 63.8% rate. The median time to rearrest was 16 months for these violent offenders. So, most violent offenders released from prison committed more crimes. Even among those offenders over age 60, 25.1% of violent offenders were rearrested.

A 2021 study found that when New York stopped prosecuting 16 and 17-year-olds as adults for most offenses, resulting in them spending less time incarcerated, their recidivism rates shot up. As Peter Moskos notes, “Recidivism among 16-year-olds went up” from 39% to 48% for offenses generally, and from 18% to 27% for violent felony offenses.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at


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