When he took office on December 7, 2020, newly elected Los Angeles District Attorney George Gascón promised that we can break the intergenerational cycle of violence, trauma, arrest, and recidivism that has led America to incarcerate more people than any other nation.

Gascón first appeared on the scene when he was appointed by then-San Francisco mayor Gavin Newsom to replace Kamala Harris as DA when she became state Attorney General. Minutes after taking office in Los Angeles, he proceeded to sign a series of no fewer than nine “Special Directives” that turned the mission of the DA’s office on its head. The directives took a series of radical steps, including the elimination of cash bail, the end of charging minors as adults, moves toward resentencing inmates serving long terms, the barring of prosecutors from attending parole hearings, and the elimination of the death penalty – a litany critics say could more likely have been drawn up by a public defender’s office than a district attorney’s.

In addition, Gascón issued Special Directive 20-08, which decreed that sentencing enhancements were no longer to be charged by his deputies, thereby eliminating with the sweep of a pen five- and three-year prior enhancements, gang enhancements, enhancements that might lead to life without parole sentences – and the three-strikes law.

On December 15, Gascón issued Special Directive 20-08.1, which prescribed the following script for prosecutors to read into the record in situations in which sentencing enhancements ought to come into play:

The People move to dismiss and withdraw any strike prior (or other enhancement) in this case. We submit that punishment provided within the sentencing triad of the substantive charge(s) in this case are sufficient to protect public safety and serve justice….The California Constitution and State Supreme Court precedent further vest the District Attorney with sole authority to determine whom to charge, what charges to file and pursue, and what punishment to seek. That power cannot be stripped from the District Attorney by the Legislature, Judiciary, or voter initiative without amending the California Constitution. It is the position of this office that unconstitutional and infringe on this authority.

In other words, the three-strikes law violates the separation of powers: if second and third strikes must be charged according to law, then the law would be a case of the legislature telling prosecutors how to do their jobs.

Special Directive 20-08 was greeted with dismay by the DA’s staff. Gascón recanted slightly and, on December 18, issued Special Directive 20-08.2:

After listening to the community, victims, and my deputy district attorneys, I have reevaluated Special Directive 20-08 and hereby amend it to allow enhanced sentences in cases involving the most vulnerable victims and in specified extraordinary circumstances. These exceptions shall be narrowly construed.

The exceptions include hate crimes, elder and dependent adult abuse, child physical abuse, child and adult sexual abuse, human sex trafficking, and certain financial crimes (e.g. where the amount of financial loss or impact to the victim is significant),

This was still too much for the Association of Deputy District Attorneys (ADDA), which filed suit against Gascón on December 30 in Los Angeles County Superior Court. Oral arguments were heard on February 2, and, on February 9, Judge James Chalfant issued a preliminary ruling in the case, finding mostly for the plaintiffs.

In the suit, the ADDA alleged that Gascón commanded his employees—Los Angeles County prosecutors sworn to uphold and enforce the law—to violate numerous statutory mandates and refrain from performing their duties under the law.

California’s Three Strikes law, ratified by plebiscite in 1982, is a simple affair. It provides for double-term sentences for two-time felony convictions and a life sentence for three-time convictions, assuming that the prior convictions meet the standard of “serious or violent” felonies.

Section 667 of the Penal Code goes on to state: “notwithstanding any other law…the prosecuting attorney shall plead and prove each prior serious or violent felony conviction.”

The law therefore requires prosecutors to plead three strikes, while Gascón’s Special Directive insists that they are not to do so. Much of the suit rests on the premise that the DA’s special directives force deputy district attorneys to violate professional ethics and break the law.

A number of amicus curiae briefs were filed in the matter. The ACLU and the County Public Defender briefed in support of Gascón, while the California District Attorney’s Association supported the ADDA.

After a lengthy legal analysis, Judge Chalfant’s February 9 ruling concluded that:

the Special Directives lawfully compel a deputy district attorney to move to dismiss a strike prior… based on antipathy to the Three Strikes law… The Special Directive 20-08.1 statement that prosecutors are required to read in court is legally inaccurate and incomplete and reading this statement in court without correction is unethical.

The judge therefore granted the injunction in large part, the only exception being that the preliminary injunction will not enjoin the District Attorney from preventing deputy district attorneys from charging sentencing enhancements in new cases where not required by the Three Strikes law.

Gascón’s response to the injunction was made via Twitter:

On November 3, more than 2 million people in Los Angeles County voted for a system of justice based on science and data, not fear and emotion. Nevertheless, I never had any illusions as to the difficulty and challenges associated with reforming a dated institution steeped in systemic racism…Our legal team will be filing a notice of appeal. Until the appeal is decided, my office will adjust its policies to be consistent with this ruling.

Meanwhile, although a petition to rid the county of its DA cannot circulate until he has been in office for 90 days, recallgeorgegascon.com has already begun raising funds for a recall effort.