This is a story about Los Angeles — but to fully understand it, let’s start halfway across the country, in Chicago, where Kim Foxx was elected the top prosecutor five years ago.
When Foxx won the Cook County, Illinois, district attorney post in 2016, her progressive platform was still unusual in a country that had long embraced incarceration as the answer to crime.
So she moved slowly — first surveying prosecutors for anonymous feedback about what gaps they saw in how they did the work; then inviting them to focus groups to drill down more on possible changes to office practices. When she started rolling out policies aimed at reducing incarceration, she largely did so one at a time.
Over the last four years, Foxx has faced her share of opposition from tough-on-crime supporters — but says she benefited from one other thing: timing.
“I think when I came in 2016, it was a novelty almost to have someone coming in and talking about criminal justice reform as a prosecutor,” she said. “And then you saw momentum building across the country. … And there was a deliberate effort, I believe, on the right to kind of villainize what this work looks like, to villainize the progressive prosecutor being, you know, antithetical to law enforcement.”
Four years later, Foxx is far from the only so-called “progressive prosecutor” running a large, urban DA’s office — voters in San Francisco, Philadelphia, Boston and a number of other large cities have also embraced the promise of reform.
This fall, that change also came to Los Angeles County, which boasts the largest local prosecutor’s office in the nation, a massive bureaucracy that covers 4,000 square miles and includes 1,000 lawyers and 38 courthouses.
George Gascón, a former San Francisco police chief and district attorney, survived a bruising battle with his tough-on-crime predecessor to win his position running the massive LA office — and unlike Foxx, he moved to make changes at warp speed: He’d barely been sworn in last December when he issued a set of directives aimed at reducing prison sentences and focusing more on rehabilitation.
Those directives barred prosecutors in Los Angeles from seeking the death penalty, trying juveniles as adults and filing most sentencing enhancements, including those sanctioned under the state’s three strike laws. The changes also eliminated cash bail in the massive county.
Gascón said there was no time to waste and that he was simply instituting the changes he campaigned on.
“I developed the opinion that trying to do a gradual rollout would probably create more confusion. And it would be harder than just simply putting it all out there and working from there,” he said. “And that was the reason for the rollout from day one. It was really a combination of my commitment to the voters and doing what I said that I was going to do and ensuring that we put it all [out there] and worked through it at the same time.”
The resistance from anti-reform prosecutors was swift as well — both in and outside Gascón’s office. They joined forces to challenge some of those new policies, and in February, a judge agreed to put some of the changes on hold. Gascón said he is appealing; it’s a case widely expected to reach the state’s Supreme Court.
Chicago’s Foxx said the swift pushback is a far cry from what she faced as a newly elected DA — and shows how the past four years have given those opposed to reform time to regroup, and come out swinging.
“I’m very surprised about how forceful the opposition is,” Foxx said of Gascón’s experience. “He gets sworn in on a Monday. Monday night, he’s got his deputies on television saying that they’re not going to do what he says.”
Prosecutors in Gascón office said their opposition wasn’t just about the policies.
“Those were kind of given to his deputies without any type of consultation, without any type of warning, without any type of introduction,” said Eric Siddall, vice president of the union representing deputy district attorneys in Los Angeles. “It was not done in that collaborative process. There was no dialog whatsoever.”
Not only were prosecutors not consulted, Siddall said, defense attorneys and the media seemed to receive the new directives at the same time they did.
But it wasn’t just the process — the prosecutors union opposes the policies on the merits as well. In a lawsuit filed less than a month after Gascón took office, they challenged the ban on enhancements, a commonly used prosecutor’s tool that can add years to someone’s sentence on top of a base term.
Siddall said the union isn’t trying to stymie every policy its members oppose, and that the lawsuit was narrowly crafted to challenge only the new directives that union members believe are illegal — and, when carried out, force its members to ignore their oath of office.
He contends that Gascón is ignoring the law and abusing the long-standing notion of prosecutorial discretion — the power DAs hold to decide whether to charge someone with a crime, and what charges to file.
“Prosecutorial discretion doesn’t mean you get to do whatever you want. It means you have to work within the bounds of the law,” said Siddall. “We’re actually not contesting Mr. Gascón’s ability to implement public policy. And if his public policy is geared around the rights of defendants and ignoring the rights of victims, that’s his prerogative. What we’re contesting is very limited parts of his directives … that are asking us to ignore what the law is.”
But it’s clear that Gascón’s move to dramatically change how criminal justice is carried out in the most populous county in California is seen as threatening to prosecutors beyond LA’s borders.
The California District Attorneys Association, the statewide group representing both elected district attorneys and line prosecutors, took the extraordinary step of joining the lawsuit against Gascón. In the past, the association has disagreed with reform-minded prosecutors like Gascón, but never challenged them in court.
“In our view, it’s not just the difference in policies. It’s as though he thinks, and the people he surrounded himself with think, that he has been elected or anointed king of the LA County criminal court system,” said El Dorado County District Attorney Vern Pierson, who is the association’s president.
Pierson said Gascón can’t just ignore laws he doesn’t like, and that prosecutorial discretion doesn’t extend to blanket policies like the ones issued in LA. He argued district attorneys have to look at cases individually and decide what’s best in that circumstance.
“Over the last however many years, we’ve always advocated that the elected DA has a broad discretion to implement … different policies in San Francisco versus El Dorado County. We’ve always advocated for that, but we recognize there’s limits to it,” he said.
Supporters of Gascón find this argument — that he doesn’t have the discretion to broadly decide how harshly to charge cases — pretty hypocritical, considering how carefully DAs have guarded prosecutorial discretion in the past.
“Almost no one — and certainly none of the folks attacking George from the right — ever raised concerns about prosecutorial discretion when prosecutors were seeking to send people to prison for life for stealing a pizza,” said San Francisco District Attorney Chesa Boudin, another recently elected progressive.
Boudin contends that tough-on-crime prosecutors are happy to fall back on discretion when it gives them the chance to throw the book at someone.
“We only see those concerns being raised — not just in Los Angeles, but across the country — as an effort to undo and undermine widely popular reforms that have empirical support and that are aimed specifically at addressing a very well-understood and well-documented history of racial bias and racial discrimination within the criminal justice system,” he said.
Boudin and Kim Foxx, the Chicago prosecutor, said they believe what happens in Los Angeles could have wide-ranging implications for not just California, but the future of criminal justice reform across the nation.
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