DA Gascon Tried to Side-Step California’s Three Strikes Law

California’s “three strikes” law is widely popular and widely credited with cutting crime.

It is also the bete noir of the progressive prosecutor and the “justice reform” movement, being blamed for excessive incarceration and arrest and sentencing racial disparities.

The moment he entered office, current Los Angeles District Attorney George Gascon instituted a blanket policy of never filing “strike” enhancements and working to remove existing strikes from defendant’s record that they happened to have when charged with a new crime.

This did not sit well with the Association of Deputy District Attorney’s (ADDA) – the LA DA’s office prosecutors union – which filed suit against Gascon for his gross violation of the law.

For background, “three strikes” adds an enhancing “strike” to most violent and/or serious felonies.  If you have one strike and get a second, your sentence for the new offense is double what it normally would be – get a third and you’re going away for 25 to life.  This law was approved by voters in 1994 and amended in 2012 to ensure that the “third strike” was a truly serious offense.

But the law contains an important word – “shall.”  Because of that, Gascon and other DAs who oppose the concept have very little legal wiggle room to avoid following it.  In other words, DA’s typically have very wide prosecutorial discretion, but not so much with the “three strikes” law.

And that’s what courts have so far found as the ADDA has won at each level thus far, saying the law stands and it has to be followed as written.  Gascon’s appeal of the rulings is expected to be heard by the state supreme court next year, though since the previous ruling he has reportedly been adding strike enhancements as directed.

According to Eric Siddall – vice-president of the ADDA when the suit was filed and now one of the candidates challenging Gascon in the March, 2024 primary election for the DA job – the suit forced Gascon to stop ignoring the law, a law Siddall called “one of the most effective ways to deter criminal behavior there is.”

That, however, does not mean that “three strikes” is completely out of the woods, enforcement-wise. There is the pending Gascon appeal before a notoriously liberal state supreme court and there is the opposition to the law of one of the people also running to unseat Gascon: Jeff Chemerinsky, son of noted leftist legal scholar and erstwhile Gascon ally Erwin Chemerinsky (Erwin is/was? backing Gascon’s appeal.)

At a debate/forum hosted by the Santa Monica Democratic Club last month, when asked what he would different from previous DA Jackie Lacey (she lost to Gascon and his piles of George Soros-linked – and Hollywood money,) Jeff Chemerinsky said Lacey’s use of “three strikes” was a problem.

“I would be more reluctant to apply things like strikes,” Chemerinsky said.  “I think strikes over time have been abused.  I think they are used to increase sentences often disproportionately and unfairly.”

Chemerinsky added that he would institute and internal “review system” and apply the law to a “very narrow set of cases.”

(Note – for his part, Gascon hammered Lacey in his response to the question, saying that under her watch Los Angeles County “became one of the most carceral counties in the state” and that she put “mentally ill, mostly black, people on death row.”  And he wonders why he might not get re-elected?)

That Chemerinsky –  essentially aping Gascon’s (and his father’s) –  anti-“three strikes” position is not surprising, but it does shine a light on the reported deep rift in the world of progressive LA politics. Some groups and people and donors are sticking with Gascon, while others – reportedly including some very high-dollar types – are bolting to Chemerinsky, thinking/knowing that Gascon – considering his extremely well-deserved atrocious poll numbers –  cannot even hope to get re-elected and that Chemerinsky is the presentable version of Gascon.

“He’s Gascon-Lite,” said, bluntly, DA candidate Judge Debra Archuleta.  “[Chemerinsky] has no experience, to my knowledge, in the US Attorney’s Office dealing with strike priors since these are state and not federal enhancements.  [Based on his debate statement] I am assuming he will not engage in a blanket policy on this issue; however, I expect, given his ideological bent, him to be reluctant at best and unwilling at most to file the appropriate enhancements in violent and serious cases.  He claims to be tough on crime however his rhetoric doesn’t support his assertion.”

Fellow candidate Judge Craig Mitchell said he understands the importance of the law but that it “should be applied judiciously.  Criminals who repeatedly commit violent crimes, and demonstrate an unwillingness to reform, need to be prosecuted pursuant to the “three strikes” law, he said.

“As a judge who has imposed sentences pursuant to the “three strikes” law, it is never an easy decision,” Mitchell said.  “But at times it is the best tool to ensure that a particular felon does not hurt any more people.  Sometimes enough is enough.”

Candidate and Deputy District Attorney Jon Hatami took a harder line, saying “George Gascón violated the will of the people when he ordered all Los Angeles County Deputy District Attorneys to not allege, file or prosecute prior strike convictions. The people voted on and passed the three strikes law to address dangerous repeat offenders. Los Angeles deserves a DA who prioritizes public safety and will actually follow the law, not a DA with no experience who dictates blanket policies that are contrary to common sense, basic safety and the will of the voters.” 

Though he was not at the Santa Monica Democratic event – he’s a former Republican running as an independent/no party preference in the non-partisan race, hence he was not invited – Nathan Hochman is a strong believer in “three strikes” and is part of the law firm that handled the suit against Gascon.

“I, along with my law firm, were hired by the association representing the over 800 prosecutors to stop Gascon’s illegal policy.  And we did just that, getting a judge to issue a preliminary injunction to halt Gascon’s policy in its tracks.  Then we got an appellate court to agree with this injunction, stating in its opinion that Gascon ‘is an elected official who must comply with the law, not a sovereign with absolute, unreviewable discretion,’” Hochman said.  “The D.A. is supposed to protect the public and enforce the law, not just those laws that he agrees with, but all laws. Gascon has failed to follow the law, and we are all less safe because of it.”

For his part, Siddall said he supports the law and supports the modifications made to the law in 2012 to avoid “pizza theft = life sentence” horror stories (there actually were not that many of those.) 

“It is an effective tool to deter crime and hold violent criminals accountable. The current district attorney and other candidates disagree,” said Siddall.  “Their lack of support ignores data, research, and practical experience. Instead, it is based more on ideology than reality. At a time when Los Angeles is experiencing a surge in violence, we need a chief prosecutor who will use every tool to combat violent crime and hold career criminals accountable.”

Neither Gascon’s office nor his campaign replied to a request for comment.  Like his opposition to “three strikes,” it was the same with Chemerinsky – no reply.

If you want to watch the entire Sanat Monica forum, it can be found on YouTube: