Gascon Reinstates Illegal Orders Two Days After Judge Struck Them Down

On February 8, 2021, Judge James Chalfant granted a preliminary injunction against LADA George Gascon. The order prevented him from banning strike enhancements. The judge ruled that prosecutors had to “plead and prove” them. He also ruled that prosecutors could not move to dismiss them unless it was in the interests of justice. The ruling was a victory for beleaguered line prosecutors who were being forced to choose between obeying the law or obeying their boss.

Most observers expected Gascon to adjust his policies in good faith to comply with the ruling. This is what typically happens after a government agency is hit with an injunction. But Gascon did not attempt to comply in good faith. Just two days after the judge issued his ruling, Gascon issued a new “special directive.”

The Special Directive was not good faith compliance, but rather an attempted end run around the injunction.

Specifically, Judge Chalfant enjoined prosecutors from moving “to dismiss strike priors or any existing sentencing enhancement in a pending case without having legal grounds as required by section 1385.” There is a large body of law discussing these legal grounds.

But the new special directive orders prosecutors to do exactly that.

Motions to dismiss alleged strike priors pursuant to Penal Code section 1385 will be based on individual case review pursuant to the considerations set forth by The Committee on Revision of the Penal Code, hereafter “The Committee.” The presumption will be in favor of dismissal or withdrawal when any one of the factors apply.

This new order is directly contrary to the injunction, contrary to the law, including section 1385, and the case law discussing it. Gascon’s problem is that the law makes it very difficult to dismiss under this section, and he would like it to be very easy. If deputies use their law degrees and follow the law, they would not make this motion except in truly extraordinary and rare situations. But Gascon still wants this motion on every case. So he tried to change the requirements to make it easier.

Instead of following the law, deputies must not review factors set forth by a non-elected committee. None of these factors are law. They have not been deliberated on by the legislature. In fact, the report was issued after the injunction, on February 9th, the day before the new special directive. Prosecutors must bring the motion if any one of the factors apply. Again, this is not the law. The law says the opposite, that motions should only be used in “extraordinary” circumstances.

Ordering all prosecutors to seek a dismissal of prior strikes based on section 1385 and on individual case review is appropriate and is the law.  But, adding the requirement “pursuant to the considerations set forth by The Committee” requirement to those dismissal motions, violates the clear and unambiguous holdings of Romero and its progeny, section 1385, and Judge Chalfant’s order.  Even more illegal is the presumption of dismissal if any one of the factors apply.  This is the opposite of “extraordinary” circumstances when the “ends of justice demand it” requirement under the law. 

Gascon’s end run around the injunction is unlawful and unethical. It is a disappointing example of his desire to change our system by any means, including illegal means or disobedience to court orders.