Criminal Justice

California Voters Declined To End Cash Bail. L.A.'s New District Attorney Says He'll Do It Anyway.

Cash bail is as unjust as it is arbitrary.


George Gascón was sworn in as the new District Attorney of Los Angeles County on Monday, and he began his tenure with a bang, promising to eliminate sentencing enhancements, nix the use of the death penalty, stop prosecuting certain low-level misdemeanors, and put an immediate end to cash bail.

The latter may well end up being the most controversial when considering that California voters handily rejected Proposition 25, a November ballot measure to abolish cash bail in favor of risk assessments.

But cash bail, as Gascón highlighted yesterday, is as unjust as it is arbitrary, in that it bases an offender's pre-trial freedom on their ability to pay and not on their risk of committing additional offenses or failing to appear for court. Whether a person remains incarcerated while their case works its way through the court thus turns more on personal and family wealth than the defendant's background or factors relevant to the alleged crime. "Money is a terrible proxy for risk posed to society," said Gascón, a former chief of police and San Francisco district attorney. "So today we will end cash bail for any misdemeanor, non-serious, or non-violent felony offense. And I will end bail completely January 1."

He did not expand on if he will eventually replace the current system with a risk analysis program, as Proposition 25 would have done, or explain what other tools courts would have to determine pretrial release.

As Reason's Scott Shackford points out, Gascón and California at large have a compelling model to study in New Jersey, which eliminated cash bail in favor of an adversarial court arrangement. Similar to trial arguments, it is presumed the defendant is innocent and will be released, and it is incumbent upon the prosecutor to convince a judge why that might be unwise.

Gascón also plans to sunset all sentencing enhancements, which are used by prosecutors to secure lengthier terms of incarceration for defendants. Yet those enhancements are often applied capriciously and without a real connection to the crime at hand. L.A. County is no stranger to that: Los Angeles Police Department (LAPD) officers last year were caught falsely labeling suspects as gang members in hopes of securing more punitive sentences for crimes that had nothing to do with gang activity.

In a similar vein, Gascón will stop applying California's three-strikes law, which sent thousands of people to prison for life if they committed three felonies, and if two of those were classified as serious or violent. In practice, it meant a defendant could be sentenced to die in prison for something like breaking into a car.

At least 20,000 prisoners will be eligible for release or resentencing, which Gascón said "will save [California] BILLIONS of dollars."

The progressive prosecutor is also likely to take heat for his directive not to pursue charges for certain low-level misdemeanors, such as trespassing, disturbing the peace, driving without a license, prostitution, resisting arrest, criminal threats, drug possession, minors with alcohol, drinking in public, public intoxication, and loitering.

Much of that is a welcome change. Armed agents of the state spend far more time probing nonviolent offenses and minor infractions than they do investigating violent crimes. Those interactions can yield severe consequences, as seen, for instance, with the death of Ramon Lopez, who was held on hot asphalt for several minutes after he was reported for loitering, "sticking his tongue out," and "looking at people's cars."

"For decades we attached felony consequences to low-level offenses," said Gascón.
"It foreclosed job & housing opportunities, exacerbated recidivism, crime & homelessness, & created more victims."

True enough, but Gascón will likely face some objections from concerned citizens, and not without reason. After replacing Vice President-Elect Kamala Harris as San Francisco's top prosecutor in 2011, the city saw a 37 percent increase in property crimes over the course of his eight-year tenure, the bulk of which came from car break-ins. Detractors blamed Proposition 47, a Gascón-led initiative that demoted certain property and drug crimes from felonies to misdemeanors. It's quite possible that his policy backfired; property crime, after all, is not a victimless crime. That doesn't tell the entire story, however: A San Francisco Chronicle investigation found that police, who enjoyed a strained relationship with Gascón, all but stopped arresting people for auto break-ins, only doing so in two percent of cases.

Police unions weren't happy with Gascón's successful campaign. Earlier this year, the LAPD union donated $1 million to a PAC dedicated to his loss; indeed, 72 percent of the donations given to Jackie Lacey, the former L.A. district attorney Gascón defeated in November, came from law enforcement unions.

Those unions so often protect cops at the expense of those they protect and serve. Consider Eric Garner, who was choked to death by a New York Police Department officer in violation of internal policy. But instead of casting the former cop, Daniel Pantaleo, as a bad apple, the union faulted "anti-police extremists" for his termination. Apparently, everyone needs the right to utilize unconstitutional, deadly force.

Gascón seemed to acknowledge that history on Monday. "For decades those who profit off incarceration have used their enormous political influence—cloaked in the false veil of safety—to scare the public and our elected officials into backing racist policies that created more victims, destroyed budgets, and shattered our moral compass," he wrote. "That lie and the harm it caused ends now."

NEXT: Southern California Sheriffs Rebel Over Gavin Newsom's New Stay-at-Home Order

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  1. Why bother voting when we have TopMen to make decisions for us?

    1. Yes, the refusal to seek sentencing enhancements flouts the will of the voters, who enacted sentencing enhancements in Proposition 8 for repeat offenders who commit murder, rape, and other serious crimes.

      Should a five-time rapist receive the same sentence for a rape as a first-time rapist? I think not.

      So it is extremely disturbing that Gascón has just decreed an end to the use of sentencing enhancements. That includes the repeat-offender sentencing enhancements of Proposition 8.

      Sentencing enhancements reduce both violent and property crimes. Crime fell a lot after California voters adopted sentencing enhancements for cases of willful homicide, rape, robbery, and aggravated assault with a gun. A National Bureau of Economic Research study found that a California law requiring longer sentences for such crimes deterred many crimes from being committed. As the study observed, within 3 years, crimes punished with enhanced sentences had “fallen roughly 20-40 percent compared to” crimes not covered by enhanced sentences.

      Above, I quote from Using Sentence Enhancements to Distinguish between Deterrence and Incapacitation (NBER Working Paper No. 6484), by Daniel Kessler and Steven Levitt.

      Such sentencing enhancements are just. It only makes sense to punish first-time offenders less than recidivists and people with a deep-seated contempt for the rights and lives of others. That’s why employers have progressive discipline, and why first-time non-violent offenders often don’t warrant jail time.

      Gascon, the LA District Attorney, specifically refuses to seek Prop. 8 sentencing enhancements:

      The NBER study specifically found that Prop. 8 sentencing enhancements reduce the commission of covered crimes (which include murder, rape, etc).

      1. When I write above that “Crime fell a lot after California voters adopted sentencing enhancements for cases of willful homicide, rape, robbery, and aggravated assault with a gun,” I am talking about sentencing enhancements for REPEAT OFFENDERS who committed these violent crimes, enhancements that were mandated by California’s Proposition 8, which Gascon specifically refuses to enforce.

        1. Seems more likely that the crimes are falling not from being deterred, but because the guy who would have committed the crime is cooling his heels in jail for an extra couple years.

          1. Longer sentences for repeat offenders cut crime for both reasons: deterrence, not just because the guy who committed the crime is cooling is heels in jail for a couple extra years.

            As researchers Daniel Kessler & Steven D. Levitt found, longer sentences have “a large deterrent effect,” suggesting that “sentence enhancements” are a “cost-effective” way to reduce crime. They described this in their NBER study, “Using Sentence Enhancements to Distinguish between Deterrence and Incapacitation.” As they noted in that study, “California’s Proposition 8…imposed sentence enhancements for a selected group of crimes. In the year following its passage, crimes covered by Proposition 8 fell by more than 10 percent relative to similar crimes not affected by the law, suggesting a large deterrent effect. Three years after the law comes into effect, eligible crimes have fallen roughly 20-40 percent compared to non-eligible crimes.” (See NBER Working Paper No. 6484).

            1. Young men are often incorrigible (can’t be reformed or corrected) into their mid forties. It’s hormones and habitat.

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          2. but because the guy who would have committed the crime is cooling his heels in jail for an extra couple years.

            Both outcomes seems like a positive. If you can’t stop raping people, then we’re going to put you on ice for a little while longer… and as a result, you won’t be able to rape anyone.

    2. The founders of this nation wrote the 2nd Amendment for just such occasions. When the government does not respect nor represent the will of the people.

    3. Isn’t proposition 25 incompatible with the 8th amendment (through the 14th) ? “Excessive bail shall not be required” implies that, most of the times at least, the defendant has the right to be free under a reasonable bail.

      The law can free without bail anyone that would have been free on bail otherwise, but I think it can not replace the bail system by a risk assessment-based system.

    4. No sentencing enhancement eh ?? Wanta bet that he will treat manslaughter defendants whose crime involved a firearm differently than defendants whose crime involved drugs or alcohol ?

  2. >>Vice President-Elect

    c’mon dude. also, long live Chuck Yeager.

    1. Amen and pass the Beeman’s.

    2. Also, not a Longhorns fan at all, but RIP Fred Akers.

      1. aw. Hook ’em. but only once, for Fred.

  3. Here we go. More Executive Branch Lefties circumventing Legislatures that create and repeal laws.

  4. Oh good reason Koch is siding with the far left soros funded hack.

    That’s new.

  5. Libertarians for rule by executive diktat!

    Free minds and free markets baby!!!!!!!!!!!!!!!!!

    Holding people accountable for their crimes is un-American!!!!!!!!!!!!

  6. Sentence enhancements that promote justice and fairness should not be abolished just because other sentence enhancements can be applied unfairly. But that is what DA Gascon is doing — totally refusing to seek sentence enhancements authorized by state law.

    It makes no sense to treat a first offender as badly as a career criminal. The career criminal should have to receive a longer sentence for the same crime — a sentence enhancement — given the career criminal’s lower likelihood of rehabilitation, and the greater need to deter repeat offenders who obstinately persist in attacking people.

    So Gascon should not have totally abolished sentencing enhancements — such as for violent repeat offenders — merely because a few “enhancements” for things like gang membership were “applied capriciously.”

    It is only fair to give repeat offenders a longer stint in jail than a first offender. Which is why California’s Proposition 8 mandated sentence enhancements for cases of willful homicide, forcible rape, robbery, and aggravated assault with a firearm.

    Gascon specifically states in Special Directive 20-08 that he will refuse to seek the sentencing enhancements mandated by Proposition 8.

    Never mind that a National Bureau of Economic Research study found that a California law requiring longer sentences for such crimes deterred many violent crimes from being committed. As it concluded, within 3 years, crimes punished with enhanced sentences had “fallen roughly 20-40 percent compared to” crimes not covered by enhanced sentences. See “Using Sentence Enhancements to Distinguish between Deterrence and Incapacitation,” NBER Working Paper No. 6484, by Daniel Kessler and Steven Levitt.

    1. Three strikes laws enacted in the late 80s contributed immensely to a reduction on crime, particularly violent crime which plummeted 51% during the ensuing couple decades. There were other factors that also contributed including the expansion of concealed carry by civilians in 41 states and the enactment of Castle Doctrine or Stand Your Ground laws, but three strikes and enhancements such as use of a firearm in committing a felony, carrying a firearm while engaging in illegal drug transactions and gang affiliation were instrumental in reducing the toll taken by criminal activity.

  7. The people of LA elected a progressive DA, and thus they are entitled to get the progressive policies that he ran on.

    1. Good and hard.

    2. Amen. You get what you vote for. Here’s what California Democrats have gotten: “California businesses are leaving the state in droves. In just 2018 and 2019—economic boom years—765 commercial facilities left California. This exodus doesn’t count Charles Schwab’s announcement to leave San Francisco next year. Nor does it include the 13,000 estimated businesses to have left between 2009 and 2016.” If only they would leave their stupid Democrat voting behind when they move to Texas.

  8. I’m all for prosecutorial reform and prosecutors have always had the discretion to not demand bail, not overcharge etc. But in a couple of instances he’s going out of his way to send a big Fuck You to the voters who actually passed referendums that they had every right to believe were binding. Not cool.

    1. The referendum at issue failed. A failed referendum is a sign of voter will, but not binding like a passed referendum.

      1. FYI, the DA’s rule isn’t binding either. Just to make sure you’re keeping up.

        1. DA’s are elected…this guy may be solidly in step with his bay area kook friends but the LA crowd will soon tire of his bullshit.

    2. Ignoring the will of the voter in CA won’t have political consequences, because Democrats own the state. Expect this same kind of BS with props 15 and 16 also (voters rejected raising property taxes on businesses and reinstating affirmative action).

  9. Does the end of sentencing enhancements mean an end to “hate crime” charges, which amount to sentencing enhancements based on motive? Didn’t think so.

  10. Cash bail is well within the proper purview of local democracy, and there isn’t anything libertarian about cheering on authoritarians for inflicting your preferred policies on the voters over their objections and against their will.

    You should be ashamed of yourself.

  11. Cash bail is the last (legal) defense against a tyrannical state.
    There’s only one reason they want to end it, so they can lock you up indefinitely.

    1. interesting angle. are you suggesting that they might forego bail and require incarceration instead? i do not see that as the result

  12. The former San Francisco district attorney also said the Conviction Integrity Unit will drastically expand its eligibility criteria so that all non-frivolous claims of innocence and wrongful conviction will be reviewed.
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  14. “But cash bail, as Gascón highlighted yesterday, is as unjust as it is arbitrary, in that it bases an offender’s pre-trial freedom on their ability to pay and not on their risk of committing additional offenses or failing to appear for court.”

    What an idiotic comment. It is not SOLELY based on their ability to pay. Its is based on their risk of committing additional offenses, it is based on the offense they are currently accused of, its based on their likely risk of flight, and finally its based on whether they can pay. The reality is that they usually only have to put up a VERY SMALL portion of the bail anyway. This guy is a progressive MORON purposefully spreading misinformation.

  15. The purpose of the bail system would seem to be primarily to ensure that those released on bail appear for their trials. What has New Jersey’s “compelling model” yielded in this regard? I thought when Maryland adopted a similar reform, there was a substantial uptick in the number of defendants who failed to appear. A failure to appear would also seem (absent some good excuse) like a valid reason for a sentencing enhancement, if the defendant ultimately is convicted.

  16. How about an article in Reason exposing how many millions of dollars Hungarian socialist George Soros and his Open Society have given to dozens of left wing Democrats who have run/won County races for District Attorney, and who subsequently refused to prosecute many/most criminal offenders, while prosecuting those who lawfully exercise their 2nd amendment rights.

    1. ah ah ,you are funny ,you probably think about REASON as it used to be at the very beginning many years ago .
      This 2020 REASON only does “fun for the laughing ”
      no thinking necessary !

  17. California Voters Declined To End Cash Bail. L.A.’s New District Attorney Says He’ll Do It Anyway.

    It’s nice to know when the elites don’t get the answer they want from their constituents, they have a process to get what they want anyway.

  18. Has anyone ever heard an explanation of how no-cash bail will be less “arbitrary” than cash bail? What we had was a system that ran on an infinite sliding scale. Little risk? Very low cash bail. Slightly higher risk? Higher cash bail. Very high risk? Very high cash bail.

    In each of the aforementioned scenarios, the defendant had a chance to be released, with an incentive to show up, lest the cash bail be lost.

    Without cash bail… some kind of board will determine the risk just as ‘arbitrarily’ as they did before, but the decision to release now comes down to a binary: You’re released with no cash bail, or you’re cooling your heels in jail until your trial is complete, with all the attendant effects of COVID-19 and slower court systems.

    And we call this a compassionate and more progressive system?

  19. The cash bail proposition was rejected because it would replace cash bail with an opaque algorithm. Local ACLU chapters who were anti-cash bail nonetheless provided recommendations for NO or declined to provide recommendations because of that.

  20. Whether you agree with the practice or not, it’s worrisome that a DA could just violate the law like this.

    1. DA’s have long been the gatekeeper to the system. before them even is the cop who decides what his angle is. we learn early that pretending to respect cops can avoid the ride. in reality cops have a lot of leeway…

  21. By refusing to prosecute trespass, Gascon effectively is abolishing private property. You’d think that would raise some hackles at Reason.

    Also, by refusing to prosecute resisting arrest, Gascon is telling the police they have no authority to arrest anyone who is not willing to be arrested. I’m sure the Manson Family would have loved that one!

    1. the realities of his policies are staggering. i am ALL FOR the ending of larding up charge sheets but the day to day of his “big idea” seems truly unworkable

  22. Quick, someone recruit this guy to the Libertarian Party. It’s amazing that he’s held office, much less won the D.A. slot in L.A. Putting a damper on corrupt cops has got to be putting a target on his back, in case anyone is naive enough to think that cops are above assassination.

  23. C’mon, man – voting is so – so 2018. We don’t need to hear from the people what they want. Most of the time they don’t know anyway, and just believe what the media tells them – 2020 is proof of that. All we need are leaders like this who will do what they think is best, with the self-assuredness that allows them to ignore the people’s will with impunity. We’ve had that before – George III comes to mind. Let’s just let the appointees and those elected with lobbyist money decide; they’re the elite, after all. While we’re at it, let’s edit the preamble: “We the subjects of the U.S. oligarchy, in order to focus on TV and Twitter instead of our future, do hereby abstain from caring about the freedoms that our forefathers fought, bled, and died to establish – in sha allah.”

  24. Here’s the deal with Grant Gascon: he’s a National Security Hack. San Francisco is and has been a US Navy “must hold” for the DA office – lots of military intelligence contractors and consulates. Same for Los Angeles County. When Jackie Lacey fell in the Polls, Gascon’s handlers ordered him to move and run so that Military Intelligence would continue to control this critical office. All of this about cash bail is continued “culture wars” by the National Security State to keep everyone distracted – and here I hold “journalists” from Reason accountable for their complicity LYING to their readers.

    1. journalists? are there any of those ANYWHERE anymore?

  25. Well, he is locally elected so I guess this is what LA wants.
    But I don’t want to hear one goddamn word about sheriffs who refuse to enforce Newsom’s edicts from anyone who supports this.

    I’ve decided reluctantly that I’m okay with it precisely because it provides ammunition to local sheriffs who refuse to enforce idiotic COVID rules.

    Local law enforcement refusing to pursue stupid shit from higher levels of government may be our best hope.

  26. Here’s a thought — don’t do the crime if you can’t put up the bail. Of course, then you’d say that this is unjust to poor criminals and favors the rich ones. So here’s plan B — libertarians should personally guarantee that criminals show up for trial. No show, the libertarian goes to jail instead. That seems fair to me.

  27. as long as they will agree to issue warrants for failure to appear then let’s let them try their silly BS plan. this guy will be a ONE TERM DA. his bullshit will not fly countywide as it did in batshit crazy san francisco. LA county is HUGE and has a FAR wider range of politics on the crime level

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