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A New Amicus Brief Arguing Against a Local D.A. Circumventing California's Three Strikes Law

Meg Garvin, John Yoo, and I argue to the California Supreme Court that L.A. District Attorney George Gascon is not free to ignore the commands of California's Three Strikes Law.


Today law professors Meg Garvin, John Yoo, and I filed an application to file an amicus brief in the California Supreme Court. We seek to argue that L.A. District Attorney George Gascón cannot ignore the requirements of California's three strikes law. The California Court of Appeals previously granted a preliminary injunction in favor of this position.

The case arises from the following facts: In December 2020, new district attorney Gascón adopted several "Special Directives" concerning sentencing, sentence enhancements, and resentencing that made significant changes to the policies of his predecessor. In essence, the Special Directives prohibited deputy district attorneys in most cases from alleging prior serious or violent felony convictions (commonly referred to as "strikes") under the three strikes law  and required deputy district attorneys in pending cases to move to dismiss or seek leave to remove from the charging document allegations of strikes and sentence enhancements.

The Association of Deputy District Attorneys for Los Angeles County (ADDA) is the certified exclusive bargaining representative for approximately 800 deputy district attorneys in Los Angeles County. ADDA sought a writ of mandate and a preliminary injunction to prevent the district attorney from enforcing the Special Directives, arguing they violated a prosecutor's duties to "plead and prove" prior strikes under the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)); to exercise prosecutorial discretion in alleging and moving to dismiss under section 1385 prior strikes and sentence enhancements on a case-by-case basis; to continue to prosecute alleged strikes and sentence enhancements after a court denies a motion to dismiss under section 1385; and to prosecute certain special circumstances allegations. The trial court largely agreed with ADDA and issued a preliminary injunction enjoining the district attorney from enforcing certain aspects of the Special Directives.

On  appeal, on the issue of standing, the California Court of Appeals concluded that ADDA had associational standing to seek relief on behalf of its members. On the merits, the Court of Appeals concluded the voters and the Legislature created a duty, enforceable in mandamus, that required prosecutors to plead prior serious or violent felony convictions to ensure the alternative sentencing scheme created by the three strikes law applies to repeat offenders. This duty did not violate the separation of powers doctrine by materially infringing on a prosecutor's charging discretion; to the contrary, the California Court of Appeals concluded, the duty affirmed the voters' and the Legislature's authority to prescribe more severe punishment for certain recidivists. But the Court of Appeals also concluded that neither the voters nor the Legislature could create a duty enforceable in mandamus to require a prosecutor to prove allegations of prior serious or violent felony convictions, an inherently and immanently discretionary act. Nor, the Court of Appeals concluded, was mandamus available to compel a prosecutor to exercise his or her discretion in a particular way when moving to dismiss allegations of prior strikes or sentence enhancements under section 1385 or when seeking leave to amend a charging document.

The case has moved to the California Supreme Court. Here's the introduction to our proposed amicus brief supporting the deputy district attorneys:

The California Constitution grants the state Legislature plenary legislative power, including the sole power to codify crimes and their punishments. The executive is bound to follow and carry out those commands. Petitioner Los Angeles District Attorney George Gascón concedes as much, yet he refuses to comply with the Three Strikes Law. He claims that the separation of powers grants him the license to defy admittedly valid legislation and substitute his own policy preferences. That proposal inverts separation of powers principles. It would allow a local elected official to seize the Legislature's policy-making power. In this case, would defeat the Legislature's authority to enact criminal law and transfer to prosecutors the power to rewrite criminal law.

District Attorney Gascón believes that the Three Strikes Law (Pen. Code, § 667, subd. (b)-(i)) mandates unfair sentences. That is his right. But his disagreement with the policy of a statute does not allow him, as an executive officer, to refuse to execute its terms. Gascón may choose not to bring the charges that trigger the Three Strikes Law, or he may choose to bring misdemeanors rather than felonies. But if he pleads and proves felony charges against defendants who fall under the Three Strikes Law, he must also seek the punishments required by statute. The process set out by the California Constitution for Gascón to pursue his policy disagreement with the Legislature is by persuading its members to amend the law, not to refuse to execute the law unilaterally.

The issue in this case is not only the limits on the policy positions of a single district attorney. The principle at stake is the separation of power, one of the most important frameworks in the California Constitution and the American Constitution. The separation of powers was Montesquieu's ingenious solution to a problem that plagued civilizations for millennia before him: create a government that is effective enough to protect individual rights, but not so effective that the same government can violate individual rights without consequence. A government vested with no power can do no good. But a government vested with broad powers can affect great damage if those powers go unchecked.

Thus, the Founders of our Nation provided for a "necessary partition of power among the several departments." (James Madison, Federalist No. 51 in The Federalist (Carey and McClellan, ed., 1990) p. 267). By dividing government functions, the Framers correctly believed, power would check power and thus reduce unconstitutional violations of Document received by the CA Supreme Court the people's rights and liberties. Fundamental to the separation of powers was the division of the executive and legislative powers. As Montesquieu declared: "When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty." (1 Montesquieu, Complete Works: Spirit of the Laws (1777) p. 199). The California Constitution explicitly adopts this vision of the separation of powers. Article III, Section 3 declares: "The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution." (Cal. Const. art. III, § 3.)

To vindicate this core principle of the California Constitution, this Court must uphold the decision of the Court of Appeal below and restrain District Attorney Gascón within the proper limits of his constitutionally mandated role: to enforce, not make, the laws.

Our proposed brief also focuses on the implications of California's Marsy's Law, which limits prosecutorial discretion by by guaranteeing that crime victims are "[t]o be treated with fairness and respect for his or her privacy and dignity." (Cal. Const. art. I, § 28(a)(3).) It specifically requires that victims' safety be "considered in fixing the amount of bail and release conditions." (Id. at subd. (b)(3).) It also requires the government to give reasonable notice and "to reasonably confer" with victims regarding arrests, charges, and pretrial dispositions. (Id. at subd. (b)(6).) These rights are not empty promises. Instead, victims' interests must be considered, even when prosecutors exercise their discretion. (See Paul G. Cassell & Margaret Garvin, Protecting Crime Victims in State Constitutions: The Example of the New Marsy's Law for Florida, (2020) 110 J. Crim. L. & Criminology 99 (2020).

Special thanks to David DeGroot for preparing the application for us.