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.

Comments

[Noscitur a sociis]

Unless there’s a special, different way things work in California—never a possibility I’d want to discount out of hand—this seems like a pretty dubious claim (and a certain loser on the federal side of things).

To be sure, this policy is a disgrace, like so much Gascon has done—but the check there, I think, is political, rather than having a judge take over operations.

[Dilan Esper]

Remember as well that Gascon is an elected official. If Cassell thinks his extreme carceralism is what LA voters want, he is welcome to move here and run. He would get his butt kicked.

But for him to come swooping in and try and oveeride the chosen policies of the voters of Los Angeles is outrageous.

[Kazinski]

Remember also that three strikes was implemented by the voters by California’s initiative process.

I think the prosecutor does have discretion in charging decisions but I don’t think he has discretion to conceal prior convictions from the court as the California court of appeals bizarrely held:
“ 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.”

Seems a stretch that says that the law cannot require public officials to perform their jobs as defined by the state.

Kind of wonder what the Court of Appeals would say about the whether the people and the legislature could require the county clerk to issue a marriage license to a same sex couple.

[The Margrave of Azilia]

In short, what consitutes intolerable "nullification" in a jury, warranting an extended lecture on the sanctity of the rule of law, constitutes legitimate "discretion" in a prosecutor.

[David Nieporent]

Kind of wonder what the Court of Appeals would say about the whether the people and the legislature could require the county clerk to issue a marriage license to a same sex couple.

Pretty sure they'd say that issuing marriage licenses isn't a discretionary act, and so clerks don't have discretion.

[ducksalad]

Kind of off topic, but since there's no discretion involved (and I agree there shouldn't be) then why is a "license" required in the first place? If it's about the collecting the money, might as well just call it a marriage fee.

[Absaroka]

I never tested the assumption, but I don't think you can get a marriage license to marry your sibling or whatever. It's like shall issue CCW, where the permit must be issued as long as you meet the statutory criteria, but not if you don't.

(whether having permits/certificates is worth the hassle, I dunno. I do see an argument that as long as the law cares whether X and Y are married (taxes, insurance, inheritance, health care decisions, ...) that having a paper trail stops every entity that cares from individually deciding whether this particular relationship qualifies)

[ducksalad]

Fair enough.

But since you brought up siblings….we’ve given up on the idea that marriage is a government license to have sex, much less procreate. Instead, it’s about “taxes, insurance, inheritance, health care decisions”. So what’s the remaining objection to siblings marrying so that they can file joint tax returns or inherit by default?

It appears all that’s left is the idea that the state is “affirming” the personal relationship. Which from a libertarian point of view is the dumbest, least legitimate thing for the government to be involved in.

[Absaroka]

"So what’s the remaining objection to siblings marrying so that they can file joint tax returns or inherit by default?"

If you're talking two person marriages, beats me.

Plural marriages would get really interesting ... consider spousal social security benefits for a high-earner spouse with a few hundred no-earnings spouses. You'd need to rethink all that stuff.

[bevis the lumberjack]

Didn’t exactly that situation happen famously in Kentucky a few years ago? Kim something or other?

[Kazinski]

Yeah me too in some circumstances. But how about if the clerk knows or has reasonable grounds to believe one of the applicants is married? Doesn't that imply some discretion, although I agree it has limits.

But the follow on question is can the legislature or the people remove discretion from the prosecutor in informing the court about prior convictions. That seems like it could easily be classed as a ministerial function, not discretionary.

Already prosecutors have been recognized as wearing different hats, with different responsibilities and consequences for failing those responsibilities. Prosecutors have absolute immunity for prosecutorial functions, but when a prosecutor is performing an investigative function he doesn't have any more immunity for concealing evidence, or using violence when interviewing a.suspect than the police do, even though those are normal functions of the office.

[ducksalad]

I don't understand the wording: "prove" allegations of prior convictions. Aren't convictions a matter of public record and contained in various databases?

A law requiring the prosecutor to inform the court about a factual matter wouldn't seem to violate any prosecutorial discretion, any more than (for example) the requirement to disclose exculpatory evidence.

[John F. Carr]

The California law explicitly requires the prosecution to "plead and prove" the prior. The pleading requirement makes the prior conviction an element of the crime instead of a sentencing factor.

If I recall correctly, under federal law the judge can consider prior convictions on his own initiative when applying the sentencing guidelines, but the prosecutor must charge the prior if it increases the statutory maximum.

[ducksalad]

Thanks for the explanation.

[Dr. Ed 2]

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

At what point does this become violated? Could a DA simply decide not to enforce *any* laws?

Of course the flip side of this is vigilantism, of which California has a sad history. San Fransisco had serious problems with it twice just before the Civil War, much to the chagrin of General Sherman who eventually resigned his commission over this. See: https://www.militarymuseum.org/Sheman2.html

And the LAPD founded its infamous "Gangster Squad" in 1948 to keep the Mafia out of Los Angeles.

[David Nieporent]

At what point does this become violated? Could a DA simply decide not to enforce *any* laws?

Yes, of course.

[Absaroka]

Can the prosecutor's decisions be completely arbitrary?

There is a scene in the movie 'Deacons For Defense' (and I don't recall if the book agrees or the movie is doing Hollywood law) where the federal judge in New Orleans informs the Bogalusa city officials (police chief and mayor? DA?) that they will either start protecting their black citizens or he will jail them for contempt. This leads to the dramatic finale where the police chief reluctantly tells the Klan to go home or else.

So can a local DA have a policy of not prosecuting lynch mobs, and the state/feds are powerless? Or a local DA that has a thing about domestic violence and has a policy of not prosecuting wives who shoot their husbands (not just based on the facts of a particular case, but across the board)? Or the converse - he's a fundie who thinks it's fine to beat your wife with a stick no bigger than your wrist? The wives/husbands/lynchees can just suck it up or vote with their feet because the DA's discretion is absolute?

I'm not saying you're wrong, I just am surprised.

[John F. Carr]

During Reconstruction the situation you describe was close to reality. Now the feds would step in if the states refused to prosecute.

[Dilan Esper]

There's, in theory, some limit of selective prosecution claims (although the burden is very high under the Wayte case).

But short of that, yes, it's a fundamental principle that outside agitators with bloodlust can't come in and force the prosecutor to charge people. Prof. Cassell is the intellectual descendant of the mobs outside the courthouse.

[Absaroka]

"... it’s a fundamental principle that outside agitators with bloodlust can’t come in and force the prosecutor to charge people"

Thus implying the converse: nothing can compel District Attorney Fred Hatfield to prosecute Joe Hatfield for killing all those McCoys?

[Kenneth Almquist]

“nothing can compel District Attorney Fred Hatfield to prosecute Joe Hatfield for killing all those McCoys?”

That's my understanding.

Even if Fred Hatfield could be compelled to prosecute, that doesn't mean he would do a good job. He might lose a winnable case. So if it is important that Joe Hatfield be prosecuted, the best approach is to have someone else prosecute him. In the case of civil rights violations, for example, Federal prosecutors have often stepped in when state prosecutors refuse to prosecute.

[Absaroka]

"Even if Fred Hatfield could be compelled to prosecute, that doesn’t mean he would do a good job."

That's an excellent point.

"... the best approach is to have someone else prosecute him."

I'm clueless here. If the local DA doesn't prosecute a state crime (for some nefarious reason, like the perp is his cousin), who else can prosecute? The state attorney general? Generally speaking, aren't most crimes state-only, so the feds can't step in?

As far as civil rights and the feds, is Hatfield on McCoy violence a civil rights violation if the McCoys aren't in any protected class, Hatfield wasn't trying to stop them voting, etc... he just doesn't like McCoys?

[John F. Carr]

The Attorney General of Massachusetts has some ability to prosecute. I do not understand when she can do it and when she has to defer to county prosecutors.

[Absaroka]

thanks!

[John F. Carr]

Trying to lose a winnable case was an episode of Quincy, "The Law Is a Fool". An acquittal was one of a kidnapper's ransom demands. He wanted an acquittal rather than no charges at all so double jeopardy would prevent a retrial.

[David Nieporent]

You're conflating law enforcement and prosecution with your question. I suppose a judge might be able to order a police force to provide protection to people. But he can't order a prosecutor to prosecute someone. (How would that work if he did have such authority? You can't force a prosecutor to do a good job. There are a zillion decisions in a case.)

[Bob from Ohio]

"extreme carceralism"

Sending repeat criminals to prison isn't "extreme".

Its just middle class lib arrogance. You live in a safe area no doubt, these predators aren't generally around you.

[Dilan Esper]

Prof. Cassell is an extreme carcelist. We've seen that in a public record dating back over 30 years, and it's a lot more than simply wanting life sentences for third strikes.

[Armchair Lawyer]

If the DA is violating the law, it's appropriate for a court case and for a judge to make the appropriate changes.

[Noscitur a sociis]

My point is that a prosecutor declining to pursue a particular allegation, even if the evidence supports it, isn't generally understood as violating the law.

[Rev. Arthur L. Kirkland]

Were the testicles of any children crushed during the making of this brief?

Will authority for any enhanced interrogation (or other discovery) techniques be sought or claimed?

Carry on, “libertarians.”

[Dr. Ed 2]

Kirkland, read Sherman's letters....

[Jerry B.]

"Were the testicles of any children crushed during the making of this brief?"

Why? Do you want pictures?

[Rev. Arthur L. Kirkland]

Ask one of the other clingers -- maybe a Conspirator or two; they are friendly with Prof. Yoo, from Federalist-Heritage-Republican cocktail parties -- to try to explain this for you.

[Frank Drackman]

Jerry Sandusky, expert in children's testicles.

[Ed Grinberg]

The idea that it is somehow un-libertarian to enforce criminal laws is ... worthy of RAK.

[Rev. Arthur L. Kirkland]

Ask Jerry B. to try to explain this for you, after one of the Conspirators explains it for Jerry B.

[The Margrave of Azilia]

Looking up the Crime Victims’ Bill of Rights in California, I see that some of these rights are “personally held and enforceable rights.” Other rights are “shared collective rights that are held in common with all of the People of the State of California and that are enforceable through the enactment of laws and through good-faith efforts and actions of California’s elected, appointed, and publicly employed officials.”

At an admittedly cursury glance, the rights Prof. Cassell are trying to enforce seem to come within the second category.

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CONS&sectionNum=SEC.%2028.&article=I

For some bizarre reason, rights collectively held by the community often cannot be asserted by an individual member of the community in a court proceeding. Removing the prosecutor from office would seem to be the only remedy, or having the state Attorney General take over some of his cases.

So in short, the right won’t be enforced at all.

(And I see nothing in there which gives public-sector unions the role of enforcing the public’s rights.)

[The Margrave of Azilia]

The politically-enforceable rights include the “expectation” that felons will be “sufficiently punished so that the public safety is protected and encouraged as a goal of highest importance.”

If there’s a 3-strikes law defining what constitutes sufficient punishment for certain felons, I don’t see how ignoring that law is consistent with seeing the offender “sufficiently punished.”

[The Margrave of Azilia]

The monarchs of England, whose authority was originally derived independently and not dependent on the estates of the realm, used to have the power to suspend laws or the operation of laws. But even as to monarchs, this power was curtailed in 1689 – the consent of Parliament was required for suspending laws or their operation.

https://oll.libertyfund.org/page/1689-english-bill-of-rights

So what shall we say of American executive officials, whether elected or not? Are they permitted to suspend laws without consent of the lawmaking authority, when even monarchs can’t do it?

[Dr. Ed 2]

"So what shall we say of American executive officials, whether elected or not? Are they permitted to suspend laws without consent of the lawmaking authority, when even monarchs can’t do it?"

What constitutes an insurrection?

If President Trump theoretically could have plotted on on January 6th (at *most* he didn't sufficiently discourage it), then could not George Gascón be accused of the same thing?

What would have been the difference between Trump publicly announcing that anyone arrested on January 6th would be pardoned (and doing it) and what George Gascón is currently doing, i.e. refusing to prosecute? The end result is the same, criminals aren't being prosecuted and know that they won't be.

[Longtobefree]

So much for ‘everyone is equal under the law’ and ‘we are a nation of laws’.
Looks more and more like we are a ruled by tyrants; elected tyrants, but tyrants none the less.
It is now time to carefully review the flag and motto of the Commonwealth of Virginia.

[ReaderY]

If district attorneys can challenge a policy, they can challenge a statute. And why in the world would district attorneys have standing to challenge changes in the law? What personal stake do they have, different from the general public, in whether a convicted defendant gets a higher or a lower sentence? They don’t get paid any more or less.

If individual assistant prosecutors want to address the issue in individual cases, they can advise the judge that the defendant has prior convictions but they have been instructed not to charge them per the policy. And if the judge doesn’t do anything, they proceed.

[ReaderY]

I recognize state courts are not obligated to duplicate federal standing requirements. Perhaps California law permits government employees to sue their bosses if they think their bosses are asking them to do something illegal. Perhaps it has no requirement that they have any personal stake other than simply wanting to follow the law what they think the law requires.

On the merits, I don’t think the separation of powers argument is valid, for the simple reason that prosecutors historically have had absolute discretion to decide whether or not to prosecute, including the ability to decide that they aren’t going to enforce a particular law at all. For example, was the LA district attorney violating core separation of powers in the 1970s when he said that he didn’t plan to enforce California’s sodomy law? If not (and I thjnk not), what makes this case any different?

It is possible this particular law overrides the general presumption of prosecutorial discretion. But an argument that this occureed would have to focus on this specific rule. If seems to me that any general separation-of-powers argument would cut the other way, in favor of prosecutorial discretion.

In general, in order to convict someone of a serious crime, a legislature has to be willing to pass a law, an executive has to be willing to prosecute, and a jury has to be willing to convict. The consent and participation of all 3 branches of government is required. Moreover, for federal crimes, the jury must be local and come from the defendant’s district. These requirements are an important check to ensure that no-one is subjected to serious punishment unless their community has a real consensus that the conduct is seriously wrongful, and representatives of each branch of government and the locality agree.

This, I think, is what separation of powers principles generally require. Letting the legislative branch of government constrain executive enforcement discretion represents an exception to general separation of powers principles. It is most certainly not required by them.

[Frank Drackman]

Its almost like these DemoKKKrat Governors/Mayors/DA’s are for the Criminals. And trivia time, which state has the most condemned prisoners?? (get it right, Prisons have “Prisoners” Asylums have “Inmates”) I was going to say “On Death Row” but that’s redundant, but actually in California, they probably let them out with ankle monitors. Hint, you might not get the answer that I want you to….

Frank

[ReaderY]

Back in the 19th Century when England had a mandatory death penalty for theft and no juvenile exceptions, the people who were saying maybe barefoot children shouldn’t be hanged for stealing matches in mid-winter got the same sort of vitriol.

You’d think Charles Dickens was aome sort of super-criminal or something from all the talk.

You may disagree with the policy argument that the Three Strikes law went too far and their view that keeping people in jail forever doesn’t do anybody any good. But it’s a legitimate policy argument. The people making the argument may be wrong. But they aren’t monstrosities.

[ducksalad]

“Back in the 19th Century when England had a mandatory death penalty for theft and no juvenile exceptions, the people who were saying maybe barefoot children shouldn’t be hanged for stealing matches in mid-winter got the same sort of vitriol.”

While giving the sentences was mandatory, if stories from that time are accurate it seems discretionary commutations were not all that rare. Maybe the king/queen got a lot of vitriol for it, I wouldn’t know.

[Absaroka]

I also read recently of cases where stealing more than (translating from pence, shillings, and pounds) $100 was a capital crime, and the jury decided the value of a hundred dollar bill was $99.99.

[Frank Drackman]

You have to admit, Ted Bundy's been pretty good since he was Electrocuted.

[DRM]

The only true guarantee of the rule of law and of the rights of crime victims is the vindication of the ancient right of private prosecution.

Whenever the power to prosecute is stripped from the people and vested exclusively in a single official, the rule of law is abolished. Instead, anyone favored by that official is free to depredate at will.

Sometimes the people with the sympathy of the prosecutor will be career criminals; sometimes they will be police officers engaging in brutality; sometimes they will be the circle of friends, family, and political allies of the prosecutor. But regardless, the rule of law has been replaced by the rule of one man.

And the solution is, was, and remains very simple. Certainly, it is sensible for the public at large to acquire a public good by collectively hiring someone to pursue criminals at public expense. But simply do not give that hireling a monopoly on the machinery of justice. Let anyone, as is the ancient law and custom in England, and was in the American colonies and the early United States, hire his own attorney, go to a grand jury to seek an indictment, and prosecute a case.

[ReaderY]

It’s just not fair that there should be something for which the poor get the same protection as the rich! It’s just not fair!

Next thing you know they’ll be talking about abolishing the ancient right of prima nocte. The injustice!

[DRM]

Yeah, we all know that equality of the rich and poor is secured by giving the exclusive power to prosecute to politicians who hold $500-a-plate campaign fundraising dinners.

[ReaderY]

And the proper remedy for the possibility that rich people might buy the public prosecutors indirectly is to have private prosecutors so rich people can just buy the prosecutors directly?

Really?

[DRM]

Nobody’s rich enough to buy all the possible prosecutors in a situation where every citizen has the right to prosecute. To make it possible to gatekeep, one first needs to establish a wall with a narrow gate.

[Noscitur a sociis]

Do you really think that the typical victims of the violent offenders empowered by these policies have the resources to hire a lawyers to prosecute them?

[ReaderY]

Hence my reference to prima nocte. It’s what you’d end up with. Take away public prosecutors and the rich basically get to have their way with the poor with effective impunity. The various complex procedures and rules designed to ensure defendants’ constitutional rights would have the effect of virtually guaranteeing that people who couldn’t afford lawyers would have their pro se prosecutions thrown out. (Sample obstacle: Pro se civil complaints can be construed indulgently, but criminal complaints must be construed strictly.) And how could the poor catch people to have them prosecuted?

Every night would be Purge Night.

[DRM]

Take away public prosecutors Nobody suggested doing that, you illiterate buffoon. How about you actually try responding to people's actual proposals instead of your lunatic fantasies?

[DRM]

I'm trying to figure out what world you people live in that the only possible alternative to state action is atomic action by un-associated individuals.

Seriously, your average city is just dripping with various civic groups, and both local businesses and large corporations give money to those associations all the time.

[John F. Carr]

Based on the plain text of the law, the prior strikes are elements to be proved and not sentencing factors the judge may consider over the objection of the prosecutor.

Under my state's version of separation of powers, a judge can not force a prosecutor to charge a crime. No matter how strong the evidence, the prosecutor can drop charges or charge a lesser included offense. Our sentencing ranges are more flexible than California's and a judge can make up for undercharging at sentencing.

[Vandalia]

This would seem to be a clear violation of separation of powers. The legislature passing a law limiting prosecutorial discretion clearly violates the California state constitution.

[CommentMonkey]

I wonder if the DA is in violation of his ethical obligations. Although locally elected, he represents the state of CA (criminal cases are designated "State v. [Defendant]." CA Rule of Professional Conduct 1.2 provides that "a lawyer shall abide by a client’s decisions concerning the objectives of representation" subject to exceptions not applicable here. If the legislature has clearly asserted its preference for pleading and proving priors, and the DA tells his staff not to do so, how is he in compliance with Rule 1.2?

[Noscitur a sociis]

Because the legislature isn't the prosecutor's client.

[CommentMonkey]

Well sure. But the legislature is the policy-making body for the state, exercising power delegated to it by the state constitution and voters. If the legislature duly enacts policy X, and a lawyer representing the state declines to pursue policy X due to his personal disagreement with it, I think we have a Rule 1.2 violation.

I think your premise conflicts with basic separation of powers principles. Do you believe a local prosecutor has carte blanche to choose for himself what the state's "objectives of representation" are in each case, regardless of whether there is duly enacted law on point?

[Mr. Bumble]

"The argument would be the elected prosecutor has discretion in how to best protect the public safety in their jurisdiction ..."
Contrary to the wishes of the voters of the entire state?

[ducksalad]

Does this argument apply to elected officials in general, or only to DAs?

[CommentMonkey]

Typically local authority is confined to matters not already addressed by the state legislature or where the legislature delegates power. So if California law left it up judges at sentencing whether to consider prior offenses (the norm) or delegated to local prosecutors the decision whether to plead and prove priors, the argument you raise might be viable. But here, it appears the state law is pretty clear that priors are to be pled and proven.

It sounds like this prosecutor has stated openly that he disagrees with the legislature about the value of enhanced penalties based on priors (and perhaps rightly so). So he's refusing to enforce a law he doesn't like. This is a usurpation of legislative power, and it won't do to say "well, the people of Los Angeles can always vote him out if they don't like it." The voters elected the legislature to pass laws; they elected him (and his staff) to execute them.