California DAs Association Rebukes Gascón

In California, as in most states, trial court prosecutors are elected locally, giving the people of a county some degree of local control over how prosecutorial discretion is exercised. Discretion is not unlimited, though, and there are state laws that cannot properly be brushed aside in the name of local policy.

The California District Attorneys Association today released an open letter to the (Los Angeles) Association of Deputy District Attorneys expressing concerns that the policy directives of new LA DA George Gascón go beyond the limits of policy and place deputies in the position of being ordered to violate their legal and ethical obligations.

For example, the letter notes the violation of the constitutional rights of victims of crime regarding bail.

The directive further states that prosecutors may “not request cash bail for any … non-serious felony, or non-violent felony offense[,]” thereby eliminating a prosecutor’s discretion to seek bail in cases involving the actual infliction of violence. This clearly violates a victim’s constitutional right to have their safety considered in setting bail. For example, bail may not be requested by Los Angeles County prosecutors in some felony cases involving violence, such as assault likely to cause great bodily injury, in violation of Penal Code section 245(a)(4).

Our constitution confers on crime victims the right to expect that a criminal offender will be “appropriately detained in custody.” (Cal. Const., art. 1, § 28(a)(4).) It also confers on a crime victim the right “[t]o have the safety of the victim and the victim’s family considered in fixing the amount of bail and release conditions for the defendant.” (Cal. Const., art. 1, § 28(a)(16).) Yet this bail directive prevents prosecutors from advocating for crime victims. In fact, it never even refers to victims, much less a victim’s constitutional rights.