In California, Blanket Nonenforcement Policies Are Unconstitutional

Progressive California District Attorneys who have chosen not to prosecute offenders who commit so called “low level” crimes are violating the state Constitution according to Hasting’s law professor Zachary Price.  In a piece published in SCOCA blog, a joint project of the U.C. Berkeley and Hastings Schools of Law, Professor Price asserts that while district attorneys such as San Francisco’s Chesa Boudin and Los Angeles DA George Gascón ran for office promising not to prosecute drug users and small-time dealers, trespassers, shoplifters, traffic offenders and those resisting arrest among others, the state constitution

specifically limits local district attorney discretion by imposing an affirmative duty on California’s attorney general “to see that the laws of the State are uniformly and adequately enforced.” And although state law provides for elected district attorneys in each county and obligates them to “attend the courts, and within his or her discretion . . . initiate and conduct on behalf of the people all prosecutions for public offenses,” the state constitution requires supersession of local prosecutorial functions when the attorney general determines that local enforcement is inadequate.

“Whenever in the opinion of the Attorney General any law of the State is not being adequately enforced in any county,” California’s constitution provides, “it shall be the duty of the Attorney General to prosecute any violations of law of which the superior court shall have jurisdiction, and in such cases the Attorney General shall have all the powers of a district attorney.”^[10] State statutes further give the attorney general the authority to convene grand juries, exercise “direct supervision” over district attorneys, and “take full charge of any investigation or prosecution of violations of law of which the superior court has jurisdiction.

In short, despite conferring primary prosecutorial authority on local district attorneys, California law obligates the attorney general to step in and take over local prosecution if state laws are not uniformly and adequately enforced as a result of a particular district attorney’s policies — and it further requires the governor to ensure that the attorney general meets this obligation.

This would be great news if California had an Attorney General and/or a Governor willing to give more than lip service to crime victims or the law-abiding public.  AG Rob Bonta is a social justice warrior who considers a tube of toothpaste evidence of systemic racism.   He wholeheartedly supports the nonenforcement polices of Gascón and Boudin.  Governor Gavin Newsom has frequently demonstrated his distain for law enforcement and crime victims.  Last year his Department of Corrections and Rehabilitation announced new rules allowing 76.000 habitual felons including sex offenders, murderers and drug dealers to gain release after serving 1/3 of their sentences .  Earlier this week he released his plan to close down death row and transfer the state’s worst murderers to other state prisons with “less restrictive housing” where they will be treated similarly to inmates serving life sentences.

While Professor Price has correctly delineated the California Constitution’s provisions that require that district attorneys to faithfully and consistently enforce criminal laws, the Attorney General and Governor, who are obligated to make sure that this happens, aren’t interested in doing so.  This year California voters will have the opportunity to replace the embarrassing troll sitting in the Attorney General’s office with a real prosecutor interested in protecting the public from criminals.  San Franciscians will have an opportunity to remove Chesa Boudin from office and voters in Los Angeles may also get the chance to replace George Gascón.

This should not be a difficult decision for voters who care about their own safety and the safety of their loved ones.