An interview with Los Angeles District Attorney George Gascon

An interview with Los Angeles District Attorney George Gascon by the Christian Science Monitor.

Mr. Gascón, a former LA beat cop who later served as San Francisco’s police chief and its top prosecutor, remains undaunted. He won election in November on the strength of his reform agenda – defeating a more traditional, “tough-on-crime” incumbent – and belongs to the growing ranks of progressive prosecutors who have vowed to reimagine criminal justice in America.

The Monitor spoke with Mr. Gascón about the human and financial costs of mass incarceration, the effect of George Floyd’s death on reform efforts, and his quest to “raise the integrity” of the criminal justice system. This interview has been edited and condensed.

You campaigned on a platform of change across a range of issues. What principles inform your overall philosophy?

The direction I want the office to take is deeply rooted in the belief that people can be rehabilitated and redemption is possible. Offering people a path to redemption is not only the humane thing to do but it’s the right thing to do for our public safety.

We have a system that – especially in the last few decades – has been very heavily leaning on the punitive side of criminal justice, and we have seen over and over again very high rates of recidivism, which creates more crime and more victims. We’ve also seen this punishment-based approach take funding and resources away from all the other services that create more sustainable, more livable communities – public health, education, public housing, social services. All those areas have suffered the consequences of our very heavy-handed, very punitive, very carceral approach to our work.

What was the impact of George Floyd’s death and the ensuing racial justice protests last year on the political fortunes of progressive prosecutors?

There’s no question that the message that myself and others have been talking about for years started all of a sudden to resonate with a broader segment of our population. George Floyd’s murder shocked the conscience of this country, including in many places where people perhaps were not thinking about these issues. And Black Lives Matter has crystallized the inequities and the inherent racism in so many parts of our community, and has made those issues a mainstream conversational item. The movement for progressive prosecutors has certainly benefited from this moment in history.

The emphasis on victims’ rights in recent decades has contributed to longer prison sentences. Are you trying to reset the balance in weighing the rights of defendants?

District attorneys are the people’s lawyers. We’re not the lawyer for one group over another. When we’re talking about victims, yes, we are there to represent the victim, but we’re not there to effect vengeance in the name of one victim.

So it’s really having that very deep conversation with yourself as a prosecutor and as an office, and understanding that we’re the people’s lawyers. That means the people, plural, not one single individual or one class of people. We’re impacting our entire community – including, frankly, the person who is being accused. We have a responsibility to that person as well as his or her family in the community.

That brings up something you mentioned during your swearing-in – your desire to “reinvigorate the presumption of innocence.” What do you mean by that?

The single-dimensional approach to quote-unquote “protecting the victim’s rights” often ignores our obligation to due process and the constitutional concept of presumed innocence. We often have thrown that out the door as prosecutors and basically said, “That’s not our work, that’s the work of the defense.” And we know that [public] defense in this country is thoroughly underfunded, and that’s why we have so many wrongful convictions.

We need to start thinking clearly that, as the people’s lawyer, we’re supposed to be protecting everybody – not only the victim that is here with you but also future victims as well as the person that is accused and the rest of our community. We have a moral imperative to represent the entire community.

The estimated cost of mass incarceration in the US exceeds $180 billion a year, and LA’s public protection budget is $9.3 billion. How might the reforms you’re pursuing reduce that spending?

The biggest problem in the criminal justice system is that most people only see the front-end costs – the budget of the DA’s office or the police department, which are high enough as they are. But what is often not seen are the downstream consequences of our work.

When the district attorney seeks to send someone to prison for five or 10 or 20 years, there are financial and resource costs for every year of that sentence. If you can fix the problem in five years but you send someone to prison for 15 or 20, what you’re doing is extending the financial impact. In a county like LA, you’re dealing with thousands and thousands of people – we have over 100,000 cases every year – and when you start sending thousands of people to prison, you are actually writing billion-dollar checks for future generations to pay.

What’s the purpose of the case review you ordered beyond the possible effect on individual inmates?

One of the problems we’ve seen is the lack of legitimacy of the criminal justice system in many parts of our communities, for many good reasons: the excesses of policing, especially in African American communities and other communities of color; the impact of over-incarceration in some parts of our population that clearly has racial overtones.

So for us to take a step back and say, “We’re going to see whether we got it right, and if we didn’t, we’re going to admit it” – it starts to bring a new level of credibility in communities that, quite frankly, believe that we’re not there for them. It also offers an opportunity for us as prosecutors and as a criminal justice system to open up to our communities and say, “We’re willing to rethink what we did before.” And whether we may have been right or perhaps in some cases wrong – either way, we’re willing to reconsider and reevaluate. When you do that, you raise the integrity of the system overall.

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Respect for the guilty mind-the disappearance of mens rea

Respect for the guilty mind is intuitive, reported the Boston Review. As Justice Oliver Wendell Holmes, Jr., famously put it, “even a dog distinguishes between being stumbled over and being kicked.” Of course, humans do too: a wide array of studies has shown that our intuitive moral sense of how to respond to harm or wrongdoing is keenly sensitive to what is happening in the minds of others. And this appears to be true from a very young age. Psychologists have found that even kindergarteners “make their culpability and punishment decisions proportionately” based on morally relevant differences in mens rea.

In theory, the criminal law is like this too. U.S. legal culture generally accepts that the criminal justice system should not punish people who make reasonable mistakes or for accidents, nor should it punish those who cannot think or act morally (say, due to mental illness). It is also accepted that the criminal justice system should excuse those who make understandably bad decisions in excruciating and extenuating circumstances. No doubt, individuals in these situations may do something harmful—perhaps terribly so. But in the absence of a guilty mind, the law should—and typically does—view them as morally innocent, and therefore beyond the reach of criminal liability.

The law has also embraced a similar notion in sentencing. As I’ve highlighted elsewhere, the principle of “proportional mens rea” says that, all else being equal, punishment should track the guiltiness of a defendant’s state of mind. This is the animating idea behind our centuries-old homicide laws, which go to great lengths to differentiate between mental states, and, ultimately, to lessen sentences for those whose choices are less blameworthy than the paradigmatic case of a cold-blooded, premeditated murder. An intentional killing committed in the heat of passion (e.g., an aggrieved parent who kills her child’s bully in a fit of rage) is often mitigated down to manslaughter, as is one committed recklessly (e.g., a fatal decision to run a red light, in conscious disregard of a slowly approaching pedestrian). And where that killing is intentional but motivated by imperfect self-defense (e.g., someone who unreasonably mistakes a friend for a foe), or is just plain negligent (e.g., a thoughtless college student mishandling a gun accidentally fires it), the charge may be dropped even further to negligent homicide—or a lesser form of manslaughter, with labels varying from jurisdiction to jurisdiction.

All of these individuals have perpetrated the same wrongful act: killing a human being. But because of the important distinctions in mental state accompanying that act, criminal law provides them with increasingly lenient sentences.

This is how the criminal justice system is supposed to operate: limiting convictions to guilty minds and apportioning punishment in accordance with their guiltiness. The U.S. Supreme Court has recognized this basic idea to be (1) “universal and persistent in mature systems of law,” (2) as fundamental as our belief in an individual’s ability to “choose between good and evil,” and (3) “essential if we are to retain ‘the relation between criminal liability and moral culpability’ on which criminal justice depends.” Similar statements are frequently made by courts and scholars around the country, who are drawn to the intuitively appealing vision of—as Douglas Husak puts it—“a world in which impositions of criminal liability and punishment correspond to our considered judgments of blame and desert.”

If legal rhetoric were an accurate gauge of legislative reality, our criminal justice system’s treatment of mens rea would be pristine. But this is simply not the case. Criminal statutes, the primary source of liability and punishment in this country, often fail to live up to this commitment to moral guilt. In a surprisingly large number of situations, our nation’s lawmakers have disregarded traditional mens rea principles in favor of a tough-on-crime approach that sacrifices our intuitive sense of fairness in pursuit of an amorphous idea of “public safety.”

The drug arena is a case in point, in part because it is where some of the most aggressive tough-on-crime campaigns have been waged. U.S. drug policies often focus on behavior to the near total exclusion of mental state considerations. Many drug possession statutes apply a “strict liability” approach, in which—as Markus Dubber explains—“you can be convicted . . . if you don’t know that you are ‘possessing’ a drug of any kind, what drug you are ‘possessing,’ how much of it you’ve got, or—in some states—even that you are possessing anything at all, drug or no drug.”

Just as strict is the ruthlessly quantitative approach to drug sentencing employed in most jurisdictions that bases punishment on what Doug Berman calls “fairly arbitrary questions about how the drugs involved in an offense are to be classified or quantified instead of on a defendant’s actual culpability.” What this means, in practice, is that small-time dealers can be punished just as severely as big-time traffickers (think decades, not years) based upon their tangential connection to massive quantities of narcotics they had no idea existed and had no intent to sell.

Similarly strict tendencies are reflected in the law of violence. Some jurisdictions have assault and homicide statutes that convict those who, absent clear moral fault, accidentally injure or kill another person in the course of daily life. (This situation is often the result of applying civil negligence standards in the criminal context.) And nearly all jurisdictions have homicide laws that treat unwitting fatal accidents that occur in the course of perpetrating a felony crime as murder. The consequences of these “felony murder” laws are often striking.

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Commission to study the impact of COVID-19 on criminal justice system

The Council on Criminal Justice (CCJ) has launched a national commission to assess the impacts of COVID-19 on the criminal justice system, develop strategies to limit outbreaks, and produce a priority agenda of systemic policy changes to better balance public health and public safety.

Led by former U.S. Attorneys General Alberto Gonzales and Loretta Lynch, the National Commission on COVID-19 and Criminal Justice will:

Evaluate the pandemic’s impact on the four major sectors of the justice system (law enforcement, courts, corrections, and community programs);

Identify the most effective ways to minimize the spread of COVID-19 and the impact of future pandemics on the proper functioning of the justice system, and on the people who work in and are served by it; and

·         Establish a priority agenda of policies and practices that should change, or remain changed, based on what the pandemic and response have revealed about the system’s fairness and effectiveness, particularly for communities of color.

·         At its opening meeting, the Commission was presented with the first in a series of reports presenting new research on COVID-19 and criminal justice. The study, by Richard Rosenfeld and Ernesto Lopez of the University of Missouri-St. Louis, examined crime trends from 27 cities leading up to the pandemic and through June. It found that:

·         Property and drug crime rates fell significantly, coinciding with stay-at-home mandates and business closings. Residential burglary dropped by 20% between February and June 2020. Larceny and drug offenses decreased by 17% and 57%, respectively, between March and June 2020. These declines reflect quarantines (residential burglary), business closings (larceny), and reduced police and street activity (drug offenses).

·         One exception to the drop in property crime was commercial burglary, which spiked by 200% for a single week beginning in late May. The spike is likely associated with the property damage and looting at the start of nationwide protests following the killing of George Floyd.

·         Rates of violent crime showed little change early in the pandemic but began to increase significantly in late May. Homicides (37%) and aggravated assaults (35%) rose significantly in late May and June. The increases could be tied to diminished police legitimacy in the wake of protests after Floyd’s killing.

·         Robbery rose significantly – by 27% — between March and June 2020.

·         Domestic violence also rose, but the increase was not significantly greater than in previous years. In addition, the finding was based on data from only 13 of the cities studied, and thus requires further examination.

To learn more CLICK HERE