“The problem is that LA County has come to a place where they use the most expensive and the most intrusive tools of the criminal justice system to deal with every behavior,” Gascón said in a Political Report Q&A.
After serving as district attorney of San Francisco for nine years, George Gascón is challenging Los Angeles County DA Jackie Lacey this year.
Theirs is a clash over the shape and scope of the criminal legal system in the nation’s biggest county. Since entering office in 2012, Lacey has pursued and defended tough-on-crime policies, including frequently seeking the death penalty and sentence enhancements and resisting changes like marijuana legalization. Gascón, by contrast, says he wants to bring criminal justice reform to Los Angeles.
“The problem is that LA County has come to a place where they use the most expensive and the most intrusive tools of the criminal justice system to deal with every behavior, and that is prosecution and incarceration,” Gascón told me this week.
In a wide-ranging interview, transcribed below, I talked to Gascón about what criminal justice reform and public safety mean to him, and why he wants to increase the role of pretrial diversion services in Los Angeles. I also asked him how exactly he would curb lengthy sentences, shrink the criminal legal system’s overall power, and counter police misconduct.
Los Angeles County’s incarceration rate is four times that of San Francisco’s, a large gap that Gascón attributed to differences in prosecutorial practices, and pledged to reduce.
He made the case that some behaviors—including sex work, and acts like public urination that are associated with homelessness or mental illness—should not be criminalized or prosecuted.
When it comes to behaviors that are no more than a “nuisance” to others, he argued prosecution harms public safety. It hurts the people targeted and their families, replaces other “interventions” such as treatment, and distracts from investments in “education, public parks, and other activities that are more likely to create safer and healthier communities over a longer period of time.”
“What I find is that most prosecutors never think about the economic cost of their endeavors,” he said.
Diversion programs typically keep the criminal legal system involved, as opposed to getting law enforcement out of the way and making more room for other public services. Gascón granted this can be counterproductive. “The criticism that sometimes prosecutors are overusing the threat of prosecution in order to coerce people into services is one that I take seriously,” he said, “and I am definitely going to work with others to try to find what is the right balance when we do this work.”
Gascón extended his reform pitch to the sentencing of more serious offenses. He said sentences longer than 20 years are “pretty worthless in terms of public safety,” with “very few exceptions,” and he committed to curb existing practices “where we’re sending people to prison 40-50 years or longer periods of time.” He also touted the fact that he had never sought a death sentence in San Francisco, in stark contrast to Lacey’s record. “I have no intent of seeking the death penalty in LA if I were elected DA,” he added.
California uses gang enhancements that increase sentences. Documentation starts when people’s names are listed on a gang database maintained by law enforcement. Gascón faulted the gang database for being “subjective” and “extremely discriminatory.” “I have said publicly that we will probably not be using gang enhancements in the great majority of our cases, if not all,” he said.
Himself a former Los Angeles Police Department officer, Gascón recounted how the Rampart scandal, which rocked the LAPD in the 1990s, taught him to be more critical toward police reports and possible misconduct. In San Francisco, Gascón has been criticized for his repeated decisions to not prosecute police officers who shot and killed individuals. He replied that the state should narrow the standards for when officers are permitted to use deadly force, and argued that a 2019 reform did not go far enough.
Rachel Rossi, a former public defender, is also running for DA. All three candidates are running as Democrats; Gascón won the local Democratic Party’s endorsement in December. If no one tops 50 percent in the March 3 election, a runoff between the top two will be held in November.
The Political Report has scheduled a similar Q&A with Rossi, and will publish it later this month. Lacey’s campaign has not responded to an interview request.
The Q&A had been condensed and lightly edited for clarity.
You can jump to the sections on Gascón’s goals regarding decarceration and its connection to public safety; on policing reform and gang databases; on long sentences and the death penalty; and on immigration.
You are running in Los Angeles against someone who for much of the decade was your fellow district attorney, since you were the chief prosecutor of San Francisco. What is it specifically about LA’s criminal legal system that drew you to this election, and that makes you say that its criminal legal system is in need of reform?
I have been a very progressive DA. I was often described as the grandfather of progressive DAs. When I became DA in 2011, we immediately went about implementing a variety of policies to reduce incarceration and increase public safety without overincarcerating. The LA DA’s office has consistently fought every single reform effort in the last seven-eight years, whether it’s the death penalty, three-strikes reform, not prosecuting juveniles as adults, taking life without the possibility of parole off of the table for juveniles, resentencing people that are no longer deemed to be dangerous but continue to stay incarcerated. It’s just one after the other.
LA incarcerates at four times the level that San Francisco does; yet San Francisco’s crime rate reductions in violent crime have been greater than those of LA. Really the bottom line is that you’re comparing two large offices located in major urban centers in California. You see one office, the one that I ran in San Francisco achieving significant reductions in crime without overincarcerating, and in fact reducing incarceration. They incarcerate at four times the level that we did in San Francisco but they don’t have anything to show for it in terms of public safety.
I’m originally from LA. This is where my family is, I was coming back anyway. And a lot of people started asking for me to consider running here because of the differences. And the more that I looked at the situation in LA, the more that I became convinced that if we’re going to reform the criminal justice system in California, LA could not continue to be lagging. LA should be in the lead nationally. And that is the reason why I’m running.
As you just indicated, the incarceration rate in Los Angeles is more than four times San Francisco’s; the gap is similar if not greater when it comes to the incarceration rate of Latinx residents. To what extent do you think DAs and their policies are responsible for these disparities? How much do you think you can reduce incarceration in LA over your first term?
The rates are driven by the work of the local DA. So when you have a county, like LA does, that has a policy that is overly punitive, that uses the harshest penalties, that opposes every parole release, that opposes pretrial diversion, that opposes mental health diversion—all those things start having a cumulative effect, and that’s why your incarceration grows. At the end of the day, the responsibility for that falls on the leadership of the elected DA.
So do you have a goal over your first term in how much to reduce incarceration?
I believe that we can probably come close to 20 percent reduction of people who would be going into the system in the first year. I hope that that will be larger as we create the infrastructure of pretrial diversion services, to divert people away from the criminal justice system, and put them into places that are more likely to provide a better result.
A lot of the things that you see me doing today are the product of on-the-ground operational experiences, but also of learning from data, science, and the work others are doing, in order to achieve the highest level of safety for the communities that I serve with the lowest level of intervention for the criminal justice system.
The ideal criminal justice system is one that requires almost no intervention because the community is policing itself. Now we know that that is a utopian view of the work, but that should always be the path you’re seeking. The best communities are not the communities that have the presence of police at every corner in order to maintain safety. The safest and most sustainable communities are the ones where the absence of crime follows self-policing, as opposed to having policing and prosecutions create safety. Again, we recognize it is somewhat of a utopian point of view. But it’s the journey that you’re trying to get to as close as you can. When I talk about reducing the footprint of the criminal justice system and incarceration and maintaining high levels of safety, that’s really the North Star, if you will. How do we get that safety level and provide an opportunity for the funding that has been invested in criminal justice, perhaps reinvest it in education, public parks, or other activities that are more likely to create safer and healthier communities over a longer period of time?
I’d like to delve more into your views on what goes into public safety. After you left the San Francisco DA’s office in October, your acting successor Suzy Loftus cancelled a diversion program you had set up to drop charges for first-time DUI offenders if they undergo therapy; she said this endangered safety. (But Chesa Boudin, who then defeated Loftus in November’s DA election, supports the program.) Now, you just alluded to setting up pretrial diversion programs as a way to get “better results,” so it seems like there are different views of achieving safety at play. Can you describe your understanding, what leads you to think that pretrial diversion and fewer convictions and incarceration will increase safety in LA?
First, you have to start from the premise that as DA you’re managing a big enterprise that costs millions of dollars of taxpayer money. Part of that responsibility is to make sure that you are thoughtful about the way you use the resources that are available to you. You have limited resources, and you have to make sure that those resources are being applied where they are going to matter most. What we found out in the case of DUIs is that having a trial for a low-level misdemeanor DUI offense makes no difference because a person was not reacting to that. They were not going to reoffend anyway because they already got arrested—which should happen, by the way, we’re not saying the police should not make the arrest—and the DMV was taking points, which was impacting their insurance. That economic cost and that trauma of being arrested is really what was causing the reduction in the likelihood that people were going to drink again. Conversely, we saw the people that reoffended a second time have a higher degree of recidivism moving forward because they probably are alcoholics, and then more serious intervention is necessary. So you made the community safer by reallocating the resources away from a place where you’re not making a difference to a place where you can make a difference, understanding that your resources are limited.
As a prosecutor, you got to think that every time you pull the lever and move forward a case, you immediately roll out a whole systemwide reaction. You roll out the need for a public defender or private defense attorney, you roll out the need for courtroom time, you’re going to tie judges’ time, sometimes juries’ time, court reporters; there’s a whole system that gets triggered into action as a result of your election to file a case. What I find is that most prosecutors never think about the economic cost of their endeavors.
Secondly, and just as importantly, when you make that election to prosecute the case, you’re also impacting people’s lives, families, communities, and you’re certainly impacting the individual that allegedly committed the offense, and you’re impacting the lives of people that allegedly were victims when there’s a victim involved. All these things need to come into consideration.
You’re playing chess, you’re not playing checkers. It’s important that you’re thinking about not just the steps you’re taking today, but all the other steps. At the end of the day, are you making your community safer or not? If you cannot address that question in a manner that makes you unequivocally likely to have made a difference for the betterment of the safety of your community, then you shouldn’t do it. Safety is not the immediate reward of incarceration that day, but how it is going to impact the people that you’re serving five, 10, 20 years down the line.
In entering the race, you said that under Jackie Lacey, the DA’s office “has lost its ability to distinguish the dangerous from the nuisance.” Can you elaborate on this view? Is your suggestion that we have overcriminalized certain behaviors, and if so which do you have in mind and what would you do to change the office approach?
All you have to look at the population of the LA County Jail. The problem is that LA County has come to a place where they use the most expensive and the most intrusive tools of the criminal justice system to deal with every behavior, and that is prosecution and incarceration.
You hear often about the mental health initiatives that the current DA has introduced. The reality is you have mentally ill people that are, every day, being convicted and sent to county jail on very low-level offenses instead of being diverted into services that will probably provide greater degree of safety for the community because it will address the underlying mental health issues that the individual has: make sure they take their medication, make sure they start getting counseling, make sure they get healthy where they can, all the things that would probably be much greater contributors to reducing the likelihood that they’re not going to reoffend than sending them to jail for a few days and then go back right where they were, and be if anything probably at a worse place than they were the day they got arrested.
That is what I’m talking about, this failure to distinguish the dangerous from the nuisance. You can pay for a lot of behavior intervention, a lot of medication with the cost of a trial and a few days in jail. If you look at the workload of the DA’s office, especially misdemeanor cases, you look at the large number of cases where people are driving with a suspended driver’s license going all the way to court trial, instead of looking for some other way of intervening. You look at the large number of cases being prosecuted where people are simply violating some local ordinance based on their houselessness condition.
I mean, we’re citing homeless people and prosecuting homeless people for perhaps urinating or defecating on the street, which I don’t condone, but we could provide a lot of public toilets for the price of that. Because the problem is that if you’re homeless, the street is your home; if you don’t have a house, your camp is your home. That is where you’re going to drink if you’re going to have a beer; you don’t have a backyard, you don’t have a deck, you cannot afford to go to a bar. If you need to relieve yourself, you cannot find a bathroom around. You try to walk into a restaurant and the first thing they tell you is that it’s for patrons only; you’re not a patron because you can’t even afford to buy a meal for yourself or housing. So you’re going to go behind a tree or around the corner to relieve what is a human necessity for all of us. And then to criminalize that behavior instead of taking and putting a bunch of public toilets around, given that we cannot provide housing at this time. We’re just going about these things with a wrong approach. Can you imagine how many public portable toilets we can provide for the cost of one week’s worth of prosecution for these cases and sending people to jail for that and police time, prosecutor time, court time? That’s the kind of stuff I’m talking about.
On that point: Some argue that the reform movement is too reliant on the criminal legal system, on prosecutors using their discretion differently, for instance, or on using the threat of prosecution or incarceration to compel treatment. Do you take that criticism into account? Are there ways that you want to shrink the size of the criminal legal system in a way that gets the DA’s office out of the way and empowers other public authorities to step forward?
Yeah, absolutely. I think that first of all, this is a process of evolution, that should be an evolution for the system and for all of us. I think that many of us, and I include myself, there have been times when we have used the specter or the threat of potential prosecution in order to force somebody to treatment. And we have seen over and over again that generally doesn’t work. I mean, people will talk about the one example of success but what people fail to tell you is that most of the time, this approach doesn’t work.
People talk about drug courts, and for some people, I’m probably going to be a heretic, but the reality is that when you look at the number of people that actually go through drug court, it’s so low. The reality is drug courts have very low success rate and a very low number of cases. Now again, I know I’m probably pissing off half of the people that are involved in the system, but you got to look at it from a macro point of view and see that these things do not work really well.
One of the things that I continuously do, and will continue to do, is learn and work with others, and look for other ways of getting the work done. So the criticism that sometimes prosecutors are overusing the threat of prosecution in order to coerce people into services is one that I take seriously, and I am definitely going to work with others to try to find what is the right balance when we do this work.
One specific issue when it comes to criminalization is sex work. What is your position on the decriminalization of sex work?
I believe I was the first DA in California that stopped prosecuting sex workers around 2012. We also stopped using condoms as evidence of prostitution. We felt that using condoms as piece of evidence to go after sex workers was a public health problem, because often sex workers would not use condoms in order to not have the condom used against them for prosecution. So we did two things: We stopped using condoms as evidence of any type of prostitution, and we stopped prosecuting sex workers.
We treat sex workers as someone who is either a victim of their own circumstances, or someone that is perhaps voluntarily doing this. I think there’s a combination of both; I know that this area is often unpopular, but there are some people that would tell you they’re engaged in sex work by choice. And I think that we need to explore that. Certainly there is a large number, especially when you’re talking about minors and very young people that sometimes are being coerced and being trafficked, and that has to be dealt accordingly. In either case, criminalizing their behavior doesn’t get to the core of how we need to control their behavior, how we are better about intervening. That is the reason why we stopped prosecuting sex workers in San Francisco, and we will continue to do so if I were to be elected DA here. That’s not to say that we would not go after traffickers, but even in that area you have to be very thoughtful to make sure that you don’t overuse the term “trafficker” in these cases, because sometimes the traffickers can be the very same young people that are engaged in the trade, and they’re being coerced into doing some other behavior that may appear to be trafficking.
You worked at the LAPD in the 1980s and 1990s. You’ve explained elsewhere that your philosophy has changed since those days, and while in San Francisco you had a difficult relationship with police unions. What lessons do you draw from your time at the LAPD (in years where it was hit by major scandals and protests) and your experiences with the San Francisco police, about the sort of relationship a DA’s office should have with the police department—and when it’s proper to investigate, or be skeptical of law enforcement?
Yeah. For instance, I had no involvement in the Rampart scandal in the LAPD, but in the aftermath, I was selected as part of the team to do an inquiry to look at the failures that caused the Rampart scandal to occur, where you had members of the unit stealing evidence, stealing money, falsely accusing people, getting people to be prosecuted on false arrests — just a horrendous set of circumstances of criminal behavior by police officers. I was fortunate enough to be selected to be one of the commanding officers looking at the failures in leadership, supervision, and management. That was a tremendous lesson for me in how things can go wrong very quickly in policing, when management and supervision are not paying attention to small things that are occurring around them. That’s one major example of things that have helped me evolve and look at policing, and quite frankly, prosecution, differently.
What is often not mentioned about the Rampart scandal, is that while obviously police officers were committing the crimes, there were prosecutors that were taking those cases and filing those cases. In fact, there were prosecutors that were working outside the police station in gang cases, and I can’t believe that they were not aware that there were things that were going on that clearly were wrong, and in fact were criminal, in terms of the way that evidence was being collected, in terms of the way people were being arrested. You had judges that were looking at these cases, and they were complicit because if you have been a judge for any period of time, you had to have questions that were not being asked. Those police reports, they were almost boilerplate reports; you could take a report of an arrest one day and an arrest done in a different place, different time, with different individuals involved, but the same officers, and you could almost take a carbon copy. And prosecutors were filing those cases. The bottom line is that not only was police criminal in their behavior —those who were involved — but there was record negligence at the supervisory, management, prosecutorial, and judicial level.
So that served to inform the way I do my work as a prosecutor, that part of the prosecutor’s job is to be a gatekeeper for the system. Obviously judges have a responsibility too, but the prosecutors bear a huge burden here in how they review the police work, and what practices they are going to accept, and what things they are going to question before they move forward.
So will you in LA institute a system of not relying on the testimony of some officers who have a history of misconduct?
We did in San Francisco. We said, if the entire arrest and the prosecution was going to be based on the testimony of officers that we have problems with their credibility, that we would not move forward. Sometimes those officers may be involved in the case as peripheral witnesses, but if the whole case depended on some of those individuals, we wouldn’t move forward.
Furthermore, even people who may not be identified as a problem person, you as the prosecutor have a responsibility to look at the entirety of the circumstances behind an arrest and question when things don’t seem to make sense to you. When you see things that don’t add up, you have a responsibility to pull the cord, stop the presses, and not file the case.
To charge cases just to keep a relationship with the police, you’re being really harmful to the entire system. First of all, you’re clogging the system with cases that should not move forward for lack of sufficient evidence. Secondly, you’re encouraging bad practices. Thirdly, you’re really affecting people’s lives. Sometimes they’re being held in jail for days because they cannot post bail, they’re having to pay for attorneys, in cases that you should never have done.
On this point: Just this week, the LA Times reported that LAPD officers had falsified information to falsely label people as gang members. Now, California has an extensive gang database that is maintained by law enforcement and having your name on it can trigger aggressive policing tactics, detentions, and sentencing enhancements. What is your view on the reliability of this database, and what if anything would you do as DA to discourage its use?
This is one of the areas where I can illustrate my own personal evolution. A few years ago, I started looking at status enhancements, enhancements that are based not on what you are doing at the moment that you are being charged with, but enhancements that are a consequence of your prior behavior or alleged behavior, and gangs are one of them. We worked with Stanford Law School to look at the impact of enhancements. We were hoping to have other counties; we could not get anybody else to join. So it’s only San Francisco data. But even within our own data, what we realized is we were using it and it was really raising the level of incarceration.
That led me to come to the point today, where I have said publicly that we will probably not be using gang enhancements in the great majority of our cases, if not all.
That also speaks to the problem that the LA Times article pointed to, this subjectivity of how people get placed in that file, even if the police officer is being honest. The LA Times example was of corrupt police practices. If they’re true—obviously there’s an investigation going on—you’re talking about cops lying. But let’s move away from that, let’s say that the officers are doing their best. They are making the assessment that somebody is a gang member because they’re talking to other people that are already in the system as gang members: Some of those kids are in the neighborhood where their brothers, their sisters, their neighbors are already in the system as an identified gang member. So the fact that they’re in the neighborhood, just being there, talking to their neighbors, talking to their family members, could land them as an associate member of a gang, and once you’re there, then you’re in that file. Then you get accused of another criminal violation, and that’s used to enhance the consequences of the other behavior. Pretty soon, what might have been a relatively low incarceration, because of enhancements, you start adding time to it.
So enhancements like gang enhancements, even under the best case scenario, I think they’re extremely problematic. I believe they’re extremely discriminatory, because they happen to happen in certain neighborhoods where kids also have no option but to talk to their neighbors and their friends. And then, only by association, they’re being labeled as a gang member. And then you get to the worst-case scenario, which is the case that the LA Times is describing, which is the LAPD actually conducting investigation which appears to be leading to some early conclusion that this office was probably lying when they were putting people in the class.
San Francisco advocates have criticized you in recent years for not indicting a series of police officers who shot and killed civilians. You have said in past interviews that you were bound by the state’s legal standards for permissible use of force, and you urged the state to change them to enable prosecution. California just passed a law this fall to narrow the circumstances where police officers are allowed to use deadly force. However, some advocates have questioned the reform’s strength. Do you believe the new law goes far enough to enable a DA to prosecute cases of police shootings? What further changes would you advocate to ensure accountability?
It’s fair to say that I was the only DA and the only law enforcement official that supported Assemblywoman Shirley Weber’s original legislation that would have made police use of force required to be minimum and necessary. That, to me, was the standard that needed to occur in order to begin to create a culture that reduced police shootings. Police departments that have very strict use-of-force policies have a tendency not only to have less use of force, but also they have lower level of danger to officers. That was the policy that we needed to arrive to, and unfortunately what we have is a watered-down legislation that I think is confusing, and I think a lot of legal experts will tell you that is questionable whether we are at a much better place than we were prior to this legislation. Certainly there are some training requirements, but I’m not sure that was the need. Training is certainly always needed, but frankly I think that’s not going to get us to where we need to go.
So to answer your first question more specifically — will the new legislation actually lead to greater levels of accountability by police when it comes to use of deadly force? — I think this is an open question. It’s going to really depend greatly in how the cases are presented, in how the courts review those cases, and juries.
Finally, the question that I think you’re asking is also will I be using the new legislative authority in order to look at cases through the lens of that authority and the answer to that is obviously, yes. We’re going to do everything that we can within the law to make sure that every actor in the system is held accountable, including prosecutors, by the way. We often talk about accountability for community-related criminal behavior, well we have to also have accountability for law enforcement criminal behavior.
So if you are elected DA, will you continue to push for more change at the state level for stronger standards?
Yes I would, because I don’t think that we’re there yet. I think that perhaps we’re a little better but I’m not sure, I don’t think anybody knows for sure. I think that we still need to have some clarity.
Reform debates often focus on lower-level offenses. California has also reformed how it treats violent offenses and longer sentences. One example is the felony murder reform, which DA Lacey has fought. California has many other mechanisms in which people end up serving very long sentences, from mandatory minimums for instance. What are some further changes you want to see to fight specifically very long sentences, life sentences or quasi life sentences?
We all have to come to the realization that if we’re going to lower incarceration and we’re going to reform our criminal justice system, we have to go beyond low-level drug offenses and low-level offenses. We have to look at more serious offenses, and then we have to start evaluating what really works. I don’t believe that necessarily having the type of sentencing schemes that we have, where we’re sending people to prison 40-50 years or longer periods of time, has any connection to public safety.
If you look at other countries around the world, you will see that often maximum sentences are usually around 20 years—and I’m talking for a very serious offenses—and then after 20 years, it’s a year-by-year evaluation of psychological and dangerousness assessment. I think that we need to start moving in that direction.
One of the things that I did in San Francisco was that we looked very hard at any sentence over 20 years. We started to have more and greater management input in those. If I were to be elected DA in LA, I would probably lower that threshold to 15 years, where we have to have a strong executive review of any commitments that will go much longer than 15 years. That’s not to say that it would never happen, but it’s not automatic. It’s also looking at the enhancements and how you apply enhancements.
What is obviously working around the world is that initially anything over 20 years becomes pretty worthless in terms of public safety, return on investment, with very few exceptions and those are people that, for medical reasons and otherwise, maybe continue to be dangerous and then those people need to continue to be incarcerated. But the majority of the people do not necessarily need to be there that long.
DA Lacey has made aggressive use of the death penalty, and a 2019 report found that everyone who was sentenced to death since she took office has been a person of color. What will your attitude be toward capital punishment if you’re elected: Would you commit to never seeking the death penalty? If not, would you use it more sparingly — and how exactly?
Let me begin by saying that I was the DA of San Francisco for almost nine years. Not once did we seek the death penalty. I campaigned against the death penalty when Prop. 34 was introduced in 2012. I have said very, very clearly that I am against the death penalty both on moral and practical grounds. I have no intent of seeking the death penalty in LA if I were elected DA.
While you were in Arizona as the police chief of Mesa, you clashed with Maricopa County’s then-Sheriff Joe Arpaio over immigration policy. California laws are different than Arizona’s, but people involved in the criminal legal system can still face immigration consequences. As DA, how would you act for immigrants to not face such consequences for their involvement in the criminal legal system, on top of whatever criminal consequences they may be facing?
What I did in San Francisco is that we provided very clear guidelines and management oversight of any plea agreements to make sure that we were mindful of immigration consequences. Also, I was the DA that worked to create an Assembly bill to ensure that none of the parties could introduce any information concerning a person’s immigration status in the court, neither prosecutors nor defense. We also created a sustainable safe passage in our courtrooms when we became aware that ICE was coming into the courtrooms in LA County, in Alameda County. I made a public stance on that issue. We also were in San Francisco, one of the largest providers of U Visas in the country. We will continue to do the same work, I think, in LA County.
I would probably look at creating an immigration unit within the office that would have immigration lawyers to help other lawyers in the office make sure that our work is consistent with best practices around immigration consequences.