The "progressive prosecutor" movement is coming for Los Angeles

On March 3, a highly competitive race will take place in California, between bitter Democratic rivals competing to be seen as either competent moderates or challengers bringing much needed reform. This Super Tuesday race will have major implications for millions of people, and millions of dollars have been spent to influence voters. It is, of course, the race for district attorney of Los Angeles County, whose Democratic primary will happen the same day as California votes in the 2020 presidential primary.

Over the past few years, progressive voters have increasingly tracked district attorney races as referendums on criminal justice reform. DAs wield enormous power because they can decide what charges to bring and how to enforce the law, and they specifically play an essential role in deciding whether to investigate and charge police officers who kill people — a hot-button issue as awareness of such incidents has increased dramatically in recent years, giving birth to the Black Lives Matter movement.

In fact, 2020 is shaping up to be a major year for the so-called “progressive prosecutor” movement. Progressive prosecutors have won crucial races in large cities — think Larry Krasner in Philadelphia, Chesa Boudin in San Francisco, and Rachael Rollins in Boston — where for years, highly punitive criminal justice systems led to mass incarceration of minorities. Los Angeles County is the largest county in the U.S., with over 10 million people. If a progressive prosecutor were to win here, it would be a major prize as the wave of progressive “top cops” tries to gain true momentum nationwide.

"Many of the things that we were doing were criminalizing one segment of the population for behavior that had no criminal consequences in other segments of our community, and that process always seemed to focus on poor people and African American and Latino communities."

The Los Angeles race features three candidates who come from different wings of the criminal justice system, and who have radically different approaches to how the DA’s office should do its job. The incumbent, Jackie Lacey, has become a top target for progressive activists. She has sought the death penalty 22 times in her eight-year tenure, and her office often relies on controversial gang enhancements, which are used to increase sentences of people who otherwise would face minor punishments if they’re thought to have gang ties.

Lacey’s detractors point out that under her watch, violence in LA has increased, even as minorities are arrested at sky-high rates. Black Lives Matter activists have attacked her for failing to file charges against LAPD officers like Clifford Proctor, who shot and killed a man named Brendon Glenn in 2015; Lacey’s refusal to press charges came even after LAPD Chief Charlie Beck recommended that Lacey do so. And in a bizarre incident Monday morning, Lacey’s husband confronted Black Lives Matter activists who were protesting outside of their home with a gun, reportedly telling them, "I will shoot you. ... I don't care who you are." (Lacey said in a press conference Monday afternoon that her husband “meant no one any harm. I just want to live in peace and do my job.")

Lacey has racked up endorsements from police groups, who have spent millions on ads against her opponents, George Gascón and Rachel Rossi. Both Gascón, the former DA and police chief of San Francisco, and Rossi, a former public defender and congressional staffer, are competing to be the “progressive” alternative to Lacey. There are several key areas that most progressives agree on, from not seeking the death penalty to ending the practice of cash bail — but others, like whether or not the new prosecutor should come from inside or outside the current system, divide Gascón and Rossi and could be the deciding factor in who gets to be LA’s top cop. Thanks to California's "top two" primary system, if any candidate wins over 50% of the vote Tuesday, they will become the new district attorney; if not, the top two candidates will advance to a runoff in November.

Mic spoke with both Rossi and Gascón about their respective claims to the “progressive prosecutor” mantle. (Lacey did not respond to Mic’s request for an interview.) Rossi, 36, says she never expected that she’d be running for district attorney. She went to law school and became a public defender, which she saw as the best way to fight to change the criminal justice system. After practicing for several years, she ended up in Washington, where she worked on criminal justice reform on the Crime, Terrorism, and Homeland Security Subcommittee of the House Judiciary Committee, and as criminal justice counsel to Democratic Sen. Dick Durbin (Ill.). She was pitched on running for DA by criminal justice advocacy groups who were hoping for someone with public defender experience to shake up a DA’s office that many view as overly punitive.

Gascón, 66, has also positioned himself as a reformer; in his case, though, he’s coming from the inside. His years of experience within the system spurred his desire to seek change, he says. “I grew up as a police officer. I rose through the ranks of [the Los Angeles Police Department],” he tells Mic. “What increasingly became obvious to me as I moved forward in the profession was that many of the things that we were doing were criminalizing one segment of the population for behavior that had no criminal consequences in other segments of our community, and that process always seemed to focus on poor people and African American and Latino communities.” Gascón says that after seeing that higher incarceration rates did not correspond to increased safety, he realized “there was no point to the high levels of incarceration.”

Gascón grew up in Cuba and moved to the U.S. at a young age. After rising through the ranks with the LAPD, he left to become the chief of police in Mesa, Arizona, a city of nearly 500,000, where he faced off with the notorious sheriff Joe Arpaio over Arpaio’s unlawfully harsh anti-immigration measures in neighboring Maricopa County. He then became the district attorney in San Francisco, where he pursued criminal justice reforms, most notably his Prop 47 legislation, which downgraded many drug crimes to misdemeanors and successfully expunged thousands of low-level marijuana convictions. Last year, he retired from the San Francisco gig and announced his candidacy for LA district attorney.

Rossi, meanwhile, built her changemaker bona fides outside the national criminal justice infrastructure. While her stint on the Hill had her working within the federal government, it was on the legislative side, and she’s mostly cast herself as the true outsider in the race who can bring real change to LA. Though Lacey has branded herself a “reasonable reformer,” Rossi believes that the incumbent instead represents an obstacle to progress.

“Our DA sets the status quo of our criminal justice system and isn’t seeking to fight against it,” Rossi says. “Eighty percent of the people in our LA County jails are Black and brown, 1 in 3 people in our county jails is suffering from mental illness. We're seeing an increase in the incarceration of our homeless population, which only serves to increase homelessness.” It’s time to acknowledge that LA has “a criminal justice system that is disregarding racial disparities and criminalizing poverty when we could be actively fighting against that,” Rossi says. “And that’s what I want to do as DA.”

Both Gascón and Rossi cite the city’s prosecution of people with mental illness as a primary factor in why they’re running for the office. Last year, Lacey created a mental health diversion program, which was designed to get people with mental health struggles into treatment rather than sending them to jail. The announcement was met with much fanfare, and Lacey touted the program as a potential solution to the homelessness crisis in LA. In reality, it’s had little effect.

“She'd been talking about it for five years and finally started it a year ago,” Gascón says. “It only diverted about 400 people in the first year, in a county of 10.5 million people. Data says that 30% of the [people in jail in LA County] have mental health problems, and she only diverted 400 people. [That] shows that it’s not working.”

Gascón argues the program exemplifies how Lacey talks the talk about helping the underprivileged, but doesn’t walk the walk. “It speaks to an office that says something and then they do something else,” he says.

Rossi similarly points out the low diversion rate of Lacey’s supposedly game-changing program. Lacey “has been claiming to be the champion of mental health issues,” Rossi says, but the incumbent’s policies have in reality led to few of her deputy prosecutors actually seeking to divert mentally ill offenders. Rossi argues that’s because deputies need to win approval from Lacey’s mental health division to grant diversions; in an interview with The Appeal, a current LA prosecutor named Joseph Iniguez said that “it is very, very hard to get approval from our supervisors [for mental health diversions].”

Rossi has a plan to increase the number of people sent to diversion programs — to use the “competitive nature of prosecutors for good,” as she puts it. Prosecutors, she says, are driven to convict people and give them long sentences because their yearly review rewards them for the numbers: obtaining convictions, strikes (under California’s three-strikes law), and long sentences. “I would re-evaluate what factors are considered in those evaluations to ensure that we're looking at rehabilitative outcomes,” Rossi explains.

She also wants to be sure law enforcement is using data to make smart decisions. “It’s important that when we track the filing data, that we also look at recidivism data,” she says. If attorneys are presented with that information and issued a challenge to reduce recidivism rates, their “competitive nature” will kick in, Rossi says. “[Tell them to] look at those numbers and try to change those numbers. That's one of the ways that we start to see reform.”

When it comes to execution, "you cannot unring the bell."

The focus on recidivism rates, as Rossi made clear, is one progressive priority. After all, a central goal of progressive prosecutors is to replace punitive measures with rehabilitative ones; if people are repeatedly going to jail, that’s indicative that law enforcement tactics are failing, in the progressive view. Another top-line priority is the reduction or elimination entirely of capital punishment.

In Gascón’s view, Lacey’s decision to repeatedly seek the death penalty is one of her most significant errors. When it comes to execution, “you cannot unring the bell,” he says. “We know that perhaps 4-5% of all the convictions turn out to be wrongful convictions. There's no doubt in my mind given the overwhelming physical evidence of mistakes in the system that we have executed innocent people.” He further notes that each execution costs taxpayers around $300 million, and that all 22 people Lacey has given the death penalty to are people of color. (Lacey herself is Black.) “It’s just so immoral and so wrong,” Gascón says; he’s pledged that he would never seek the death penalty while in office.

One local wrinkle in this race for the future of LA’s law enforcement strategy is the DA office’s use of the CalGang database, which supposedly is an exhaustive list of people in California with gang ties. Lacey’s office has used the database extensively, to significantly increase people’s sentences — even for minor crimes — via gang enhancements. Recently, Xavier Becerra, the attorney general of California, announced an investigation into claims that the LAPD added people to the CalGang database for nebulous or even totally false reasons, ranging from where they lived to what they were wearing to whom they were standing with when a crime took place.

"Prosecutorial discretion is so broad, prosecutors have the ability to take the laws on our books to go very hard on certain offenses and not on others."

“Transparency and accountability are fundamental to effective policing. The CalGang database is only as good as the information put into it,” Becerra said in a statement. His review is looking into reports — including from the LAPD itself — that the database had erroneously used circumstantial observations to designate people as gang-affiliated, though the police department insists it isn’t adding anyone to the database that shouldn’t be there, the Los Angeles Times reported.

Lacey has defended the database as a necessary tool, but both Rossi and Gascón believe it should be abandoned and that gang enhancements should not be used at all in sentencing. Rossi mentions a specific client she had when she was a public defender who was added to CalGang simply because he was in a Black motorcycle club.

“We know there are stark racial disparities in the gang database. We know upwards of 92% of people in the gang database are Black and brown,” says Rossi. “Now, we have this scandal where we see LAPD is under investigation for falsifying who’s being placed into that gang database. For someone to be labeled in that way in such an easy, non-challengeable fashion, I think is extremely problematic, especially when gang enhancements can ratchet up a sentence [dramatically].”

There’s also been a surprising cameo in the DA race in the form of Darren Caldwell, also known as the rapper Drakeo the Ruler, who has become an important part of the conversation around criminal justice in Los Angeles. In 2016, Caldwell attended a party where a man was killed by someone else. In 2018, he was charged with a series of counts relating to a murder he didn’t commit; by that point, prosecutors knew that another man had pulled the trigger, but they argued that Drakeo’s rap group, the Stinc Team, was a gang and that someone in that gang was responsible for planning the killing. Using gang enhancements, Caldwell was charged with murder, conspiracy murder, criminal gang conspiracy, shooting from a vehicle, and illegal possession of a firearm, among other crimes.

Caldwell was acquitted on all but two of those counts in 2019; the jury was hung on the counts of criminal gang conspiracy and shooting from a motor vehicle, stemming from an incident in which Caldwell was in a car with another passenger who shot at someone from the vehicle. Now, Lacey’s office is again trying to charge Caldwell, who is still jailed, with those two counts. With gang enhancements, he faces life in prison if convicted — for an incident in which, again, he is not alleged to have fired a weapon.

“He is precisely the poster child for what I'm talking about,” says Gascón, “and why the use of gang enhancements can provide some horrendous consequences that really impact lives in a very unfair manner.”

Rossi argues that Caldwell’s ongoing case is “a prime example of the discretion that DAs have, because the case is basically utilizing a gang enhancement to say that a rap group is a gang, and that the rap lyrics are furthering gang activity.” She notes that the invocation of lyrics specifically raises serious First Amendment concerns. “It goes to show you that prosecutorial discretion is so broad, prosecutors have the ability to take the laws on our books to go very hard on certain offenses and not on others.”

Rossi and Gascón have both also specifically emphasized their divergence from Lacey on officer-involved shootings. Over the past few years, Lacey’s office has declined to prosecute in several high-profile cases where cops shot and killed civilians. Last year, California passed a law changing the standard for when officers can legally use deadly force from when it’s “reasonable’’ to when it’s “necessary.” Both Gascón and Rossi want to make sure this law is enforced to its fullest extent. “We need a prosecutor who's going to argue for the most rigorous definition under the new law that we passed to make sure that law enforcement is held accountable,” Rossi says.

She and Gascón additionally point to the need for more independence between the LAPD and the DA’s office when it comes to prosecuting cops. Gascón specifically references his experience in San Francisco, where he created first independent investigations bureau in the country, he says. The office was “was solely focused on investigating police use of force,” he explains, and “staffed with attorneys who came out of the civil rights division of the U.S. Justice Department.” Other staffers were former federal defenders; one came from the war crimes court at the Hague. He plans to create a similar office in LA if he wins.

Rossi points out that one of the biggest problems when it comes to prosecuting officers is the “inherent bias when officers work alongside law enforcement every day.” She calls too for “appointing independent prosecutors” to investigate use of force cases involving police officers in order to create separation between the cops and the prosecutors who would be charging them.

Ultimately, Gascón and Rossi agree on a lot when it comes to the issues facing the DA’s office in Los Angeles. Both believe that the current prosecutor, Lacey, is too punitive, and both want to focus taxpayer resources on diversion and treatment rather than prosecution of nonviolent misdemeanors. Still, they are running against each other, and they’re not afraid to draw distinctions when it comes to their records.

“Rachel and I have very similar views as far as what needs to happen. The difference is that I have already shown that this can be done,” Gascón argues. “I have been working for eight years-plus doing this work, and before that I was working in policing, working with the California state government to reduce incarceration. So I’m not talking about some ideas of what I want to do, I'm talking about ideas of the things that I have done.”

Gascón specifically argues that he’s a better reform choice than Rossi because an organization like the LA district attorney’s office is too large and complex to be managed by someone without previous experience managing large bureaucracies. “To bring someone that has never even supervised one person, to all of a sudden supervise 3,000 people, is like to taking someone who has never flown an airplane and, as their first flying lesson, [asking them] to fly a major commercial airliner. It’s just too different,” he says.

Rossi is uncowed by this statement. Asked about Gascón’s critique, Rossi says that her experience as a defender rather than a prosecutor is exactly what makes her candidacy special. “Both Gascón and Lacey are career law enforcement politicians, and I'm running precisely because that's not who I am.” She credits her time as a public defender for giving her exposure to “a different side of the system,” which “neither of the [other] candidates in this race will ever understand without having that experience.”

She also notes that she’s the only candidate with experience practicing in federal court, which she says has given her exposure to “the interplay between the county and the federal system” as well as to “different standards of prosecution.” Her experience working on criminal justice reform in Washington, D.C., she argues, has given her insight into “what reforms work.”

“I believe I am the candidate with the most experience,” she says. “It's just different experience.” On Tuesday, LA voters will decide what kind of experience they value most.