Newly-elected Los Angeles County District Attorney George Gascón is clearly a man on a mission to create new laws, whether the public likes it or not -- or even if his authority to do so is in question.
He has been so obsessed with the idea of ending money bail that his head-scratching plan was long-posted on his campaign website, where it still appears. Gascón didn’t bother to be sworn in first -- he was ready to jump aboard the "end cash bail" bandwagon, despite the fact that the same voters who elected him also overwhelmingly affirmed their desire to retain bail in California through the defeat of Proposition 25.
It was with this election hype still buzzing that Gascón, a noted progressive Bay Area prosecutor, made his debut. The Los Angeles Times led the charge, proclaiming, "George Gascón Eliminates Bail," in the headline of a story about this first day on the job. The truth is, he did not eliminate bail, nor will he be able to. Despite a flashy, attention-getting show of words displayed during his opening virtual press announcement, Gascón's promise amounts to only so much bluster.
Gascón's biggest hurdle lies in the fact that he is the district attorney and not a member of the state legislature. Simply, his office does not have the authority to change the laws of California. He similarly does not have the ability to refer measures to change the state Constitution, which has provided since 1849 that “all persons are bailable by sufficient sureties.”
To be clear: prosecutors only have the power to enforce criminal laws and related constitutional provisions -- not the power to change them.
The second biggest roadblock in Gascón’s plan to end money bail plan is the other office to which he was not elected: Superior Court judge.
In California, judges have the exclusive authority to set bail; prosecutors have exactly zero ability to do so. As officers of the court, they are charged with making recommendations as to bail, but like those given by public defenders or defense counsel for defendants, they are not dispositive. Also, while they are recommendations only, they must also be based on constitutional or statutory factors.
George Gascón’s policy simply states that his deputies are not going to recommend bail in certain cases. However, it is noteworthy that it stops short of declaring that they will oppose the bail that judges set in cases that require them to do so, according to state constitutional provisions. Moreover, Gascón's deputies will not be arguing for no bail based on constitutional statutory factors. They have simply been ordered to shut up.
Another problem -- and perhaps a fatal one -- is that California law requires all bails to first be set according to a bail schedule. Each jurisdiction is required to have its own bail schedule, which is set annually by the judges within each Superior Court. At present, they already have established bail schedules which will encompass nearly every defendant Gascón will charge with a criminal offense while he is in office. When his deputies arrive at first appearances, bail will have already been set, and the defendant in most cases, already released from jail by posting the prescribed amount. There will be no bail to ask for at such point, because it will have been already set and posted. There will be infrequent instances where a defendant, who has not posted the bail amount set by the schedule, appears before a judge and asks for a reduction in bail. When that happens, Gascón’s policy dictates that his deputies not say anything at all.
George Gascón’s new policy is fundamentally flawed and contrary to the duties and responsibilities of the office of district attorney. In essence, it declares that he has abandoned his duty to seek justice in each case pursuant to the law and ignores the rights of victims of crime through the enactment of this policy.
California’s system of criminal justice relies on individual judgments of independent officials evaluating the facts and circumstances of each case and applying the law. In putting together the factors for the consideration of bail in his new policy, Gascón has included those that are dissimilar and contradictory of those in the state Constitution and its statutes.
Particularly egregious is Gascón's attitude toward victims of crime. The state Constitution contains a well-known provision called Marsy’s Law, which is there to protect their rights. It requires that these individuals be heard about a defendant's pretrial release prior to a prosecutor making a recommendation on bail. The new district attorney's policy is to predetermine what is appropriate bail for a defendant before the victim of a crime has even become a victim!
Of course, Gascón might instruct his deputies to meet with victims of crime anyway, in what would be nothing more than a meaningless gesture. To feign concern and pay lip service to victims and their opinion on what is appropriate bail would be the definition of sham due process.