• Patrick Santos, Esq.

A Saturation Point of Servitude: New LA DA Gascon's Rules Argument & Bias on Both Sides.

There is a saturation point in practically every man’s servitude beyond which every additional hour is wasted and destructive punishment.”

~ Former San Quentin Warden, Clinton Duffy, 1952.

What New LA DA Gascon Did

On December 7, 2020, Gascon issued a series of "Special Directives" dramatically changing how prosecutors in Los Angeles County charge and prosecute crimes. The Special Directives are numbered "20-07" through "20-14", each addressing a different topic. This blog deals only with sentencing enhancements, to wit, Special Directive 20-08.

Who Was Effected & How

The LA DA's office employs roughly 1,000 deputy district attorneys called DDA(s), who prosecute serious crimes on behalf of LA County's 10 million residents. This does not include city attorneys, who prosecute crimes less serious in nature. Several City's then have their own "city prosecutors" who prosecute more local and less serious offenses; however, they do so with the authority delegated to them by the DA.

Los Angeles is incredibly unique because 24 different courthouses throughout The County house prosecutors prosecuting a garden variety of crimes involving the Penal Code, Vehicle Code, Health and Safety Code, Business and Professions Code, Local City Codes, and others. A smaller court like Burbank has at least 3 different Judges hearing criminal matters, but the large Central Criminal Court downtown has at least 70 Judges, each with their own department, and own prosecutor(s). Most of these Judges are former prosecutors themselves.

I can go on, but you can begin to see the number of people whose lives have been dramatically changed by these December 2020 Special Directives. I will include the thousands of Clerks of Court and Judicial Assistants, whose jobs have also become dramatically different. Most of the things the directive requires the court to do does not even compute in their current data-entry software. I will also include the Sheriff's Deputies, as each criminal court has at least one, some many more. Suffice it to say, a lot of people are going through a lot of changes these last three weeks.

Righteous v. Bias?

None are very happy either. For the prosecutors, they tend to be believe in the Penal system and how it currently works, and as you might imagine, so do Judges, who sentence people to deep and long-lasting deprivations of personal liberty daily. If they did not believe in its efficacy or fairness, they likely would not have that job. But that is also the problem – it is their "job." I will not beat the horse, as you see my point: as much as they may see the penal system as filled with purple hearts and green clovers and protecting the public, etc., they are also genuinely concerned about how these dramatic changes will affect the longevity of their career path and their own family. In a word: bias. Most desire to be Judges, and that also now is a known-unknown.

Fighting the Good Fight for Victims v. Fighting to Keep Their Jobs?

But prosecutors have never had to fight for their cases, and this appears to be the first time they are standing up and doing just that. For example, this week they joined forces and filed for an ex parte TRO in court, but later withdrew it. The legal controversy will be resolved on February 2, 2021 in department 95 of the Stanley Mosk Courthouse, The Honorable Judge James C. Chalfant presiding, who will at that time hear the request for a preliminary injunction. This is the same judge who called LA County's recent lockdown arbitrary and capricious a few weeks back.

Right v. Wrong or Rehabilitation v. Destructive Punishment.

You can read the specifics of Special Directive here. There is a lot to discuss, but I focus here on sentencing enhancements. “There is a saturation point in practically every man’s servitude beyond which every additional hour is wasted and destructive punishment.” (Former San Quentin Warden, Clinton Duffy, 1952.)

I believe what he meant was clear, both then and now. What I believe is there are only two types of "opinions" here, and in my opinion, the only difference between the two is something called "empathy." It was at the center of presidential politics this year, but I have always argued it should be incorporated into our laws, especially ones resulting in a complete deprivation of a human being’s liberty. Sentencing laws are somewhat complex, so keeping it simple, an enhancement simply enhances the length of a sentence on the crime itself. Like committing a robbery v. committing a robbery while using a firearm. The enhancements, in my opinion, can be the "saturation point […] beyond which every additional hour is wasted and destructive punishment.”

There are arguments on both sides about enhancements, but critical to recall is that most were written into law during the "tough on crime" movement in the 90s. They are therefore arcane when juxtaposed with the current national ethos on criminal prosecutions and for-profit prisons. The first clue was when Vice President Elect Harris did not mention her career as a prosecutor unless responding to a question about it.

The Amendment to Special Directive.

About the child-killers and other extreme and heinous offenses, you should know Gascon issued an amendment to his special directive on December 18, 2020 excluding 1) hate crimes, 2) elder abuse, 3) child abuse, 4) sexual abuse, 5) sex trafficking, and 6) financial crimes. His change in course was admirable and shows his leadership may last much longer than many currently think. Consider for example a different type of leader, one who would never alter a course after first setting and charting it. It is an earmark of a good leader, one who listens intently and is willing to change a plotted course. It is not “folding” to respond to people’s grave and sincere concerns.

In short, arguments here should no longer include baby murderers and sex-traffickers, as the amendment made the compelling argument moot. Your concern financial crimes will skyrocket has been addressed. You are running out of red herrings, so instead of arguing an emotional slippery slope, those fighting for their jobs should consider a different approach.

Arguments on Both Sides

I will be the first to admit my bias is screaming just as loud here. However, I am not reaching any conclusions. I acknowledge and respect the special victims, sex crimes, major narcotics, and elder abuse prosecutors, who have seen things most of us would never want to. They do care; they really do. My point is only most of those prosecutors are no longer affected by the special directive, so maybe come up with a better counterargument. I think filing a State Bar Complaint against Gascon is a joke, as will the State Bar I recon.

I ask you consider the constitutional wherewithal of a prosecutor's discretion. If you do not know what I mean, I mean next to the presidential pardon, it is the most unchecked exercise of power a person in the United States can have. I ask you consider the Supremacy Clause. If you do not know what I mean, I mean the United States Constitution cannot be set aside by state law. I ask you to consider a different approach, incorporate your empathy into your opinions, and for now, that's all.

~Patrick Santos is a private attorney in Los Angeles County who has had over 700 clients prosecuted over the last decade under the old approach. The next topic he will address is how those already convicted are affected by the new approach, if at all.

49 views0 comments