Gavel and handcuffs

California Supreme Court to Consider Prosecutorial Discretion Over “Three-Strikes” Law

The Los Angeles district attorney is contesting a requirement that he must seek higher sentences.


A major case centering on California’s “three-strikes” law, The Association of Deputy District Attorneys for Los Angeles County v. George Gascon, is now fully briefed and pending before the California Supreme Court, with oral arguments expected to take place later this year. 

The case raises basic questions about who gets to set policy for the Los Angeles County prosecutor’s office, with implications for district attorneys across the state. The court’s ruling, which is likely to rest on state constitutional grounds, could be significant not only for the criminal justice system in Los Angeles but for elected district attorneys around the country who are pursuing criminal justice reforms.

The questions at the core of the case address the scope of a DA’s power to decline to charge sentencing enhancements under California’s three-strikes law, which imposes notoriously harsh sentences — frequently life in prison — on defendants with applicable prior felony convictions. Nearly 30 years after the law was first enacted, studies have documented its racially disparate impacts and its ineffectiveness in enhancing public safety.

In 2020, George Gascón defeated Los Angeles County’s incumbent DA on a reform platform, promising to end cash bail, refrain from seeking the death penalty, reduce the use of sentencing enhancements, and cease trying children as adults. In keeping with his campaign pledges, Gascón issued a set of policies upon taking office that, among other things, instructed his deputy district attorneys not to seek sentencing enhancements under the three-strikes law. 

In response to Gascón’s policy directives, a union representing deputy district attorneys in the office sued, asserting that a little-heralded provision in the 1994 law requires prosecutors to “plead and prove” three-strikes enhancements whenever applicable. 

While district attorneys, including Gascón’s predecessors, have been exercising discretion to pursue only some three-strikes enhancements for decades, the trial court sided with the plaintiff and entered a preliminary injunction blocking Gascón’s policy. The appellate court largely agreed, ruling that the three-strikes law imposes a mandatory duty on prosecutors to bring sentencing enhancements whenever applicable. The court ruled that prosecutors’ discretion is limited to whether to move to dismiss a strike enhancement “in the furtherance of justice” or when the evidence to prove the enhancement is insufficient. 

This opinion teed up the question that Gascón subsequently appealed to the California Supreme Court: whether state law may impose, and the judiciary may enforce, a duty that strips a prosecutor of the discretion to determine which charges to bring (or crucially, not bring) without violating the separation of powers under California’s constitution.

This is a question of deep constitutional significance, and not just in California. Discretion is a structural element of a prosecutor’s job, inherent in the task of using limited resources to enforce voluminous criminal codes. Indeed, the U.S. Supreme Court has recognized that under the U.S. Constitution, “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.”

The scope of prosecutorial discretion takes on special significance at the state level. Many states, including California, have constitutions that expressly establish locally elected district attorneys who wield the constitutional law-enforcement powers of the executive branch. What do these constitutional choices mean for the protection of prosecutorial independence under state law?

An amicus brief filed by my organization, the Public Rights Project, on behalf of a group of law professors argues that California’s constitution deliberately vests oversight of its local district attorneys’ charging decisions in the communities who elect them and in the attorney general, not in the legislature. By establishing the district attorney as a locally elected executive official who is expressly subject to direct election at the county level and the attorney general’s oversight, the California Constitution constructs a framework for making and checking exercises of prosecutorial discretion that pointedly does not involve the legislature. Thus, when a law micromanages charging decisions by requiring sentencing enhancements, it unconstitutionally infringes on executive powers. This separation-of-powers framework has been recognized in many other states: a majority of states enshrine elected district attorneys in their constitutions, and at least 10 state high courts have found that these provisions protect district attorneys’ independent charging discretion against legislative infringement.

Our analysis also underscores that these questions have great significance for prosecutors across the country, not just in California. State legislatures in at least half a dozen states are working to statutorily limit district attorneys’ discretion or otherwise punish them in response to uses of their discretionary authority, such as declining to prosecute abortion crimes. State constitutional protections for district attorneys’ charging discretion will be central to these battles. The Gascón case presents the California Supreme Court with the opportunity to clarify what guardrails exist in the state to protect prosecutorial discretion.

Jacob Seidman is a legal fellow at the Public Rights Project, which filed an amicus brief in this case.

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