Opinion: California wants criminal justice reform, but keeps electing conservative prosecutors

Robert Greene
·9 min read
Alameda County Dist. Atty. Nancy E. O'Malley announces that her office will charge seven current and former Bay Area police officers in a sexual misconduct scandal involving a woman who now faces a battery charge in Florida.
Alameda County Dist. Atty. Nancy E. O'Malley at a news conference in 2016. O'Malley is the immediate past president of the California District Attorneys Assn., an organization criticized by more progressive prosecutors. (Associated Press)

This is the third in a series of articles about the Los Angeles County district attorney's race.

Santa Clara County Dist. Atty. Jeff Rosen knew, back in 2012, that most of his fellow prosecutors disagreed with him on Proposition 36. But he wasn’t prepared to be compared to a Nazi appeaser.

Proposition 36 was a ballot measure to amend California's notorious Three Strikes Law. It ensured that no one would be sentenced to 25-to-life for committing a petty crime, regardless of whatever else was on their rap sheet. Rosen supported it.

The California District Attorneys Assn. was debating not whether to oppose the Three Strikes change, but how vigorously. Because the state's 58 counties include many that are smaller, more rural, less populated and much further to the political right than their more populous L.A. or Bay Area counterparts — and because each county, whether it’s got 1,200 people (Alpine) or 10 million (Los Angeles), elects one district attorney — the association is a disproportionately conservative powerhouse that lobbies and spends heavily in Sacramento for tough-on-crime laws. That leaves this paradox: A majority of Californians favor and adopt criminal justice reforms — yet, voting by county, they elect D.A.s who try to block those very same reforms.

It used to be the same way in the Legislature. In order to mirror the U.S. House of Representatives and the Senate, California divided the state Assembly by population, but the state Senate by county. The tiny rural “cow counties” like Siskiyou were equal in the Senate to populous San Diego or Orange counties. But that ended in 1964, with the U.S. Supreme Court’s ruling in favor of one-person, one-vote in Reynolds vs. Sims. The Senate was redistricted so that each member represented approximately the same number of people.

But because district attorneys (as well as sheriffs) are still elected one to a county, the power of conservative politics and rural outlooks continues to hold inordinate sway in Sacramento, where their lobbying and fundraising beat back criminal justice and police reforms. And in the public, where the power of their messaging remains strong.

At the California District Attorneys Assn. conference on Proposition 36, Rosen recalled, members spoke as if the backers of Three Strikes reforms were evil.

“Some D.A. said that if we give in on this one, we’ll be like Chamberlain appeasing the Nazis, and they’ll just want more,” Rosen recalled. “I was a little taken aback.”

Three Strikes reform ultimately passed.

Rosen recounted the episode for me a year ago, in his San Jose office, as part of a conversation about “progressive prosecutors” and what that term even means. He is sometimes counted as a member of a new breed of elected D.A.s who break from traditional tough-on-crime policies. And sometimes not. The one California district attorney at the time who unabashedly embraced the term, San Francisco’s George Gascón, had just resigned and was moving back to Los Angeles. He hadn’t yet acknowledged it, but everyone knew Gascón was planning to challenge Jackie Lacey, L.A.’s two-term D.A., in the Nov. 3 election.

“Look, I've endorsed Jackie Lacey,” Rosen told me. “So, full disclosure: I endorsed her before Gascón was in it, but it doesn't change my view about it. I've worked with both of them, but I like her very much.”

In 2014, Gascón co-wrote Proposition 47, perhaps California’s most sweeping criminal justice reform in the last 10 years. It reduced drug possession and several other felonies (or “wobblers,” which prosecutors could choose to charge as felonies) to misdemeanors. The CDAA opposed it. Of the state’s 58 D.A.s, only one besides Gascón supported it. Jeff Rosen.

But Rosen remained tough on crime when he deemed it appropriate. He prosecuted Brock Turner, the Stanford swimmer convicted of sexual assault, asked for a six-year sentence and criticized Turner’s actual six-month term.

And Rosen, along with Lacey and most other members of the CDAA, supported the death penalty — although Rosen was to revise his position this year.

In 2018, California saw campaigns by progressive candidates against more traditional district attorney incumbents in three big counties: Alameda, San Diego and Sacramento. The challengers were hoping to duplicate a wave of progressive D.A. election victories in Chicago, St. Louis, Orlando and other jurisdictions across the nation two years earlier, in the same election that sent Donald Trump to the White House. If California would embrace Propositions 36 and 47, surely it would elect progressive D.A.s, would it not?

But none of the challenges succeeded. California remains a state front-loaded with traditional tough-on-crime D.A.s, the exceptions being Rosen (sometimes), San Francisco D.A. Chesa Boudin, San Joaquin County D.A. Tori Verber Salazar and a relative newcomer, Contra Costa D.A. Diana Becton. And Gascón again, if he prevails in the coming election. The CDAA’s voice among Sacramento lawmakers remains strong, despite a huge change in the state’s district attorney lineup in the last decade.

Except that the divide between "progressive" and tough-on-crime isn't always clean. Past CDAA President Nancy O'Malley, one of those traditional D.A.s who beat back a progressive challenge two years ago, recently became the state's second D.A. to charge a police officer with voluntary manslaughter under a new California law redefining when deadly force by a police officer is justified.

O'Malley represents a wave of another kind among California district attorneys. As late as 2005, most were male, white and Republican. There had been few female D.A.s in California between 1947, when June D. Schnacke of Santa Cruz County became the state’s first, and 2004, when Kamala Harris was elected in San Francisco.

Today, 27 — nearly half — are women (a 28th, Trinity County’s Donna Daly, died in August in a traffic collision). And of those, all have endorsed Lacey — with the exception of Verber Salazar and Becton.

But the complexion of the state’s top prosecutors has changed little. Lacey and Becton are the state’s only Black district attorneys. There is one Asian American.

And most are Republicans or conservative Democrats, and are skeptical, to say the least, of sweeping reform. All are members of the CDAA except for Verber Salazar, who quit the group in January.

“As criminal justice reform sweeps through California and the nation, I witnessed the CDAA oppose most reform-based initiatives, which tells me the association is out of touch and unwilling to find new approaches to criminal justice,” Verber Salazar wrote.

It may be somewhat surprising that in breaking with the CDAA, Verber Salazar was following in the footsteps not of some left-leaning Democrat, but of Lacey’s predecessor and mentor, Republican L.A. County Dist. Atty. Steve Cooley. Cooley and the CDAA differed over Three Strikes reform, among other issues, well before Proposition 36 was on the ballot.

Earlier this year, Verber Salazar, Gascón, Boudin and Becton formed an alternative of sorts to the CDAA. The Prosecutors Alliance does much of what its larger counterpart does. It provides district attorneys with resources, training and other support. It also backs policy and legislative changes — but generally not the same ones the CDAA backs.

On Monday, Verber Salazar, Gascón, Boudin, Rosen, Becton and former Los Angeles Dist. Atty. Gil Garcetti asked the state Supreme Court for permission to file an amicus brief challenging California’s death penalty.

When I met with Rosen a year ago, he still supported the death penalty, at least in theory. That changed after George Floyd’s death in May. He said in July that he would no longer seek death sentences because of racial disparities in the criminal justice system (it was one of several new policies Rosen announced in response to the Floyd killing and its aftermath).

That stance recalls a similar announcement made by one of the nation’s new breed of progressive prosecutors, Aramis Ayala, who in 2016 was elected state attorney for two Florida counties in the area that includes Orlando. After taking office, Ayala announced that she would no longer seek the death penalty.

But this was Florida, where the system is different and the politics more conservative than in California. Then-Gov. Rick Scott removed Ayala from 29 murder cases and assigned them to a death-penalty-supporting state attorney from a different county. The Florida Supreme Court upheld the governor’s move. Ayala did not run for reelection. The experience was seen as a defeat for the progressive prosecutor movement, which has as one of its tenets ending the death penalty.

California Gov. Gavin Newsom, by contrast, has imposed a moratorium on death sentences. It was he who, as San Francisco’s mayor, first appointed Gascón as D.A. He has not spoken out against or for the CDAA, but at least on this issue he appears to be an ally of the progressive prosecutors.

I asked Rosen about Fair and Just Prosecution, a nationwide organization that provides resources and a sounding board to elected prosecutors who are at least open to a set of “21 principles for 21st century prosecutors,” including ending the death penalty. “I’ve heard of them,” was all Rosen would say.

He said he was indeed a progressive prosecutor.

“But I'm trying to focus on what we can actually accomplish,” he said. “I don't like virtue signaling. I like to actually accomplish something.”

As for the L.A County D.A. race, where the avowed progressive prosecutor Gascón is challenging the more traditional Lacey, Rosen pointed out the obvious.

“I've never heard of a D.A. from one place moving to another place and running like that,” he said. “That's not happened before. So that makes it unusual.”

Although a majority of California D.A.s are endorsing Lacey, 15 D.A.s from around the nation who count themselves part of the progressive prosecutors movement recently endorsed Gascón.

The Los Angeles Times editorial page called the current L.A. district attorney race the nation’s second-most important election this year. That’s in part because of what effect it could have on the rest of the state in the near future.

In November 2022, 56 of California’s 58 district attorney races will be on the ballot.

This story originally appeared in Los Angeles Times.