On February 19, 2020, Katherine Mader retired after serving for nearly two decades as a Los Angeles Superior Court judge. Before she joined the bench in 2001, she also practiced criminal defense from 1973-1985, was a Los Angeles County deputy district attorney from 1985-1996 and 1999-2001, and was the first LAPD inspector general from 1996-1999.
Why I Support George Gascón for District Attorney
By Katherine Mader, Los Angeles Criminal Court judge, retired February, 2020
Having spent the last forty-five years participating in the Los Angeles criminal justice system from all angles (prosecutor, defense attorney, LAPD inspector general, and Superior Court judge), I feel uniquely positioned to comment upon the upcoming race for Los Angeles County District Attorney. The DA’s office needs a course correction. I believe that George Gascón is best suited for this critical mission. I do not have anything personal against the current District Attorney, Jackie Lacey. I believe she is well-meaning. I do not believe, though, that she is the leader the DA’s office desperately needs.
A few years ago, I heard DA Lacey speak at a judge’s meeting about a mentally ill young woman (let’s call her “Lucy”) with no criminal record, who, during a psychotic breakdown, committed a carjacking. Lucy’s parents arrived in Lacey’s office to beg for leniency so their daughter would not end up with a violent felony on her record. Lacey described her compassion for the family’s plight, and how she intervened to lessen Lucy’s charge of robbery and her punishment. According to DA Lacey, this was the type of mercy for the mentally ill that she wanted her administration to administer.
Since hearing that speech, numerous Lucy’s have appeared before me. Dozens of prosecutors have floated through my courtroom representing the DA’s position in cases such as Lucy’s. Defense attorneys, armed with medical histories, past and current, have urged compassion for their clients. Rarely, if ever, was compassion granted in the manner DA Lacey described. In one similar case to Lucy’s, a young woman was charged with two robberies in which, during a psychotic episode, she grabbed cell phones from victims she thought were taking her picture. She was found hiding in a manhole at the scene, trying to avoid more pictures of her being taken. Even though the DA’s office agreed that the second Lucy was also mentally ill, and attending college, the DA in court as well as his supervisors would not budge from their insistence that the young woman plead guilty to the felony charge of robbery, ensuring a lifetime of job rejections.
Why did this happen? While DA Lacey may truly believe in compassion for the mentally ill, she has not been able, in seven plus years in office, to insist that her deputies follow her lead. My conclusion is that while DA Lacey may be a kind person, she is not a strong enough leader to bend the culture of her office to comply with her stated philosophy.
A deputy DA who adopts a “tough on crime” position will never suffer a negative career consequence in the current office. Many deputy DA’s who want to exercise compassion to the Lucy’s of the world, though, do exist. I know this because they have confided their frustrations to me. Unfortunately, the compassionate DA’s job evaluations are written by numerous old-school supervisors who will label any DA as “soft on crime” if he urges compassion against his supervisor’s wishes. The prosecutors are at their supervisors’ mercy. No one will get a better review for urging more lenient sentences; only deputy DA’s who are “soft on crime” risk their reputation and assignment. Why has DA Lacey never assured her troops that she will not banish DA’s to unfavorable assignments if they question the harshness of their supervisors’ policies?
While DA Lacey has bragged of her office’s creation of a “diversion” program for the mentally ill, and my caseload contained at least 40% “yellow shirts,” (prisoners classified as having serious mental health problems), I have rarely, if ever, heard a deputy DA in my court voluntarily agree to diversion in a serious case. DA Lacey’s campaign rhetoric is self-serving on the subject of diversion programs, but the actions of her staff speak more loudly than her words.
The sentencing policies of DA’s under Lacey are erratic and unreasonable. Respect for the criminal justice system requires public perception that it is fair and even-handed. DA Lacey has not ensured sentence consistency from courthouse to courthouse, floor to floor, head deputy to head deputy. For example, on one floor of the downtown courthouse the DA supervisor mandated that every person convicted of the crime of “evading the police” be sent to state prison. On a different floor the DA supervisor often agreed to probation and local custody for the same crime. How can a person’s fate be so cavalierly determined?
Sentences in other types of serious cases are also inconsistent and sometimes appear tossed from a hat. Individual deputy DA’s attitudes are often, “How much time can we get on this guy?” For example, a 20-year- old gang member commits a robbery with a gun. He wants to plead guilty, but the DA’s office says he must agree to fifteen years in prison, a sentence randomly selected because it is 50% of the maximum in that case. Rejecting the offer, the defendant goes to trial and is found guilty. Now the DA’s office wants more time, twenty-five years. When I’ve asked, “Why did your offer go up just because the defendant exercised his constitutional right to go to trial?” the response is often, “We had to call in the witnesses. We always ask for more custody if a defendant goes to trial.”
What was the robbery case worth? Where is the statistical evidence of the years needed to prevent re-offense? No one ever seems to know. Again, the DA’s just know to offer a lesser amount for an earlier plea and to ask for the max or close to it after a defendant loses at trial. There is no effort to sentence with the purpose of protecting the public and rehabilitating the convicted. This failure to act with informed purpose is not justice. This is, again, prosecutors worrying about pleasing supervisors, and, not risking being considered “soft on crime.” Where is DA Lacey in this picture? Why isn’t she taking the lead in applying the latest research on re-offenders?
George Gascón has demonstrated as District Attorney of San Francisco that he believes in a data-driven approach to selecting appropriate sentences. That doesn’t mean that he will be lenient when it comes to violent offenders. Everyone agrees that the protection of victims and society is a critical duty of the elected District Attorney. Some violent criminals must be locked up indefinitely. Others who commit crimes may be capable of being rehabilitated before they become hardened criminals. Distinguishing between these classes of offenders is a critical function of the elected District Attorney, and every effort should be made to employ the latest science and research rather than rigid formulas in calculating punishment.
As a judge, I hold myself to blame for going along with non-research-based sentences. DA’s and judges got used to asking for and administering severe sentences in the 1990’s that persist, with few exceptions, today. When defense attorneys challenged the lengthy sentences, the higher courts said they were not “cruel or unusual.” We all became blasé, especially DA’s, many of whom have never seen the inside of a jail or a prison.
George Gascón will make sure that he gives clear directives to his DA’s that rehabilitation is not a dirty word. He will insist that DA’s in court not be retaliated against for urging compassion in appropriate cases. Also, George Gascón will identify mentally ill offenders at the beginning of the arrest process, and treat them with compassion, not at the end, after they have been jailed for months. These directives will begin to change the culture of the DA’s Office.
As a former LAPD Assistant Chief, Gascón is also committed to punishing police officers who go astray. There is a reason why the police unions have pumped over one million dollars into defeating Gascón. I also spent years as a prosecutor and LAPD inspector general scrutinizing police misconduct. These cases are difficult; but on-duty misconduct needs to be consistently prosecuted. While there are many other areas I could write about, such as Lacey’s resistance to criminal justice reform until she’s pushed into it, her record is clear for anyone who researches it. DA Lacey is not the reformer who’s needed to support deputy DA’s who want to do the right thing, and not allow supervisors to browbeat courtroom prosecutors who in turn browbeat criminal defendants.
The people behind the millions being dumped into keeping DA Lacey in office are promoting false narratives about George Gascón to scare voters into believing he is preparing to open the prison doors, and that public safety is at risk. They are also claiming that DA Lacey is in the forefront of protecting defendants with mental illnesses and promoting diversion programs. Research the true facts. Go to georgegascon.org and other websites. Change can be scary, but sometimes it is necessary to ensure true criminal justice in Los Angeles.
(Katherine Mader is the co-author of several true crime books, op-ed articles, and the upcoming memoir, Inside the Robe. She can be reached at: firstname.lastname@example.org).