How a single case challenged the LA prosecutor’s reform agenda: ‘Nobody is happy’ | California

The Los Angeles district attorney’s handling of a sexual assault case and decision to backtrack on part of his reform agenda has caused political division and media outrage, in a case that signals the intensifying opposition to progressive prosecutors across the US.

George Gascón, who leads the largest local prosecutor’s office in the nation, had banned the practice of charging youth as adults at the start of his term in 2020. But over the weekend, in response to outrage over a sexual assault case, he announced he would shift his policy so that juveniles could be tried as adults “in the most extraordinary of cases”.

The controversy stems from the prosecution of 26-year-old Hannah Tubbs who was 17 in 2014 when she physically and sexually assaulted a 10-year-old girl in a Los Angeles county restaurant bathroom. Tubbs was charged in 2021 after she was arrested in Idaho and her DNA linked her to the assault. She pleaded guilty and was sentenced to two years in juvenile hall. Last week, however, Fox News obtained jail recordings in which Tubbs said she “lucked out” with a juvenile sentence and made disparaging and disturbing comments about the victim.

The Tubbs case and its backlash come as progressive DAs across the US face mounting pressure from police, prosecutors, rightwing groups, media commentators, politicians and some communities to abandon reforms and restore harsher punishments amid rising gun violence and homicide rates. There’s an ongoing recall effort against the San Francisco DA, who has fought against mass incarceration and police misconduct. In New York, the DA reversed some of his policies meant to reduce incarceration – just one month in office.

Experts and advocates say the LA case highlighted the precarious nature of even modest reforms and how media coverage of individual horrific crimes can derail criminal justice reform.

In a surprise statement on Sunday, Gascón said he would have handled the case differently had he known about the recordings and announced that he was now implementing a “different pathway for outlier cases”. A panel of “trusted advisors” would consider prosecuting youth as adults in extraordinary cases. Another committee could also consider whether to seek life without parole for some adult defendants, backtracking on his ban on sentencing people to die in prison.

Shifting policies was a “really difficult decision”, Gascón told The Guardian. He noted how other countries keep youth out of the adult criminal system and have better results: “It is very clear to me the harm that we’ve done for years in prosecuting juveniles as adults,” Gascón said. He acknowledged the audio obtained by Fox News prompted him to shift his thinking.

Gascón, who won office on promises of ending harsh punishments and prioritizing racial justice, also argued that the current juvenile system in California could not adequately handle a case as complex as Tubbs, who has faced charges in other counties, but “never received any services”.

He emphasized that it would be “very rare” for his office to try youth as adults: “I will not allow this to be something that happens regularly.”

The shift has not appeased Gascón’s critics, with the furor over his policies only growing. The majority of rank-and-file prosecutors voted Tuesday to support a campaign to recall him from office.

Liz Braunstein, an attorney for Tubbs, said the leak of audio violated confidentiality rules in juvenile cases and the judge’s orders.

“Hannah was a teenager when this happened. Most of the children that we see in delinquency court have experienced multiple traumas and adverse life experiences,” Braunstein said. “Our collective goal should be rehabilitation, which will improve the lives of that young person and also offer a greater degree of public safety.”

The victim released a statement after the sentencing that described the assault as “beyond horrible” and criticized Gascón for his handling of the case.

“Not only do I have to live with that awful memory for the rest of my life, but I’m also given no true justice as to what happened to me.”

‘Reactionary’ backlash across the US

An uptick in gun violence and killings during the pandemic has caused significant concern in communities across the US, even though the current crime rate is significantly lower than decades prior. District attorneys have faced widespread scrutiny in media coverage of individual cases of violence. At times, they’ve been criticized for issues they have very little control over such as worsening homelessness crisis and mental health challenges.

The critics of more liberal DAs have argued that these problems warrant a tough response. But champions of reform note studies have shown that harsher punishments do not prevent or deter crime and instead can lead to worse public safety outcomes while also disproportionately hurting Black and brown communities. They also note that in some cases, progressive DAs have been blamed for high-profile incidents of violence in cases where there was no indication that the offenses had any ties to specific DA decisions or policies.

“As a country, we tend to make decisions that are reactionary based on one or two high-profile incidents, instead of following the evidence and research on what is most effective and equitable,” said Kristin Henning, a Georgetown Law professor and author of The Rage of Innocence: How America Criminalizes Black Youth. She added Tubbs’ prosecution was “an unfortunate case” to be at the center of a debate on prosecuting children as adults because of its complexities.

It was similar reports of rising crime in the late 80s and 90s that led to the racist “superpredator” myth, which was the basis for laws that made it easier to transfer youth to adult prisons, Henning noted. In New York, for example, a crime spree by a 15-year-old in 1978 led to a new state law allowing children as young as 13 to be tried as adults.

Henning added that there was now much more research about adolescent development and the harms of imprisoning youth, as well as momentum for racial justice reforms after George Floyd’s murder.

Kami Chavis, law professor and director of the criminal justice program at Wake Forest University, lamented that reforms and crime prevention were often framed as opposing forces: “There is a real danger that the electorate is going to conflate progressive criminal justice policies with a rise in crime.”

Gascón himself said he concerned that “the rightwing narrative is permeating very effectively into the mainstream of our community, even to some progressive members”, adding, “People are running scared, because they’re hearing the same things over and over.”

He said there were rises in crime in jurisdictions with conservative DAs, which demonstrated “the whole concept of simply locking people up doesn’t work … if it did, most places would be extremely safe.”

‘No such thing as a progressive prosecutor’

In Los Angeles, Gascón’s handling of the Tubbs case and subsequent policy shift has angered people on all sides, said Anthony Robles, campaigns coordinator with Youth Justice Coalition, who is part of a group working to end youth incarceration in LA county.

“I don’t think anybody is happy … The people who really want a transformed justice system – he’s reneging on us,” Robles said. “It’s shocking and disappointing.”

Frankie Guzman, an attorney at the National Center for Youth Law, who served on Gascón’s transition team, noted that California has come a long way in the last decade. In 2020, 25 youth total across the state were transferred to the adult system, compared to 1,200 youth in 2008. He said he was confident Gascón would not let transfers become the norm: “I understand that he’s dealing with politics and a broken juvenile justice system … so he has to respond in a way that will allow him to stay in the job to continue to do the good work even if it means softening his blanket policy.”

James King, with the Ella Baker Center for Human Rights, said the policy shift was a reminder of the limits of DA reforms: “There’s really no such thing as a ‘progressive prosecutor’. By their very nature, they are charged with using the carceral system to solve trauma and harm in our society.”