by Mark McDermott
The Manhattan Beach City Council is trying to find a way to prosecute misdemeanor crimes that occur within the city. At last week’s council meeting, city staff and councilmembers reported once again being rebuffed at such attempts by Los Angeles District Attorney George Gascón, who issued a directive in 2020 that ended the prosecution of non-violent misdemeanors throughout much of LA County.
George Gabriel, Assistant to the City Manager, told the council that the DA’s office had recently rejected another request to meet regarding the City’s efforts to independently prosecute its own non-violent misdemeanors.
“The District Attorney’s office declined the meeting pending any new information or developments that would change their position,” Gabriel said.
The conflict is part of a larger national debate over the efficacy of non-violent misdemeanor prosecution. Studies have indicated that such prosecution over time has the reverse of its intended impact, actually increasing crime rates by entering millions of low-level offenders into the criminal justice system. But since Gascón’s directive, Manhattan Beach and many other cities in LA County have seen increases in non-violent crimes, particularly property crimes. They blame the District Attorney’s policy change and have been frustrated in both their attempts to remove him from office and to engage independent prosecution services. By state law, the DA’s office must give consent for such cities to prosecute its own misdemeanors. The DA’s office has yet to give any city such consent.
The City Council, while also supporting recall efforts to remove Gascón from office, spent 2021 and 2022 negotiating an agreement with the City of Redondo Beach to prosecute its misdemeanors while also utilizing Redondo’s innovative “homeless court” diversionary program.
Redondo Beach is one of ten cities in LA County that operates its own prosecutor’s office and has the ability to prosecute state misdemeanors; the DA’s office prosecutes felony crimes and misdemeanors for Manhattan Beach and the other cities that don’t have their own prosecutor’s office.
Gascón’s office in March 2022 rejected Manhattan Beach’s request to contract Redondo Beach’s prosecutor’s office, and has repeatedly rejected meeting with city officials since. This has not stopped Manhattan Beach officials from trying, again and again, to gain prosecutorial power — mainly through the draft agreement reached with Redondo Beach, but other ideas floated by councilmembers have included the City prosecuting its own misdemeanors.
Councilmembers David Lesser and Mayor pro tem Joe Franklin tried to directly engage with Gascón earlier this month when they accepted invitations to a meeting with the DA and leaders from other LA County cities.
Lessor emerged from the meeting with some hope. He said that he gave Gascón an example of incidents within Manhattan Beach in which non-prosecution has created repeat offenses.
“I provided an example of an individual who has been arrested multiple times for public drunkenness, with increasingly adversarial impacts on individuals, where the district attorney’s office has not filed, has not been willing to move forward,” Lesser said. “In response to my asking the district attorney whether there was a willingness to revisit the special directive, the district attorney indicated that yes, they were willing to revisit this. The district attorney also expressed interest in learning more about our specific experience with some of these crimes like the ones I’ve just described.”
Lessor said Gascón was open to the idea of “bundling” such cases of repeat offenders for prosecutions, and also expressed approval of the creation of a regional homeless court.
“I’d like to say with regard to those two issues, I was a bit optimistic, but the devil is going be in the details,” Lesser said.
Franklin emerged from the same meeting less hopeful.
“There were at least another three or four cities there that tried the same tact, to get their own prosecution services for misdemeanors,” Franklin said. “George Gascón on Wednesday stated flatly, and I quote, ‘We don’t prosecute misdemeanors.’ When someone asked how many cities has he allowed to get their own prosecution services for misdemeanors, the answer was zero. So we have a lot of company with other cities, here, trying to make their residents safe.”
Franklin said Gascón’s willingness to look at repeat offenders, or what he called “chronic offenders,” represented a ray of hope.
“So that seems to be an avenue we can take,” Franklin said. “It concerns me, and I’m sure my fellow council members, that to get a chronic offender, they have to have to do their crime multiple times. That number was not discussed, as far as how many it would take, but each one of those instances is leaving a victim.”
Franklin urged residents to report all crimes in part so the City would have the ability to present repeat offender charges to the District Attorney’s office for “bundled” prosecutions.
“If you become a victim of a crime, no matter how small or large, please don’t get discouraged. Report it,” he said. “We’ve got a fantastic police department here that believes that the residents should be safe. So let’s do that, and let’s go ahead and present our cases and try to help make Manhattan Beach safer.”
Gascón’s argument is that his approach is already making LA County cities safer. He has said that much of the homelessness problem can be attributed at least in part to misdemeanor prosecution, and that such cases clog up the criminal courts and leave fewer resources for the prosecution of violent crimes. He issued his policy change, known as Special Directive 20-07, shortly after coming to office, on December 7, 2020.
“Los Angeles County courts should not be revolving doors for those in need of treatment and services,” the special directive said. “Currently, over 47% of those incarcerated pre-trial on misdemeanor cases suffer from mental illness. Likewise, nearly 60% of those released each day have a significant substance use disorder. Meanwhile, individuals experiencing homelessness account for almost 20% of arrests in Los Angeles despite comprising only 1.7% of the population. The status quo has exacerbated social ills and encouraged recidivism at great public expense….Despite the immense social costs, studies show that prosecution of the offenses driving the bulk of misdemeanor cases have minimal, or even negative, long-term impacts on public safety.”
Among those studies is the work of Harvard law professor Alexandra Natapoff, author of the 2018 book “Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal,” who has served as an adviser to Gascón. A more recent study was issued by two economists and a data scientist for the National Bureau of Economic Research. Their paper examined the correlation between prosecuting nonviolent misdemeanors and future criminal legal involvement.
“Across the board,” wrote Amanda Agan, Jennifer Doleac and Anna Harvey in an essay about their research published in the Washington Post, “we find that being more lenient on defendants — that is, erring toward non-prosecution — has big benefits.”
“We examined 67,553 cases in all,” they wrote. “Not being prosecuted for a nonviolent misdemeanor, we found, decreases the likelihood of any new criminal complaint — an arrest, basically — within two years by 58 percent and decreases the number of new criminal complaints by 69 percent. These effects are statistically significant and they grow over time; effects after three years are even larger. We find reductions in new misdemeanor complaints as well as in new felony complaints, and in new violent offenses as well as in new nonviolent offenses.”
Resident Rita Crabtree-Kampe, who co-founded the MB Safe homeless outreach non-profit organization that has helped the city reduce homelessness, suggested to the council that other avenues to address non-prosecuted misdemeanors are available, such as the Neighborhood Justice program, a diversionary “restorative justice” program created in LA that provides education for those who commit misdemeanor crime.
“I think it behooves us to get a little more creative in our exploration of what we can do,” she said. “The Neighborhood Justice Program was created…about ten years ago. I did have the opportunity to observe an actual process in motion, and it was very constructive. It was very supportive of the individual. There is no punishment, per se — there are consequences, however. And I think as Mayor pro tem Franklin was stating, consequences are imperative in order to be able to influence a person’s behavior positively, as opposed to saying, all right, you took $700 worth of merchandise and you can walk away with barely a slap on the hand….I would ask you to do a little bit of research and help keep the neighbors and businesses and visitors safe in Manhattan Beach. Let’s show some gumption to do something proactive.”
Councilperson Amy Howorth liked the idea, but also said the problem is larger than just the misdemeanor non-prosecution issue, but includes the statewide reclassification of crimes that were formerly felonies to misdemeanors.
“Some of these crimes that have been reduced from felonies to misdemeanors under Prop 47…that’s part of the problem, too, right?” she said. “Because that’s a different problem than George Gascón not prosecuting but it’s also something that hampers us all. I mean, that’s the whole issue with reducing a lot of low-level crimes to misdemeanors from felonies, so it’s sort of like a catch and release.”
Mayor Richard Montgomery said such issues needed to addressed at the state level. He referenced a specific recent instance of such a crime that occurred in Manhattan Beach when MBPD officers arrested the same burglary crew twice on the same day.
“They had to let them go,” he said. “Can you imagine, twice, same crew, same day? Imagine what you tell residents…Public safety is number one. How do I not feel violated when my house was broken into and my neighbor’s house was broken into? What are you going to tell them? You can’t point at Gascón and say this is the reason why….The fact that you catch and release doesn’t instill safety in anyone’s mind.”
Councilmember Steve Napolitano dismissed any notion of “bundling” misdemeanors and requesting Gascón’s office to prosecute. He instead suggested finding ways to use the city’s own prosecutorial powers — which in recent years have been focused on juvenile diversionary programs — and its own ordinances in order to do prosecutions. If necessary, Napolitano said, the Council could write new “catch-all” public nuisance ordinances that included many of the state misdemeanor crimes that are not being prosecuted.
“I think we just need to investigate what we can do as a city in terms of what we can prosecute under city ordinances, see if we need new additional ordinances that would prosecute under those, rather than waiting or relying on state misdemeanors and the prosecution of the District Attorney’s Office, which isn’t going to come.”
Montgomery agreed.
“I don’t believe the pie-in-the-sky unicorn stuff that’s out there, ‘Oh, let’s give this program a chance…We need to see if we can do something ourselves,” he said.
Lesser proposed a bifurcated approach in which the City pursued both bundling misdemeanors and working with the DA’s office, while simultaneously investigating using its own prosecuting powers and possibly creating new ordinances to do so. The motion passed 5-0.
The City’s effort may well end up being a three prong approach. After the meeting, Napolitano proposed, via social media, working with state legislators to create a law that took away the District Attorney’s ability to prevent a city from independently prosecuting state misdemeanors.
“It’s a rather simple proposal that could amend current law with the following language,” Napolitano wrote. “‘A municipal prosecutor may prosecute any individual for a violation of a state misdemeanor whenever a county district attorney declines to do so.’” What do you think?” ER
