LGBTQ voters and others were dumbstruck last week when Los Angeles District Attorney George Gascón announced that, in addition to several other sweeping reforms, he’d be ending sentencing enhancements for criminals, including those found to have committed hate crimes.
“People that commit a crime … they are going to face accountability. And that accountability will be proportionate to the crime,” the newly minted DA explained. “Enhancements do not have anything to do with accountability.”
After taking a call with LGBTQ advocates on Thursday, December 17, Gascón amended the directive, saying he would now “allow enhanced sentences in cases involving the most vulnerable victims and in specified extraordinary circumstances. These exceptions shall be narrowly construed.”
While activists who supported the former LAPD assistant chief’s recent bid to unseat Jackie Lacey are somewhat relieved Gascón reversed course, the directive contributed to a growing distrust of an official who was elected by virtue of his progressive promises.
Hate crimes became part of the national conversation in 1998, when 21-year-old college student Matthew Shepard was kidnapped, pistol-whipped, tortured, and left to die in near-freezing temperatures because he was gay. Initially taken to a hospital in Laramie, Wyoming, Shepard died died five days later on October 13, 1998, in a Fort Collins, Colorado, hospital trauma ward from injuries too severe for doctors to operate.
Shepard’s murder became a national symbol of anti-gay hate crime, prompting a storm of debate over how to determine and punish a perpetrator’s motive when victims of bias-based hate crimes are targeted because of their sexual orientation or gender identity, not in the federally defined protected class of race, color, religion, or national origin. But despite the immediate angst and legislative attempts to respond to Shepard’s murder and the heinous murder four months earlier of James Byrd Jr., a Black man who was killed in Texas by three white supremacists, the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act—which added actual or perceived sexual orientation, gender identity, disability, and gender to federal statutes—didn’t pass Congress until October 22, 2009, when it was signed into law by then-President Barack Obama as a rider to the National Defense Authorization Act.
In 1999, the summer after Byrd’s murder, two hate-fueled incidents rocked Los Angeles. That June, Buford O. Furrow Jr. walked into the lobby of the North Valley Jewish Community Center in Granada Hills and wildly sprayed 70 bullets with a semi-automatic weapon. He wounded three children, a teen counselor, and an officer worker as 250 children played outside. Furrow later said his purpose was “killing Jews.” Furrow unsuccessfully tried hitting other Jewish establishments before hijacking a car at gun point and prowling for someone Asian or Hispanic. Joseph Ileto, a naturalized Filipino-American postal worker, was returning to his truck when Furrow asked him to mail a letter. The white supremacist then “pulled out a handgun and shot Ileto multiple times in the chest and the back of his head,” L.A. Daily News reported.
Gascón, who earned his law degree in 1996, was rising through the ranks of the LAPD in 1998 and 1999, taking over the training unit in 2000 at the height of the Rampart scandal. In an interview with the Los Angeles Blade during his campaign, Gascón said he has a history of combating racism and homophobia, including having met gay Sgt. Mitch Grobeson, who filed several lawsuits alleging anti-gay discrimination in the LAPD. “The horrendous behavior that he was subjected to — including one having to request help and nobody coming to help from the Rampart Division, which really obviously tells you what a homophobic police department we had back in those days,” Gascón said. “I’m not a Johnny-come-lately on this issue.”
Given his previous comments on hate-related crime, Gascón’s decision to end sentencing enhancements came as a surprise, and pushback was swift. On December 9, the Anti-Defamation League (ADL) sent Gascón a letter seeking clarification of the new directive.
“Since hate violence has a unique serious impact on the community, it is entirely appropriate to acknowledge that this form of criminal conduct merits more substantial punishment,” wrote Jeffrey I. Abrams, Regional Director, ADL Los Angeles. “Bias crimes are intended to intimidate the victim and members of the victim’s community, leaving them feeling fearful, isolated, and vulnerable. Failure to address this unique type of crime often causes an isolated incident to explode into widespread community tension. The damage done by hate crimes, therefore, cannot be measured solely in terms of physical injury or dollars and cents. By making members of targeted communities fearful, angry, and suspicious of other groups—and of the power structure that is supposed to protect them— these incidents can damage the fabric of our society and fragment communities.”
The LGBTQ community noted the directive’s immediate impact on at least two cases involving violent attacks against transgender women: the August 17 Hollywood Walk of Fame assault on Instagram influencers Eden the Doll, Jaslene Whiterose, and Joslyn Flawless, and the October 4 attack on Daniela [last name withheld] in MacArthur Park. Daniela was accosted by three alleged gang members who are alleged to have yelled anti-LGBTQ slurs before stabbing her 16 times, including slashing her throat. Daniela survived the brutal attack.
“She is at an undisclosed location for her safety,” out gay deputy DA Richard Ceballos tells Los Angeles.
Ceballos, who also tried to unseat Lacey, was taken aback by Gascón’s blanket directive to not prosecute hate crimes but begrudgingly asked the judge to dismiss enhancements in Daniela’s case.
Daniela beseeched the judge not to dismiss hate crime and gang enhancements, pointing to each of the 16 stab wounds. “That’s why I think it’s necessary that not even one charge be taken away,” Daniela said in Spanish, before the judge granted her plea. “In my life, I have had to undergo a lot of difficulties, including the dread of not going outside without being attacked.”
“[Gascon] clearly has a right to make these motions,” Ceballos told the L.A. Times. “We have to follow them; however, we cannot represent to the court that it is in the interest of justice if we don’t believe it. That would violate the rules of professional responsibility.”
The Times reported that Gascón “scoffed” at that idea. “What we’re doing is certainly not unlawful and not unethical. Prosecutors are sworn to follow the directives of the elected DA as long as he or she is working within the law, and I firmly believe that I am,” Gascon said.
Ceballos tells Los Angeles that another case involving the man charged with attacking the transgender Instagram influencers is “going well.” During the preliminary hearing, he made the motion to dismiss the enhancement charges “pursuant to the directive,” but he also asked the judge to defer his decision until the victims could address the court.
Following Gascón’s sudden reversal of course, Joseph Iniquez, Gascón’s openly gay interim chief deputy DA, told Los Angeles that the meetings with LGBTQ advocates and another with faith leaders who’d expressed concern changed his mind, as did a letter from different bar associations saying, “We support you, but this policy causes us some concern because we fought so hard for some of these enhancements.” Says Iniquez, “What we had to do is recalibrate. George listened and then we took pretty quick action.”
The amended policy now allows prosecutors to file enhancements for “hate crimes, specific crimes against children, crimes against elders, and human sex trafficking,” says Iniquez, and other limited provisions, such as some weapons enhancements and some great bodily injury enhancements. “But the overwhelming majority of enhancements will not be pursued by our office because it is still our policy that those really drive mass incarceration. And so, the ones that he’s carved out are specifically intended to protect really vulnerable communities. And then there are exceptions, but the exceptions are subject to head deputy and DA approval. So, there’s two layers of approval that has to take place before [enhancements can be charged].”
But why didn’t Gascón, who’d painted himself as a progressive candidate, foresee that marginalized groups would dislike a wholesale jettisoning of enhancements?
“It wasn’t that he didn’t get it,” Iniquez tells Los Angeles. “The formation of the policy came out of place of trying to achieve a rule that was not subject to being…how do I put this? He didn’t want exceptions to swallow the rule. And his whole goal was to end mass incarceration. It still is, by the way.”
But, Iniquez acknowledges, “What we probably should have calibrated better is sort of how deeply [the new directive] would be felt by our supporters, by our allies, our [prosecutors]. And it wasn’t that we didn’t think about the community—but we were trying to approach it from a place of, ‘Let’s just not use this tool because for the most part, the way it’s used is disproportionate against people of color.’….Right now in L.A. County, we have about 50 open hate crimes. It is a lot of hate crimes. But when you look at that compared to, for example, when we alleged gang allegation, there are thousands of cases that these allegations are used. So, I think George’s initial position was, ‘Let’s just get rid of enhancement.’ But now we’ve adjusted it because we’ve listened.”
Iniquez continues, “We’ve listened to not only the deputy DA’s, but community members. We’ve only been in office for a week or two weeks. So actually, the way I see it is as part of good leadership. He wasn’t going to like double down and say, ‘No.’ He’s listened and then adjusted.”
Meanwhile, U.S. hate crimes and hate-motivated killings rose to their highest level in more than a decade, according to a new FBI report released in November. Still, the data is incomplete because reporting by police agencies is voluntary. “Last year, only 2,172 law enforcement agencies out of 15,000 participating agencies across the country reported hate crime data to the FBI,” the Associated Press reports.
“Given the present circumstances—the Proud Boys versus Black Lives Matter, for example—now is the time to be proactive and implement a Hate Crimes Unit that will address hate crime holistically through education, community outreach, development of protocol agreements with law enforcement, and implementation of DA policy, including why hate crime charges and enhancements are necessary to punish offenders for the underlying motive,” says Carla Arranaga, the now-retired nationally renowned lesbian former deputy DA in charge of hate crimes. “Otherwise, crimes motivated by race, religion, gender identity, sexual orientation, and gender status will not be addressed proactively.”