How Rachel Rossi Would Change the D.A.’s Role in Los Angeles: “It Takes a Public Defender”
Rossi rules out seeking the death penalty or prosecuting sex work. “Oftentimes justice may mean a restorative outcome. Oftentimes justice may mean never filing a case,” she said in a Q&A.
Daniel Nichanian | January 16, 2020
This article originally appeared on The Appeal, which hosted The Political Report project.
“Oftentimes justice may mean a restorative outcome. Oftentimes justice may mean never filing a case,” said Rossi, who is running for DA in Los Angeles County. Among other commitments, she ruled out seeking the death penalty and prosecuting sex work.
From Philadelphia’s Larry Krasner to San Francisco’s Chesa Boudin, candidates for prosecutor have recently won on claims that working outside of a district attorney’s office has positioned them to better overhaul criminal justice practices.
Rachel Rossi, a former state and federal public defender who is running against Los Angeles DA Jackie Lacey, is the latest to make that case. “What has driven me to want to be a prosecutor is seeing, at every stage of the process, the need for reform,” she told me. “When it comes to walking into a courtroom and only seeing Black and brown people locked up. When it comes to seeing the incredible amounts of time that people are sentenced to, and how it is not effective.”
Rossi added: “We need to completely shift the views of what a prosecutor does and what justice looks like. And it takes a public defender or someone who sees the other side to completely shift that focus.” Rossi, who also worked on criminal justice as a counsel in Congress, is the only candidate in this election with background as a public defender. Besides Lacey, she will face George Gascón, the former DA of San Francisco.
I talked to Rossi last week about how she wishes to rethink the DA’s role. The Q&A is transcribed below. She explained wanting to shake up the binary image of “the prosecutor [who] seeks convictions and the public defender [who] fights against convictions.” We should stop evaluating prosecutors based on performance metrics like the number of convictions or length of sentences they secure, she argued. Better metrics would include questions like whether a prosecutor crafted an outcome that “allowed someone to keep their immigration status and stay with their family.”
“Oftentimes justice may mean a restorative outcome,” she said. “Oftentimes justice may mean never filing a case.”
Rossi ruled out prosecuting sex work. She also ruled out prosecuting people for behaviors linked to homelessness. “It should never be illegal to be homeless,” she said. She criticized Lacey for steering too few people with mental illness toward diversion programs, a charge made by other local advocates. “What I would do is require the input of a mental health provider to determine whether someone should be getting treatment rather than jail,” she said.
In the course of the Q&A, Rossi made a series of other commitments. She confirmed she would not seek the death penalty, a stark departure from Lacey’s record.
She also said she would not rely on California’s extensive gang database, a list maintained by law enforcement. Less than 10 percent of the people on the list are white. The Los Angeles Times reported last week that Los Angeles Police Department officers were falsifying information to add people on the list. “I think it’s important to understand the lack of reliability of gang databases and to not use that information,” she said.
She committed to setting up a “Do Not Call” list of police officers with a history of misconduct and lying and to not rely on testimony or information they supply. “I believe we need to shift our practices in the county to stop relying on false information and to have a higher integrity in our convictions,” she said. She also confirmed that she wants investigations into police shootings to be conducted independently of the DA’s office.
Rossi also discussed taking into account the immigration consequences of prosecutorial decisions, “rehauling” the use of three-strike enhancements, and exploring the racially discriminatory impact of risk assessment tools. She has said she would not seek cash bail.
Rossi, Lacey, and former San Francisco DA George Gascón will all compete on the same March 3 ballot, which is open to all Los Angeles voters. All three candidates are running as Democrats. If none of them tops 50 percent on that day, there will be a runoff between the top two in November.
The Political Report published a similar Q&A with Gascón last week. Lacey’s campaign has not responded to a request to interview the incumbent.
You are the only candidate running in this race with a background as a public defender. In fact, you chose to highlight this by using “federal public defender” as your ballot designation. Why do you think this background is an asset to occupy the DA’s position?
The fact that I’m the first former public defender to run for district attorney in LA County is incredibly important because I believe that if we really want to see bold, transformational change, we need a different kind of prosecutor. And I believe that having seen the other side of the criminal justice system and its impact on people, having seen what happens after the indictment and conviction and what happens to families, will color and shape the way I can reform policies. That’s how we need to get transformational reform in that office: Every reform and every policy needs to come from a standpoint of understanding the effect of the power of prosecution.
What did you learn or witness as a public defender, with your clients, about what made it difficult once people were arrested to mount a fair defense? And what would you change as DA to change those issues?
The first thing is pretrial detention. I think it can be hard for the standard prosecutor who’s never been on the other side to fully understand the impact on someone when they’re incarcerated. They have a very short amount of time to make a very difficult decision about whether they should fight against the case that they may be innocent of, or to accept a plea offer that will allow them to get out and go home and get back to their kids, to their job. No one really has the luxury to sit in custody for a month, two months, a year, while they’re awaiting the ability to actually fight a case. By that point, a lot of people have lost their job, their home, and sometimes custody of children.
What has driven me to want to be a prosecutor is seeing, at every stage of the process, the need for reform. When it comes to walking into a courtroom and only seeing Black and brown people locked up. When it comes to seeing the incredible amounts of time that people are sentenced to, and how it is not effective and how it is not actually in any way linked to public safety.
Chesa Boudin, a public defender who ran for DA in San Francisco, was attacked during his successful campaign by an opponent who said he should be running for public defender instead of DA. That statement, I found, carried with it some division of roles about what separate functions each of these positions is playing. What is your view on this, why is the DA’s office the place from which to address these issues?
What you raised is the exact reason why it’s so important that we have public defenders running for prosecutor. Historically, we know that a district attorney’s role is not to seek conviction, it’s to seek justice. And over time, for a lot of prosecutorial offices, including in LA, it’s become the prosecutor seeks convictions and the public defender fights against conviction. And that is not the prosecutor’s role.
Oftentimes justice may mean a restorative outcome. Oftentimes justice may mean never filing a case. And that is what we need to fix in our prosecutor’s office: We need to completely shift the views of what a prosecutor does and what justice looks like. And it takes a public defender or someone who sees the other side to completely shift that focus.
You said in an interview recently that you want to “change the culture of mass incarceration that still remains in our prosecutor’s office.” What strategies does such a culture change require? Specifically, what does it require besides changing the policies that the DA has set? To what extent does it demand changing other leadership, other staff rules?
One of the ways that we can change the culture in the office is through how we review or evaluate prosecutors. Oftentimes in an annual review, the question will be, “How many convictions have you had? What is the most hardcore trial you did and the longest sentence you’ve obtained?” If we change those measures of success to look at, “What immigration-safe offer did you provide that allowed someone to keep their immigration status and stay with their family?” Or “What creative pretrial diversion dispositions did you craft that were successful and resulted in someone not going to jail but also not committing another crime?” Those are some of the performance metrics that we can start to look at.
I also think that publishing data and being more transparent about what the office is doing, who they’re charging, what kind of charges they’re filing, and against whom those charges are being filed—that is how we begin to change culture. For example, if the data is revealed that enhancements are been charged against one particular ethnicity, in one particular neighborhood at a higher rate than in other neighborhoods, or other ethnicities, the public needs to know that. Public pressure is what will change practices. Right now our district attorney’s office is sort of a black box. We don’t know publicly what is being done in that office, who’s being charged, who’s getting more time than other people. Once we shed light on that, once we have public awareness, that’s how we start to shift the culture.
You earlier mentioned the decision of whether to file a case. One issue is whether certain behaviors ought to be relevant within the criminal justice system at all—not just in terms of whether to incarcerate, but in terms of whether even alternative modes of prosecution or law enforcement are desirable. What currently criminalized behaviors or activities do you think fall into that category where the criminal legal system should get out of the way?
Yes. I think historically we’ve looked at prosecutions in the criminal legal system as the solution to many if not all of societal problems. And it’s still this knee-jerk reaction for a lot of us to say, “Well, I disagree with that conduct, let’s prosecute.” We really need to rethink whether incarceration or entry into the criminal justice system at all is the right answer for a lot of specific activities or charges.
There are some offenses that should never be charged, and that includes the criminal offense of sleeping or camping on the sidewalk. It should never be illegal to be homeless. There are offenses like that I would never charge as a prosecutor.
Then you have a very high rate of people suffering from mental illness. In our county jails, number one, we need to look at how we can expand access to diversionary programs. But number two, I think it’s very important that we start to look at ways to reject the filing of cases, when people with mental health issues should not be in the criminal justice system at all. One possibility would be, whenever there is a case that is presented for filing to the district attorney’s office where someone is suffering from mental illness, to simply check with the Department of Mental Health to see if they’re receiving services from the Department of Mental Health and potentially refer them there rather than filing a case. There are small things like that that can be done at the crucial stage of filing where we can start to scale back the cases that we even file.
Mental health is an area where the incumbent DA says she’s implemented reform; many activists and public defenders say there’s not enough, not enough cases are diverted. What are some specific ways in which you would ensure that mental health is not being criminalized?
I think it’s unfortunate that we do have this new office of diversion and re-entry that is doing fantastic things with diversionary disposition for people suffering from mental illness. But we see incredibly low rates of acceptance into those programs. We just saw a report come out showing an extremely high number of people who are sitting in LA County jail who have been determined to be safely able to be transitioned into community-based services. That means there are people in jail right now who shouldn’t be.
When it comes to mental health diversion programs, the district attorney makes a recommendation as to whether someone gets admitted into diversion or whether they go to jail and proceed to the regular route of a criminal conviction. I believe that the policy that the district attorney currently has on whether to recommend diversion focuses on factors such as what criminal history, what are the charges, how violent was it, and there isn’t enough focus on the person’s actual mental health status and whether or not they are amenable to treatment in a community-based setting. What I would do is require the input of a mental health provider to determine whether someone should be getting treatment rather than jail. It’s the judge who decides who gets into the program; but judges very highly regard a district attorney’s recommendation, and the district attorney’s opinion on that must be medically informed.
An area that is relevant to your earlier point on when to not file a case is sex work: Would you decriminalize sex work in Los Angeles as DA?
Yes, we need to decriminalize sex work in LA. As a public defender, oftentimes people who were charged with sex work in LA were women of color and were subjected to mandatory jail time for misdemeanor charges. We have a cycling in and out of our jails every day, predominantly women who are charged with sex offenses, and many of them are victims. I also think it’s incredibly important to begin the public conversation in LA about sex work for people who are not victims. It’s incredibly important that we understand the people who engage in this work as a matter of choice.
As district attorney, I would not prosecute the offense of loitering for the purpose of soliciting or engaging in sex acts in public, or the offense of soliciting or engaging in sex for money against a sex worker. I would prosecute crimes such as sex trafficking that result in violence and harm to victims. However, I would never use the criminal justice system to threaten victims, such as by threatening charges of solicitation to coerce victims to testify against their trafficker. I would also consider trainings for deputy district attorneys on consensual sex work, and would publicly advocate for decriminalization.
On a number of issues, you advocate changing the sort of things that are investigated: You talk about investigating landlords in the context of abuses of housing, employers in the context of abusive labor practices, environmental crimes. How do you see the DA’s role in terms of fighting issues we are talking about, like homelessness and poverty, at its roots? And are you concerned about bringing back the idea that the criminal legal system is the key remedy, just in another place?
Right. I think it’s always problematic to start to think, “Oh, well, let’s raise our number of prosecutions in other areas,” because, again, we’ve overly relied on prosecution as the solution to everything. But I do believe that we need to consider the prosecutor as a prosecutor for all. And what we’ve historically seen is a prosecutor who overly prosecutes certain offenses in certain communities and certain people and does not prosecute other offenses in other communities and other people. And so a lot of my platform can be summarized as providing justice for all equally.
We don’t prosecute developers and landlords enough for fraudulent practices that lead to eviction and that throw people unfairly on the street. And we prosecute too much our houseless neighbors for low-level offenses, like needing to urinate in public, for example. It’s about equalizing it so that the justice system works for all equally.
In light of this point about unequal enforcement, I want to ask you about some of the racial inequalities in LA’s criminal legal system. For one, the incarceration rate of Black residents is 13 times higher than that of white residents; it’s nearly three times higher for Latinx residents. What do you think are the main factors that are driving these disparities—and what are some things specifically that you would do to confront this?
You have issues with overpolicing of certain communities, but you also have issues of overcharging in certain communities. And so, again, what we need to do is to equalize. One of the first things we need to do in our district attorney’s office is start to track and publish the data on who we’re filing charges against. We have a lot of data on who’s in jail. We don’t have a lot of data on how they got there, on who charges are filed against, the gender and demographic breakdown, the community where people come from, and the types of offenses. We need that in order to have accountability from the public. One of the things that I would do as district attorney is track and publish all the data on who’s being charged: the race, racial, demographic, gender, and background of the people being charged, the enhancements that they’re receiving and the communities that they come from, in order to then change our policies.
I think the district attorney also has a huge part in sitting down with law enforcement and saying, “Look, I’ve been tracking the data, and I’m seeing that you are only policing the following communities and we’re only receiving arrests from Black men for this offense on this corner. We need to work to fix that and change that, or I’m not going to file these cases.” That is something that the district attorney has the power to do. And if the district attorney truly believes in equal protection and in prosecution in equality, they have to use that power to say they are the gatekeeper. They make the decision on who charges are filed against, and they need to make sure that law enforcement understands they will not discharge every arrest that law enforcement presents to them.
In the federal system you have that transparency, you have the data, you know which districts, which states are prosecuting certain offenses too much or too little. And members in Congress have the ability to call on prosecutors in certain districts and say, “Why are you prosecuting enhancements for Black men in your communities at a rate much higher than everyone else in the country? How can we stop this, and how can we fix this?”
Finally, study and research shows that the more diversity you have in your prosecutor’s office, the lower your racial disparities are in charging decisions. So one of the big focuses I would have as district attorney would be to increase diversity in the office, particularly at leadership and management levels.
You talked of sitting down with law enforcement to warn them of misconduct. There are calls for DAs in California, in Los Angeles, to do more to obtain information about misconduct and use it to make lists of officers with a history of misconduct, to then not rely on their testimony and reports. How proactive would you be as DA to create such lists of officers with history of misconduct and would you call on their reports or testimonies in your prosecutions?
I believe a “Do Not Call” list is incredibly important. A district attorney’s priority must be integrity of a conviction. And so as district attorney, I would not rely on information, data, or evidence that is presented from law enforcement officers who have a history of falsifying reports and who have a history of lying to the court.
I will say as a public defender, going from the county system to the federal system, it was interesting seeing the stark disparity where in our county jails and in our county courtroom, it is very common to accept law enforcement not telling the full truth. And in the federal system, I had one case where there was a misstatement by law enforcement; the case was immediately dismissed. I believe we need to shift our practices in the county to stop relying on false information and to have a higher integrity in our convictions.
You have said police shooting investigations would be independent of the DA’s office.
To what extent do you think the current standards of the law are enough for either the DA or an independent prosecutor to do a sound investigation of this matter? Is that something that still has to be changed at the state level?
The law that we just saw change is better than what we had before, but it is still a watered-down version of where we should be. I will say this, I think, under the law we even had prior to the most recent reform, there are cases where we can and should have presented those cases to a grand jury for potential filing.
It’s very important that we reform the law. But as prosecutors, we also cannot hide behind the law.
We need to regain the public trust that our district attorney’s office is actually prosecuting, or referring to other outside agencies to prosecute so that we really truly have a justice system that’s working for everyone.
What you just said has been a question in Los Angeles under Jackie Lacey and also in San Francisco under George Gascón, who have faced criticism about not prosecuting certain police officers. Do you think that there were cases where either or both could have filed charges where they didn’t?
In none of the cases have I seen the full presentation of the evidence, and in none of the cases have I sent in my own independent review to make a decision on that. But I can say that I’ve reviewed a lot of the memos that are filed by our current district attorney’s justice integrity division, and some of the memos that I’ve seen do not accurately reflect the cases where a prosecution could not have been filed. I think there is a problem and I believe that there are cases where charges could have been filed.
So you are talking of memos in LA?
Yes, that was in LA specifically. There have been circumstances where those who have reviewed the facts and evidence have determined that charges should have been filed. For example, in at least one circumstance LAPD Police Chief Charlie Beck called on our district attorney to prosecute a law enforcement officer, and the district attorney’s office declined to do so.
One area of law enforcement where we see significant racial disparities is gang databases: People listed on California’s extensive gang database are very predominantly people of color, and DAs rely on such information to seek sentence enhancements. What are your views on the reliability of those lists, and would you make use of it in your charging and sentencing recommendations?
We’ve now seen the data that shows how faulty the CalGang database is. But I saw it every day in the courtrooms, on the front lines, and I saw how easily our system would just rely on very faulty information and labeled someone a gang member. I had a misdemeanor case, and the client was in a motorcycle club, and the prosecutor decided to call that a gang and file a gang enhancement against this client. Even with a misdemeanor, adding a gang enhancement required a mandatory minimum of six months in jail. And this client went to trial and was found guilty of the enhancement, went to jail, lost his job, lost his housing, suffered a huge detriment and then, many months later, the appeals court overturned that enhancement and said there was insufficient evidence and that the motorcycle club was not a gang. Well, that’s great, but it wasn’t great for my client who had already had his life disrupted and went to jail. If that enhancement had not been filed, that client would have done no jail time for a misdemeanor offense.
So I think it’s important to understand the lack of reliability of gang databases and to not use that information. And it’s also important to not rely on a lot of these enhancements that will hike up sentences very quickly, and are not related to the actual conduct, not related to safety and not related to the outcomes we’re trying to seek to prevent recidivism.
So, to clarify, you wouldn’t use gang databases at all?
Yes, I wouldn’t rely on that information.
You just mentioned that there are other status enhancements you are skeptical of. What are some that you would use less or not at all in your practices?
I will do a full review of the enhancements that are still being utilized in the office. It’s important to track that data and to see where the problems are. It is very encouraging that in the last few years we’ve seen our legislators start to overturn a lot of the enhancements. I think there’s still over 100 enhancements that quickly jack up sentences and are not in any way tied to or related to the actual activity that a person committed. So I would review all of those enhancements and look at ways to either create presumptions against filing them or eliminate use of them altogether.
Specifically, would you seek three-strike enhancements?
It is incredibly important that we refine the DA policy on when and how to charge those. I think it’s important that we create a presumption against filing strikes against juveniles and require supervisory approval in order to file strikes against juveniles. I also think the same should apply for any third-strike filing. I think there should be a presumption against the filing and require a heavier list and proving of certain factors and approval in order to file those.
When you look at strike offenses that can land someone in prison for life, you’re no longer looking at the actual underlying offense, you’re not looking at what is the correct disposition for this person, for what they did in this instance, and based off of their history and their characteristics, you’re just looking at a blanket mandatory term of imprisonment that takes discretion out of everyone’s hands. And that is not a wise or data-driven way to pursue justice. And so I think we need to completely rehaul the way that we look at strikes in LA County.
Another source of racial inequality is pretrial detention. You’ve pledged to end the use of cash bail. Now, California recently adopted a bill (SB 10) to rely more on risk assessment tools to determine whether a person ought to be released pretrial; many advocates are concerned about this due to findings that risk assessment tools rely on information collected through biased and discriminatory practices. How would you approach this concern? How would you ensure that ending cash bail actually decreases pretrial incarceration?
I think you hit the nail on the head with the problem. SB 10 eliminated cash bail, which is fantastic, but then created something else that is extremely problematic. And it is one of the reasons that we need a district attorney right now who understands the problems with risk assessments, and who understand ways to mitigate against those problems. So, if SB 10 remains law, as district attorney I would advocate for increased oversight of the creation of this risk assessment tool. It needs to have oversight from experts who understand the racial disparities that come from risk assessments. And there needs to be tracking of the data of who is being determined to be eligible for release and who is not.
Then I would advocate for a very expansive recommendation of release policy, because what we need to see is a reduction in the rates of people who are held pretrial. Currently in LA County, about 44 percent of people in the jail are sitting there pretrial. They have not been convicted of a crime, and they have not pled guilty to any offense. And that is, like we talked about earlier, an incredibly coercive situation for people and it often pressures innocent people to plead guilty.
You have said you will never seek the death penalty. That would be a big change given the incumbent DA’s record on the issue. Can you explain what leads you to this position?
The death penalty in California has proven to be not only costly, not only ineffective, not only not a true deterrent, but it’s proven to have extreme racial disparities. We’ve seen a report come out just recently that of the 22 people sent to death row at the time of the report, all of them were people of color. For us to be as a state deciding to kill someone for an offense committed, and for them to only be people of color, that is extremely problematic. We now have a governor who’s issued a moratorium on the death penalty. And we have voters in LA County who have said they no longer support the death penalty. As a district attorney’s office, we must stop seeking death.
I’m interested in how you think about when a sentence is too long, about the length of incarceration, especially as many people are serving life, or de facto life, sentences. To what extent should California reform the length of very long sentences, and how can you as a DA participate in those efforts?
One recent report found that in our prisons in California, about 80 percent of people serving those long sentences have enhancements. So I think reforming how we look at enhancements will be a big part of how we start to reduce these overly long sentences.
I also think as district attorney, I would implement a second-look mechanism in the office. It’s a mechanism where if you have a sentence of 15 years or more, or 20 years or more, that you have a mechanism within the district attorney’s office to review that sentence to make sure that will be the appropriate disposition and outcome: There should be a separate independent set of eyes that looks at that case. The purpose is to have some oversight and review of these determinations because for too long prosecutors operate without oversight and without any sort of mechanism to check and balance what these outcomes are.
We absolutely need to start to reduce the levels of people serving these extensive periods of time in custody, because we’re seeing now that data shows it doesn’t work. One of the most clear points of data on how prison time is tied to reducing recidivism is in these long sentences because people age out of crime. And so what we’re doing is incarcerating people at a phase when they’re not likely to reoffend, and we are overly using resources to incarcerate people when they will not reoffend.
One of Boudin’s promises in San Francisco was to create a unit to investigate whether ICE agents are breaking laws and prosecute potential abuses. Is that something you think is appropriate in LA, and what other ways would you be interested in pursuing to protect immigrants in the county?
Yes. I think it’s important that everyone in LA County is treated equally under the law, and that includes ICE agents. And so that is something that I would explore. One of the things that our prosecutor’s office needs to do is to focus on providing immigration-safe or immigration-informed plea dispositions.
We need a prosecutor’s office that understands that if one person commits a certain offense and just does five days in jail, and another person commits the same offense and gets deported and loses their family and is no longer there for their children, that’s not equality under the law. And so we need a prosecutor’s office who will completely shift the factors that are considered when determining whether to offer a plan what type of plea offer to give, and it has to consider immigration consequences.
I would consider also increasing the expertise of immigration attorneys in the office. We need prosecutors who have a better understanding of what immigrants in our community are faced with and how to mitigate against harm for our immigrant brothers and sisters.
So the plea stage is where you’re looking at for where to break the relationship between the criminal legal system and immigration enforcement?
Yes, but I do think it’s important that the prosecutor takes a stand against ICE in our probation offices, in our county courtrooms. I think when immigration officers do commit crimes, they need to be prosecuted. But I think immigration-safe and immigration-informed decision-making are incredibly important.
You worked on the First Step Act, the federal criminal justice reform, while you were working in Congress. What are legislative changes that you think are most important for California to adopt and that would have the biggest, boldest impact on mass incarceration?
We need to continue to reform the law when it comes to law enforcement use of force. SB 10 [the reform to pretrial detention] remains law, we need to pursue additional reforms to mitigate against the risk assessment that it contains and potentially advocate to remove that risk assessment scheme. And it may sound counterintuitive, but the district attorney’s office needs to advocate for legislative changes for increased oversight and increased public awareness about what’s going on in the district attorney’s office.