Progressive reformers won big in Travis County. What’s next for the criminal justice system?

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“On day one, we’re going to end the prosecution of low-level drug offenses in Travis County,” said José Garza, the Democratic nominee for Travis County District Attorney (DA), at a virtual briefing with The Appeal and NowThis News.

In committing to end the prosecution of sale and possession of a gram or less of drugs, Garza boldly declared that he will effectively end a war on drugs, which disproportionately impacts Black and Brown Texans, and curtail one of the biggest drivers of racial disparity.

Travis County, home to Austin, often brandishes its progressive reputation, but those currently in power have failed to keep up with other counties in advancing criminal justice.

However, come January 2021, a new wave of progressive leadership is set to transform all aspects of Travis County’s criminal legal system. Joining Garza, who overwhelmingly defeated incumbent DA Margaret Moore by nearly 40 points during a runoff election, are Delia Garza, the current Austin Mayor Pro-Tem and Travis County Attorney-elect who won on a platform to reduce racial disparities in misdemeanor charges, and Adeola Ogunkeyede, Travis County’s first chief public defender who helms the newly established adult public defender office.

All three, and Annette Price, the acting co-executive director of Grassroots Leadership, spoke at the virtual briefing to reimagine how criminal justice will function in Travis County by centering justice, race, and public safety.

In Travis County, criminal prosecution is split between the district attorney, who prosecutes felony offenses, from low-level drug convictions to sexual assault to police brutality, and the county attorney, who prosecutes misdemeanors, from petty theft to disorderly conduct to trespassing.

DAs, in particular, have remarkably broad discretion in shaping criminal justice — they can choose whether or not to investigate and prosecute police misconduct, to prosecute or protect protestors, and to end cash bail. They can effectively transform — or reinforce — a system that currently criminalizes poverty, perpetuates institutional racism, and disproportionately locks up Black and Brown people.

These prosecutors’ offices are often well-resourced and equipped with a robust team of attorneys; a stark contrast to those on the other side of trials as defenders of the accused.

Because of a Supreme Court decision in 1963, every person accused of a felony, as well as misdemeanors in which imprisonment is imposed, is guaranteed a lawyer even if they cannot afford one. In Texas, the process of assigning that guaranteed lawyer is dictated by county. This system, however, is grossly underfunded and overloaded.

Most defendants in Texas are represented by a diffuse network of appointed, underpaid, and overburdened defense attorneys juggling a multitude of cases. These attorneys are often too overworked to properly investigate a claim, and get paid a flat rate per case, win or lose. They are, thus, incentivized to perpetuate “plea-bargain mills,” in which clients are encouraged to plead guilty — even if they are completely innocent — to receive a lesser sentence. Those who cannot afford to hire their own lawyer receive harsher sentences and are confined to jail longer than those with money.

Until recently, Austin was the largest city in the country without a public defender’s office to help represent poor people accused of crimes. Community groups like Grassroots Leadership and Texas Fair Defense Project were critical in establishing the office by centering testimonies of people locked in jail for months without ever knowing or meeting their assigned defense attorney. 

Ogunkeyede, the inaugural chief public defender, is committed to changing that flawed system by creating a client-centered public defender office that will not just take misdemeanor and felony cases as they are filed and charged. Rather, the office will holistically examine someone’s lived experiences, and possibility of recidivism.

“Court processes cannot be separated from what happens in the community, where the history of deep-seated racial and economic inequity propel people into court involvement,” Ogunkeyede said about the need to examine systemic inequities in affordable housing, public education, and access to healthcare that may have contributed to a person’s contact with the criminal legal system in the first place. 

Ogunkeyede also articulated the need for parity of resources between prosecutorial offices and defense offices, so that those accused are backed by as many resources as the system that is sentencing them — a profound and just change to the criminal legal system. With Travis County’s newly formed office, Texas now has just 20 public defender county offices out of 254 counties. 

The majority of cases that will be brought before Ogunkeyede’s public defender office will be misdemeanors — minor, low-level criminal offenses punishable by no more than one year in jail or prison that account for about 80 percent of the nation’s criminal docket. Delia Garza, who will take over as Travis County Attorney in January, proposed a potential pilot exchange program between prosecutors and defense attorneys to expose attorneys to both sides of a trial. She will steer a transformative effort to decrease racial disparities in the county’s jail population and work to decriminalize poverty.

In Travis County, Black people spent nearly twice as long in jail as their white counterparts, and nationwide, white people were nearly 75 percent more likely than Black people to have all misdemeanor charges dropped, dismissed, or reduced. These stark racial disparities disproportionately punish the poor, who are crushed in debt from court fees, bail, and fines. Because people of color and the poor are more likely to spend more time in jail, they also face potential ramifications of losing their employment from missing work, being deported, and being disqualified from welfare benefits and housing options. 

Delia Garza has seen deep racial disparities in life expectancy, jail population, and healthcare during her time on the Austin City Council, and she is committed to eliminating these inequities. Garza has taken a bold stance to reject the systemic over-criminalization of poor, predominantly Black and Brown people that holds no public safety benefit, by declaring that she will repeal sit and lie ordinances to ensure those experiencing homelessness can sleep in peace, decline prosecution of minor marijuana possession, and decline prosecution of low-level theft of food.

“Everything in someone’s life affects the point to which they are in contact with the criminal justice system,” Garza said.

Her work will dovetail with that of the likely incoming DA, José Garza, who ran on a platform to deliver both justice and public safety to Travis County, but especially to the most marginalized.

“Voters sent a resounding message that they believe our criminal legal system is broken,” he said. “They can see, and have felt that our system weighs most heavily on working-class people and people of color. And they know that that failed approach does not make our community more safe.”

Garza is committed to investing in harm reduction strategies and infrastructure, ending cash bail to ensure there is no one sitting in jail who has not been convicted of a crime, prioritizing justice for sexual assault survivors, protecting the rights of protestors, and promptly investigating misconduct perpetrated by law enforcement officers. This is especially critical given that the incumbent DA has declined to present the cases of Javier Ambler and Michael Ramos — two unarmed Black men recently killed by Austin police officers — to a grand jury before leaving office. Garza noted that in the last four years, not a single law enforcement officer who has killed a person of color has been charged with a crime in Travis County.

Currently, more than 70 percent of the jail population in Travis County has not been convicted of a crime, but remain in jail because many cannot afford to pay cash bail. Further, Black people comprise 9 percent of the county’s total population, but almost 33 percent of its jail bookings and almost 30 percent of drug possession arrests.

“For over 400 years in this country, we have been sold this lie that what public safety is is just locking up as many working people and people of color as we can. And if we just lock up enough people of color, that would somehow make our communities more safe,” Garza said. “But we know that’s not true. We know that what public safety is is a good job, access to healthcare, access to good schools to send our children, and we have an enormous amount of work ahead of us to reimagine public safety as a community.”

Garza believes deeply that in order to fix Travis County’s broken criminal justice system, safety must be put first. And the evidence and data show that the criminal legal system disproportionately weighs on working-class people, people of color, young people, and women, without delivering broader public safety.

Garza’s resounding win was a powerful mandate to reimagine justice and end an oppressive criminal legal system on Black and Brown communities. With a new slate of reformers, already working together at the helm of Travis County’s justice system, those who have been cruelly criminalized and locked away based on their skin color may now receive long-awaited justice.

Photos: José Garza / Adeola Ogunkeyede / Delia Garza

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