Austin Prosecutor Candidate Wants to Cut His Budget and Avoid Jailing Anyone

Dominic Selvera hopes to “shrink the system” if elected Travis County Attorney. In a Q&A, he explained how he would cut prosecutions, and steer money toward public services “outside of the criminal justice system.”

Daniel Nichanian   |    February 13, 2020

This article originally appeared on The Appeal, which hosted The Political Report project.

Dominic Selvera hopes to “shrink the system” if elected Travis County Attorney, an office that prosecutes only misdemeanors. In a Q&A, he explained how he would cut prosecutions and avoid jail time, and steer money instead to public services “outside of the criminal justice system.”

With three weeks to go until the Texas primaries, Dominic Selvera is making a case that is still rare to hear from candidates for prosecutor: that the criminal legal system should be cut down. It’s not enough to resist incarceration—though that matters too, he insists—if you’re then chasing other ways of processing and supervising people.

“We’re looking to shrink the system and divert some of those resources to provide the help that people need,” he told me this week in a Q&A, available below. He would call for cuts to his own budget, and to the budget of the sheriff’s department, which runs the county jail. He wants those funds steered instead toward housing or treatment options run outside of the criminal legal system. “They’re choosing to invest in building cages to house humans in as opposed to housing the neediest neighbors who don’t have a roof over their heads,” he said of the plan to build a new jail.

Selvera, a defense lawyer, is running in the March 3 Democratic primary for county attorney in Travis County (home to Austin).

The position has jurisdiction over prosecuting only misdemeanors. That means prosecuting things like possession of marijuana and some other drugs, low-level theft, sex work, and DWIs. (Felony offenses are handled by the district attorney’s office, which is also on the March ballot.)

Misdemeanors are how most people encounter the criminal legal system here. In 2019 alone, the county attorney’s office opened about 38,000 cases, more than double that of the DA’s office. 

Misdemeanor arrests “have become an increasingly important element of local law enforcement” but they frequently “terminate in a disposition that involves no jail time, and quite often, not even a criminal conviction,” Issa Kohler-Hausmann, a professor at Yale Law School, writes in her book “Misdemeanorland.” Still, they remain greatly disruptive, she argues. It’s just that they’re getting processed under a “managerial model,” which cares less about convicting and incarcerating people, than “managing people through engagement with the criminal justice system over time.” That means court dates, court debt, and court-imposed programs people must attend under threat of renewed prosecution.

Such an approach may steer people away from incarceration, but Selvera argues that it is insufficient. We still think of too many issues as stuff to fix using the toolkit of criminalization and prosecution. He says for instance that “if we really want to address substance abuse issues” as a “public health issue,” we should do so “outside of the criminal justice system,” as Portugal has done

Selvera said his office would stop prosecuting marijuana and misdemeanor drug possession cases, as well as criminal trespass cases that stem from homelessness. He also said he would stop prosecuting sex work so as to not interfere with a person’s “right to earn a living and to put food on the table.”

That leaves many charges that Selvera says would still be handled in the criminal legal system, though. On those, he laid out how he wishes to steer people away from jail and toward alternative dispositions “where we actually help people so that we can reduce crime.”

There were 23,000 cases of people detained in jail in Travis County over a misdemeanor charge in 2019; the majority were being held pretrial. “If you haven’t been locked up in jail or if you haven’t had clients locked up in jail, you don’t realize how traumatic it is,” Selvera said. “It puts people in a worse condition when they get out because you’ve essentially disrupted someone’s life.” He added that cycling people through jail has no benefit for safety; studies show that incarceration can have criminogenic effects.

So how would that perspective concretely impact Selvera’s policies? He affirmed that, if he is elected, his office would not recommend jail time over any misdemeanor conviction. Instead, he would use probation terms and restorative justice opportunities.

He outlined one exception: cases where defendants themselves express a preference for jail time over a probation term. That very prospect raises separate questions about the harshness of the probation system, which Selvera said he would address by seeking shorter terms.

Selvera also talked of cutting pretrial detention. “You’re looking at a much higher conviction rate if you are stuck in jail, and you are negotiating from a place of weakness,” he said. He has said he would stop using cash bail. And he also said he would set a presumption of release for anyone arrested over a misdemeanor. He added, though, that he would favor some period of detention in some cases, for instance until a protective order is issued in cases of family violence victim. Also, in cases where a protective order is violated, he said a judge would need to consider whether to grant release.

Selvera, who is also a member of the Democratic Socialists of America, is one of four Democrats running in the March 3 primary for county attorney, alongside former judge Mike Denton, assistant prosecutor Laurie Eiserloh, and Austin City Council member Delia Garza. If no one clears the 50-percent threshold, the top two vote-getters will move on to a May runoff.

The Q&A has been condensed and lightly edited for clarity.

Progressives who run for prosecutor have been talking of a broken system that doesn’t work as it should. You put it in a different way. You say on your website that “if you are poor or you are a person of color, it works as designed — it works against us.”  Why is your perspective that this is the way in which the system is designed?

This is something that any defense attorney or anyone who has represented indigent clients can tell you without equivocation, especially in Travis County where we’ve been operating under a cash bail system. Typically someone is kept in jail because they can’t afford the amount of bail that’s set in their case. They are put on a bond review docket where they’re given the option of pleading guilty to their offense,  getting out of jail, getting to go home back to their families, back to work, but they have to live with that conviction regardless of whether or not they committed any offense. Or else fighting your case, being put back in jail, and having to suffer because of your financial situation. 

People who can afford cash bail, or are given a [personal recognizance] bond, get significantly better outcomes. They are able to handle their case outside of jail. You’re looking at a much higher conviction rate if you are stuck in jail, and you are negotiating from a place of weakness.

So the system’s design helps the prosecution get convictions.

Absolutely. As long as the metrics prosecutors are measured by are wins or losses, convictions, this is the way it’s set up so that we can continue to grind people through this system regardless of what the results are for Black communities, brown communities, poor communities. This is the system that’s been purposefully designed and it is operating as it was meant to. 

When the people who have been in charge of it fail to see the devastation that it causes, it continues to happen because people haven’t had loved ones in jail, loved ones in prison, people that they care about go through these experiences. That’s something that differentiates me. I’ve got a cousin in federal prison right now because of a drug case, another cousin on felony probation in Texas because of drugs being the underlying reason. I’ve been in Travis County Jail, too poor to afford bail, when I was in college. To be directly impacted by the system shapes the way I see things. It is the reason I became a defense attorney representing indigent clients.

You were just talking about the harm of pretrial detention, and indeed the majority of people held in the county jail are there pretrial, many due to an inability to afford bail. You have said that you would end the use of cash bail. What about ending pretrial detention altogether: Do you see situations where a misdemeanor charge could justify detaining before a conviction?

I don’t think that there’s any initial misdemeanor charge where someone should be held pretrial. I believe that everyone who is accused of a misdemeanor should be allowed pretrial release. But there are some caveats. If someone is accused of a DWI, they need to be sober before they’re released for safety reasons; that should not take more than 24 hours. If someone is accused of domestic violence, assault, they should have the presumption of release but there needs to be a protective order in place; there needs to be contact with the victim to let them know what’s going on with the case. In the instance where we see a violation of a protective order, they need to have a hearing in front to determine whether they are a danger to the victim. 

Besides pretrial detention, what do you think is fueling the sheer size of the county jail—with about 23,000 cases of people held in jail in misdemeanor cases last year?

I think a lot of that is fueled by policing. We’ve evolved to where policing has become weaponized; you see the shift to the warrior mentality since law enforcement agencies have been able to get federal equipment, firearms, tactical equipment. It’s certainly more menacing if you’re in a Black or brown community. We’ve seen poor communities and communities of color really be devastated. We’ve seen the stats that show that policing is done differently in East Austin, which is predominantly Black and Spanish, versus West Austin, which is predominantly white. We see that if you’re pulled over in East Austin, you’re more likely to be searched, you’re more likely to be arrested. If you’re pulled over in West Austin, you’re more likely to be given a warning and you’re less likely to have your vehicle searched. We know that if you are found in possession of marijuana, you’re more likely to be arrested if you’re Black versus if you’re white. Policing has been used as a tool of oppression, versus really serving the public. I think that’s been fueling a lot of the incarceration here in Austin. 

The sort of policing you are describing has meant a very active docket for the county attorney’s office in Travis County; there were about 28,000 misdemeanor-level cases disposed of by the office in 2019. One big change you’ve promised in your campaign is to not prosecute certain behaviors, such as marijuana possession, misdemeanor drug possession, and sex work. Now, some prosecutors talk of alternatives to incarceration, diversion programs. But it seems that you’re also saying: Those behaviors should not be under the purview of the criminal system at all. Is that right? What is your thinking for taking that extra step?

We should not be handling any drug possession cases through the county attorney’s office, through the criminal justice system. Diversion programs are a positive tool that can be used for certain offenses. But I think we get into a problem, at least that’s what I’m seeing here on the campaign trail with some of my opponents just saying that diversion is the answer to all those charges. 

What I am proposing is to offer drug treatment services for people who may need it outside of the criminal justice system. If we really want to address substance abuse issues — because we know it’s a public health issue, not a criminal justice issue — we have to take a stand and say we are not going to prosecute these cases, and not rely on the term diversion because it’s politically safer to say. If I’m elected, we’re done prosecuting any drug cases that come through our office. 

There’s data that shows this type of method works. Portugal went to a full decriminalization of drugs back in the early 2000s, after they had one of the worst drug overdose problems in Europe. Substances were still illegal and law enforcement could confiscate those drugs. But instead of sending these cases to the criminal justice system, they would make a referral to a commission where their only job was to determine if the substance use was harmful or not. If the substance use was not being harmful, they would just be sent on their way; you go on living your life. If the substance abuse was deemed to be harmful, they would be given a true opportunity to get substance use treatment. They could go to rehab, get the help that they needed without the threat of incarceration, of having to go back in front of a judge to explain why they failed rehab. 

We know that each individual person who’s going through rehab has their own individual journey. Some are going to stumble, and I believe that those stumbles should not result in any carceral effect for them.

The good thing is, the data has shown that the Portugal system has worked. They have decreased overdose deaths by 80 percent. They have decreased new HIV cases as a result of drug use. And harmful drug use is down across the board. It’s really just getting over the mental hurdle of equating drug possession with having to incarcerate someone. 

Can you say more about what’s unhealthy about the very threat of prosecution?

That is the important part of it: It is run outside of the criminal justice system. If you take all those drug cases out of the criminal justice system, that’s a huge chunk of money that had to be spent on locking people up in jail. That should be spent on counselors, on drug treatment, on things that are shown to be effective. 

You’re discussing the importance of relying on a public health approach to treatment. But how much power would you have as county attorney given that this calls for a broader, more holistic approach? What would you need from other institutions and systems in Travis County?

You hit the nail on the head. This is an issue that requires buy-in from the commissioner’s court for funding. It requires buy-in from the community that’s going to play a big role in implementing harm reduction systems like needle exchanges, like actual substance abuse clinics. Part of my job as county attorney is not only to set these policies, but to advocate for funding: going to the commissioners court and saying, “You need to reduce the county attorney budget. My budget needs to be reduced so that we can invest in systems that offer help to people.” 

It’s going to be critical that I practice what I preach. And I’m not only going to ask for reductions in my budget, I’m going to ask for reductions in the sheriff’s department’s budget because they’re the ones that operate the county jail. They have by far the largest budget in Travis County, the last time I looked it was $198 million of a $1.2 billion budget. 

We’re looking to shrink the system and divert some of those resources to actually provide the care that we need, actually get the help that people need.

You’ve also committed to not prosecuting sex work.

Yes, sex work for both the buyer and the seller. There are a few reasons. One is that we’re not any safer when we prosecute and criminalize sex work. For a person who is in that industry, they are less likely to report crimes against them, whether it’s theft, assault, sexual assault, if they know that they’re going to be prosecuted for what they do for a living. They’re less likely to report sex trafficking. Secondly, I fully believe in women’s rights, and I understand that women are not the only people engaging in sex work, but for me it does not feel right telling a woman what she can do with her body consensually. Between that and a person’s right to earn a living and to put food on the table, to be able to do so without fear of prosecution is very important to me. 

If we’re looking to shrink the criminal justice system, to shrink people who constantly go through our county jails, this has to be a part of it. To clarify, I’m talking about sex work, I’m not talking about overlooking any type of indecent exposure where someone may be engaging in a lewd act in public, within view of people. 

I want to ask you about homelessness because one report showed that, when homeless people in Austin were issued ordinances, thousands still then got arrest warrants for failure to appear in court. There have been more debates since on homelessness in Travis County. You have said you would not prosecute criminal trespass charges, which are often used to charge behaviors linked to homelessess. So how would you end the de facto criminalization of homelessness, and again what does it mean to shift the issue onto other public authorities?

If our goal is to help people, putting people through the criminal justice system because they’re poor and they lack housing is problematic for me. I think it’s important to remember the distinction when I talk about not prosecuting criminal trespass. If it’s an ex-boyfriend or girlfriend stalking their former partner, those criminal trespass are still going to have to be handled. I don’t want that to get lost in the conversation. It’s still our duty to protect victims of violence and criminal trespass. When the underlying reason is poverty, homelessness, we are not going to prosecute those, to really focus on looking to get people temporary housing, with the hope that we can get to a long-term housing solution. 

We haven’t focused on a Housing First policy. I think that both the city of Austin and Travis County have the resources to end homelessness if it was as important as a priority as we hear it is. To give you an example, the commissioner’s court is committing $79 million to build a new women’s jail. I am absolutely opposed to building a new women’s jail. We know that about 70 percent of people in jail have not been convicted of a crime. They’re only there because they can’t afford cash bail. So spending $79 million is a huge waste of money. Now, when you think about what can happen with $79 million in our community, we could replicate community-first village for chronically homeless folks, to get permanent housing.

But unfortunately, they’re choosing to invest in building cages to house humans in as opposed to housing the neediest neighbors who don’t have a roof over their heads.

We’ve talked about your proposals to shrink the system. Let’s talk about the offenses that you say you would prosecute. You have talked of moving away from incarceration, separately from moving away from prosecution. So what does it concretely look like to you to move away from incarceration in cases you would prosecute?

The offenses that we’re dealing with, misdemeanors, I don’t think that jail should be the answer. If we’re looking at reducing harm, which should be the ultimate goal, I don’t think putting someone in jail accomplishes that goal. It accomplishes nothing except to make a person suffer. 

We need to be looking at different ways to hold people accountable and get people, especially victims of violence, an opportunity to have their harm addressed, to have their voices heard. For me, that is through restorative justice. When we’re talking about domestic violence, assault, bodily injury, these are the types of cases where restorative justice could make a huge impact. We can’t make it mandatory for all the assault cases, but for victims of violence who want this as an option, we need to provide it for them and give them the opportunity to have their voices heard and have some true healing.

So what role, if any, does the option of incarceration retain in your thinking for the range of cases under your jurisdiction?

Legally, it would have to be considered, it’s part of the range of punishment. But as county attorney, I have to determine what justice means, and for me jail does not equal justice. We’re not going to recommend jail as a regular practice. There are some circumstances where a person may not think that they can be successful at probation for an extended period of time, so if they are requesting a jail recommendation, we would not be opposed to it. It would certainly be on the lighter end; I don’t see us making any max recommendations or even half recommendations. 

I mean, we’re talking about jail. You have to realize how traumatic jail is. If you haven’t been locked up in jail or if you haven’t had clients locked up in jail, you don’t realize how traumatic it is. That’s why it’s so easy for people to give these long sentences because they have no idea what it’s like in jail, and truly how harmful it is. Just to stick a person in a cage and not allow them to improve their lives to where they’re making better decisions, not harming other people and not harming themselves, it doesn’t address any of the issues that got that person to where they are. It puts people in a worse condition when they get out because you’ve essentially disrupted someone’s life. So for me the idea of jail for a misdemeanor is counterproductive, it’s cruel. 

Jail is going to be extremely rare. We’re not going to be making jail recommendations unless a person chooses that on their own. 

Part of our duty is to hold people accountable. And for me that accountability does not equate to jail time. There are other ways to hold people accountable, whether you’re talking about community service, anger management class, substance abuse classes or Alcoholics Anonymous classes for people who get a DWI first or DWI second. There are tools that we can use that don’t involve locking people in cages so that we can do our duty to hold people accountable and really make our community safer. I just don’t believe that locking people in cages makes us any safer because there’s no rehabilitation going on when you’re jail. You go to jail, you suffer, you get out, and you’re not in any better position to live a better life.

So, to repeat, you said the only circumstance where you believe you would recommend a jail sentence is if the person would prefer jail time over a probation?

The only time we would make a recommendation for a jail sentence is if the defense is requesting a jail sentence. That’s it.

And is that true during a plea offer and a trial, or would there be a difference there?

Yes, the days of the trial tax are going to be over. If we have a DWI case and we make a pretrial recommendation of nine-months probation, and the defense team declines it, if we go to trial and the state wins, we’re going to make that same recommendation. We’re not going to recommend jail time, we’re not going to recommend 18 months probation to punish them for going to trial. 

So how do you propose setting up the community and the parties involved to be stronger, especially in the range of cases you mentioned earlier like family violence, where there is a situation of harm against a person?

We have the tools at our disposal, things like protective orders, emergency protective orders when necessary, that don’t allow people who are accused of family violence to go within 200 yards of the victim. That would not stop, we would still be able to use those tools. But what we’re talking about is, how do we address the issue? How do we prevent family violence in the future? For me, it’s utilizing things like a batterer’s intervention program, it’s anger management classes, it’s community service. It’s a lot of things where we have the tools to hold people accountable, to let them know that this is not right. You have to actually address the issues that led to that person hurting someone else. 

For the people who think that jail is the answer, I would tell them: When they go sit in jail for three months, and they get back out, they’ve had zero counseling, they’ve had zero treatment for their anger issues. Do they think that that’s going to make the person who they get into a relationship next any safer, if they haven’t addressed what’s causing them to lose their temper and strike someone?

I believe that jail does not solve that one bit. Now, if you just purely want to punish someone for punitive reasons, well, I’m not the person to vote for. Because what I believe in is actually helping people get better, and not just punishing people for punishment’s sake. Someone who goes through jail and gets no treatment doesn’t come out better on the back end, they’re not less likely to commit crime if they haven’t addressed those underlying issues. And so jail just does not accomplish what the average person thinks it does. What I’m trying to do is offer a different a different path to where we actually help people so that we can reduce crime.

Let’s step back for a moment: You said the only circumstance you would recommend jail is if a person would prefer it over probation. It may seem counterintuitive to some that someone would choose jail over probation, since probation is often portrayed as the alternative to incarceration. What do you think it is about probation that could lead someone to make such a choice? Does that say something about probation itself and the conditions of probation?

Absolutely. The typical probation sentence for a misdemeanor may be 18 months, so that for 18 months if they mess up, if they commit a new offense or are accused of committing a new offense, or if they fail a drug test, or if they fail to take a class, they fail to do any of the recommendations that the probation department requires of them, they could be hauled back into court on a revocation hearing. If there’s an actual revocation, now they’re looking at being sentenced up to 12 months in jail. So what seems like a good deal on the front end, if there’s any issues or hiccups, now they’re looking at a very long jail sentence for any type of transgression that occurs afterwards. 

If someone doesn’t think either they can abide by those rules, or they can’t afford to make the probation payments, or they have transportation troubles to where it’s tough for them to go visit their probation officer on a monthly basis, then probation starts looking less appealing. So I’ve had a client in that situation before and he requested a jail recommendation. It’s absolutely tough to hear. But we discussed the pros and cons, he felt that in his situation it was best to take a short jail sentence, sit in jail, get out, and then he was completely free with his case, completely done, no reporting to probation. But you have to suffer in jail for X amount of time. As someone who wants to see no one in jail, that’s a tough pill to swallow. 

But absolutely, it concerns me that that’s the fate of probation that someone would rather sit in jail than endure 18 months of stress. . 

As you just said, probation violations are a major driver of incarceration, often over what are considered technical violations. So when you say that you will shift some jail recommendations to probation, how would you approach situations where someone violates onerous terms of probation? What does it mean to you for there to be accountability at that point, while not fueling incarceration over violations of probation conditions?

One of the ways we’re going to address it is that we’re not going to recommend those max sentences to where it’s a year in jail probated for 18 months. We’re going to give realistic recommendations. The ultimate goal is to reduce crime. And that’s got to be our focus. And so making those very long probation recommendations, making those underlying sentences a year long, that’s the whole part of the problem. 

If a person who’s running for this office is truly committed to ending mass incarceration, this has got to be a point of priority that you look at what’s causing people to go to our county jail. And then similarly at the felony level it’s the same issue that’s driving people to do state time. We want to focus people on being successful and focus on a true rehabilitative experience.

You said last month that, if elected, you would not join the Texas County and District Attorneys Association. What is your reasoning about why you would leave the group?

I think that we have different ideals on what justice is. Certainly you see the traditional method of believing in pretrial incarceration, believing in jail to be the answer for everything. So I just think fundamentally, my ideals don’t align with theirs. And I see no reason to remain a part of that group.