Austin D.A. Candidate Wants to Stop Sweeping Issues Under the Rug of Criminal Justice
José Garza makes the case for why he would not prosecute low-level drug cases, and how he would hold police accountable in Travis County, in a Q&A.
Daniel Nichanian | June 30, 2020
This article originally appeared on The Appeal, which hosted The Political Report project.
José Garza makes the case for why he would not prosecute low-level drug cases, and how he would hold police accountable in Travis County, in a Q&A.
As Black Lives Matter protests call to reduce the scope of law enforcement to boost other public services, the movement’s demand is also echoing in district attorney elections.
Its next test will come on July 14 with the Democratic primary for DA in Travis County (Austin) where José Garza, a former public defender who now works as a labor and immigrants’ rights attorney at the Workers Defense Project, is challenging Margaret Moore, the incumbent DA.
Garza is making the case that we criminalize too many issues that would be better taken care of outside of law enforcement and DA offices. “We use our criminal justice system like a rug that we sweep our problems underneath so we don’t have to look at them,” he said in a Q&A with the Appeal: Political Report, transcribed below. “The first important step is to remove that rug so that we can see these challenges for what they are, and treat them in the way that we know will best keep our community safe.”
He added, “Public safety is a good job, it is access to healthcare, it is a good school to send your children. Public safety is stability.”
When it comes to decriminalization, Garza’s most emblematic promise may be that he will not prosecute cases of drug possession or sale of quantities under one gram.
Local reform advocates have faulted Moore’s office for continuing to file charges over low-level drug cases, The Appeal reported in December. Moore says she steers those cases to alternative modes of prosecution to reduce incarceration. By contrast, Garza’s promise to outright decline charges goes a step beyond other recent platforms by progressive candidates who have run on declining possession cases but did not extend that to sales.
In the course of the Q&A, transcribed below, Garza did not mention other charges he would decline to prosecute, noting that Travis County has a separate office (the county attorney) that handles misdemeanor-level charges, and he confirmed he would continue charging cases of drug possession above one gram. But he also made the case for ending the incumbent’s requirement that people plead guilty before entering diversion programs. I also asked him why he opposes building a new jail, how he would protect noncitizens from deportation, and how exactly he proposes to provide people meaningful opportunities for release after 10 years.
Garza also said he would systematically present police violence cases to a grand jury; he faulted Moore for still not having done this with the 2019 police shooting of Mauris DeSilva, even though one of the officers involved then shot and killed another man, Mike Ramos, in April. He has staked other positions that his opponent does not share, including support for fully ending the use of cash bail and a commitment to never seek the death penalty.
Garza and Moore are facing off in this runoff because no candidate crossed the 50 percent threshold in the March 3 Democratic primary.
That day, Moore received 41 percent, behind Garza’s 44 percent. A third candidate, Erin Martinson, also ran on a reform-minded platform and was eliminated after receiving 15 percent; she has since endorsed Garza, as did U.S. Senator Bernie Sanders of Vermont earlier this month.
The runoff winner will face Republican Martin Harry in the general election and will be favored given the county’s heavily Democratic lean.
Garza said the hardest part will begin after the election is over. “Making the changes that we’re committing to is going to take advocates and members of the community continuing to be engaged and continuing to hold the district attorney’s office, law enforcement, the city council, and the county commissioners accountable,” he said.
The interview has been condensed and lightly edited for clarity.
I want to start one of your most significant proposals in terms of the national conversation on prosecutorial policies, which concerns drug prosecutions. Local advocates have faulted the current DA’s office for prosecuting low-level drug cases; DA Moore has said she has reformed approaches to drug policy to steer defendants toward alternative court programs that reduce incarceration, though that has meant the DA’s office is still involved and charging people. By contrast, you have said you would not prosecute cases of drug possession or sale under one gram. Why is that the better approach, taking prosecution out of the picture for those cases?
I believe it is time to end the prosecution of low level-drug offenses for a couple of reasons. One, every day that a person struggling with substance use stays in jail, the likelihood that they will commit another crime goes up. Using our resources to prosecute these offenses increases the likelihood that people will commit future crimes, and that makes our community less safe. The other thing that we know is that prosecuting these offenses is one of the greatest drivers of racial disparities in our criminal justice system.
The other reason is there are other things that we should be spending our resources on that would make us more safe. In Travis County, the district attorney’s office brings more drug cases than any other kind. At the same time, in the last four years, our district attorney’s office has not charged a single police officer who has killed a member of our community with the crime. At the same time, survivors of sexual assault feel like they can’t get justice in our system.
So that’s to answer your question why I think it’s so important to get the criminal justice system out of treating substance abuse disorder.
Now, what we know does work is harm reduction policies. Here in Travis County, if a person feels like they need medically assisted services to fight their addiction, and they don’t have insurance, there is a wait of upwards of nine months, sometimes close to a year. For someone battling substance use disorder, that time can be the difference between life and death. It’s time to reimagine what the job of a district attorney should be. I think one of the primary jobs is to be an advocate for the kinds of interventions that we know will keep our community more safe.
So, to broaden this point of getting the criminal legal system out, one of the demands of the Black Lives Matter movement right now is to shrink the role of the police, and rethink whether something is relevant for law enforcement to intervene. Should there be a parallel effort to shrink the role of the DA, if not cut the DA’s budget?
In this country, in this state, in the most progressive county in the state, we use our criminal justice system like a rug that we sweep our problems underneath so we don’t have to look at them. As a public defender, I saw firsthand the way we use our criminal legal system as a rug to sweep people under after they have been failed by our broken education system, our broken mental health system. The first important step is to remove that rug so that we can see these challenges for what they are and treat them in the way that we know will best keep our community safe.
Generally speaking, for the last 400 years in this country, we have been sold this lie, that what public safety is, is locking up as many Black and brown people as we can. We’ve been told that if we just lock up enough people of color, that will keep us safe. But what we know from lived experience and from the data and the evidence is that public safety is a good job. It is access to healthcare. It is a good school to send your children. Public safety is stability.
Through that lens, we all need to be evaluating how we are using our limited resources in ways that best create stability and public safety. For example, it does not keep our community most safe to send law enforcement to intervene when someone is having a mental health crisis. I think the same analysis needs to be applied to the district attorney’s office. As a starting place, we need to look at some of these crimes that haven’t been prosecuted and haven’t been taken seriously that we know will keep our communities more safe. Sexual assault is a crime that we need to take very seriously; there’s, I think, a rape culture and a sexual assault crisis in Travis County that we’ve got to make sure we have the resources to tackle head on. The same is true with violence by law enforcement against members of our community, particularly people of color. The district attorney in Travis County recently explained the office’s inaction on these kinds of crimes by saying, ‘well, we don’t have the resources.’
Can you say more about what systems that are outside of the criminal legal system and outside the DA’s office you think should be expanded in Travis County?
Drug policy we’ve talked about extensively, but I want to reiterate how much infrastructure is still necessary to smartly and adequately address that. We have to make some significant investments in support for people experiencing homelessness in our community, and that starts with housing. It also includes education. In Travis County, all juvenile offenses are within the jurisdiction of the district attorney’s office, and I think the district attorney’s office has a huge role to play to make sure that we are not running kids through our criminal legal system.
One specific thing that the county is spending money on is building a new jail. That is estimated to cost $79 million. Do you support or oppose the construction of that jail?
I oppose that. We are going to greatly reduce the number of people sitting in our jail. We know that the jail is not at capacity now. And so the math doesn’t add up that we would be planning to incarcerate more people. Look, 70 percent of people sitting in the Travis County Jail have not been convicted of a crime. We also know that the majority of people sitting in the Travis County Jail are not charged with violent offenses. Just by tackling the cash bail system and by ending the prosecution of low-level drug offenses, we are going to take a huge step in reducing the number of people who are coming through our jail.
Are there other categories of charges that you want to altogether decline to prosecute?
Nothing off the top of my head. We have talked a lot about sex work. The reality is that the majority of those offenses are prosecuted in the county attorney’s office. [Editor’s note: That office has jurisdiction over misdemeanor charges, while the DA’s office has jurisdiction over felonies.] That’s something I would want to take a close look at to ensure that there aren’t related offences being charged by the district attorney’s office for those underlying set of facts.
So you would support the county attorney’s office not charging some categories of cases that are prosecuted as misdemeanors?
I want to turn to the offenses you say you would prosecute. If you want to keep the criminal legal system out of substance use, why continue prosecuting drug possession over one gram?
I talk a lot about pulling back the carpet of our criminal legal system. To answer this question, I want to use a different analogy: We also use our criminal legal system as a crutch, and what we have learned from the way we have proceeded in other areas—and homelessness is a big one here in Travis County—is that we have a real responsibility to build out the infrastructure that is necessary to replace our criminal legal system. The reality is that infrastructure does not currently exist in Travis County. So I think it is important to start this conversation at a gram or less, to allow us and our community to build out the infrastructure necessary to keep our community safe, and I think once we have done that we can begin to ponder the question about whether it makes sense to be charging these offenses at higher amounts at all.
One contrast in this election has been over conditions of entry into diversion programs that promote alternatives to incarceration. You have said that you would not require that people first plead guilty before having access to such a program. Your opponent, DA Moore, has said that a guilty plea is a key way to “take responsibility” and that “we do not allow defendants who maintain their innocence to enter diversion.” Why are you proposing to change that?
Because that’s not how substance abuse disorder works. People don’t treat their substance abuse disorder because they’ve been threatened with a guilty conviction on their record or or even because they’ve been convicted of a crime. It has very little bearing on whether a person is ready and willing in that moment to battle, if it is an addiction, to battle that addiction; and if it’s not an addiction, it has even less bearing on it. The other reason is that saddling people with criminal convictions creates more instability in our community, and that makes us less safe. It makes it harder for people to get a job, it makes it harder for people to apply for student aid, to apply for housing and have a place to live. Ultimately, that makes our community less safe.
Let’s talk about some of these consequences of criminal convictions. One such consequence, if you’re not a citizen, is that you could face deportation, depending on the charge and sentence. Would you adopt policies to shield people from this, and what would that look like?
As an assistant federal public defender. I saw so many families that were absolutely ripped apart because of criminal convictions in their past that I don’t think made our community more safe. As a starting place, a simple proposition for me is that no one should face a more severe punishment simply because of their status. It is absolutely contrary to our notions of justice and fairness that two people accused of committing the same crime could face such a different outcome.
How do you do this? We know that under the definition of a crime of violence, that if a penalty is of one year or more, that could trigger deportation. And so if someone has been convicted and is going to, for example, be on probation, we could simply reduce the probation time, when it’s a year, to less than a year, by five days, by two days. There are a myriad of other things we can and should be doing, and I think it’s really important to make sure that we are prioritizing the changes that our immigrant community here in Travis County prioritizes.
Another tremendous consequence of a felony conviction is loss of voting rights. You’ve signed on to support voting rights for all, which means ending felony disenfranchisement. Changing state law on whether people lose their voting rights is not under a DA’s control, but whether someone is convicted of a felony in the first place is. How would this shape how you act as DA?
The state capitol is right down the street from the district attorney’s office. I’ve spent my entire career as an advocate for working people for people of color, and that’s not going to change once this election is over. So that’s number one. And I think it should weigh heavily on all district attorneys. I think there are a range of things that a district attorney’s office has a responsibility to consider, including people’s ability to vote. There are a number of steps taken around the country to help line prosecutors more fully understand the consequences of our criminal legal system. I know some prosecutors require their line attorneys to visit jailed frequently.
You mentioned earlier a need to be proactive about police misconduct. Over the last month, there’s been renewed attention to the killing of Mike Ramos by an Austin police officer, and some proposals to change police rules in response. But one message of the protests has been that changing the rules that exist on paper does little if there’s a culture of impunity and a lack of consequences remains. What as DA can you do to fight that culture of impunity?
The community deserves a district attorney that is independent from police, particularly when it comes to these kinds of offenses. And so the first thing is, I have never received and I have pledged never to receive financial campaign support from police organizations.
Right now, the district attorney makes decisions about whether a case of police misconduct should be presented to the grand jury, and in many instances decides not to present the case to the grand jury. For example, in the case of Mike Ramos, Officer Taylor, who is alleged to have shot and killed Mike Ramos is alleged to have been involved in the shooting and killing of another man, Mauris DeSilva, who was in the middle of a mental health crisis when his neighbors called the police in 2019. That case, of DeSilva, is still sitting on the district attorney’s deck. The change we would be making is to present all of those cases to the grand jury in a timely manner. I have pledged that we will present these cases to the grand jury within 30 days of receiving them, and that if by 30 days, we are not prepared to present to the grand jury, we will issue a public statement explaining, in a way that won’t compromise our investigation, why it is we are not yet prepared to take it to the grand jury.
The other change is we are going to expand the kind of cases that a special unit within the district attorney’s office investigates and prosecutes. Currently, there is a special unit that investigates and prosecutes essentially acts of violence committed by law enforcement while on duty. We will expand the scope of a special unit to all cases of police misconduct, whether on duty or off, whether an act of violence or not, to begin to hold law enforcement accountable.
I’ve also pledged to make sure that we no longer allow law enforcement who engage in this conduct to participate, erode, corrupt our criminal legal system. We will publish a public “do not call” list of law enforcement officers who engage in misconduct, including officers who have a record of incorrect information in their statements and reports.
So, a “do not call” list meaning that you would not rely on the testimony or work of those officers in subsequent cases?
I want to return to grand juries. There have been concerns about what accountability is viable through grand juries, in that among other things it clouds the process in secrecy and lets a DA evade responsibility. How would you make your process in Travis County avoid such pitfalls?
First, I should just say that under state law in Texas it is the only way to charge an officer in this kind of conduct is with the use of a grand jury. Generally speaking, grand jury proceedings are secret, and there have been attempts in the state legislature to change that so there would be more transparency and accountability for grand juries. I fully support those reforms and would use the authority of our office to advocate for those changes. The other thing is that these cases can be difficult; this is a specialized area of the law. The district attorney’s office should be recruiting and hiring those kinds of attorneys who have a proven track record of success when it comes to holding law enforcement accountable.
I’d like to ask you about another policy area: The scope of incarceration in the U.S. is driven in part by very lengthy sentences. In Texas, one in eight prisoners are serving a life sentence. You’ve said that you support providing people with a meaningful opportunity for release after 10 years. Here I want to pursue a line of questioning that Keri Blakinger, now a reporter with ProPublica, began: Texas law creates constraints on the availability of such reviews, so what would you be able to do, as a DA, to promote meaningful opportunities after 10 years?
It starts on the front end, making sure that the district attorney’s office is not pursuing charges that could result in those kinds of sentences in the first instance, particularly when we can continue to serve the interests of justice without that. I have also said that, when we win, pursuing sentences of 20 years or more will be the exception, not the rule. On the back end, I think there are two pieces. One is that the district attorney’s office has an obligation to be an advocate for changes in the law at the state legislature: We know that after a person turns 50 years old, the likelihood that they will commit another crime falls through the floor, and so from a public policy standpoint, it doesn’t make sense to continue to spend our resources in this way. The second thing is that the district attorney’s office has to be an advocate for relief for people who continue to sit in jail, who have shown progress in rehabilitation. I think even if there are instances where the law limits eligibility, we have an obligation to advocate for their relief, if for no other reason than to bring light and attention to how broken that aspect of our criminal legal system is.
When you say that more than 20 years would be an exception, can you say more that might flesh out the scope of circumstances you’re envisioning to clarify what would change?
I’ll be honest, I don’t have data in front of me now that would give me a sense of which offenses are associated in Travis County with those kinds of long sentences. But I think that is one of the first things that we would have to review, what is triggering these long sentences. Then, the district attorney’s office has an obligation to advocate for much lower sentences where that’s what’s in the interest of the safety of our community.
In the fall, DA Moore said about a coalition of local criminal justice reform activists that she gets “everything they’re aiming for” but that she questioned their “tactics” and “demands” because “they’re very hard-line about how you get there.” If elected DA, how close a relationship would you want to have with these activist groups?
Let me just start by saying that I am an advocate. I lead one of the groups that the district attorney is referring to. Winning this election is going to be the easy part, and making the changes that we’re committing to is going to take advocates and members of the community continuing to be engaged and continuing to hold the district attorney’s office, law enforcement, the city council and the county commissioners accountable. I intend to be the kind of DA who wants to be held accountable, and who creates space for advocates and members of our community to hold all of the actors in our system accountable.
It has been so important to me to be in this fight to start making sure that the district attorney’s office belongs to our community. For so long, district attorneys and sometimes just people in the law act as if, unless you have a law degree, unless you’ve spent your career locking people up, you just don’t get it. You couldn’t possibly understand all the detail and nuance that goes into these jobs. And I fundamentally disagree with that. We have seen and we know that people who have been touched by our criminal justice system, who have been hurt by our criminal justice system, are perfectly capable of understanding what change is necessary and leading and implementing that change.
Are you concerned that the role you would play as DA will make those relationships difficult, in a context in which some advocates question the premise that the criminal legal system is capable of being reformed?
I think of course there’s going to be a tension. I should also mention I also served in the Obama administration, and so have been in another role. What I have seen on both sides, is that it is that tension that often yields the best results. It is that push, it’s a willingness as a system actor to listen and to be held accountable, it is that tension that creates the change that we need. So I welcome that tension. But again, we have been electing career prosecutors as district attorneys since the office has existed, and we can see for ourselves what the results are.
Texas is governed by Republicans, who have often used Austin as a foil in state politics, and in recent years the governor has gone after Dallas DA John Creuzot, among the more reform-minded prosecutors in Texas. Are you concerned about implementing parts of your platform in that context?
Not at all. I believe deeply that the overwhelming majority of Texans are with us on these issues. I believe that substance use disorder is a crisis that is ravaging all parts of Texas, whether it’s rural Texas or urban Texas, and that communities all across the state understand the devastating impact on families of using a criminal legal system to address that problem. But they can only be with us if we’re willing to make the change that people are demanding. We have an obligation and a responsibility to show people a different way of governing in the state of Texas.