City bail resolution key to ending mass incarceration

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A response to ‘Garza wins resolution approval for negotiations on bail reform’ published April 10, 2020

Recent Bulldog coverage of the Austin City Council’s action on bail reform last week got one thing right. The County’s letter to the city revealed an undercurrent of competition between the two governing bodies over who can claim “leadership over ongoing justice reform efforts and who gets to take credit for them.” When faced with a City vote over something everyone claims to support—a city-county negotiation over paying for people to have an attorney when bond is set—the County sent a letter expressing what amounted to hurt feelings that the City didn’t acknowledge all the reform the County has already implemented.

Why? Because we’re still in a primary runoff election cycle where the answer to the question of “who gets to take credit” might determine the outcome. Postponed to July, the campaigns are gearing up, and what Democratic voters in Travis County clearly want is real criminal justice reform and an end to mass incarceration.

The Bulldog focused most of its coverage on the candidate for County Attorney (CA) who put up the resolution, Mayor Pro Tem Delia Garza. But this issue doesn’t really divide her from her opponent, Laurie Eiserloh, a civil attorney under current CA David Escamilla, who also supports funding for attorneys at magistration and bail reform modeled on the more robust solutions rolled out in Harris County. In fact, nearly every Democrat supports counsel at magistration, which a federal court in Texas has found is a constitutional right. The only difference is that, with this resolution, Garza is actually walking the walk.

Meanwhile, the incumbent District Attorney (DA) Margaret Moore is now the underdog in a tight runoff against insurgent Jose Garza, director of the Workers Defense Project. Jose Garza ran primarily on the need for bail reform in Travis County. That message resonated—he garnered 44 to Moore’s 41 percent. It is here that the County’s track record of reform matters most, and this dynamic explains why the letter from the County on the resolution veered into so many other areas, citing a number of reforms by the current District Attorney that have nothing to do with bail.

So to the real question: has the County’s litany of criminal justice reforms created a track record of success for the incumbent DA’s campaign? That depends on how much reform one believes is enough reform. The measures listed by the County have successfully reduced the day-to-day jail population by about 15 percent. That’s a daily population of about 400 fewer people. This is good, but modest. And most of the credit goes to programs other than the county’s efforts on “bail reform.” Thanks to earlier resolutions and ordinances by Austin’s City Council, many co-sponsored by Garza, the Austin Police Department is arresting fewer people on low-level offenses and the Municipal Court is issuing fewer warrants. The DA is also reducing the length of sentence for some drug crimes through a “State Jail Court,” an initiative that may well become obsolete if the city and county move ahead with the better ideas listed at the end of the County’s letter.

The urgency for stronger reform has increased with the COVID-19 pandemic. When it became clear that the health and safety of pre-trial detainees could not be safeguarded in jail during an epidemic, and the best way to safeguard both staff and inmates is by reducing the population, officials identified some 600 people who could be safely released. Most or all of these were being detained pre-trial. As a result, today, due to both City and County efforts, the jail population is down by about 1,000 from its former levels before 2018. Crime hasn’t increased. No one in the County believes that these releases made Travis County less safe. But it took a global pandemic for them to act.

The pandemic did something new—something at the heart of our need for bail reform in Travis County. It raised to a higher level consideration of the harm associated with jail time. Right now, COVID-19 inside the jail could be deadly, but there have always been very serious harms to jailing people before they have their day in court. Detainees get longer sentences, they plead guilty more often, they are at risk for violence in jail and, even if the case is dismissed, they suffer economic losses from foregone work during detention. Though these losses are substantial, they are less salient. It is harder to keep them front of mind.

So the County gets credit for modest reforms prior to COVID, and credit for getting serious when lives were at stake starting last month. The City gets credit for modest reforms, mainly in policing, and passing an important resolution last week. The resolution will allow officials to take the results from the impromptu experiment now being conducted and find—through the negotiation that will take place over the Interlocal Agreement—a “new normal” that rebalances guidelines for the decisions judges make every day when it comes to the risk of jail and the risk of release.

I expect we will find that significantly reducing the pretrial population, including many pretrial felony detainees, will not make us less safe as a community. It might improve the quality of representation, reduce felony convictions, shorten sentences negotiated as part of plea bargains, and more—all of these changes key to ending mass incarceration.

Interestingly, these are goals that all the candidates agree on.

Links to related documents:

County Executive Justice Planning Roger Jefferies memo, April 8, 2020 (3 pages)

Revised Resolution No. 20200409-30 passed by the Austin City Council April 9, 2020 (12 pages)

Kathy Mitchell is a criminal justice reformer of long standing in Austin, currently working for the nonprofit Just Liberty and formerly affiliated with the Texas Criminal Justice Reform Coalition.

Related Bulldog coverage:

Garza wins resolution approval for negotiations on bail reform, April 10, 2020

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