In Austin Prosecutor Races, Wins for the Left and a Milestone for Drug Decriminalization

The Travis County DA lost resoundingly to a progressive advocate who ran on shrinking the mission of criminal justice and not prosecuting low-level drug cases.

Daniel Nichanian | July 15, 2020

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

The Travis County district attorney lost resoundingly to a progressive advocate and former public defender, José Garza, who ran on shrinking the criminal legal system's mission and on not prosecuting low-level drug cases. Reform proponents scored another major win further down-ballot.

Margaret Moore, the district attorney of Travis County, Texas, has faced a spate of stinging criticism from progressives, whether for prosecuting low-level drug charges or failing to hold police officers accountable. In response, she has blamed them for being too obstinate and not grasping the intricacies of the prosecutor’s job.

“The frustration is fomented by those who do not understand the system,” she said this week about the protests over her handling of the killing of Mike Ramos by an Austin police officer in April.

On Tuesday, though, voters signaled that the frustration was widespread.

Moore lost resoundingly in the Democratic primary runoff to José Garza, a former public defender who works as a labor and immigrants’ rights attorney at the Workers Defense Project, and who ran on no longer treating the criminal legal system as the remedy to social problems. Garza leads 68 percent to 32 percent as of the count available on Wednesday morning.

Local progressives scored a separate win on Tuesday for the position of county attorney, which handles misdemeanors. Delia Garza, the Austin City Council member who prevailed, also talks of shrinking the system’s scope.

“It’s been just an incredible night,” Dominic Selvera, a defense attorney who was active in José Garza’s campaign, said on Tuesday about both results.

José Garza will now face Republican Martin Harry in November; he will be strongly favored given the county’s heavily Democratic lean. Delia Garza has no general election opponent.

In an interview with The Appeal: Political Report, José Garza prided himself for being among the advocates Moore has fought with, and he vowed to “create space” for activists to hold him accountable. In conversations this week, many local advocates expressed confidence that he would remain an ally given his past and current roles. Chris Harris, an organizer for criminal justice reform, said his win could be “incredibly meaningful” in part because of his “willingness to listen to those directly impacted by the criminal legal and immigration systems, as well as advocates.”

But, Harris added, “how meaningful will depend on the community's ability to stay engaged … and keep him to his promises.”

Garza’s most emblematic promise, at least when it comes to shrinking the criminal legal system, is to decline to prosecute cases of drug possession and sale for under one gram, a policy that would effectively decriminalize small quantities of any controlled substance in Austin.

“Using our resources to prosecute these offenses increases the likelihood that people will commit future crimes, and that makes our community less safe,” Garza told the Political Report in June.

Cate Graziani, policy and operations director of the Texas Harm Reduction Alliance, thinks that implementing this policy “would have a huge impact” given these cases’ prevalence. “There’s a huge opportunity having a DA who understands that the war on drugs is harmful,” she said.

In 2017, the county saw nearly 1,700 cases where drug possession of less than one gram was the primary reason for arrest, according to a report released by a coalition of advocacy groups, including the Texas Harm Reduction Alliance. (The report does not include arrests over drug sales.) An additional 1,200 arrests involved possession alongside other charges. African Americans were a vastly disproportionate share of these arrests.

Moore has said she is intent on resolving these low-level drug cases without sentencing people to incarceration. But she defends continuing to prosecute people over them, and requires that defendants plead guilty before entering diversion programs.

Garza’s commitment, by contrast, is to entirely take the DA out of those cases. For Graziani, this means that he is recognizing that the criminal legal system cannot “help people access treatment” by “requiring somebody to seek help when they may not be ready or able.” She adds: “A harm reduction approach completely outside the criminal justice system, no coercion necessary—that's central for people who have struggled with substance use for a long time.”

Moreover, Garza is going a step further than other progressives who have recently run for DA. While they have promised not to prosecute drug possession, he is extending that commitment to sales as well.

Decriminalization advocates applaud that extension. “If we want to truly talk about a public health approach to drug use, we have to talk about the drug sale,” said Graziani. “A lot of times, especially when we’re talking about a gram or less, the user and the dealer are one and the same.”

The scope of Garza’s promise reaches further than what is typical for drug policy reform in the U.S., according to Leo Beletsky, a professor of law and health sciences at Northeastern University. Decriminalization efforts have typically left out distribution and sales due to misleading tropes about “dealers” being “predatory and undeserving,” he said. This “failure to look beyond simple possession” weakens reforms since “law enforcement often compensates by recasting possession crimes as distribution,” a maneuver that Garza’s proposal would hinder.

But Garza would continue prosecuting drug possession and sales above one gram.

This ceiling means keeping law enforcement officers actively involved against drug use. “History suggests that decriminalization based on specific weight has limited impact,” Beletsky said, pointing to a study of drug law reform in Mexico he co-authored. “Piecemeal decriminalization is not in and of itself sufficient to change police practice and build alternative systems.”

In addition, other law enforcement agencies such as the Austin police could continue arresting people for behaviors that fall under Garza’s promise, disrupting their lives even if the DA’s office eventually does not file charges.

Graziani vowed that, if Garza were to win in November, the Texas Harm Reduction Alliance would focus on the quantity threshold, and on broader policing practices. “Our job as community advocates is to continue pushing to end the war on drugs and we certainly won't have done that if we end the prosecution of only up to a gram,” she said.

Garza’s call for reducing the scope of the criminal legal system extends beyond drug policy. “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 June. “The first important step is to remove that rug so that we can see these challenges for what they are.” But many of the low-level offenses that he wants to decriminalize fall under the jurisdiction of the county attorney’s office since they would be charged—if at all—as misdemeanors.

Delia Garza, the winner in the county attorney election, holds a similar perspective. She has said she would not prosecute offenses linked to poverty, such as theft of food. And she backs a reduction in the Austin Police Department’s budget as part of the demands by the Austin Justice Coalition to invest in programs outside of law enforcement.

These two candidates’ mirroring victories on Tuesday could considerably strengthen the hand of progressives in Travis County. This, in turn, could provide José Garza allies he will need in his ambitions of transforming conversations around criminal justice in Texas.

In a state governed by conservative Republicans, he says that he is relishing the opportunity to use the bully pulpit of the DA’s office to promote an alternative view.

When asked about his support for incarcerated people having an opportunity for release after spending at least 10 years in prison, for instance, he granted that there would be many who are ineligible because of state statutes. Still, he said, “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.” And Garza has said he would not join the Texas District and County Attorneys Association, calling the group, which lobbies on behalf of state prosecutors, “one of the largest impediments to progress” in the state legislature.

Garza also said he would advocate for ending felony disenfranchisement, making him the latest in a wave of candidates from Oregon to Virginia to support the argument that no one should lose the right to vote. He promised to not seek cash bail and to oppose building a new jail.

In a testament to the growing national interest in DA races, Garza received endorsements from prominent progressives such as U.S. Senators Bernie Sanders and Elizabeth Warren and former U.S. Housing and Urban Development Secretary Julián Castro, who is from Texas. He was also endorsed by the Working Families Party and by the Austin Democratic Socialists of America.

As recently as on Super Tuesday, in March, many of these same politicians and groups suffered rough losses in Texas. That same day, Austin’s DA race was already a rare promising spot for progressives; Garza led Moore 44 to 41 percent, triggering Tuesday’s runoff since neither crossed 50 percent.

Still, between March and July, Garza grew his lead to 36 percentage points from three.

Selvera attributes this sea change to Ramos’s killing in April and to the resurgence of Black Lives Matter protests in May and June. He himself lost a bid for county attorney in March. “People are seeing what’s wrong with the system,” he said. “It opened a lot of people’s eyes to the injustice of what’s going on.”

Explore our coverage of other DA elections nationwide.