Criminal Justice Reform Is At The Forefront In The Runoff For Travis County Attorney

Jul 2, 2020

The Travis County attorney does thankless work. That's a bleak descriptor, but it's not wrong.

Both Laurie Eiserloh, a career attorney and longtime staffer at the county attorney's office, and Austin Mayor Pro Tem Delia Garza want to take on that thankless work and are competing in the Democratic runoff for the position that has no Republican challenger.

Reform Ahead

Put simply, the county attorney is just that: the attorney for Travis County.

So, if, say, a county commissioner has a question about a line in a contract, they ask the county attorney's office. If there's a question about whether elected officials violate the laws requiring open meetings, the county attorney looks into it. It's insular, not-very-public-facing work that doesn't always have a tangible, widespread public impact.

But the office is also tasked with similarly not-very-public-facing work that very much does have a tangible public impact: It prosecutes criminal misdemeanors.

Those are offenses that range from drunken driving or driving without a license to theft or low-level possession of marijuana.

Over the past five years, the highest charge for two-thirds of people booked into the Travis County Jail was a misdemeanor, according to county records.

Both Eiserloh and Garza want to address that in two big ways. They want to reduce the number of misdemeanor cases for nonviolent offenses that are tried by the office and they want to speed up release for folks arrested for them.

Both say they'll make the presence of defense attorneys mandatory around the clock at magistration hearings – where defendants are read their charges and given a chance to get bonded out before being booked. That was a big sticking point in the push to establish Travis County's first public defender office last year – but it didn't get funded fully, and the county and city have to work out the machinations of how to require those hearings in city courts.

Both want to expand diversion programs that would keep people out of jail and, ultimately, save money in the face of a state law that limits city and county budgets.

In short, they're running similar platforms, but one candidate comes from a position of unique experience from inside the office, while the other wants to come in from the outside and shake things up.

Counsel Versus Council

Looming over all this is the staying power of folks who've previously held the office.

Retiring County Attorney David Escamilla served for 17 years. Before him, Ken Oden served as county attorney for 18 years.

"[Garza] has asserted that this is 'a political job,' but it's not. Under the constitutions, this job is judicial in nature."

This is the first competitive race for county attorney in a generation, and Eiserloh says she has the experience to foment lasting change.

She's been with the office for 10 years. Before that, she was at the city attorney's office for eight years. Before that, she was with the Texas Attorney General's Office for six.

Eiserloh doesn't dispute Garza's efficacy as an elected official, but she says – functionally speaking – county attorney is not a political office.

"Ms. Garza is a – obviously­ – respected member of City Council," she said. "She has asserted that this is 'a political job,' but it's not. Under the constitutions, this job is judicial in nature."

Still, it is an elected position; the politics are inextricable. And it's a position perennially held by Democrats in a city and a county that's typically (and, Garza says, wrongly) viewed as a progressive stronghold.

The city's perceived progressivism is underpinned by racism – and racial disparities within the criminal justice system.

Black and Latino Austinites are disproportionately charged with misdemeanors. As of July 1, 33% of inmates in the Travis County Jail were Black, while Austin's Black population is 8%. Latinos accounted for 38% of inmates, while the Latino population is just over a third, according to Travis County.

That's why Garza's running.

She admits she doesn't have 27 years of experience as an attorney or the knowledge of the office that Eiserloh does. She says she's doing it because people in her Southeast Austin City Council district and across the county want change.

"They're less concerned about how many years somebody has been a lawyer and more concerned about what kind of leader can you be and what kind of change can you bring," she said. "And I don't see that kind of transformational change coming from somebody who's just been in that office."

Institutional Versus Transformational

Looming closer to the frame of this race is the system in which the winner will ultimately work.

There has been an incremental, albeit substantive change, in Travis County over the last year or so. Shortly before the pandemic, county judges signed an order that effectively allowed defendants accused of misdemeanors to be immediately released. Garza argues the fight behind that effort was at least partly driven by outside forces.

To the surprise of some advocates – and even attorneys – the county court-at-law judges who try misdemeanor cases ordered defendants be released before booking in late February.

But Garza says she wants more than incremental change. She says it's especially important to push forward in this movement for racial justice following the deaths of George Floyd, Mike Ramos and Breonna Taylor.

"Elected officials like to tout the progress that they've made, and almost every single example is because they were pushed to make that," she said. "It wasn't [that] they just decided on their own, and I think ... cash bail – the judges' order – and the public defender's office is the perfect example of that."

"I don't see ... transformational change coming from somebody who's just been in that office."

Garza says she's committed to working from within and without – building coalitions that will address systemic issues facing Travis County. It's a long play, not a quick win, and it's a long play that's informed by her leadership on City Council.

She championed the city's rollback of laws governing behavior related to homelessness and its expansion of the Austin Police Department's cite-and-release policy. And, more recently, she's pushed to rethink APD's budget and demanded officers discontinue tactics that critically injured protesters in late May.

Eiserloh argues her work at the office has laid that groundwork for lasting change that can sustain the movement for criminal justice reform.

"My team and I ... we are solid and ready to go on day one," she said. "And I think that that's critical."

Eiserloh has already scouted Harris County's mental health diversion court in preparation of replicating that system – which siphons some vulnerable defendants to a mental health facility instead of jail.

She also plans to empower prosecutors to throw out cases in which evidence is lacking or if an officer involved has been accused of bias. She says, if possible, the office should toss cases whenever possible – that it's taking on too many cases that can effectively bar people from some employment and housing opportunities.

"Right now, we have almost 30,000 open misdemeanors, and that's a lot," she said. "Every single person who has one of those has a shadow on their record ... and I think that we just need to do a better job."

Known Unknowns

There are a lot of unknowns for whomever wins this runoff. The county attorney-elect will have to transition the office to work alongside a new system of public defense and the county's new bail system.

On top of that, she'll likely be operating under budget cuts due to both the pandemic and a state law that, opponents say, hamstrings county budgets.

Travis County voters will decide which woman will make those calls – and weather that storm – in the runoff.

Early voting runs now through July 10. Election Day is July 14.

Got a tip? Email Andrew Weber at aweber@kut.org. Follow him on Twitter @England_Weber.

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