The Austin Chronicle

Criminal Justice Advocates and Officials at Odds Over Pandemic Precautions

By Michael King, March 18, 2020, 3:00pm, Newsdesk

The coronavirus crisis has evoked a range of ideas over how best to respond to changing circumstances and increasing risks. On the local law enforcement front – still in campaign season – criminal justice reform advocates and public officials have gotten crossways.

The advocates are publicly pressing for quicker or more extensive action, and the officials respond, thanks for your help – we’ve already been acting, as quickly as we can.

Early this week, Workers Defense Project director (and District Attorney candidate) José Garza sent a letter to a number of public officials – Travis County Judge Sarah Eckhardt and the County Commissioners, Mayor Steve Adler and the City Council, judges Brenda Kennedy (District Court) and Sherry Statman (Municipal Court), District Attorney Margaret Moore, County Attorney David Escamilla, and Sheriff Sally Hernandez. Garza cited “the spread of COVID-19” and requested that the officials act “to implement critical changes to how criminal justice is administered in Travis County.”

The changes listed by Garza included: ending arrests for misdemeanors and state jail felonies (with exceptions for public safety); jail release for all inmates (except for public safety); guarantee safe attorney access and adequate health care, and related measures. Garza added, “I want to be clear: most of the policies I am asking the County and City to implement are things we should do irrespective of the threat from COVID-19.”

Garza’s list of requests was about a page in length. Later that Monday* [Correction: posted Friday, March 13; see below], a nine-page list of “demands” was released by a smorgasbord of activist organizations (Grassroots Leadership, the Texas Fair Defense Project, Garza’s Workers Defense Project, and many others) and a couple dozen local activists. The list of “Demands for public education, social distancing & welfare guarantees to mitigate impacts of the coronavirus (COVID-19) on Central Texas” included one for a “state of emergency,” followed by several detailed categories of requested action: multilingual public education on the pandemic and official responses; “welfare guarantees” concerning maintenance of services and resources for those affected; housing protections for renters and the homeless; protection of workers’ rights and safety; expanded medical care services; new emergency services protocols; additional demands concerning schools, elder and child care, public transportation, and lengthy items on law enforcement and criminal justice, and so on. (The letter and full list has been posted by the Chronicle here.)

Some of the same groups also wrote a letter directly to Sheriff Hernandez, asking her to minimize the number of Travis County jail inmates through various measures (including both fewer arrests and facilitated releases) while also minimizing the health risk to current prisoners.

As the Chronicle has been reporting, many of the measures recommended by the advocates (e.g., the declaration of a "local state of disaster," “social distancing,” venue closures, utility continuance, etc.) have already taken place or are being added day-to-day. Asked by the Chronicle about their responses to the specific criminal justice requests or “demands” from advocates, the law enforcement officials expressed some "frustration” at the implication they were not already taking such actions in response to the pandemic. They objected as well as to the one-sided public release of declarations without any prior attempt to contact or collaborate with the officials involved.

“Somebody sends a ‘demand’ letter,” said County Attorney Escamilla, “and doesn’t even know that we’re already on top of a lot of these things. … All it would take is a phone call,” he continued. “We’ve been planning and working on these things for weeks.”

“They didn’t try to speak to us,” said Sheriff Hernandez. “All they did was post these things on social media.”

In an open letter provided to the Chronicle, D.A. Moore wrote that she and her office “have been responding to the COVID-19 crisis on multiple fronts since the Emergency Operations Center was activated on March 2 to plan our community-wide response.”

In brief phone conversations, all three officials emphasized that in most cases, no single official or agency has the unilateral authority to take actions to respond to the many needs created by the crisis. Hernandez noted, for example, that she has little direct authority over who is admitted or released from the Travis County Jail – those decisions are almost entirely made by judges and prosecutors, via requisite court orders. “What we do is our best to take care of the people in our charge,” Hernandez said.

Before the advocates’ communications on courtroom practices had been released, the district judges had already acted to postpone all jury trials, at least until May. In a brief announcement released March 14, Presiding Criminal Courts Judge Brenda Kennedy wrote, “There will be no summonses for jury service issued for jury trials to take place prior to 05/08/2020, and no jury trials will be held during that time period.” (Any necessary urgent court proceedings, for people being bonded out or having their cases resolved, will be by special arrangement.)

In the case of the D.A., incumbent Moore and challenger Garza are currently contesting a fairly bitter political campaign, with a run-off currently scheduled for May 26, and that circumstance has created an obvious subtext in these exchanges. Garza’s Facebook Live version of his letter functioned simultaneously as a campaign recruitment pitch, and he emphasized that his requests to officials were already his campaign positions – only made more urgent, he said, by the coronavirus crisis.

Similarly, Moore’s letter acknowledged the campaign background. “Now is not the time for politics,” she wrote. “This is a serious issue affecting the most critical areas of public safety, justice administration, and community confidence. And I assure you, I am using all my years of experience as a prosecutor, elected official, and public administrator to meet the challenge.”

Moore’s letter summarizes the various steps being taken by the assembled “Courthouse Stakeholders Group” (including many of the officials addressed in the advocates’ letters) and most specifically responds to the question of minimizing the jail population as much as possible, which she describes as standard policy. “As always, jail cases are the priority,” she continues (emphasis in original): “It has been and continues to be the policy of this Office to work with the judges to see that only those who pose a risk to public safety remain in our jail. The coronavirus does not affect that policy—it only affects how we make sure our processes are conducted safely.”

Hernandez recited a list of proactive measures intended to prevent potential infection among prisoners and staff, as well as maintain medical care for the existing jail population, for everything from injuries to diabetes. “We have limited access for outsiders,” she said, “and everyone coming into the jail is checked for potential illness.” That includes arrestees, she said, who are subject to isolation protocols if necessary. (As of Tuesday, medical staff had not identified any potential COVID-19 cases, but the general unavailability of testing kits makes accurate diagnosis difficult.)

For the present, there are no face-to-face visits (only video) unless absolutely necessary, and she has requested that the private video company reduce its fees to inmates. Hernandez also wrote to all the nearly 30 police agencies who use the jail, asking them to direct their officers to use “greater discretion” than usual when dealing with minor offenses (traffic violations or warrants, and the like), to avoid unnecessary arrests, “unless it’s a question of public safety.”

County Attorney Escamilla said his office is issuing similar directions, including declining to pursue prosecutions for minor crimes that do not affect public safety. He pointed out that his office has “essentially gotten out of the business of marijuana [possession] prosecutions,” acting retroactively to some degree (“it’s a question of equity”), and that although the jail population is already low, “we’re looking for ways to make it even lower,” mentioning dismissal of minor cases and minor outstanding warrants. That includes, for example, “driving while license invalid” cases, unless they involve a previous DWI or are a result of a vehicle accident, “and we’ve got a victim or a need for restitution.” (In an order issued Tuesday by the Travis County Justices of the Peace, all warrants for class C misdemeanors have been suspended at least until May.)

All three officials said they are also acting to protect staff members as much as possible. Moore wrote, “Internally, we have evaluated the core responsibilities of this Office and the ability of each employee to work from home. We have already sent home a number of employees, and, as we’ve gotten further direction from the County and the judges, we have assigned our staff to minimize their exposure to the public. For instance, we have instructed our personnel to interact with police, victims, and defense counsel by phone to the fullest extent possible.”

Both Escamilla and Hernandez said they welcome suggestions by advocates and reform groups, while suggesting press releases might not be the best way to establish collaboration. “I wish – all it would take,” said Escamilla, “is for some of these people, who have different motivations or agendas, is to really just reach out and they’ll find that we’ve been working on this stuff for weeks or months.” Hernandez said that “political grandstanding” is generally unhelpful, while she welcomed “advocates and people thinking outside of the box.”

In sum, said the sheriff, “We are doing everything we possibly can to take care of each other and the people in our charge. That’s our duty, and we take it very seriously.”

*Note: The letter was apparently sent to public officials and posted on the Grassroots Leadership website on Friday, March 13, and followed by an "e-press conference" Monday morning, March 16.

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