“The overarching question to be asked in every case is what can be done to ensure that the crime is not committed again and that the victim feels safe?” the document suggests.
Judges possess the sole discretion for setting bail and sentencing, outside of legislative statute already in place, but do not always possess all the information that prosecutors do to make judgments on bail. The district attorney’s office neither sets bail nor directs the judges’ decisions, but it does make recommendations based on a litany of factors.
Geoffrey Puryear, a criminal defense attorney in Lubbock and a former felony prosecutor and district court judge in Travis County, criticized the new guidance.
“While [Garza] has promised to protect public safety, I think his guidelines don’t bear that out,” he told The Texan in an interview.
“It’s a pattern of behavior for Garza to not work within the criminal justice or policy system and just ignore the law as he so chooses and it should be concerning to all Travis County residents.”
In multiple circumstances, Garza’s guidance urges his prosecutors to pursue plea deals for offenders that yield punishment below the statutory minimum. For example, in a case of assault by impeding breath, e.g. strangulation, where no “medical records, visible injuries, or photographs” of the injuries exist, the guidance recommends a misdemeanor plea that carries no jail time.
The document elaborates on its intent, stating, “Because there is no one-sized fits all, we are asking our staff to incorporate the below principles into their work.”
Those principles include:
- Detachment of “attendance risk,” meaning someone with a history of not showing up to court, from the classification “flight risk,” which is a defendant with a history of evading the police;
- Increased deference to victims in risk assessments for the purpose of determining bail and sentencing recommendations;
- A presumption of release for anyone charged with a “State Jail Felony” which includes negligent homicide, certain categories of theft, and possession of between 4 ounces and 5 pounds of marijuana;
- A presumption of release with least restrictive conditions necessary for higher-level felonies;
- Maintained custody for defendants who pose a public safety or flight risk;
- Heavier reliance on probation over incarceration with a typical length of two years;
- Universal parole consideration for all offenders under the age of 40.
For anyone charged with a State Jail Felony, the document further states, the recommendation by the district attorney’s office will be release with no conditions — either a $1 bond or a personal recognizance (PR) bond. In all narcotics cases, the district attorney says “[R]egardless of prior record, th[e] non-incarcerative sentence is appropriate.”
This guidance reflects a changing attitude among some toward drug-related crimes, specifically that drug-only offenses should not result in incarceration.
That shift also looks to emphasize the lower end of the sentencing range for incarceration pursued on any charges. For example, aggravated assault can land an offender behind bars for anywhere from two to 20 years. Garza’s guidance, however, recommends three to five years for aggravated assault with serious bodily injury and two to three and a half years for aggravated assault with a deadly weapon.
“According to these guidelines,” Puryear further criticized, “a burglary charge, even if it happened at night while your whole family was home and the offender had a weapon but did not use it, the DA’s guidance recommends only a state jail felony up to two years of jail time.”
Garza’s memo also specifies that any convicted offender under the age of 40 should have the option of parole, regardless of offense. The general intent behind that is to prevent inmates from decades-long imprisonment with no ability to demonstrate they’ve reformed.
Puryear, however, pointed to data by the National Institute of Justice that shows the vast majority of violent crimes are committed by younger individuals, especially under the age of 35.
“While lengthy sentences might be ineffective at specifically deterrence, one of the three main purposes for plea bargains, the data show that individuals’ likelihood of committing crimes at the highest rate shows a steep decline at about the age of 35.”
He added, “While it may not be a popular sentiment to levy harsher penalties on younger offenders, the vast majority of studies bear out that violent crimes are most likely to be committed by individuals under the age of 35. That is the time to prevent recidivism.”
Parole is usually not considered until a convict’s time served plus good conduct time reaches 25 percent of their sentence.
Bail policies have come under the microscope of the political left and right alike. Progressives, like Garza, have beaten the drum against harsh sentencing and strict bail policies for years — metastasizing in the “presumption of release” ethic.
Puryear highlighted this assumption, specifically, within the guidance, stating, “There is no way to read the tea leaves to make a decision about whether someone is going to pose a threat to their community. If someone has been accused of a violent felony offense, the presumption should be that they’ve demonstrated the capacity to commit a violent felony offense and that, itself, should cause officials to err on the side of protecting the community.”
And the increased reliance on victims’ judgement presents another concern for Puryear. “Research has shown that victims’ objectivity is inhibited by trauma which makes it difficult for them to make accurate risk-safety assessments.”
As relaxed bail and lighter sentencing policies became adopted, most often in highly populated urban areas, negative consequences sprouted up.
Since embracing these policies, 116 people in Harris County have been killed over the past two years by alleged offenders released on PR or low cash bonds. It’s happened throughout all of Texas’s metropolitan areas to a certain degree and the more progressive control over the policy, the more entrenched they are — such as Austin’s PR bond prioritization for indigent offenders.
Opponents of the lax bail policies say they’re responsible for additional violence committed against victims by offenders in question. An April triple murder bumped the city’s homicide rate to 53 percent above the previous year.
The alleged offender, former Travis County sheriff’s deputy Stephen Broderick, had bonded out of jail on sexual assault of a child charges upon indictment in November of last year. After the charges were filed, Broderick’s ex-wife requested a protective order for herself and her children, which was granted 10 months later.
Garza was not the elected district attorney at the time of Broderick’s indictment on sexual assault charges.
After the homicide, Garza said his office recommended Broderick be held without bail. At the time, Garza referenced the prior release on bond but only as a reason Broderick be held without bail for the murders.
“Because Mr. Broderick committed this heinous crime after he paid a money bond to be released on charges related to sexual assault against a child, Texas law permits his detention without bail,” he told KXAN.
On the flip side, progressives like Garza say that traditional bail and sentencing policies were levied for decades unfairly and unevenly.
Puryear concluded by criticizing Garza’s bail and sentencing guidance as “extralegal,” adding, “It’s outside the bounds of the law.”
Garza has maintained his determination to change up the traditional operations of Travis County’s criminal justice system. Earlier this year, he followed through on another campaign promise: to scrutinize and even reopen past use of force investigations by police officers.
Shortly after taking office, Garza reopened a handful of previously closed use of force investigations.
Garza’s office did not return an interview request for this story.
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Brad Johnson is an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.