Dallas County Democratic DA Candidates Promise Change, But Their Plans Don’t Go Far Enough

On February 10, the ACLU of Texas held a forum for the Dallas County district attorney candidates in anticipation of the March 6 primary. For almost two hours, Democratic candidates Elizabeth Frizell and John Creuzot fielded questions as Anthony Graves, a man who was wrongfully convicted of murder and spent 18 years on death row, led the conversation. Questions on issues like immigration and addiction came from members of the audience who, like Graves, had been directly affected by the criminal justice system. Notably absent was the Republican incumbent, DA Faith Johnson, who declined to participate.

Frizell and Creuzot are both Black Democrats and former judges who left the bench to practice criminal defense. Both are part of a new generation of district attorney candidates who willingly admit that overzealous prosecution is largely to blame for the nation’s incarceration crisis. “There’s one reason and one reason only that I want to be DA,” Frizell said, by way of introduction. “I want to reduce mass incarceration.” Similarly, Creuzot proclaimed that prosecutors have a “legal, moral, and ethical responsibility to reduce incarceration in our criminal justice system.”

Frizell and Creuzot seem to grasp the urgency and importance of criminal justice reform, in stark contrast to Johnson, who has embraced a tough-on-crime ethos and overwhelmingly resisted efforts at reform. If elected, either Frizell or Creuzot will have the chance to reorient the office toward more progressive prosecution, giving Dallas the potential to follow in the footsteps of other major cities, like Philadelphia, Houston, and Chicago, where voters have demanded a different approach to crime and punishment.

Yet, the candidates have shared few details regarding how they would reform the office. Neither has adequately articulated exactly how they would reduce mass incarceration with the existing tools at the district attorney’s disposal. And neither has set clear targets that voters could later use to hold them accountable.

The Dallas district attorney’s office is in dire need of reform. It is the ninth largest prosecutor’s office in the nation, and its prosecutors handle over 100,000 cases a year. And Johnson, who was appointed in 2016, has failed to address even the most obvious flaws.

Take the county’s bail program, for example. Currently, county magistrates set bail in secret hearings, with “little to no information” about a defendant. They depend on a fixed bond schedule, and the bail amount is determined solely by the alleged offense, without any consideration of a defendant’s ability to pay. As a result, 70 percent of the approximately 5,000 people in Dallas jails each night are stuck there simply because they can’t afford bail. And hundreds of those people are charged only with misdemeanors. Dallas has two million fewer people than Harris County, Texas, but almost twice as many people in jail pre-trial on misdemeanor charges.

In fact, Dallas’s bail system is so unfairly punitive that just last month, Civil Rights Corps, a nonprofit organization dedicated to challenging systemic injustice in the American legal system, filed a lawsuit against the county, alleging that the county’s money bail system is a “rampant and flagrant” violation of poor defendants’ equal protection and due process rights.

Johnson has said that “her office does not support any policy that results in the defendant being held in jail before trial or disposition only because they do not have the financial means to get out jail.” She and other county officials claim they are working to develop a bail system that relies on risk assessments, which are used to predict which defendants are likely to get rearrested or fail to return to court, rather than a fixed bond schedule. But that approach is moving too slowly — at best, county officials hope to implement a new procedure before the end of the year.

Johnson hasn’t just dragged her feet on bail reform. She was also reluctant to introduce a common sense cite-and-release program. These policies vary between jurisdictions, but they generally allow law enforcement to issue a citation rather than arrest someone for a particular low-level offense, helping to stem the tide of arrests and incarceration — while potentially saving the county millions of dollars.

In other big Texas counties, prosecutors have coordinated with local law enforcement and used their broad discretion to implement these reforms. Last year in Harris County, for example, District Attorney Kim Ogg announced plans to expand the county’s cite-and-release program dramatically, stating that the office would no longer prosecute most misdemeanor marijuana cases. “We have spent … over a quarter-billion dollars prosecuting a crime that has produced no tangible evidence of improved public safety,” she said at the time. Now, a person caught with less than four ounces of marijuana must hand it over to law enforcement, sign a contract promising to attend a four-hour drug education class, and pay a $150 fee, which can be waived for those who can’t afford it. No charges, no arrest, no record.

There are a number of other cite-and-release policies in the state, including a program enacted just last month in Bexar County, the fourth largest county in the state, and another in Nueces County.

But what about Dallas? Johnson could have easily followed in the footsteps of these other prosecutors. She had the discretionary authority and the political power to implement her own cite-and-release program, and she had support from the city and county legislative bodies. Like other district attorneys, she could have partnered with law enforcement and saved her county a significant amount of money while reducing unnecessary prosecution. And yet, Johnson was slow to implement a cite-and-release program in Dallas.

Eventually, Dallas officials passed a cite-and-release policy for low-level marijuana arrests, which went into effect December 1. But the program still doesn’t go as far as it should. Under this policy, a citation still results in a misdemeanor charge. For many, the penalties for possession are the same as they were before the policy — up to 180 days in jail and a $2,000 fine. And, unlike many other cite-and-release policies, only first-time offenders are eligible for Johnson’s diversion program, which is also particularly onerous — participants have to take a 15-hour class, do a community project, and pay a $620 fee.

And the program isn’t affecting a significant number of people, either. At the end of January, the Dallas Observer reported that police had written just 23 citations for marijuana possession, and that every single recipient was Black or Latino. Meanwhile, in 2018 alone, the district attorney’s office has filedover 500 low-level marijuana possession cases.

As district attorney, Johnson has squandered opportunities to be a visionary, and her refusal to push for changes in Dallas’s criminal justice system means the city has a long way to go before it could be considered a bastion of reform. Still, both Democratic candidates seem determined to lead the way.

For instance, both Frizell and Creuzot have made it clear that they believe Dallas’s bail system is unconstitutional. Frizell supports ending money bail entirely and wants to move toward a risk assessment system. In the meantime, however, she promised to train prosecutors to recommend release on personal recognizance and not to argue against lowering bonds for first time non-violent offenders. Creuzot has not said he wants to end money bail entirely, promising instead to “train [his] assistants to recognize and appreciate the role of risk in determining the appropriate bond amount and to request only an amount necessary to ensure appearance in court.”

Meanwhile, they have also both pledged to make changes to the cite-and-release process, although their promises remain untenably vague. Frizell has pledged to further decriminalize marijuana, while Creuzot has listed the expansion of cite-and-release as one of his top priorities.

There are some areas where the candidates display unfortunate similarities to Johnson. On the death penalty, for example, neither candidate has categorically ruled out capital punishment for the most extreme cases. Last year, Johnson twice sought the death penalty — the office’s first and second time doing so since 2014. Ultimately, both attempts were unsuccessful. Erbie Bowser, who was charged in a deadly shooting spree, was convicted of capital murder but received an automatic life without parole sentence last May after the jury deadlocked during the penalty phase. And in November, Johnson’s office reversed its decision to seek the death penalty for Antonio Cochran, who killed a teenage girl, after a psychiatric evaluation proved he was intellectually disabled.

Despite their similarities on the death penalty, there’s no denying that both the Democratic candidates support more humane policies than Johnson does. Yet, it’s unclear if they would truly reform the office.

Ultimately, they both support most of the broad strokes of criminal justice reform. But the broad strokes are not enough to reduce mass incarceration. Voters need to know how the DA would wield his or her discretion under current law, without the benefit of external funding, outside approval, or a shift in legislation.

Discretion is a prosecutor’s greatest tool and most powerful weapon. To reduce mass incarceration, prosecutors must use that discretion to imprison significantly fewer people for significantly less time. In this office alone, poorly wielded discretion has the potential to destroy the lives of thousands and thousands of people. These candidates must be clear about what offenses they’ll categorically decline to prosecute, and set achievable goals to reduce the prison population by a designated amount. It’s not enough to hint at these objectives. For voters to make informed decisions at the ballot box, these plans must be plainly stated.

Both Creuzot and Frizell have accurately identified the criminal justice system’s problems in general — from mass incarceration and racial disparities to overcharging and police brutality. Both have said they will focus on treatment over prosecution for drug offenses and promise to send more mentally ill defendants to diversion programs. Both pledge to consider immigration consequences in every case. They’ve both promised to engage more with the community, increase trainings for prosecutors and improve transparency.

These may be steps in the right direction, but they are far too vague to inspire confidence. Without additional action, these commitments will not reduce mass incarceration. And anything that falls short of that goal is simply not enough.

Good rhetoric and good intentions often do not translate to effective policy. The candidates for district attorney must also articulate the end game — fewer people spending less time in prison, and far fewer people involved in the criminal justice system. Otherwise, they risk falling into the same traps as Johnson and her more draconian predecessors, and Dallas residents will end up grappling with the same injustices to which they currently fall prey.