Nationwide protests sparked by the police killing of George Floyd have led to renewed calls for criminal justice reform, and shined a spotlight on the role district attorneys play in shaping how the law is enforced on a local level.
Against that backdrop, the El Paso region is set to elect its first new DA in nearly three decades. There is no Republican candidate, so whoever wins Tuesday’s Democratic runoff will take office when long-time incumbent Jaime Esparza retires.
Both runoff candidates are calling for some reform to the DA’s office, which covers El Paso, Hudspeth and Culberson Counties. Private attorney Yvonne Rosales says she will bring fresh ideas to an office that, in her words, has been stagnant. Assistant District Attorney James Montoya says he will increase transparency.
Yet neither is pushing for the large-scale, systemic transformation some high-profile new “progressive prosecutors” are adopting.
In the past, DA candidates used to compete over who was the toughest on crime — but that has started to shift.
“Communities have grown tired of the amount of money we spend and the lives that we throw away and the families that we fracture and communities that we damage by the tough on crime practices,” said Miriam Krinsky, the executive director of Fair and Just Prosecution. She works with newly-elected, reform-minded prosecutors across the country.
“Communities are demanding a different starting point,” Krinsky said.
That includes communities in Texas. In the last few years, self-described reformers have won DA elections in places like Dallas, Bexar, and Nueces counties. Krinsky saida growing number of DA candidates are talking about how policing and the criminal justice system are plagued by inequality and in need of a massive overhaul.
In the runoff that will decide El Paso’s next DA, the candidate’s messages are more moderate. Neither pushes the idea that the system is fundamentally broken.
“I don’t think that El Paso is a community that has a lot of racial tension issues as there are going on in many of the other cities across the nation,” Yvonne Rosales said at a recent digital forum on police reform and racial justice.
“Do I think that El Paso is in need of radical or wide-ranging changes? My answer is no,” James Montoya said.
Rosales received just over 38% of the vote in March. Montoya garnered 34%.
Priorities In Office
James Montoya, who is running for his boss’ seat, says his number one priority is “keeping El Paso safe by maintaining the community’s trust and going after the crimes that matter, that people care about.”
In his current role at the DA’s office, he focuses on homicides and other major violent crime.
“Working on these cases, helping the families of the victims, it’s been far more rewarding and fulfilling than I could have ever imagined,” he said. “ I want to make sure that our office continues to do that work, to stand by victims. That’s why I’m running.”
Yvonne Rosales says she wants to bring new ideas to an office that has been “very stagnant for the last 28 years.”
“I want to implement some changes that I think are gonna be a little bit more progressive,” Rosales said, “that are gonna help case management be more effective and efficient.”
Both candidates say they will work to put fewer people behind bars for low-level, non-violent offenses.
Montoya says he will decline to prosecute sex workers and cut down on misdemeanor marijuana charges. He wants to expand who qualifies for an existing, pre-arrest diversion program.
Criminal justice experts say marijuana enforcement disproportionately affects people of color.
But, Montoya says he won’t decline low-level marijuana cases altogether.
“I know there have been other jurisdictions that have done that, can say I am no longer prosecuting any marijuana case and de facto decriminalization,” he said. “I just don’t feel comfortable, at this point, being a one man mini legislature.”
Rosales takes a similar stance on misdemeanor marijuana charges.
“We need to look at it on a case-by-case basis,” she said.
Both candidates say they plan to increase transparency and accountability by creating a public integrity unit to handle cases of corruption and misconduct by public officials. Rosales also wants the unit to focus on wrongful convictions.
The candidates also agree that the DA’s office could make strides when it comes to mental health.
“That the El Paso County Jail is the largest mental health treatment facility in the county, to me says that we’re doing something wrong,” Montoya said.
Rosales wants to create an entire unit focused on mental health.
“I want to try to avoid criminalizing non-violent defendants who have mental health issues,” she said. “I’d rather see what we can do with the resources that we have within our community and what we can bring into the community to try to help these individuals get the treatment that they need.”
The El Paso Police Department has been accused of using excessive force against people experiencing mental health crises — including in 2015, when an officer shot and killed 22-year-old Erik Salas-Sanchez inside his mother’s home.
Still, while both candidates believe that in many cases, prison should not be the first option, neither is explicitly campaigning to end mass incarceration.
“I will tell you here in El Paso this is not a county, this is not a criminal justice system here that is excessively punitive,” Montoya said. “Our incarceration rate is quite low compared to both the state and national average.”
Both Montoya and Rosales say law enforcement in El Paso does not have a major problem with systemic racism.
“If you ask me do I think that systemic racism is an issue in our local law enforcement agencies, I don’t think so,” Montoya said.
“For the most part I think that the community has a good relationship with law enforcement,” Rosales said. “With any situation there may be a few bad apples in law enforcement, just like there’s a few bad apples in lawyering and doctors and any kind of profession. So what we have to do is make sure that those bad apples don’t spread the contamination to everybody else.”
Recent reporting from El Paso Matters did not find evidence of racial profiling in traffic stops by police officers, but did find that from 2007-2018, “Black drivers were more than twice as likely to be consent searched than white drivers.” It also found that Latino drivers were more than one-and-half times more likely to be conset searched than whites.
Rosales says she would like members of the district attorney’s office and law enforcement to undergo unconscious bias training, and both candidates say, if elected, they would like to hear more from community members about their experiences with police.
When it comes to police use of deadly force, Montoya says those cases would automatically go before a grand jury. He also wants to send an investigator from the DA’s office out to the scene when an officer shoots a person.
Rosales suggests that some cases may call for outside investigation — say, from the Texas Rangers. Her office would then determine, “in collaboration” with the police’s internal affairs division, whether to bring the case to a grand jury.
Prosecution Of Walmart Shooting Case
The new DA will not just be tasked with deciding how much to shake up the office. They will prosecute the biggest case in El Paso’s history, against a white North Texas man accused of killing 23 people at a local Walmart — the deadliest attack on Latinos in modern U.S. history.
The 21-year-old suspect faces charges in both state and federal court. No trial dates have been set.
Montoya and Rosales agree that the self-confessed gunman should face the death penalty.
For Montoya, “it’s a priority to get [the case] tried in state court” first. He notes that the federal government has not carried out an execution since 2003.
“I don’t have confidence that if he is given a federal death sentence that it’s going to be followed through,” Montoya said. “That is not a concern that I have if he is sent to Texas death row.”
Rosales says typically, the federal government brings it cases first, and that move would make financial sense — especially as local budgets take serious hits during the coronavirus pandemic.
Both candidates say, if the federal case plays out first and the suspect receives a death sentence, they would consults with victims and families to determine whether it made sense to move forward with a second death penalty case.
“I think what a lot of people lose focus on is the emotions that a trial will take on the victims and the families and the witnesses,” Rosales said. “I would have to discuss with the families and the victims to see, ‘is this something that you want the state to pursue?’”
“I would not be inclined to get a double death sentence,” Montoya said. “It would be hard to justify.”
Calls For Greater Reform
Critics of El Paso’s criminal justice system say the DA’s office needs more substantial change.
“It seems to me like they take one step when they should take five,” Joe Moody, a Democrat who represents El Paso in the Texas House, said.
Moody helped launch a Criminal Justice Reform Caucus in the state legislature and even thought about running for DA himself.
He points out if you’re a 50-year-old El Pasoan, there have only been two different DA’s in your lifetime. Now, he says, is time for the region to think big.
“When we make reforms around the edges, we don’t really cut to the core of the problem.”
Moody believes El Paso is behind the curve when it comes to criminal justice reform.
“You know, we have this moniker as a safe city, and we are. Immigrant communities are safe,” Moody said. “So people don’t think about the criminal justice system in as critical a way as they would in other communities. And I think it’s been given a free pass.”
But he thinks that’s changing, especially in light of nationwide protests over police killings and racial injustice.
One local protest was a turning point for J.J. Martinez, a senior at the University of Texas at El Paso and president of the El Paso Young Democrats. When police fired tear gas and projectiles into the crowd, he was horrified.
“It’s El Paso, right?” Martinez said. “We weren’t thinking that would happen. But the same thing that happened across America happened here in El Paso.”
His group organized a digital forum on police reform and racial justice with both candidates. They ultimately decided not to endorse either one — in part, Martinez says, because neither identified systemic racism as a problem in the criminal justice system or police force in El Paso.
“The term systemic racism means that wherever the system is, there is racism inherent,” Martinez said. “And because the system is here in El Paso — the policing system, a broken criminal justice system — there is inherent racism regardless of the makeup of the community.”