In Texas, Prosecution Gets Privatized

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Yesterday, criminal justice advocates protested the Harris County district attorney’s office for using pro bono law firm attorneys to help prosecute misdemeanor cases in the Justice of the Peace courts. District Attorney Kim Ogg, who calls herself progressive but has repeatedly disappointed progressives, announced the program on Monday, “applauding its ability to give new law school graduates trial experience while lightening workloads for hired prosecutors on her staff,” reports the Houston Chronicle. “Advocates pounced, questioning the ethics of outsourcing public work to private company employees, and fearing that more people prosecuting cases would lead to more prosecutions of indigent people.”

According to Ogg’s office, the Class C misdemeanors tried in justice of the peace courts generally can incur a fine between $1 and $500, and do not carry the possibility of jail time. Protesters from the Texas Organizing Project (TOP) wrote a letter to Ogg stating that even though these cases cannot lead to incarceration, they affect everyday people the most. Indeed, far from trivial, low-level charges can often make people who have managed to avoid the criminal system start thinking of themselves as criminals. And from a societal perspective, it is a line that we draw separating the criminal from the noncriminal.

The attorneys in Ogg’s program have recently graduated from law school and all work at civil litigation firms. They attended a three-day training and are working as prosecutors once a week for six months under the supervision of a prosecutor.

The most immediately offensive part of this plan is the idea of giving people straight out of law school, working in civil litigation, with three days’ training, the opportunity to gain experience on the backs of indigent people, as if their lives are a game. It is bad enough when it happens on the defense side.

Ogg claims that law firm help is necessary to prosecute the cases pending in her office. Her announcement came several weeks after she requested and was denied $12.5 million for 58 new prosecutors. “She has said she is unashamed to admit that she wants more attorneys to work in her office, arguing that they are drowning in massive caseloads that slow down the prosecution of cases,” reports the Chronicle. Last year, a court rejected her request for 102 new prosecutors. Because this program seems politically motivated, Ogg is unlikely to solve her own problem the easy way: by prosecuting fewer cases. If they are so minor, so inconsequential, as to justify having non-prosecutors manage them, why not just drop them altogether?

And then there is the government accountability issue. “Kim Ogg works for us,” TOP organizer Gracie Armijo said. “We’re here to tell her that we do not approve of her privatizing a function that should only be performed by people who are paid by us.”

As petty and irresponsible as Ogg’s actions seem, there is precedent for privatizing various law enforcement functions, including prosecution. It has not gone well. “From the troubling IRS privatizing collections of past-due taxes, to the more sinister ‘alternatives to incarceration’ industry, or the terrifying ‘ex-parte guardianship’ scam, exploitative public/private partnerships abound,” writes Edward Ring for California Local Elected Officials’ website. “Often the potential for corruption and abuse is huge, as a supposedly impartial government service is farmed out to a private entity motivated by profit.”

“In an era of scarce public resources, many jurisdictions are being forced to take drastic measures to address severe budgetary constraints on the administration of criminal justice,” writes law professor Roger A. Fairfax Jr. in an academic article. “Prosecution outsourcing currently is utilized in surprising measure by jurisdictions in the United States,” but Fairfax argues “that the outsourcing trend in criminal justice––seen most prominently in the area of private prisons and policing––should not extend to criminal prosecution because such outsourcing is in tension with the constitution” and legal norms. “Furthermore, concerns about ethics, fairness, transparency, accountability, performance, and the important values advanced by the public prosecution norm all militate against the outsourcing of the criminal prosecution function to private lawyers.”

Law professor John D. King worries that shifts to privatization often come with shifts in costs from taxpayers to the defendants themselves in the form of “user fees.” Arguing against such shifts, he writes in a law review article: “This intrusion of market ideology into the world of fundamental constitutional rights has at least two broad problems: it exacerbates structural unfairness in a system that already disadvantages poor people, and it degrades our conception of those rights.”

This is indeed what happened when two cities in Southern California began using a private law firm to prosecute property owners for minor code violations. “Empowered by the city councils in Coachella and Indio, the law firm Silver & Wright has repeatedly filed criminal charges against residents and businesses for public nuisance crimes—like overgrown weeds, a junk-filled yard or selling popsicles without a business license—then billed them thousands of dollars to recoup expenses,” reports Brett Kelman for the Palm Springs Desert Sun. If a property owner does not respond to one or more citations, a prosecutor can file a criminal complaint, and often the property owner pleads guilty because often—like half of Texas’s misdemeanor defendants—they have no lawyer, and because the charge seems so minor. A few months later, the property owner receives a bill from Silver & Wright, granting them 15 days to appeal or 45 days to write a check.

Cesar Garcia, who was charged with expanding his living room without first getting the proper permits, paid a $900 fine to the court, but was then billed $26,000 by the law firm to recoup “prosecution expenses.” When he protested, the price jumped to $31,000. Reporters have not been able to prove that the law firm even shares the proceeds with the cities that hired them.

Texas itself has recently heard many of the arguments against privatization of law enforcement. After a series of reports about tragic failures of child protective services agencies, the state passed a bill that “called for drastic moves into privatizing Texas’s child welfare system,” according to the Chronicle of Social Change. “Dubbed ‘community-based care,’ the model … puts a single nonprofit contractor in charge of foster care placements in each of 11 foster care regions around Texas,” and calls for “foster care case management shift from the state, via the Department of Family and Protective Services, to these private contractors.”

F. Scott McCown, a former district judge and former head of a nonprofit policy institute focused on low-income children and families, has been vocal about his reservations about the move.  “Almost anything in the human service area that’s been privatized has ultimately given you a worse system than you already had—private prisons, private mental health hospitals instead of public systems. You don’t have the accountability, you don’t have the transparency, and you don’t get the results,” McCown told the Chronicle of Social Change. Testifying before state legislators against the bill, McCown said: “In the name of the state—beyond the state’s control—the general contractor would be in charge of prosecuting this civil court case and making decisions as to whether a child goes with Aunt Sally or stays in their foster care. And this is a managed care organization that will be making money or losing money based on decisions it makes. And that is a serious conflict of interest.”

Kansas, whose child welfare system is mostly privatized, has been sued for “churning” children through a huge number of placements—the suit alleges that some have had up to 100 placements, many for a single night. A federal review found that Florida, which has the most privatized state system, was underperforming in 11 of 14 categories. In one region in Texas, a Kansas-based nonprofit won the contract to handle placement services under the new law. “It’s not community-based care, it’s privatization,” McCown told the Chronicle of Social Change. “It’s Orwellian to call it community-based care when the community you’re talking about is Topeka, Kansas.”