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Houston DA Urged to Decline Cases, as Bid to Hire More Prosecutors Falls Short

Harris County District Attorney Kim Ogg’s budget request has sparked calls for her office to adopt a policy of declining to prosecute certain cases.

Harris County District Attorney Kim Ogg asked county officials to increase her office’s budget by $20 million so she could hire 102 new prosecutors, as reported in The Appeal last week. This drew heavy criticism from reform-oriented groups, and it sparked calls for Ogg to change her office’s practices by reducing the number of cases—and the types of cases—it prosecutes.

On Tuesday, the five-member County Commissioners Court rejected Ogg’s request. The court’s Democratic members, who seized a majority in the November elections, opposed her proposal while also voting to significantly increase the budget of the public defender’s office.

Ogg had justified her request by pointing to the backlog of cases her office is dealing with. Commissioner Jack Cagle, who supported it, told Houston Public Media, “It’s not compassionate to make an innocent individual languish in jail while waiting to get their justice because there’s not enough prosecutors to manage the file.”

But one criticism of Ogg’s proposal was that her office is filing too many charges to start with—and hiring more prosecutors would only balloon that number—and that she should instead look for ways to shrink the criminal justice system by altogether declining to prosecute certain cases.

Ogg argued that she takes concerns about mass incarceration seriously, and that she is already pursuing ambitious efforts to steer defendants arrested for low-level offenses toward pretrial diversion programs that promote rehabilitation and circumvent incarceration. Critics responded that some of these behaviors should not be criminalized in the first place, and they pressed Ogg to not file charges for certain categories of cases even when arrests are made. “The district attorney’s office claims it needs more staff to review these cases for diversion,” Jay Jenkins of the Texas Criminal Justice Coalition, said in a testimony in front of the Harris County Commissioners Court. “But in actuality the office is accepting far too many cases, overwhelming the system with low-level prosecutions.”

“All diversions are not created equal,” Jenkins explained. “Instead of diverting folks from the criminal justice system, many of these existing diversion programs instead ensnare individuals in the criminal justice system for long periods of time when the best result would be to refuse to prosecute certain low level charges.

Jenkins’s testimony echoed questions that county Judge Lina Hidalgo asked Ogg at an earlier hearing: “Shouldn’t we be trying to redirect people from being arrested in the first place rather than diverting after arrest? … It seems to me that we’re burdening our attorneys with people that shouldn’t be making it to the prosecution anyway. Why are we diverting marijuana arrestees … instead of dropping the charge, period?”

Ogg is not up for re-election until 2020, but this week former assistant DA Audia Jones launched a challenge to Ogg and criticized her budget request. “Rather than spending our resources on more prosecutors, we need to invest in education, healthcare, and housing,” she said in a statement that called for “a district attorney who understands that our social and economic problems will not be solved with prosecution and incarceration.”

When I asked Jones how she would respond to Hidalgo’s suggestion that a DA should decline to prosecute rather than divert more cases, she replied in a written message that she agreed “that more should be done to drop and divert pre-arrest rather than pretrial.” She added: “As District Attorney, I will implement cite-and-release and create a list of charges to be declined for certain nonviolent offenses. Harris County is one of the few counties that can control who is arrested through our intake system. All it takes is the political courage.”