‘This is not the only way’: County commissioners reject Houston prosecutor’s proposal to solve problems with more law enforcement
Houston’s head prosecutor wants her office to grow by one-third. Two weeks ago, Kim Ogg, the Harris County district attorney, asked the county commissioners to fund 102 additional prosecutors and more than 40 support staff. Ogg justified this request by saying that her prosecutors were overburdened. Hurricane Harvey created a backlog of approximately 40,000 cases that her office’s 335 prosecutors must handle, she wrote in an op-ed over the weekend. “What if I help convict the wrong person? What if I fail to bring a serial murderer to justice and he kills again?” Ogg says prosecutors ask themselves. “How do we prevent a drunk driver from leaving jail, getting in his car again and killing an entire family?” She wrote that her prosecutors “triage cases” and have caseloads that are “two to four times the American Bar Association’s recommended caseload for criminal attorneys.” Overburdening prosecutors, Ogg says, is “bad for criminal justice reform and for public safety.” Understaffing means “it takes longer to resolve cases” and this can mean people languish in jail. She adds that she believes “a reasonable work-load will increase our diversion numbers, keeping individuals in the workforce and out of jail.” [Kim Ogg / Houston Chronicle]
Perhaps this sounds reasonable in theory, but there are serious problems with this proposal. First, it seems to defy logic to ask to create 142 permanent new jobs to clear a temporary backlog. It indicates that Ogg does not merely want to clear a backlog, but wants instead to simply have a bigger office with a bigger capacity to handle more cases in the future. This is precisely the outcome predicted by two professors, one of whom is a former Harris County prosecutor. In a 2011 law review article, Adam Gershowitz and Laura Killinger found that adding prosecutors could “result in increased prosecution of low-level drug or prostitution cases without any real reduction in the caseloads of existing prosecutors.” They also found that a better-resourced district attorney’s office can allow prosecutors to identify and dismiss weak cases more quickly, as Ogg has promised to do. [Zach Despart and Keri Blakinger / Houston Chronicle]
But other parts of Ogg’s request indicate that this will not be the primary outcome. Consider the language she uses in her op-ed, planting the fear of serial murderers on the loose and drunk drivers killing entire families, implying that this is a real possibility should her prosecutors get too overwhelmed. In testimony before the Harris County Commissioners Court, Jay Jenkins of the Texas Criminal Justice Coalition argued against the additional funding, noting that “fearmongering” and “talk of potential criminals” shows “the true motivations of this office.” He added, “Officials that may return to the language of the 1990s when challenged are not showing a true commitment to reform.”
And if Ogg were committed to reform, as she has said, she might consider reducing caseloads not by hiring more, but by prosecuting less. “If the goal is to move cases quicker,” said defense attorney and activist David Menschel, “she could decline to prosecute more.” Fordham Law School professor John Pfaff said Ogg should shift her focus away from prosecuting misdemeanors. “She filed 40,000 felonies and around 60,000 misdemeanors in 2018,” he said, “so that would suggest that there might be misdemeanor lawyers that she could shift to other things.” [Zach Despart and Keri Blakinger / Houston Chronicle]
“The DA’s office claims it needs more staff to be able to review these cases for diversion but in actuality the office is accepting far too many cases, overwhelming the system with low-level prosecutions in a way that harkens back to the ‘superpredator’ days of the mid-’90s and puts our immigrant communities at risk,” Jenkins said in his testimony. “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.”
And if Ogg does not want people to sit in jail while they wait for their cases to be processed, she might consider not asking for cash bail. “We’ve analyzed the data and we’ve seen that it shows the DA’s office simultaneously supporting bail reform while internally mandating that higher bail be requested in misdemeanor cases,” Jenkins testified. “It’s one thing to talk the talk of criminal justice reform, and it’s quite another to actually walk the walk.” According to Jenkins, the request is “quite simply a request to expand the criminal justice system.” And, he notes, Ogg’s claim that her attorneys handle two to four times that recommended by the American Bar Association is false. “In fact, the ABA sent out a letter in 2014 specifically stating that this statistic was not to be used for a request for more prosecutors.”
The county’s commissioners were unmoved by Ogg’s ask. This week, they rejected her request for new staff in “a stinging public defeat for the first-term Democratic district attorney by members of her own party,” according to the Houston Chronicle. “The rejection appeared even more pointed a little later when the court voted to nearly double the budget for the county public defender’s office, the most significant investment in that office’s nine-year history.” County Judge Lina Hidalgo, a Democrat on the court, said, “This is not the only way, and certainly not the most cost-effective way to decrease prosecutor caseloads.” This decision came less than 24 hours after a former assistant district attorney filed paperwork to challenge Ogg in next year’s primary, indicating that those who want reform are demanding more results. [Zach Despart / Houston Chronicle] And if nothing else, perhaps we can all shift away from the idea that every problem can be solved with more law enforcement.