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How many prosecutors do we need?

Opinions differ, but it’s a big question in Harris County right now.

Kim Ogg

Hanover is one of many prosecutors Harris County District Attorney Kim Ogg said are overburdened — the reason she has asked Commissioners Court for a budget that would fund 102 additional assistant district attorneys and more than 40 support staff. Ogg said the surge is needed to clear a backlog in cases exacerbated by Harvey, a driver of overcrowding at the Harris County Jail.

Her proposal to expand the prosecutor corps by a third, however, has evolved into a proxy battle over the future of criminal justice reform in Harris County. Ogg finds herself so far unable to persuade Democrats on Commissioners Court as well as reform groups, who have questioned her self-identification as a progressive and said her proposal would lead to more residents in jail.

“Simply adding prosecutors is the strategy that got us here in the first place, with this mentality that the only thing we can spend money on is police and prosecutors,” said Jay Jenkins, project attorney with the Texas Criminal Justice Coalition.

Ogg, a first-term district attorney who unseated a Republican in 2016 with the support of many progressive groups, said these critics fail to grasp the on-the-ground realities of her prosecutors, whose heavy workloads mean they sometimes are the reason cases are delayed and defendants languish in jail.

Ogg pledged to send the first 25 new hires to the felony trial bureau, where she said they can help achieve the reforms progressives seek, such as identifying low-risk defendants who can be sent out of the criminal justice system without a conviction.

“Who else is going to divert offenders who should re-enter society, and prosecute the people who should be incarcerated to protect the public?” she said. “This is a question of how fast do our funders really want to reform our justice system?”

Ogg laid out her argument in an interview Wednesday at the district attorney’s temporary quarters at 500 Jefferson, where a regular shuttle takes prosecutors to the criminal justice complex more than a mile away.

Ogg said since taking office, she is proud to have diverted 38,000 defendants for a variety of low-level offenses, including marijuana possession, misdemeanor theft, first time DUI and mental health-related charges such as trespassing. With an active caseload that jumped from about 15,000 when Harvey hit to 26,523 this week, she said prosecutors are not always able to give victims and defendants the attention they deserve.

Her staff noted Harris County’s 329 prosecutors are less than half the number in Illinois’ Cook County, which is only slightly more populous.

“With adequate staff, we’ll be able to offer pleas that are reasonable earlier,” Ogg said. “We’ll be able to focus on public safety to make sure we don’t let someone go who is really a risk and threat to either his family or his community.”

She sought to mollify the concerns of progressives who fear it could lead to more people in jail, saying, “There’s no data showing that more prosecutors equals more prosecutions.”

Here are the original statements put out by TOP and the TCJC. This subsequent Chron story gives some more detail.

“We would like to stop the clock and take time to consider other options, primarily looking at funding for mental health issues,” organizer Terrance Koontz said.

Koontz said TOP is looking at housing options for nonviolent offenders who may need to reset their lives.

“We’re talking about individuals who are being arrested for minor drug charges or being homeless on the street or having a mental problem, and they definitely shouldn’t be sitting in jail,” Koontz said. “We are not here to attack D.A. Ogg, we just want more time to consider our options.”

[…]

Doug Murphy, president of the Harris County Criminal Lawyers Association, agrees with Ogg’s proposal.

“Having witnessed the daily reality of their lack of manpower what we’re seeing is Harris County was the fastest moving docket in the country, we called it the rocket docket, and it slowed it down to a snail’s pace,” said Murphy. “What we got is bloated dockets because they don’t have the manpower to work these cases up and marshal the evidence.”

Murphy believes more prosecutors would help pick up the pace of getting cases to trial, resolved and even dismissed. “If I weren’t witnessing daily the backlog and the frustration, I would be in total agreement with the other organization,” Murphy said.

Koontz still worries that more prosecutors would ultimately mean more arrests and more people wrongly incarcerated.

“We just want to consider other viable options outside of just hiring the prosecutors,” Koontz said. “Because although it does not seem like putting more people in jail, at the end of the day we feel like more people will end up in jail than not and at the end of the day its black and brown people who are overwhelmingly being incarcerated.”

Honestly, I think everyone is raising valid concerns. The chaos of Harvey has caused a big backlog for the DA’s office, and it doesn’t serve anyone’s interests for cases to drag out because there just isn’t the time or the bandwidth among overworked assistant DAs to get to them. On the other hand, Kim Ogg made promises about how she was going to reform the system, and a big part of that was not prosecuting a lot of low-level crimes or crimes involving people who need mental health treatment. They also worry that while Ogg might not backtrack on her stated priorities, the next DA who inherits her bigger office may not share those priorities. It’s not at all unreasonable to worry that an increase in prosecutors will be counter to Ogg’s stated goals.

So how to resolve this? Grits suggests increasing the Public Defender’s office by an equivalent amount – Commissioner Rodney Ellis has suggested something like this as well, and the PDO is seeking more funding, so that’s on the table. I like that idea, but I also think it may be possible to assuage the concerns about what happens after the backlog is cleared by putting a time limit on the hiring expansion. Is it possible to hire people on one or two year non-renewable contracts, to get the office through the backlog but then have it return to a smaller size afterward? I’m just spitballing here, but if we agree that clearing the backlog is a worthy goal, then we ought to be able to find a way to ensure that doing so doesn’t lead to mission creep. I’m open to other ideas, but I feel like this is something that needs to lead to a compromise, not one side winning and the other side losing. I hope we can get there.

DA’s office to help buy body cams

Very good news.

Harris County District Attorney Devon Anderson plans to purchase hundreds of body-worn cameras for Houston police officers and sheriff’s deputies, weeks after widespread protests erupted when a white Missouri police officer was not charged for fatally shooting an unarmed black teen.

In the aftermath of the grand jury decision in Ferguson, Mo., on Nov. 24, civil rights groups have called for increased accountability during police encounters, including the use of small cameras worn on officers’ uniforms. This month the Chicago police department, the nation’s second-biggest force, announced a pilot program for body cameras to begin in January. The Obama administration also recently asked Congress for approval to spend $263 million to help states acquire 50,000 body cameras.

A sheriff’s spokesman and Sen. John Whitmire, D-Houston, confirmed the purchase of the body cameras locally.

[…]

Local officials with the NAACP called the camera initiative “good news.”

“That’s a very positive step,” said Carroll Robinson, treasurer-elect with the Houston Branch of the NAACP. “The body camera won’t solve every problem but the more we can see the less we have to rely on he-said, she-said.

“They will help improve community trust in the law enforcement system and bring confidence to those who want to make sure the criminal justice system is hearing their voice and their concerns.”

Carmen Roe, president of the Harris County Criminal Lawyers Association, said body cameras are “essential to provide transparency out on the streets, for the protection of law enforcement as well as citizens in the community.”

Roe and others said policies and guidelines for the cameras’ use are critical.

“I hope there will be some written policies in place to ensure the cameras are not used at the discretion of officers,” Roe said. “Any time there are officers out on the street, their cameras should be activated to record any interaction with citizens in the community.”

Agreed on all counts, and major kudos to DA Devon Anderson for taking this initiative. This also addresses something I’ve been thinking of since the push for body cameras for HPD began, which is what about Sheriff’s deputies? There’s a lot more cops than just HPD, after all. Of course, there’s more than HPD and the HCSO, too, but you have to start somewhere.

You also have to keep in mind that body cameras are a tool and one piece of a much larger puzzle. They’re not a solution in and of themselves.

Justin Ready, an assistant professor of criminology at Arizona State University who has conducted research on the use of body cameras in the Mesa, Ariz., and Phoenix police departments, said the technology may not be enough to prevent another Ferguson.

“Any interaction is complex. The cameras might show you five pieces of a 10-piece puzzle, and we tend to fill in those blind spots with our own biases,” he said.

Though body cameras can raise transparency and accountability on both sides of the lens, experts also urge caution about unrealistic expectations for the devices.

One study released in September, “Implementing a Body-Worn Camera Program” – a joint report from the Police Executive Research Forum and the Justice Department’s Office of Community Oriented Policing Services – examined how agencies were using the devices and offered recommendations for those considering outfitting officers with cameras.

“There’s a lot of public support for it right now and agencies are really wanting to jump on board, but what we say is: Do this cautiously and think about what your policies are going to be and how this is going to impact your community and how officers are going to do their jobs,” said Lindsay Miller, the report’s co-author and a senior research associate at the Police Executive Research Forum.

Most cameras cost $1,000 to $1,500 each, but deploying the units also requires a more expensive component: video storage and management.

“Every video, no matter how you store it, has to be uploaded, characterized, properly tagged and sometimes linked to a document system,” Miller said. “This program requires a considerable amount of money and manpower.”

Absolutely, and it also requires a lot of thought, and ideally a lot of engagement with the public, to do this effectively and appropriately. That we are going to start thinking about these things, and again getting the public involved in the process, is a positive step. I commend DA Devon Anderson, whose action will enable all Sheriff’s deputies to get body cameras, for doing her part to make this happen. Grits, who notes pushes for body cameras all over Texas, and Hair Balls have more.

The DA’s new DWI program

The Harris County District Attorney’s new driving while intoxicated diversion program appears to have some problems.

Under the new program, those accused of a first-time DWI will be offered the diversion program or 30 days in jail and a $750 fine. Defendants who do not want either choice can take their cases to the judge or to trial.

Currently, some first-time DWI defendants are given the option of pleading guilty, paying a $100 fine and taking three days in jail, plus two days, which they do not have to serve if they behaved during the first three.

Known around the courthouse as a 3/2/$100, the deal will not be offered after the diversion program begins.

Those who take the diversion program will plead guilty and get a maximum of two years probation, including treatment and community service. If they successfully complete the probation, their records will not show a conviction for driving while intoxicated. If they fail, they will be sentenced to at least 30 days in jail under a contract signed when they take the deal.

JoAnne Musick, president of the Harris County Criminal Lawyers Association, said the program is coercive and appears to thwart the intent of the Legislature, which prohibits deferred adjudication for DWI offenses.

“It could have been a good program. It could have been an exceptional opportunity for people who have made a mistake and driven when they shouldn’t have,” Musick said. “At the same time, I think it’s very poor planning and execution on how to conduct the program.”

She said the plan is coercive because defendants have to waive their rights, sign a contract and plead guilty. She said defendants could be sent to jail at the smallest amount of evidence of a mistake or if they fail to fulfill every requirement.

Problem One, as Musick points out, is that this looks an awful lot like a deferred adjudication program, which the Lege outlawed for DWI infractions back in the 90s. Problem Two, as noted later in the story, is that it’s not clear this will actually reduce the jail population, which would seem to be the point and which constitutes a deal-breaker for me. Remember, a lot of defendants prefer to choose jail time over probation now because the probation requirements are so onerous. Problems Three and higher are enumerated by Grits, Mark Bennett, Paul Kennedy, and Murray Newman; I’ll leave it to you to see what they have to say. I’m thinking this one needs some more time on the drawing board.