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Texas Criminal Justice Coalition

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.

Another reminder that the judicial elections are important

From the Trib:

Across the country, many public defender’s offices are overwhelmed with cases. But the public defenders in Harris County’s juvenile division are in an unusual situation: They say that they aren’t getting assigned enough cases. And advocates say cronyism between private attorneys and powerful judges is to blame.

An analysis of state and county data by The Texas Tribune shows that the county’s three juvenile district courts — led by Republican Judges Glenn Devlin, John Phillips, and Michael Schneider — have been assigning an extraordinary number of cases to a handful of private lawyers.

Meanwhile, the public defender’s office — which handles everything from probation violations to serious felonies and has strict caseload limits — has been receiving fewer assignments from those same courts.

A state-funded study found that a lawyer could reasonably handle at most 230 juvenile cases in a given year — and that’s only for minor cases, like misdemeanors or probation violations. Lawyers who also handle serious felonies could effectively manage a much smaller caseload, the study said.

But several private lawyers are taking on far more than that in Harris County, thanks mostly to appointments from the juvenile courts, according to data from the Texas Indigent Defense Commission. Those courts are also appointing the same lawyers to dozens of family court cases, where the same judges preside over child custody disputes, protective orders and decisions for kids in foster care.

The Tribune found that:

  • Houston attorney Oliver Sprott took on 377 juvenile cases in the previous fiscal year, along with 126 family court cases and some probate cases. That work brought his total haul in taxpayer money for the year to about $520,000, data from the county auditor’s office shows.
  • Harris County paid attorney Bonnie Fitch about $350,000 last year for her work on 300 court-appointed juvenile cases, 71 family court cases and some probate work. Fitch is also a municipal court judge in the small city of Arcola, about 25 miles south of Houston.
  • Attorney Gary Polland earned about $515,000 for his court-appointed work in 227 juvenile cases, three juvenile appellate cases, more than 100 family court cases, and probate court cases. He also does civil and commercial litigation, according to his web site.

Norman Lefstein, a professor at Indiana University’s McKinney School of Law, called such caseloads “ridiculous.” He added: “It’s a joke. It’s just a joke … It tells me immediately that you’re not really investigating the cases, and you’re not doing what you need to do … and young clients especially, they just don’t know any better.” Lefstein is considered a nationwide expert on acceptable caseloads.

That’s the same Gary Polland who’s been very busy soaking up appointment fees from the Family Courts as well. Great work if you can get it. And one thing Gary Polland works very hard at is getting those appointments:

Jay Jenkins, a lawyer with the reform-minded advocacy group the Texas Criminal Justice Coalition, said Harris County judges and lawyers have long been part of a “pay-to-play system” in which lawyers contribute to judge’s campaigns in exchange for appointments, or they help judges politically in other ways.

Sprott has donated $6,250 to Schneider’s re-election efforts since 2014, campaign finance records show, and Fitch gave him $3,500. Sprott has given Devlin $7,500 in the same time frame.

Attorney Mark Castillo has given Schneider and Devlin a combined $7,250 since 2014. He earned nearly $300,000 for his work in 360 juvenile cases in their courts last year, and some additional family court cases. He declined to comment for this story.

Polland has given Schneider and Devlin $1,000 each since 2014. He also edits an influential local political newsletter called the Texas Conservative Review, which recently endorsed Devlin, Schneider and Phillips for re-election.

Polland has also donated $2,500 to a new local political action committee called Citizens for a Quality Judiciary that has mailed out flyers encouraging voters to support local Republican incumbent judges: “It is too risky to hand over our courthouse to unqualified Democratic judicial candidates,” the flyer says. The PAC has also received donations from many other local lawyers who receive a large number of court appointments.

“What we ultimately got was a juvenile system where the lawyers get rich … and everybody wins but the kids,” Jenkins said.

There’s a simple fix for this. Vote those judges out, and the pipeline to these opportunists dries up. If you didn’t vote early, don’t miss out on Tuesday.

Chron overview of the Sheriff races

The candidate who isn’t there nonetheless plays a central role.

Appointed incumbent Ron Hickman faces two repeat challengers in the GOP primary, while four others, including former Houston City Councilman Ed Gonzalez battle for the Democratic nomination.

The candidates square off in an election year when criminal justice issues are on the forefront of the public consciousness, following a year and a half of protests across the country over how police use lethal force during interactions with the public, particularly involving minorities.

“There’s been a lot more scrutiny as there’s been more reporting on issues from brutality or misconduct amid patrol, to misconduct among jail guards, to sanitary issues in the jail,” said Jay Jenkinsof the Texas Criminal Justice Coalition. “For the first time in a long time, it feels like the general public is realizing what responsibilities come with that office, and how sheriff has the ability to help or hurt on those issues.”

Former Sheriff Adrian Garcia beat out Tommy Thomas eight years ago on the heels of a string of headlines about numerous inmate deaths, a high-profile civil rights lawsuit and thousands of deleted emails under a Thomas policy that violated state law. He resigned the post last May when he ran unsuccessfully for mayor; Commissioners Court appointed Hickman to finish Garcia’s term, which ends Dec. 31.

The landscape is different today, but the department again has come under scrutiny over inmate deaths and allegations of abuse, poor medical care and other problems in the jail dating back to 2009.

Hickman’s supporters argue that the majority of those issues occurred under Garcia’s regime, and that state inspectors gave the facility high marks when they inspected it last December.

It’s not a big surprise that the primaries for Sheriff are in their own way about Adrian Garcia. Jeff Stauber on the Democratic side is a pretty strong critic of Garcia’s term in office, as you can hear in the interview I did with him. His belief is that the HCSO needs someone with experience in the office as the person in charge, a charge that conveniently works against both Ed Gonzalez and Ron Hickman. As for Hickman, invoking Garcia now is basically a defensive move, but if he’s still doing it in the fall it will surely be as an offensive maneuver. As he will have been on the job for more than a year by then there’s no guarantee that the voters will accept that, but there’s no reason why they couldn’t. I suspect that once we get past March, Hickman will prefer to talk about the things he has done rather than things his predecessor did, but I’m sure the latter won’t be too far beneath the surface, if it’s beneath it at all.

Harris County indigent defense costs trending down

Via Grits, here’s an email from the Texas Criminal Justice Coalition that shows some good news for Harris County.

New numbers from the Commission show that while total indigent defense expenses in Harris County increased by $4.7 million between 2007 and 2011, local indigent defense expenses were lower in 2011 than in 2007, and down more than $4 million from their 2010 peak.

In part, this may be due to the County’s increased use of alternative dispositions, greater care in case filings, and reliance on the new Public Defender’s Office.

To read more about the Public Defender’s Office, including staffing and support resources, workload and performance standards, and benefits in representation, click here.

That link is an email from Brandon Dudley to Jim Bethke of the Texas Indigent Defense Commission that goes into detail and shows the numbers. Grits summarizes it, and you should read both. While Dudley notes that his memo “should not be used as a substitute for the significant analysis being performed by the Justice Center, Council of State Governments” – a thorough review is expected later this year – it’s clear there’s good news to report. Check it out and see for yourself.

When cutting the budget increases your costs

From the deja vu all over again department.

Texas legislators, looking for ways to plug an estimated $15 billion to $27 billion budget hole, are considering proposals that would cut as much as $162 million from rehabilitation and treatment programs meant to help criminals avoid going back to prison. For instance, the $100 Danny Bell received when he was released — the so-called “gate money” handed to prisoners who have completed their sentence — would be cut in half. Financing for Project Reintegration of Offenders, known as Project RIO, which helps released inmates find jobs, would be eliminated. So would money for educational and vocational programs in prisons and for re-entry transition coordinators. Financing for substance abuse and mental health treatment programs would drop dramatically.

Criminal justice advocates say the cuts would reverse years of reforms in Texas that have helped reduce recidivism and drive down the size of the prison population. “We’re taking away the basic tools that they need to live responsibly,” said Ana Yáñez-Correa, executive director of the Texas Criminal Justice Coalition, a nonprofit advocacy group.

The state initiated its reforms in 2007 after lawmakers got some stunning news: Budget writers estimated the state would need some 17,000 additional prison beds by 2012. It would cost about $2 billion over five years to build and maintain enough capacity. The expected growth was attributed to high probation revocation rates, low parole rates and a lack of access to treatment programs in and out of prison.

Legislators decided to try a new approach. Instead of building more prison facilities, they invested $241 million in community treatment and diversion programs meant to keep nonviolent offenders out of prison and to ensure that those who served their sentences would not come back.

More felony offenders were put on probation, and more prisoners who qualified were released on parole. As access to treatment improved and probation and parole officers had options to impose intermediate sanctions, fewer offenders were sent back to prison. Last year, Texas had the lowest parole revocation rate of the decade, with about 8 percent of parolees returning to prison. The crime rate in Texas dropped to the lowest level since 1973, even as the population increased. There are about 7,000 fewer inmates in Texas prisons now than what had been projected in the alarming 2007 report.

Tony Fabelo, research director at the Council of State Governments Justice Center, told lawmakers at a recent hearing that the cuts they are considering would undo that progress. Prison population, he said, would rise. Crime rates would spike. By 2013, he said, the state could be short about 8,600 beds. Compounding the problem, he said, are plans to close prisons at the same time treatment and diversion programs are cut. Troubling, too, are proposals to trim other areas of the budget like mental health and substance abuse treatment, public education and jobs programs.

“You’re really going to have a perfect storm developing,” Fabelo said.

State Rep. Jerry Madden, R-Plano and chairman of the Texas House Corrections Committee, was a chief architect of the criminal justice reforms that face decimation. He said he planned to fight to keep every dollar Texas has invested in re-entry, treatment and diversion programs. “The statistics clearly indicate we’re doing a better job,” he said.

The main difference between now and during the budget crisis of 2003 is that now we can’t claim we don’t know what will happen when we make these budget cuts. We saw what happened the last time, we know what will happen again, and we know perfectly well what we should be doing instead. We have no excuses. How stupid are we about to be? Grits has more.