DA’s office is understaffed, report shows

Some experts questioning metrics used in Texas Southern University analysis

Months after Harris County commissioners rebuffed the district attorney’s $21 million plea for a few dozen more lawyers, a new Texas Southern University report released Tuesday found that the county is just over 100 prosecutors short.

The 20-page data analysis by the university’s Center for Justice Research examined caseloads, funding, and available resources to find that, when compared to other large jurisdictions, the Harris County District Attorney’s Office is overburdened, underfunded and understaffed.

“Following the 10,000 to 1 population-to-prosecutor ratio standard,” the report notes, “Harris County has the greatest prosecutor deficit: 104.”

But criminal justice experts and academics called into question the metric used to reach that conclusion, which does not account for differences in crime rates and local justice priorities.

“From the standpoint of a scholar,” said University of Texas School of Law professor Jennifer Laurin, “I would not view that as a legitimate baseline. There’s no indication that has ever been validated in a scholarly way.”

Adam Gershowitz — a William & Mary Law School professor who co-authored a 2011 study on prosecutor caseloads — similarly raised concerns about the use of population as a metric, but lauded the study’s “broad strokes” approach to showing gaps in local criminal justice funding.

“This demonstrates – in a horseshoes and hand grenades way,” he said, “that (Harris County) is under-staffed and under-resourced.”

After months of fighting for more staff, District Attorney Kim Ogg said she welcomed the report.

“It is indisputable,” she said, “that Harris County requires more prosecutors to handle one of the largest criminal caseloads in the country.”

The idea for the study grew out of the district attorney’s hefty request back in February for 102 more prosecutors.

Citing high caseloads in felony and misdemeanor trial bureaus, Ogg asked commissioners for $21 million to fund the new positions, a move that drew pushback from justice reformers questioning whether more prosecutors would lead to more prosecutions. Ogg argued that wasn’t the case, and that more staff would instead help her office fig

ure out more quickly which cases should be dismissed or diverted.

But commissioners refused to greenlight the hires, and a data analysis by the Houston Chronicle and The Appeal later showed the figures presented publicly apparently overstated caseloads.

In the months that followed, Ogg’s office came back to commissioners repeatedly with new staffing requests, each narrowly tailored to specific needs for less than a dozen positions. Though commissioners approved two of those requests - adding a handful of civil rights and environmental crimes prosecutors - officials have yet to settle the question as to how many prosecutors the county needs and whether that requires more hiring.

“When I was reading about the DA ask and the questions the county commissioners were asking, they were legitimate questions,” said Howard Henderson, director of the Center for Justice Research and report co-author. “The challenge is being able to respond to those questions with evidence.”

Getting people to talk

The pages of data and tables zero in on questions of local funding, caseloads and resources relative to six other large counties across the country.

By most metrics used in the report, it appears Harris County prosecutors are less robustly resourced than others: With 703 full-time staff, the office is the smallest of the seven studied, even though it’s the third most populous county. There are more police officers per prosecutor here than in any of the comparison counties, and the per capita funding is the less than other counties - though the study did not examine cost of living differences between cities like Houston and Los Angeles.

Overburdened and under-resourced prosecutors, Henderson said, can lead to a less efficient criminal justice system where people spend more time behind bars awaiting the resolution of their cases.

“Those who are unable to post bail may be jailed for extended periods of time prior to trial,” the report notes. “As a result, these individuals may be more willing to accept a plea bargain, regardless of their innocence.”

“It is indisputable that Harris County requires more prosecutors to handle one of the largest criminal caseloads in the country.”

District Attorney Kim Ogg

But experts cautioned against making comparisons between prosecutor offices in different counties, which may have different tasks, different local political landscapes and different crime rates.

“There is sufficient variety in how jurisdictions staff cases, how they administratively count cases and how they structure workflow from police input to prosecutor decision-making that it is exceedingly difficult to compare,” Laurin said, after reviewing the document. “It might be that Harris County is not staffed at optimal levels but the comparisons the report provides in and of themselves do not provide evidence of that.”

For instance, in some jurisdictions — such as Cook and Maricopa — the prosecutors’ offices represent the county in legal matters, a task taken on here by a separate entity, the Harris County Attorney’s Office.

“You can’t necessarily compare one city to the next because there are so many local nuances,” he said. “What we’re trying to do is to get people to talk about these things.”

Selecting a standard

Though the report’s final recommendations are focused on supporting diversion and coming up with better standards to measure prosecutor workload, the document opens with a bullet point referring to a 104-prosecutor shortage.

That calculation comes from a 2016 article in a Wisconsin newspaper in which an elected prosecutor referenced a national model of one prosecutor for every 10,000 residents. The basis for that model isn’t clear, and when contacted for comment the prosecutor said it came from the National District Attorneys Association, while the NDAA said they weren’t aware of it as a currently accepted standard.

John Pfaff, a Fordham University law professor, pointed out that “millions of dollars could turn on the metric used” in the new report, and raised concerns about relying on population to determine ideal prosecutor staffing levels.

“It just doesn’t make any sense in general,” he said. “If you have 10,000 people who are not committing any crimes then you don’t need any prosecutors to handle the crimes they’re not committing.”