Metric used for prosecutor study flagged
More than two dozen academics and legal scholars this week released a letter criticizing a recent Texas Southern University data analysis they say relied on a methodology littered with “fatal flaws” to conclude the Harris County District Attorney’s Office is short more than 100 lawyers.
The 20-page study released in August by the university’s Center for Justice Research compared the local prosecutor’s office to other jurisdictions in terms of staffing, funding and caseload level, an approach that the academics said fails to account for regional differences and compares “apples to oranges.”
“Unfortunately, the report overlooks a vital question: whether the response to various societal problems is prosecution in the first place,” the academics wrote, using the problem of drug use as an example. “If the answer to that problem is to provide public health responses and avoid incarceration, then the answer is that there should be fewer prosecutors.”
Howard Henderson, the center’s founding director and the study’s lead author, issued a rejoinder defending the work.
“Every last one of their claims in that letter aren’t true if you look at the report,” he told the Houston Chronicle, adding that the 104-prosecutor shortage noted was “never a recommendation” to hire that number of additional attorneys.
The idea for the TSU study in August grew out of the district attorney’s request early in the year for 102 more prosecutors.
Citing high caseloads in felony and misdemeanor trial bureaus, District Attorney Kim 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 countered
that argument, saying that more staff would instead help her office figure out more quickly which cases should be dismissed or diverted.
But in February, commissioners rejected Ogg’s hefty ask, and a data analysis by the Houston Chronicle and The Appeal later showed the figures her office presented publicly apparently overstated caseloads.
Still, prosecutors came back throughout the year with repeated requests for smaller staff increases, eventually snagging funding for a handful of new positions in the environmental and civil rights divisions. Despite the months of public discussions about the office’s caseloads and staffing levels, officials have yet to settle on how many prosecutors the county needs, what an ideal caseload size would be and whether that requires more hiring.
To tackle those questions, Henderson compared Harris County to six other jurisdictions, including larger counties like Los Angeles and smaller ones with Maricopa, Ariz.
“Following a 10,000 to 1 population-to-prosecutor ratio,” the report notes at the top of the first page, “Harris County has the greatest prosecutor deficit: 104.”
Pulled from obscure model
That calculation stems 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 by the Chronicle for comment the prosecutor said it came from the National
District Attorneys Association, while the NDAA said it wasn’t aware of it as a currently accepted standard.
As soon as the report was released, 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,” University of Texas School of Law professor Jennifer Laurin told the Chronicle in August, “I would not view that as a legitimate baseline. There’s no indication that has ever been validated in a scholarly way.”
Questions over emails
This week’s letter — signed by 31 scholars from Yale Law School, University of Texas at Austin, Emory Law School and a slew of other institutions — framed the use of that metric as one of the report’s “fatal flaws,” calling it a “baseline that has no foundation” and noting that it “also assumes a static level of crime per population grouping in each jurisdiction.”
The letter also criticized the report’s suggestion that overburdening could contribute to racial disparities in the criminal justice system and said that the study’s “flaws are simply too serious and numerous for a decision-maker to rely on to assess benchmarks for prosecutor caseloads.”
When the Chronicle asked Texas Southern University for emails between the Center for Justice Research staff and the district attorney’s office to find out more about the data and baseline metrics, Henderson — through the university’s general counsel — incorrectly said that no such emails existed.
After a reporter explained that the newspaper had already obtained one through another source, the university turned over more a few weeks later.
In the first communication — just before the Commissioners Court vote in February — Henderson asked for a meeting to determine what data the center would need to figure out the ideal prosecutor caseload and how that caseload should be determined. Then in June, Henderson emailed Ogg a copy of the report “for your review,” asking for feedback. The DA’s Office responded to correct a math error, but did not suggest other changes.
This week, Henderson told the Chronicle he did not intentionally fail to turn over any emails and that he had forgotten they existed because they were “so immaterial” to the report’s findings.
He also again defended the use of the 1-to-10,000 ratio, noting that the report did not describe the figure as an adopted standard even though it did use the figure to calculate a 104-prosecutor shortage.
In the written rejoinder, Henderson and his colleagues described the academics’ criticism as the work of an advocacy group and stressed that part of the intent of the study was to start a conversation and work toward finding a balance between reform efforts and public safety.
“Our study highlights the challenges faced by prosecutors, denotes the concerns of policymakers and recognizes the trepidations of justice reformers,” the rejoinder says. “In short, we sought to establish a foundation to begin a conversation on the need for evidence-supported suggestions for moving justice reform forward.”