Push for prosecutors falling on deaf ears
Ogg finds little support from Dems to increase staff
Assistant District Attorney Michael Hanover crouched against the wall outside courtroom 17-B in the Harris County Criminal Justice Center, his laptop screen angled toward him, scrolling through the 40 felony cases on Wednesday’s docket.
The 26-year-old prosecutor spent the morning in the 174th Criminal Court, where he is assigned, poring over court files to ensure he could represent the district attorney’s office in dozens of them, including aggravated assaults, robberies, organized crime and drug possession. As District Judge Hazel B. Jones trudged through the docket, Hanover met with witnesses, haggled with defense attorneys and arranged for a Houston Police Department officer to testify, all while repeatedly checking the docket for updates.
In his filing cabinet on the other end of downtown, where the district attorney’s office has holed up since being displaced by Hurricane Harvey 18 months ago, sit 130 cases he is responsible for bringing to trial by May. His regular 60hour workweeks leave Hanover worried about burning out, though he said prosecutors have a responsibility to prepare
for cases, regardless of how long that takes.
“The defendants and the people of the county deserve that,” Hanover said. “I can’t show up on Monday and say the state is not ready because I maxed out on my comp time.”
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.
‘Focus on public safety’
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-theground 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 that 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.”
A 2011 law review article written by William & Mary Law School professors Adam Gershowitz and Laura Killinger — a former Harris County prosecutor — 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.”
Gershowitz and Killinger also found, however, that a better-resourced district attorney’s office can allow prosecutors to identify and dismiss weak cases more quickly.
The article concluded that caseloads of Harris County prosecutors are among the highest when compared with the largest district attorneys’ offices in the country. Ogg said her felony prosecutors have caseloads of 600 to 1,200, while misdemeanor prosecutors are handling 500 to 900 cases at a time.
In comparison, the American Bar Association recommended caseloads of 150 felonies or 400 misdemeanors for defense attorneys, who do not have the investigative resources of police departments typically working in their favor. The ABA has no specific caseload recommendation for prosecutors.
Other criminal justice reformers, such as Portland-based attorney David Menschel, pointed to alternative solutions instead than hiring more prosecutors.
“If the goal is to move cases quicker,” he said, “she could decline to prosecute more.”
John Pfaff, a Fordham Law School professor and criminal justice expert, said reallocating existing positions also could offer a better answer.
“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.”
Support unclear
As of Thursday, Ogg’s plan lacked the support of a majority of Commissioners Court, who will set the county’s budget for the upcoming fiscal year next month. At the Jan. 29 court meeting, Ogg found herself aligned with the two Republican commissioners, Steve Radack and Jack Cagle, and clashing with the three Democrats: commissioners Rodney Ellis and Adrian Garcia and County Judge Lina Hidalgo.
Hidalgo, who made criminal justice reform central to her campaign last fall, cited a desire to develop metrics to evaluate how a larger district attorney’s office would lead to better outcomes. “I want to understand how having these 102 prosecutors is going to, specifically, help our system as a whole move forward,” Hidalgo said.
Garcia, Ellis and Hidalgo on Thursday said they remain undecided about Ogg’s request for additional prosecutors. The Texas Organizing Project, a progressive advocacy group that provided $227,000 worth of in-kind donations to Hidalgo last year and $35,000 to Garcia, said Tuesday that Harris County should shrink, rather than expand, the district attorney’s office.
Ellis suggested at the Jan. 29 meeting that an increase in Ogg’s office should correspond with a boost in funding for the county’s public defender.
Chief Public Defender Alex Bunin has proposed to nearly double his annual budget, which would add 61 attorneys and support staff. The slate of Democratic criminal judges who swept into office this past November have said they wish to use public defenders more frequently.
Ogg does have support from other sources. Commissioners Cagle and Radack said they need no extra time to deliberate, as Ogg has made clear her office needs help.
“To create an artificial bottleneck by delaying justice through having inadequate resources in the prosecutor’s office is not kind, nor compassionate, nor sensitive to those who are criminally accused in our system,” said Cagle, who represents Precinct
4.
Harris County Sheriff Ed Gonzalez told the Houston Chronicle’s editorial board Monday that if adding prosecutors results in faster adjudication of cases, the county could more quickly end the practice of sending hundreds of inmates to adjacent counties because of overcrowding at the Harris County Jail.
Morale boost
Even if Ogg uses the funding in a way that does not increase incarceration, there is no guarantee that her successors would use the new positions similarly.
“If the next DA arrives, they could do whatever they want unless the commissioners have restricted what can happen,” Gershowitz said. “You want to make sure it’s to relieve workloads, not just to staff up so they can charge more. ”
Hanover, the young assistant district attorney, said an influx of new prosecutors would boost morale, which has sagged since Harvey. Much like the county’s flood control district was buoyed by overwhelming support for last year’s $2.5 billion bond, a funding boost could signal Commissioners Court values the work of prosecutors.
“I think it would send the message that we appreciate your efforts, and we want to help you succeed at doing something that is important for the county,” Hanover said.