D.A. Who Ran as a Reformer Says She Needs 100 More Prosecutors

‘How are we making sure that we’re not just building and building a system that we know is not necessarily effective?’

The district attorney of Harris County, Texas, formally asked the County Commissioners Court last month for $20 million to hire about 100 new prosecutors, an increase of 31 percent. DA Kim Ogg told the commissioners at the Jan. 29 budget hearing that she needs the new attorneys to handle a backlog of cases that have clogged the courts since Hurricane Harvey.

Ogg was hailed as a “bold” criminal justice reformer for campaigning in 2016 on a platform of bail reform and diverting low-level drug offenses. But activists have questioned her actions since her election. Although Ogg publicly supported bail reform, emails from December 2017 show she directed her prosecutors to seek high bail in some cases for minor offenses like marijuana possession. At the time, her office blamed the judges, who were fighting a lawsuit challenging the county’s cash bail system, and said prosecutors were unable make changes as long as the county operated under that system.

But the 2018 midterm elections brought a progressive sweep of Harris County’s judicial bench and Democratic control of the commissioners court. The newly elected officials led a settlement of a bail reform lawsuit against the misdemeanor courts that had dragged on for years and cost the county $9 million.

And as of January, there’s a new county judge in town. Lina Hidalgo, 27, beat longtime county judge Ed Emmett in an upset that Emmett, and many major media outlets, had framed as straight-ticket voting gone awry. But Hidalgo, a Democrat, campaigned on making the county judge role, typically seen as a managerial bureaucratic position, one of greater leadership on key issues affecting the county, including criminal justice reform.

“We’re not sure that hiring 100 more prosecutors is going to move the ball in terms of reform,” Kiran Khalid, Hidalgo’s communications director, told The Appeal. “Criminal justice reform is something the judge really, really believes in. We want to make sure any moves we make in that sphere are just very thoughtful.”

At the Jan. 29 meeting, Hidalgo pressed Ogg for metrics to show how the additional prosecutors would contribute to the broader issue of system reform. “How are we making sure that we’re not just building and building a system that we know is not necessarily effective?” Hidalgo asked.

Shouldn’t we be trying to redirect people from being arrested in the first place rather than diverting after arrest?Lina Hidalgo, Harris County Judge

Ogg responded that her office has diverted thousands of low-level offenders since she took the helm in January 2017, including 7,000 people for marijuana possession in the last year and a half, and 8,000 diverted into pretrial intervention or deferred adjudication for possession of a controlled substance, according to the office’s estimate. She said the new prosecutors will help decide which cases should be diverted and which should be prosecuted. “There’s not a district attorney’s office in the country … that’s diverting more people than we are, by the numbers,” she told the court. “I’m willing to stand by that—and yes, I’ve checked with [Philadelphia DA] Larry Krasner, and yes, I’ve checked with [Cook County State’s Attorney] Kim Foxx. We’re doing it.”

Hidalgo cut in. “Shouldn’t we be trying to redirect people from being arrested in the first place rather than diverting after arrest?” she asked Ogg. “It seems to me that we’re burdening our attorneys with people that shouldn’t be making it to the prosecution anyway. Why are we diverting marijuana arrestees … instead of dropping the charge, period?”

Despite her campaign rhetoric, Ogg’s office has sought severe charges. Last July, prosecutors brought felony theft charges against a woman who shoplifted food, clothing, and a cane from Walmart. She died by suicide in the Harris County jail.

It’s true that Ogg’s office has been busy since Hurricane Harvey. During the hurricane, Ogg promised to seek harsher penalties for crimes committed in the disaster area, saying she would seek life imprisonment for people with criminal records caught burglarizing houses in the hurricane. The Houston Press reported that Ogg was pursuing enhanced charges in 196 cases related to Harvey—but less than half were for burglary, and more than 15 percent of cases involved thefts of less than $750. “One man got his charge enhanced for possession of two to four ounces of marijuana,” the Houston Press noted. “Another did because he disobeyed a warning sign or barricade.”

The DA’s office did not respond to requests for comment. In an interview with the Houston Chronicle, Ogg said prosecutors are already overloaded with cases and that “there’s no data showing that more prosecutors equals more prosecutions.” But advocates are skeptical.

The Texas Organizing Project, which campaigned heavily for Ogg in 2016, strongly opposes her proposal to hire more prosecutors. “Our bottom line is and always will be, we’re in this fight to end mass incarceration. And we don’t see how hiring an additional 100 prosecutors will do anything to help that fight,” said Brianna Brown, Texas Organizing Project’s deputy director. “That money could be invested actually in programs that keep people from being incarcerated in the first place.”

Brown said the 2018 election showed that progressive criminal justice reform has broad support throughout Harris County. “Hidalgo’s election also signals that there is a new—not just a generation, but a new idea about what is possible, and it’s not just about nibbling around the edges of what reform looks like, it’s about going to the heart of it,” Brown said.

The proposal for new prosecutors will come up for a vote next week. In the Jan. 29 meeting, Commissioner Steve Radack, a Republican, floated the idea of an incremental increase (possibly funding 25 new prosecutors at a time, for instance). Hidalgo and Commissioner Adrian Garcia, also a Democrat, brought up a possible independent audit of the DA’s diversion numbers. Hidalgo’s spokesperson said that both proposals will likely be discussed before next week’s vote.

Jay Jenkins, the Harris County project attorney for the Texas Criminal Justice Coalition, a reform advocacy group, argued that prosecutors are already getting a disproportionate share of the pie at a time when Harris County’s criminal justice system is undergoing drastic changes.

“There is definitely a spectrum of opinions right now in the Harris County Democratic Party on criminal justice reform … but at the end of the day, we really have to commit to these big changes if we want to have an impact,” Jenkins said. “There are all of these other pieces of the criminal justice system that necessitate investment and for years, the only pieces we’ve invested in are police and prosecutors—and that’s gotten us to the point we’re at today.”