Tuesday, November 28, 2017

Keep expectations realistic vis a vis 'reformer' DAs

In the world of criminal-justice reform, because there are so many different participants and levels of government involved in how the system operates, reformers must keep available a full tool chest of possible approaches, selecting each one to accomplish a particular task in a given situation.

Nueces County DA Mark Gonzalez
For example, if you want to eliminate money bail, maybe litigation is the only option. OTOH, if one wants to close prisons, that must be done through the Legislature, and in particular the House Appropriations and Senate Finance Committees.  Want to oppose local jail expansion? You'll need to lobby the county commissioners court. Or if one wants fewer people shot by police, the policies governing use of force are controlled by unelected administrators at local departments, with only indirect input from city managers or city councils. Each of these issues requires reformers to adopt a tailored approach if they hope to succeed; there's no one tactic which will transform the entire process.

Lately, it has become fashionable to claim that prosecutors are primarily or at least disproportionately to blame for mass incarceration, a view to which Grits only partially subscribes. But the principle champions of this critique have not developed viable visions for how prosecutors' offices might operate in the alternative. And so, the go-to move in the near term has been to run "reformer" DA candidates against incumbents, hoping a change at the top will trickle down throughout the agency.

However, using the electoral process to oust a DA is an expensive and difficult tool to employ among the array of possible options, and in many cases it may have limited practical utility. In some cases it can easily backfire. How can one tell if it's worth it?

Indeed, is it worth it at all? In a post responding to Josie Duffy Rice titled "'The Myth of the Progressive Prosecutor,'" Grits recently argued that, "Any differences between electeds play out at the margins of just a handful of individual cases. But the overarching structure and purpose of the institution inevitably remains undisturbed. Even when DAs take a progressive step, there are almost always pragmatic, internal reasons for it."

That flies in the face of expectations of reform supporters who back DA challenger candidates. Rice's colleague, Carimah Townes, recently examined the brief tenure of Nueces County DA Mark Gonzalez through the lens of a Disappointed Reformer, but it's unclear what exactly he was expected to do which would have pleased his critics.

Sure, Gonzalez could simply stop taking drug cases or use his discretion more radically to reduce local jail populations and prison commitments. But to expect him to do so is to expect things he never promised during his campaign.

Which brings us to what he did campaign on, and what reformers may reasonably expect from successful electoral strategies, particularly in the South. (Caveat: The new DA in Philadelphia appears to have a more visionary agenda, and I'm interested to see how he fares and exactly what he does differently from his predecessors. But none of our "reformer" Texas DAs promised anything close to his campaign platform.)

During the election, Gonzalez touted his own background as a proud defense attorney and Mexican-American motorcycle enthusiast. In addition, the remarkable "Not Guilty" tattoo across his chest gave voters an impression he would approach the job with a different sensibility. But the job is the job, as Grits argued in response to Ms. Rice's column. As long as decisions are being made within traditional frameworks - just by different lawyers - mostly the same outcomes will be reached, with a few differences at the margins whose importance will be magnified by the media beyond their real weight.

So why would one bother with an electoral strategy if that's the best outcome that can be expected? Generally, it's because the incumbent is so zealously "tough on crime" that it clouds their judgment and perspective. That was the case with Gonzalez's predecessor Mark Skurka. It was the case with the predecessors of Craig Watkins in Dallas and Nico Lahood in San Antonio (though both of those men later turned out to present their own problems). The ouster of John Bradley in Williamson County had important ripple effects throughout the state, even though his replacement turned out to be no great shakes and lost when she ran for re-election.

Kim Ogg in Houston is the exception to the only-a-bad-prosecutor trend. Her predecessor Devon Anderson was, relatively speaking, a reformer-Republican, though not as outspoken as Ogg. Her ouster resulted primarily from a partisan sweep that also saw all the judicial races flip and Hillary Clinton carry the county.

In Dallas, the Democratic primary race between John Creuzot and Elizabeth Frizell, who are competing for the right to take on Faith Johnson in November 2018, has taken on an establishment vs. reformer tone, with Creuzot (who switched parties to keep his judgeship, then switched back when Dallas turned blue) featured as an establishment foil, and Frizell as the ostensible resistance candidate. But Frizell's pitch, like Mark Gonzalez's, at the end of the day is incredibly general:
Frizell said her experience was different that that of Creuzot, who was a judge and prosecutor when Republicans controlled Dallas County politics.
"It's hard to do that when you came up in an era when prosecutors were not reform-minded," she said, adding that she would be a better choice to deal with bail reform and community concerns over police shootings.
That's a promise to have a subtle difference in perspective on the part of the agency's top decision maker, but it's not a promise for radical, progressive reform. She says she'll be "better" on these issues, but doesn't specifically say what she'd do differently.

Which brings me to why our friends at the Fair Punishment Project are inevitably disappointed when they see the elected DAs they supported in action: They've sometimes projected more reformist heft onto these candidates than their campaign rhetoric ever justified, which really isn't the candidates' fault.

Mass incarceration is not a partisan issue and replacing an R with a D, or vice versa, doesn't change much regarding how the justice system operates.

For most of these reformer DA campaigns, and certainly for Gonzalez's, the big pitch was "I'm less of an asshole than the guy who has the job now." IMO, only when that is reason enough - i.e., when the incumbent is so much more actively harmful than is typical that simply removing them from power would improve outcomes - is an electoral strategy justified. That's because such elections can send a political message to pols about voter preferences that other politicians, like state legislators, will notice and heed.

But with less egregious cases, unless one is very clear-eyed regarding the import of potential achievements (e.g., "getting rid of Mark Skurka is a good thing," which it is), electoral strategies targeting DAs will mostly result in disappointment in terms of reducing mass incarceration.

Don't say you weren't warned.


Anonymous said...

As long as judicial and DA elections are partisan, reform will be slow except in the most egregious of cases of misconduct, most elections predicted well in advance. And reformers like Kim Ogg of Houston will typically get their single term before the electorate replaces them in the next election, at least in counties were the numbers of republicans and democrats are similar. Until that is changed, working to change the laws makes more sense in practical terms from a cost to benefit analysis.

Gritsforbreakfast said...

I doubt you're right about the "single term," 10:19, especially for Ogg, but I agree with you about changing the laws, and the partisan bent of elections (the latter of which is why I disagree with you about Ogg). E.g., Craig Watkins would still be DA in Dallas if it weren't for his missteps and imbroglios, it's not the reform agenda that sank him.

Anonymous said...

I don't know why it's so hard to understand that the public likes to feel safe and protected, and victims expect justice to be obtained against those who victimize them. You can only accomplish so much "reform" by offering rehab to drug and alcohol addicts. At some point, you still have to decide what to do about murderers, child molesters, wife beaters, robbers, stalkers, etc.. A lot of these people are really dangerous. And every time you go soft on one of these potentially violent offenders, agree to probation or a low bond--you run the risk that such a criminal will get out of jail and murder a DPS trooper in cold blood on the side of I-45 on Thanksgiving Day. Think there isn't some serious soul searching going on in Smith County right now? Do you want to be the prosecutor who has to explain to the wife and family of a deceased officer why the murderer that killed their husband and father wasn't in jail?

Gritsforbreakfast said...

@5:44, that's not the issue at all, the public votes FOR reformers in recent elections, and no one but you (troll) ever suggested doing nothing about "murderers, child molesters, wife beaters, robbers, stalkers." That's just stupid.

Ironically, if Smith County were to ADOPT pretrial reforms, they'd be LESS likely to have someone released who murders somebody. But hey, don't let facts or reality get in the way of you opinions!

My critique is that the issue with prosecutors is structural, not a function of individuals who hold the office. (See my earlier, linked post responding to Ms. Rice.) It has nothing to do with the hackneyed nonsense you wrote.

Phelps said...

E.g., Craig Watkins would still be DA in Dallas if it weren't for his missteps and imbroglios, it's not the reform agenda that sank him.

Except that it seems like everyone who runs on the "reformer" platform has the same missteps and imbroglios. Watkins was great for Project Innocence -- but he was also incompetent as a manager and prosecutor, and wouldn't follow the rules on spending or campaign finance to boot.

Sometimes the base principles are enough to outweigh the lack of institutional knowledge and experience. That's how the country voted in the last presidential election -- but those sorts of reforms come at a cost, because those sorts of people bring their own problems.

Gritsforbreakfast said...

@Phelps, agreed Watkins was a flawed candidate. Disagree all reformers have same flaws. Give Ogg and Gonzalez a minute to do the job before you lump them in with that dumpster fire.

Phelps said...

I'm willing to wait until the smoke turns to flames, but doesn't mean that I'm not going to have an extinguisher ready.

Sometimes you have a good reason to set the dumpster on fire, but let's not pretend that we aren't walking into the same situation.

Gritsforbreakfast said...

I've seen no evidence yet that we are walking into the same situation with those two, Phelps. Watkins' problems stemmed from his desire to use the post to become a political kingmaker (picking judges) instead of focusing on running the office, and he appeared to tolerate corruption among constables and to use the asset forfeiture fund for self-dealing. All of those are very much avoidable problems.

Other reforms he did - the conviction integrity unit that started a national trend, having the DA office independently investigate police officer shootings, etc. - were perfectly viable and not at all the reasons he was ousted.

Anonymous said...

Grits, voting patterns in Harris County are pretty clear regarding the D vs R situation so there is plenty of evidence to suggest Ogg may be a one term DA. While the county offices have been mostly R for the last 20+ years, demographics show the growth favoring D's is not so great outside the city of Houston, all it will take is a decent R candidate to yank the seat away from her.

Personally, I like the drug decriminalization she has championed but on the flip side, I have seen her staff offering extremely favorable bargains to aggravated robbers and other violent criminals so I have to wonder if any of them will be the next "Willie Horton" around her neck. I know that isn't fair but one look at the county commissioner's court make up shows there is still a propensity towards law and order, it took over a million dollars of dedicated support from George Soros, presumably wanting Ms. Ogg for her critical stance on the death penalty, to get her elected. Is he going to pony up more to keep her in place when R voters go back to the polls, her campaign war chest doesn't show it as of yet.

Mark M. said...

I guess it's "progress" to see that our intolerant, biased, ill-informed and small-minded country yokel cousins have internet access and actually read websites that address authentic Texas problems in a modern, evidence-based manner. Welcome to the 21st century, 05:44.

Steven Michael Seys said...

The real problem with "tough on crime" DAs comes when a case is difficult to close and the pressure is up due to campaign promises. Then the investigators are tempted to "discover" evidence that didn't exist before they dreamed it up, and prosecutors become willing to employ perjury to secure the conviction of the preferred suspect. Meanwhile, the actual perpetrators are out on the street committing more crime and the "tough on crime" system becomes the easiest to beat just by throwing the system a patsey.

Steven Michael Seys said...

Mr. Watkins's Conviction Integrity Unit was rather selective in which innocent persons would get exonerated. In my own case, the CIU "lost" my reporter's record and the best piece of DNA evidence that was collected and presented in my trial. Then they argued against allowing a DNA test on the basis of conflicting terminology between the lab, the GPPD and the record. The End result is no justice served and a continuation of the fallacy quo.

Phelps said...

I'm not saying that Watkins' corruption had anything to do with his reforms. I'm making a different point -- my point is that the kind of person who runs as a reformer tends to be the kind of person who is fast-and-loose with the rules and their own ethics. Remember, a big part of Watkins' problems were ethical.

It's hard to find someone who is sympathetic to the need to reform criminals where possible and holds themselves to the highest standards in the same person. Add in that this person has to be someone with access within the political machine, and it becomes damn near impossible.

The establishment types are established, by definition. Their corruption runs towards, "of course the accused committed this crime, I wouldn't have charged him if he didn't." The reformer type of corruption runs towards, "of course my wife did half a million dollars worth of work for my campaign, I wouldn't have paid her if she didn't."

Smith County Resident said...

Um, @5:44 would you please clarify the connection--if there is one--between the situation in Smith County and an officer being murdered? Did Bingham and his minions let someone out who later killed a DPS trouper? I'm not aware of such a case, but I'm prepared to stand corrected, if necessary.

Ah, but Smith County, the Most Ridiculous Place on Earth! There's really no "soul searching" going on here in terms of the D.A. race. Bingham's replacement, Jacob Putman is already waiting in the wings and is running unopposed. He's making some noise about upholding the rule of law and restoring "integrity" to the office, but we'll see. He is supported by some good people in the system, so we'll hope for the best, I guess.

The BETTER news is that DA Matt Bingham's chosen successor, First Assistant April Sikes, precipitously dropped out of the race this spring. That was interesting in that it happened right after a popular blogger published some cryptic comments about how she might have to answer some tough--and potentially embarrassing--questions during the campaign. Hmmm... She would have almost certainly continued the dynasty of A.D. Clark III--Jack Skeen Jr.--Matt Bingham.

I agree, Grits, in that systemic changes, such as legislation, are necessary. But you have to change things at the local level, too. Prosecutors and law enforcement agencies are uncanny in their ability to circumvent the law. After all, who is going to arrest them or prosecute them when they break the rules? You still have to have good people in office who are willing to do the right thing.

Anonymous said...

@Mark M... According to most East and West Coast liberals, it was the "intolerant, biased, ill-informed and small-minded country yokel cousins" that elected Trump. Or as labeled by your candidate Hillary: "deplorables." But guess what, those same people are also dutiful voters, especially here in Texas. And they vote for DA's. Welcome to the 21st century, indeed. :)

Gritsforbreakfast said...

Exactly, 8:41, and lately, in Texas and elsewhere, they've been electing DA's who promote "reform," not Trumpist touters of "American carnage," etc. Try to keep up.

Smith County Resident said...

Sorry, @5:44, I DO stand corrected. Dabrett Black, the guy who allegedly murdered the trooper, assaulted a sheriff's deputy in 2015 and was given a plea deal by Smith County Assistant D.A. Jacob Putman that downgraded the charges from two felonies to one misdemeanor. Putman claims the deputy and his family were agreeable to the deal because they wanted to avoid an extended trial. D.A. Matt Bingham is now alleging that Putman violated department policy by downgrading a felony without approval by the DA or First Assistant. (Putman is the only candidate on the ballot to replace Bingham who will step down at the end of 2018.) Wanna know who represented the defendant? Why, it was our old friend Craig Watkins from Dallas! Black is a veteran who reportedly has a history of schizophrenia, PTSD, and alcohol abuse. http://www.tylerpaper.com/TP-News+Local/314338/suspect-in-dps-trooper-shooting-was-given-deal-in-2015-attack-in-smith-county

So much for "tough on crime," which seems not to apply in certain "special" situations, e.g. when veterans or law enforcement officers are involved.

To keep this on-topic, I think this illustrates some of the endemic problems common to DA's offices. "Tough on crime" is often measured by conviction rates rather than by any assessment of whether the punishments fit the crimes or whether the public is being protected. The most efficient way to get convictions is by offering plea deals. So well over 90% of all cases get disposed that way, they guilt or innocence of the defendants notwithstanding. Everybody walks away happy, if by "everybody" you mean prosecutors and defense attorneys. The prosecutors get their high conviction rates and the defense attorneys game the system and make themselves look good by keeping their clients out of prison or get "reduced" sentences. Never mind the collateral consequences of wrongful convictions, etc.

And in this case, we had a very dangerous individual, but the fact that he was a veteran and supposedly mentally ill, everyone had a convenient "out" in that thought they could go easy on him and send him to the V.A. for treatment. (Yeah, the V.A. healthcare system is well-regarded for the quality and efficiency of treatment it provides, isn't it?)

By the way, we had another case here in Smith County in which a constable's wife tried to murder him by shooting him. He was seriously injured and the couple's 4 year-old granddaughter was also injured. But our DA talked the grand jury in to no-billing the woman because, well the constable and other family members didn't want her prosecuted. Apparently the attack was motivated by an alleged extramarital affair, and I'm guessing the constable--and the county--wanted to avoid scrutiny, as the constable had been accused of sexually harassing a county employee several years earlier.

The point I'm trying to make is that our criminal justice system is sick because it seems to operate on the basis of what is politically expedient and convenient for prosecutors, defense attorneys, and judges rather that what works well to protect the public.

Smith County Resident said...

Yup, just like I was saying. This just in from the Tyler paper:


Apparently, the Smith County deputy who was assaulted didn't want the case to go to trial because he didn't want to have to explain why he quit his job. (The article does not explain why he left the sheriff's department.) So, it's an ironic twist in that a prosecutor the "tough on crime" DA's office went easy on a dangerous defendant so that a law enforcement officer wouldn't be embarrassed during the trial.

I rest my case.