Friday, September 03, 2021

Politics explains oddities and strange bedfellows in Harris County bail debate

Harris County District Attorney Kim Ogg issued a 56-page report disputing the findings of federal bail monitors overseeing the settlement agreement between plaintiffs and the county.

Her arguments are so disingenuous, it's a bit tiresome to go through them for rebuttal. But since the Houston Chronicle editorial board recently anointed themselves the DA's PR agents, it's worth at least pointing out her most egregious misstatements. 

The biggest one is a common misrepresentation that you rarely see people claim in writing; it's always something whispered behind the scenes, until now. Ogg claimed: 
“Bail reform” has not been confined to misdemeanors, but has been implemented, in practice, for felony defendants at every level, even repeat violent offenders charged with some of Harris County's most notorious and deadly crimes, including, but not limited to murders and capital murders.
This is inarguably, factually, a lie. Not an overstatement. Not an alternative point of view. Not a difference of opinion. A bold-faced lie by someone who should know better. It's something opponents of bail reform say over and over, but when you dig into the stories, the person inevitably paid cash to get out. The Houston Chronicle looked at more than 200 murders committed by people out on bail since 2013. Less than 1% involved someone out on personal bond.

Regardless, over and over we see personal bonds blamed for crimes committed by people who paid to get out. On the floor of the Texas Senate this summer, Joan Huffman told her colleagues during the first special session that five people who were out on bond had been charged with murders in Houston since that body had adjourned. But it turned out, none of them were out on a personal bond. All of them had paid to be released and their cases wouldn't be affected by the bill. 

By contrast, misdemeanor bail reform involved the use of personal bonds, and misstatements like this are why the Legislature focused on banning them. But that won't affect "repeat violent offenders charged with some of Harris County's most notorious and deadly crimes." It's just not true, no matter how often it's repeated, including by Republicans I respect.

Ogg's central argument is that the number of crimes committed by people out on bail is increasing in Houston. Which is true -- and also far more people are currently awaiting trial than just a few years ago. She frames the discussion in a way that elides that key fact, knowledge of which might lead to different conclusions. Her key "findings" were presented as follows:
  • Re-offending by criminal defendants who have been released on bail is up.
  • Bond failures by criminal defendants are up.
  • Violent offenses committed by defendants free on bail is up.
As an improv comic might say, "Yes, and ..."

None of that is because Houston judges are hesitant to jail people. 

Here's what's really going on, and anybody who's not focused on these specific problems isn't shooting straight with you about wanting to reduce crimes by people out on bail: In the wake of Hurricane Harvey, flooded courthouses created a court backlog that increased the number of people out on bail three-fold, from a little over 30,000 people on bail to more than 90,000, reported the Houston Chronicle recently. COVID exacerbated these delays, while the latest COVID spike has heightened pressure to decarcerate local jails as a growing public health imperative

Harris County's criminal case backlogs could take years to work through unless, as Elizabeth Rossi and Amanda Woog suggested earlier this week on Grits,  the District Attorney begins using her discretion to dismiss broad classes of lower-level cases en masse.

Until then, one would expect the number of crimes committed by people on bail to increase as long as the number of people on bail is increasing.

That said, here's one more datapoint in defense of the federal monitors Ogg is ostensibly criticizing. By the data in her report, the number of crimes committed by this cohort (people out on bail) increased LESS than did the total number released pretrial. So she's complaining that the numerator in a fraction went up without telling you the denominator went up even more. I realize some people go to law school because they're not good at math, but even in that context, this is a little extreme. Her whole memo is based on such preconceptions.

In fact, there's evidence that, faced with a significant problem of the number of people out on bail tripling in a short period of time, judges did a pretty good job of vetting cases. Since the number of people out on bail tripled but the number of crimes committed by that cohort increased less than that, in aggregate, judges seem to have been making the best public-safety oriented decisions they could in response to a bad situation. 

In Texas politics, however, no good deed ever goes unpunished.

Grits believes the DA's complaints and indeed, the entire Texas bail-reform debate, can't be understood outside of a highly politicized context. Between County Judge Lina Hidalgo (who hasn't approved Ogg's open-ended budget requests) and recently elected Democratic Houston judges, some of whom supported her more progressive primary opponents last go round, Ogg and the governor find themselves, at least in the short term, with common enemies. I'm not saying it's planned; more like she's taking potshots, looks up, and all of a sudden she and the Governor are shooting at the same targets. The enemy of my enemy is my friend, etc..

Regardless, there's no way for Harris County to incarcerate its way out of court backlogs. It's a practical impossibility and from a perspective of responsible governance, absurd to demand it. But that's the simplistic vision of "justice" and "safety" that Ogg, Andy Kahan, and Governor Abbott would have you buy into.

If Ogg were working with other Harris County officials to problem solve by getting rid of the backlog, judges might give more credence to her requests for higher bail on actual "repeat violent offenders." And perhaps she'd get a more welcoming reception in her budget asks at the commissioners court. 

But some prosecutors believe it's never their place to negotiate. They see their role as either "I get my way or I'll fight you." That's what we're seeing with Kim Ogg, and it's a severe disappointment.

Thursday, September 02, 2021

Prosecuting crimes of poverty isn't the same as combating a "crime wave"

The following is a guest blog post co-authored by Elizabeth Rossi of Civil Rights Corps and Amanda Woog of the Texas Fair Defense Project. Their organizations are among the civil rights groups involved in bail litigation against Harris County. Related: this discussion of the District Attorney's claims to be fighting a "crime wave" in Houston harken to this analysis of media coverage of crime and jails from a century ago. Sometimes, the more things change, the more they stay the same.

The Chronicle’s recent editorial “How Harris County prosecutors are trying to stop Houston’s crime wave,” casts District Attorney Kim Ogg’s office as engaged in some heroic task of ferreting out the County’s most dangerous “criminals,” when in fact the DA is funneling millions of dollars toward the prosecution of poor people charged with crimes of poverty. Without a shred of evidence, the Chronicle adopted the DA’s party line, asserting that “more prosecutions means more justice and a safer community.”

Expert research -- including some paid for by the County -- shows that's not true.

The County hired national experts at the Justice Management Institute last summer to address exactly this question. JMI assessed the backlog and concluded that the safest and most fiscally responsible solution to the backlog would be “to dismiss all non-violent felony cases older than nine months,” with certain exceptions for cases like DWI, so that the DAO could devote its resources to prosecuting violent cases. The experts at JMI pointed out that only 42% of all felony cases (not just “violent” crimes) closed in 2019 resulted in a conviction. The other 58% resulted in dismissal, deferred adjudication, or acquittal. And even among the 42% of cases that resulted in conviction, the majority involved people who were released immediately into the community on probation. The idea that the DAO is rescuing Houston from a “crime wave” by prosecuting years-old theft-by-check cases and other poverty crimes is laughable.

But the Chronicle ignores this information.

The paper also ignores a recent academic study by researchers finding that non-prosecution of low-level offenses can lead to less crime without any negative effects on public safety. Ogg has offered no answer to these findings. And now she is asking for millions of dollars more to fund 22 additional prosecutors to conduct intakes -- which will bring even more people into the broken system, exacerbating a problem that Ogg created.

The DAO is to blame for this tragedy. Ogg has enormous discretion to decide whom to prosecute, and most of the cases that Ogg is now begging for resources to resolve shouldn’t even be in the system. Evidence and research show that expanding the wasteful punishment bureaucracy through initiatives like the DA’s “triage” program does nothing for public safety, but does a lot to expand the government’s control over and surveillance of poor people and Black and Brown people, exacerbating poverty, separating families, and making it more difficult for people to find jobs and housing - all conditions that tend to increase future crime, not decrease it.

Ultimately the Chronicle piece is hailing prosecutors as heroes for solving a problem that they created and that they can end without spending a single penny more. Ogg doesn’t need more money to do her job. Instead, Harris County needs to invest that money in proven solutions to public safety issues-- programs like violence interruption, mental health, youth programs, non-carceral crisis response, streetlights, and other interventions that prevent harm before it occurs -- and should stop spending millions of taxpayer dollars for the DAO to prosecute crimes of poverty from 2016.

Wednesday, September 01, 2021

Time for the Texas #cjreform movement to get back to basics

Your correspondent hasn't been writing on Grits during the latest special session because it wasn't a time when Texas state leaders were willing to listen to reasoned argument, and this humble opuscule has little else to offer.

As I wrote after the regular session ended, it's important to be clear about what's happening here: Without exaggeration, we're witnessing the spearpoint of American fascism piercing the body politic in Texas. One is not proving Godwin's Law by observing this, it's just a fact.

Abortion laws based on mass snitching regimens that read like something out of The Handmaid's Tale. Gun statutes that appear to have been authored by Yosemite Sam. More border wall building, this time with DPS troopers making petty arrests for trespassing and mass magistrations being held in county-jail parking lots. Making the bail system harder on poor people. Homelessness rendered a crime. High spending levels for police mandated. Dozens and dozens of new crimes (including a first-degree felony for doctors performing unauthorized abortions). And everything including new voting restrictions done in a highly partisan, often retaliatory fashion.

Republicans were angry and much of what passed this year was done to punish their opposition for daring challenge them in swing districts or publicly talk about negative impacts from their policies.

Grits largely blames the Governor and Dan Patrick. Speaker Dade Phelan appeared well-intentioned, but the rookie Speaker was steamrolled by the other two and, in the end, was afraid to exercise his power in ways that would displease either of them.

As the poet long ago lamented, the best lacked all conviction while the worst were full of passionate intensity.

At the state level, it's only going to get worse before it gets better. The only way to stop what's happening is for Republicans to pay an electoral price. That can't happen until November 2022, and conventional wisdom says it won't, even then.

Republicans should be vulnerable, having utterly vacated the political center, but Democrats have so far fielded no credible candidates to challenge them, and proved with their failure to hold their quorum break that the party is devoid not just of strategic thinking but fundamentally of an identity as a coherent group. Republicans are united around a dystopic, right-wing ideology that is unworkable and harmful but at least consistent. The Democratic field brings to mind Will Rogers' observation more than a century ago: "I belong to no organized political party: I'm a Democrat."

At the local level, there are more opportunities. A lot of the energy from protests last year continues to animate less high-profile but still significant changes, particularly surrounding mental-health first response and addiction. Local groups are beginning to focus on police contracts, which by their nature are long-term fights that may not see results for many years, but which alter the terms of debate locally. And shifting the culture of policing is still on the table in a variety of ways.

None of this will happen quickly. But we can already see a desire to divert people out of the local jails during COVID, especially when their problem is primarily mental health, housing or addiction, starting to align with those trying to get police out of the social-services business. Where those collaborations flower, local work can produce big changes for people in the real world, even in the current political climate. That's where the criminal-justice reform movement should focus now. Unless and until statewide Republicans - particularly Abbott and Patrick - lose at the ballot box, there's nothing to do at the state level anymore but play defense against the bad stuff.