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.

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.

Prosecutor-turned-TV-star cultivated ring of informants to give false testimony in cold cases, federal judge declares

Imagine prosecutors cultivating a "ring" of jailhouse snitches to give false testimony in cases where there otherwise was insufficient evidence to convict the defendant. Well guess what? You don't have to imagine.

A recent Houston Chronicle article by Julian Gill described remarkable allegations against former Harris County prosecutor turned TV star Kelly Siegler, with a federal district judge claiming that she concealed information about the recruitment of an informant from federal prison on Beaumont to convict Jeffrey Prible of capital murder in 2002. Judge Keith Ellison ordered a new trial for Prible, declaring he must be released in six months if the DA doesn't re-try him.

But reading the judge's 88-page order, the details are even more startling. The judge described a "ring of informants" in the federal prison - at least five or six, maybe as many as ten - who would essentially testify to whatever prosecutors needed them to say.

The leaders of this "ring" first tried to convince another man, Carl Walker, to testify against Prible before Mike Beckom agreed to do it.  Walker said the ring's leaders were “'always on the phone' with Siegler,” one of them “almost on a daily basis” regarding the case. Walker said the ringleaders “directed him to 'write a letter' to be sent to Siegler describing 'details about [Prible’s] case'” that the others had fed to him. Walker claimed that  “'common sense' told him that 'someone high on the food chain was feeding these guys the information because [Prible] wasn’t telling' Walker facts about the crime. '[T]he whole plot was made out before it was actually executed.'” 

"To Walker’s knowledge, however, Prible never actually confessed." Indeed, "Walker did not think that Prible had committed the murders."  "Overall," the judge observed, "Walker described a ring of 'five or six' informants who were trying to incriminate inmates like Prible."

That same ring, Walker explained, was “simultaneously involved in setting up another inmate, Hermilo Herrero, for another cold case murder. According to Walker, 'this is how you have [the] miraculous coincidence that the same group of guys . . . have been confessed to by two different people on two different murders, totally different murders.'”

Walker “said he came to a 'moral . . . crossroad' when he asked himself: '[Am I] going to openly lie about information I had no idea about and send this man to his death?' He added: 'I just know these guys is guilty of conspiring against him and working to recruit me and others or whomever that would listen to, actually, ah, get him on death row. I know that for a fact. I do know for a fact that Kelly Siegler was involved.'”

The informant who did testify, Mike Beckom, was recruited by his cellmate, Nathan Foreman. "Foreman testified that, after he became cellmates with Beckom in October 2001, they met Prible in the recreational yard.  By that point, however, Foreman already knew some facts about Prible’s case and had relayed them to Beckcom. Foreman had gotten his information from [another inmate, Jesse] Moreno and Siegler."

Siegler said she would not have relied on Foreman because she considered him a "liar." But she "conceded, however, that even though she similarly did not believe Foreman in Herrero’s case and accordingly did not use his testimony at trial, she nonetheless wrote a Rule 35 letter for him."

Beckom testified against Prible because he thought it would get him out of prison. Wrote Judge Ellison:

From the beginning, Beckcom testified that Siegler led him to believe that he would “get walked out . . . for [his] testimony” against Prible. Siegler told Beckcom, “[t]his probably will get you out of prison.” Beckcom thought that Siegler told him that she had talked to the federal prosecutors about his own case and they would “play ball.” He said that he had no other reason to develop evidence against Prible other than to receive a Rule 35 letter for a sentence reduction. Beckcom “knew [Siegler] had lied” because he only received one year off of his sentence for his testimony. 

The Court of Criminal Appeals said Prible had sufficient information to have claimed the informant conspiracy earlier. But, Judge Ellison concluded, "Although Prible may have suspected prosecutorial misconduct, including Brady violations, during the course of state court proceedings, Siegler’s efforts to suppress evidence of her contacts with Beckcom and the other informants left Prible with no concrete evidence to support such a claim during those proceedings, despite Prible and his counsel’s diligent efforts to discover such evidence."

To be sure, wrote Ellison:

In many ways, Beckcom was not a credible witness. From the Court’s review of the record and its observation of his live testimony, it is obvious that Beckcom was dishonest when it suited his needs. In other areas, however, Beckcom’s testimony corroborated other testimony and the timeline of events. While the Court finds that Beckcom was generally not a credible individual, certain areas of his testimony can be confirmed when compared to the record.

Kelly Siegler, it must be emphasized, denied any misconduct. But many of her answers to the most salient questions amounted to "I don't remember," while all the details that supported Prible's conviction she remembered vividly.

The judge noted that she'd received letters from several other people in the ring offering testimony against Prible but didn't follow up because she didn't believe them. "Curiously," wrote Ellison, "Siegler said that the letters were in the file open for Prible’s defense attorneys to read. This, of course, turned out to be untrue." Concluded Judge Ellison, "it is now undisputed that they were in her work product file and were not disclosed to defense counsel."

Further, Siegler "testified that she never saw Foreman after the August 2001 FDC meeting; yet, there is unrefuted evidence that she had a meeting with him in December 2001 at FCI Beaumont."

The only other evidence against Prible was DNA, but that wasn't enough to initially charge him because he freely admitted he'd been having an affair with the victim. Only the jailhouse snitch saying Prible confessed gave the state enough evidence to get a jury to convict. But even the DNA evidence was suspect. According to Judge Ellison, "The State did not disclose that it had developed evidence supporting the defense’s expert testimony on the DNA, but still presented testimony with directly opposite scientific conclusions."

Despite all this, Prible would normally be procedurally barred from making these claims because he did not include them in earlier habeas writs at the state level. But Ellison ruled that Siegler withholding critical evidence was sufficient to overcome that bar: After all, actions by the attorney representing the state itself was the reason Prible couldn't raise these claims before.

This was a remarkable ruling and the facts of the informant ring shopping testimony to prosecutors sounds like it came straight out of a movie. This isn't the first time Kelly Siegler has been accused of withholding evidence from defense counsel, but it may be the most sensational example.

Notes: Citations omitted from all quotes from the order. Also, Mr. Herrero's name was spelled two different ways in the judge's order. I looked him up in TDCJ's database and used the spelling corroborated there.

Defense pushback against Kim Ogg's contention that judges can't consider COVID

Last week, Grits wrote about a unusual motion to the Texas Court of Criminal Appeals from Harris County District Attorney Kim Ogg arguing for higher bail in the case of Timothy Singleton, in which the DA asked the court to rule that judges could not consider issues related to the coronavirus when setting bail. After initially turning her down, Singleton allegedly committed another offense, this time, domestic violence against his girlfriend and her grandmother, and fled. The DA again asked the CCA to intervene, and this time the court required the bond be set at $100,000, although they did not mention nor affirm the DA's contention the judges couldn't consider public health issues during bail decisions.

Now, though, Mr. Singleton has hired counsel, Brent Mayr and Stanley Schneider, who on 4/20 issued a motion for reconsideration to the CCA. The Houston Chronicle's St. John Barned-Smith provided coverage here. Their brief provides a great example why one doesn't get a full story in the courtroom unless both sides get to make arguments.

For example, the DA's brief had not informed the CCA that the pretrial risk assessment instrument magistrates use to guide release decisions scored Singleton at a level suggesting a "Personal Bond Recommendation referred to Magistrate." That would have been useful information to give them, don't you think? The DA recommended no bail, and the magistrate set bail at $500.

The Chronicle story mentioned a few other items from the defense brief that the DA had omitted, including the magistrate's specific reason for her decision:

Court records show the magistrate noted that police did not find any gun when they investigated the allegation against Singleton. His bond paperwork also shows police did not appear to have spoken to any other witnesses, and that Singleton had not missed any court appearances in the two years prior to the incident. 

Magistrate Jennifer Gaut also ordered him not to have contact with the man he was accused of threatening.

Gaut also conditioned his release on complying with curfew restrictions. So, while the DA's brief accused the magistrate of ignoring the state's recitation of Singleton's criminal history, and pretended her sole concern was a desire not to "fill up the jail," clearly she was looking more closely than they gave her credit for at the evidence being presented in the current case, and was following the recommendation of the pretrial risk assessment, which was never mentioned in the state's brief to the CCA.

Attorneys and others closely following bail debates will want to read and digest the analysis in the defense brief, which goes through the relevant statutes governing increasing bail much more thoroughly than did the state's. They claim "The state plays fast and loose with its citations to authority in its motion."

The alleged authority to have the CCA raise the bail amount relied on a statute that only applies to examining trials, argued the defense, while ignoring a more-on-point statute which declares that, once a defendant "has given bail for his appearance in answer to criminal charges, he shall not be required to give another bond in the course of the same criminal action" unless the judge or magistrate "in whose court such action is pending" finds the bond is defective, excessive, or insufficient, or the sureties provided are "not acceptable." Under that statute, the CCA plays no role.

They quoted back to the CCA its own holdings on statutory construction that when "a general statute and a more detailed enactment are in conflict, the latter will prevail." They contend that the statute the DA relied upon, Article 16.16 of the Code of Criminal Procedure, "is a general statute that applies when there is an examining trial and bail in that limited context is found to be insufficient. Article 17.09, however, is much more detailed and provides an explicit prohibition on a defendant having to give another bond. And it limits the authority to require a defendant to be rearrested and give another bond to the judge or magistrate who the matter is pending before."

The defense cited precedent in which Judge Michael Keasler, who is still on the CCA, disallowed judges besides those authorized in Article 17 from changing bail amounts, lamenting this would lead to a system where "all judges have jurisdiction over all things at all times. and where forum shopping to reduce or increase bail amounts flourishes." According to the defense brief, "The action taken by the state here is absolutely no different and for this Court to entertain such action would put it squarely in conflict with this precedent." If the CCA ignores this longstanding precedent, they warn, "the floodgates will open" and appellate courts will be inundated with back-and-forth motions on bail that would "create an endless cycle."

The defense brief iterates that a court's bail decisions may only be reviewed on appeal for "abuse of discretion," and cites precedent that "an appellate court must not substitute its own judgment for that of the trial court and must uphold the trial court's ruling if it is within the zone of reasonable disagreement." Given that the pretrial risk assessment relied upon by magistrates recommended Mr. Singleton receive a personal bond, granting low bail appears to this non-attorney observer as per se within this "zone of reasonable disagreement."

The defense concluded,

Let there be no mistake about what the State is doing here: they are complaining about the decision of the magistrate and the trial court setting bail in this case. The State has no right to appeal a trial court’s decision to set bond. Nor could they seek a writ of mandamus or prohibition. And, yet they are asking this Court to review the trial court’s decision with no record, no findings of fact, nothing more than conclusory affidavits.

Finally, the defense brief addressed the DA's novel argument that courts are disallowed from considering health concerns when setting bail. They argued that concerns about limiting incarceration due to the coronavirus falls directly under the court's authority to consider the "future safety of ... the community," which is explicitly a factor statutes contemplate when judges set bail.

As Grits mentioned the other day, the Harris County jail is struggling more than any other lockup in the state with the coronavirus outbreak, which places not only inmates but jailers and the community at large at risk. Future safety of the community is a broad concept, and nothing in the statute limits how judges should define it. Seems like a pretty strong argument to me.

The Houston Chronicle coverage pointed out how unusual was both the state's motion and the CCA's rapid response to it:

Courthouse veterans said the move was surprising for both the speed with which the CCA ruled on the case, and the judges' decision to set Singleton’s bail above what prosecutors had initially asked for. 

[Harris County Public Defender Alex] Bunin said that when defendants ask the CCA to reduce their bond, the court can take months — or longer — to act. 

“It seems more like they are trying to send a message than create law,” Bunin said, of the appellate judges. “But it’s an unclear message other than ‘don’t set low bonds unless you have somebody with no criminal history and a history of appearing in court when asked.’”

There's no telling how the CCA will react to this new motion, or how quickly. With the Government-Always-Wins faction currently in firm control of the court, one wouldn't be surprised if they side with the District Attorney no matter what. The GAW majority on the court tends to be outcome oriented, first deciding what they want the result to be and then searching out legal arguments to support it instead of interpreting the law and having that decide the outcome. But because that approach would fly in the face of past CCA precedents that benefited the state, in particular a key precedent authored by a GAW judge who's still on the court, it could become a much closer call.

Regardless, Grits finds this debate fascinating. I'm learning a lot from it.

Bail reform saves lives, "The Ogg Blog," pay-per-surveillance, and other stories

Here are a few odds and ends that merit Grits readers' attention:

Kim Ogg oppo blog launched
The Justice Collaborative has launched The Ogg Blog, providing background on various criticisms vs. embattled Harris County DA Kim Ogg as she faces a bevy of opponents in the coming March primary. Grits is grateful; I'd intended to compile a long, greatest-hits post for Ogg as a bookend to this one about Travis County DA Margaret Moore, so they've saved me the trouble.

Bexar County Jail deaths argue for bail reform
At the Texas Observer, Michael Barajas examines recent deaths in the Bexar County Jail, a topic which  led the Express-News recently to call for an audit. At root, the problems implicate a broken bail system that incarcerates low-risk defendants because they don't have money: "Don’t lose sight of the broad strokes," admonished the Express-News. "Three defendants in their 60s. All charged with criminal trespass. All given nominal cash bonds that kept them incarcerated pretrial. All dead in our jail. All of this in the span of about a year." But local judges, including one who ran a bail-bond company before ascending to the bench, have consistently opposed any move toward reforming bail processes.

To be clear, despite plaintive cries that bail reform will harm public safety, the real reason bail-bond companies oppose reform is all about preserving their anachronistic business model. Continuing to subsidize this industry in the 21st century is akin to subsidizing buggy whip manufacturers in the 20th: Their time has passed.

Fact checking the Governor on homeless policies
PolitiFact fact-checked Governor Greg Abbott on his claims about Austin's homeless. Guess how he fared?

Levin on reducing Big-D murder rate
Marc Levin from Right on Crime appeared on the Point of View podcast to discuss Dallas' plan to reduce its murder rate.

Pay-to-surveil
Google wants to begin charging law enforcement for requests for location information and other user data. The big telecoms already do so.

The state of 'progressive prosecutors' in Texas

The article in The Atlantic titled "Texas prosecutor fights for reform" has a certain "Man Bites Dog" quality, which I suppose makes local news from Texas interesting enough for East and West coast media and muckety mucks to take notice. Not that John Creuzot's work in Dallas doesn't deserve attention. In Grits' view, he is the most confident, competent, and sure-footed of Texas' new crop of Democratic DAs. But at this point, the term "progressive district attorney" requires so many caveats that it should probably be discarded, at least in red states, until a few key benchmarks have been established and met.

When Kim Ogg of Houston, Mark Gonzalez in Corpus Christi, and Margaret Moore in Austin were elected DAs of their respective counties in 2016, there was a clutch of mostly national advocates and journalists, coupled with a few local electoral partisans, who pronounced them part of a new wave of "progressive prosecutors." Grits argued at the time that there was no such thing (and still largely thinks that's true).

Larry Krasner's election in Philadelphia changed things. His office produced a memo detailing new policies aimed at reducing incarceration rates that was much more daring and aggressively decarceral than any previous US prosecutor had ever suggested. (For a contemporary podcast discussion of Krasner's memo in context of Texas candidates, see here.) Soon, prosecutors in other states began running mimicking parts of Krasner's approach as well as expanding or exploring other decarceral programs.

In Texas, though, the decarceral efforts of our Democratic DAs have been much more modest.

Harris and Travis Counties have created special courts for state-jail felonies that have helped chip away at state-jail incarceration rates. Joe Gonzalez in San Antonio took a won't-prosecute stance on low-level pot possession (Ogg created a pretrial diversion program for pot.) And both Mark Gonzalez and Margaret Moore found themselves in the happy position to replace such embarrassingly bad prosecutors, they could look like an improvement just by avoiding overt misconduct and not drooling on themselves in public.

On bail reform, in particular, for the most part these prosecutors' positions are far from "progressive." And even if they are, as with Creuzot, judges, local criminal-defense attorneys, and other special interests have proven effective at throwing a monkey wrench into potential solutions.

Ogg in particular has chosen to pick fights with county commissioners, newly elected Democratic judges, reformers, journalists, and academics over every perceived slight, leaving herself ever-more frustrated and isolated. Most prominently, she attacked the pending bail-reform settlement and demanded the county radically increase her staff size without acknowledging how that would a) create disadvantages for underfunded indigent defense or b) run counter to decarceration goals. (Recently a group of scholars came out to criticize the methodology of a study her office promoted to justify the request for more staff.)

Creuzot was the first Texas DA to more comprehensively articulate his own decarceral agenda, sort of a Larry-Krasner-Lite, but whose pronouncements are peppered with "y'alls." His policies were more modest than, say, newly elected prosecutors in Philly, St. Louis, or Boston. Even so, there's no doubt Creuzot's positions were more concrete and his thinking about decarceration is the most-well-developed of any Lone-Star prosecutor. Indeed, his general election vs. a Republican incumbent essentially centered around which one of them would be more reform-minded.

By contrast, in Houston, some of the same reform voices who prematurely hailed Kim Ogg as a progressive in 2016 are calling for her replacement by Audia Jones. Margaret Moore last year asked local reformers to endorse her push to merge the District and County Attorney offices under her control, but refused to enact any of the reforms local advocates wanted in return. As a result, the merger didn't happen and she now faces a serious reform challenger in Jose Garza.

Going forward, if any of these insurgents win in the coming Democratic primaries, then the terrain will have shifted and "progressive" will no longer effectively serve as a synonym for "Democrat" in Texas when it comes to prosecutor elections, as seems to have been the case so far.

'Progressive prosecutors' not all so progressive on bail reform

At the Texas Tribune festival this weekend, Josie Duffy-Rice, president of The Appeal, moderated a panel with three Democratic Texas District Attorneys - John Creuzot of Dallas, Margaret Moore of Travis County, and Mark Gonzalez of Nueces County.

(L-R) Josie Duffy, John Creuzot,
Mark Gonzalez, and Margaret Moore

An audience member asked the panelists whether they favored providing defense attorneys to defendants at "magistration," where judges set bail amounts defendants must pay to get out of jail pending trial.

Gonzalez failed to answer the question directly, conflating magistration with plea bargaining and insisting that his office was more fair than his predecessor.

Moore also talked around the issue, but in essence said she didn't think providing counsel at bail hearings was necessary. Prosecutors don't even attend those hearings in Travis County, she declared, an assertion which Grits found dubious. After all, the county indigent defense plan anticipates prosecutors may "fil[e] an application" with the court at magistration, while indigent defendants may apply for an attorney at that point, but don't get one until later. Moore suggested that a post hoc bail-review hearing was sufficient to protect defendants' liberty interests.

Creuzot was the only DA who said, definitively, "Yes," defense attorneys should be provided at magistration. He blamed Dallas judges who appealed the federal injunction for blocking the move, although at least one judge supports the idea. (The county commissioners court, which would have to come up with money to pay for additional defense counsel, surely also is a barrier to implementing that idea.)

Grits found this discussion dissatisfying, given recent developments in Texas bail-reform litigation.

In Galveston, in particular, a recent federal-court injunction explicitly required the county to provide attorneys at magistration. This was not mentioned.

Harris County eliminated magistration in 85 percent of misdemeanor cases to avoid having to make individualized determinations, and launched a pilot program to provide a public defender at bail hearings for the other 15 percent.

In Dallas, a federal judge said magistrates couldn't rely on a pre-set bail schedule without considering individual circumstances. Articulating those, of course, is a defense attorney's job. The injunction has been appealed, but the judge's order would require these hearings to occur within 48 hours of arrest.

So, if we're reading tea leaves here, in all three jurisdictions, federal judges have said that non-individualized bail hearings are unacceptable and that release decisions must be made promptly.

In that light, claims that it's sufficient to review non-individualized bail decisions later, as DA Moore declared, strike me as optimistic, at best. All the federal court rulings in Texas so far have required more.

Certainly it's insufficient to address the issue during plea bargaining, as Mark Gonzalez maintained! Part of the problem with excessive pretrial detention is that it makes defendants more likely to accept unfavorable plea bargains.

The US constitution forbids "excessive bail," not bail per se, so it's unlikely federal courts will ever "abolish money bail," as most #cjreform advocates would prefer. But it also seems clear to this observer that federal courts will eventually require individualized bail determinations, likely at magistration.

We've now seen three different options emerge from federal courts for how to do that: Provide counsel at magistration, as in Galveston; hold individualized hearings within 48 hours of arrest, as in Dallas; or simply eliminate bail determination hearings for most nonviolent cases, and provide lawyers at magistration for the remaining subset, as Harris County is doing.

No one can tell which of these options will be required writ large across Texas until the 5th Circuit rules in one of these cases. Now that the Harris County suit has settled, it seems likely that Dallas will be the first to reach that stage. Their preliminary injunction came out more than a year ago, while Galveston's only emerged last month.

Regardless, Creuzot was the only DA on the so-called "progressive prosecutor" panel who gave what Grits would consider a "progressive" answer on bail reform. Letting folks sit around in jail because they're too poor to pay just isn't good enough, anymore.

The Art of Deflection: HPD chief shows how to blame judges for policing failures

Police chiefs in Harris County continue to attack bail reform - most recently Houston police chief Art Acevedo - but the examples given never seem to bear out their complaints. Acevedo yesterday went on local TV to blame judges for releasing a defendant who later ended up shooting a police officer with his own gun after a struggle.

His comments came at the scene of an unrelated police shooting near a school where the suspect was killed, and the chief attempted to conflate the cases. In the Fox26 news story, he succeeded in conflating them; the article was so poorly constructed, I had to go to other sources to figure out what the hell he was talking about. Reported Fox26:

Acevedo threatened to call out judges who grant bond to violent offenders while speaking at the scene of an officer involved shooting on South Gessner Monday. The shooting happened as one of his officer [sic] is recovering from being shot Thursday by a suspect who was out on bond. 

Court records show that suspect—Brandon Bell, 17—paid zero dollars to bond out of jail two weeks ago after allegedly carjacking a woman at gunpoint. 

"If you lived in a high crime area and you knew that these judges were gonna let a violent criminal go in one door and within a matter of hours or a day or two get out on a low bond, do you want to testify against them?" asked Acevedo.

Brandon Bell was NOT the shooter at the school where Acevedo gave the comments, but you really can't tell from the story until the final line, when the reporter finally named the deceased.

It turns out, however, there's more to Mr. Bell's story than the chief is letting on: "In Brandon Bell's case, records show he bonded out on a misdemeanor trespassing charge September 3, before investigators could collect enough evidence to charge him with felony aggravated robbery with a deadly weapon."

So think about what's being said: Acevedo crows to the media that Bell was let out on a personal bond for carjacking, and the reporter dutifully repeats the claim. But she already knows that's not exactly true, and buried the counterfactual at the bottom of the story. His officers hadn't filed the carjacking charges when he was released, only misdemeanor trespassing!

How long should courts hold misdemeanor defendants to let police investigate them for crimes with which they haven't been charged? On what basis should they have detained the 17-year old, who in most other states would have been charged as a juvenile?

In America, police don't get to arrest people and hold them in jail when they are unable to supply probable cause the person committed an offense. And if they'd presented evidence against Mr. Bell in the carjacking incident, he'd have been charged with a felony and remained in jail. The failure to do so is the only reason he wasn't held longer.

The judge who bonded the guy out told the reporter:

Judge Darrell Jordan who approved Bell's bond told Fox 26 he was just following Texas law. 

"If there is a trespassing case or something like that—then that person will be released on a general order bond," said Jordan. "The bond amount will say $100, but they pay nothing."

Even if Bell had been required to pay the $100, that's not going to keep anybody off the streets for long. The real issue is Houston PD and the DA's office hadn't charged him with anything more serious, even though he'd allegedly committed a carjacking. Two weeks later, the kid shot a police officer.

This is pure deflection, blaming judges for Houston PD's own failures.

MORE: For those interested in more detail, Don Hooper of the Houston Conservative Forum posted the police affidavit on Twitter alleging Mr. Bell engaged in carjacking, and proceeded to argue the details of the episode (contentiously) with a cop. The complainant recognized the carjacker at the scene, and a robbery detective conducted a photo array on the same day in which she identified him again. But police didn't file the affidavit alleging the carjacking charge until Sept. 9th, after Bell had already been released. How is this the judge's fault, again?

Police shootings, jailhouse snitches, and debunking anti-bail-reform arguments

Here are a few odds and ends that merit Grits' readers' attention:

Federal judge debunks anti-bail reform arguments from Harris DA
Federal District Judge Lee Rosenthal, a George W. Bush appointee, approved the bail-reform settlement in Harris County over objections from District Attorney Kim Ogg. See coverage from The Appeal  and Houston Public Media. The judge's order address the DA's objections specifically, and IMO decisively.

Bail-reform injunction issued in Galveston
Another federal judge issued an injunction against Galveston County requiring reform of their bail system. The judge would  require the county to provide counsel for indigent felony defendants at their initial bail hearing. By contrast, the Harris County case only involved misdemeanor cases. See the Texas Tribune's coverage.

Speaking for the defense: The only time prosecution theories are excluded from crime stories is when police officers are accused
I have never seen a major newspaper run an article promoting ONLY defense-attorney theories prior to the trial of a murder defendant, except when the defendant is a police officer. Then, we get stories like this one from the Dallas Morning News explaining why a jury should acquit former Dallas police officer Amber Guyger for killing Botham Jean in his home.

'Excited delirium' is still not a real thing
Speaking of Big D cops, Dallas DA John Creuzot told an audience last week that his office chose not to indict the cops who killed Tony Timpa because one of them patted him on the back and tried to comfort him after kneeing him in the back and mocking him as he lay dying. Creuzot said Timpa died of "excited delirium," which he apparently thinks is a real condition that can be treated with Xanax. But regular readers know that's a fake diagnosis that is only ever assigned to people who die in police custody. The Washington Post has reported that the diagnosis appears in no medical textbooks outside of training materials for medical examiners.

Gap in TX jailhouse snitch reporting system cited
Texas' 2017 statute requiring Texas prosecutors to keep records on their use of jailhouse snitches and report snitch's history to the defense made an appearance in this Washington Post story on jailhouse informants. However, the article noted, "Although Texas and other states are now tracking the use of informants, county prosecutors are keeping the records and only Connecticut will be keeping a statewide system, Innocence Project lawyers said. One problem, they said, is prosecutors in one county may not know about an informant’s testimony in other counties." In addition to the 2017 statute, Texas in 2009 required corroboration to secure a conviction based on jailhouse informant testimony, and in 201 the Lege required corroboration for informants in drug cases.

Reminder: Lying snitches need prosecutor collaborators to do harm
Speaking of informants, prosecutors failing to disclose a deal with a snitch in George Powell's prosecution for armed robbery - along with flawed and unproven forensic evidence - contributed to his conviction being recently overturned. The informant lied on the stand and prosecutors failed to correct the misstatements, the courts found. Now, the Bell County DA wants to retry Powell, and defense attorneys want his office removed from the case because of the alleged misconduct.

Lessons on policing, poverty, and racial discrimination
This analysis of policing, poverty and racial discrimination at the Tulsa (OK) PD includes lessons applicable in virtually every American police department.

Harris DA sanctioned for Brady/Michael-Morton Act violations

In Harris County, reported the Houston Chronicle's Keri Blakinger, Judge Andrew Wright issued a monetary sanction of $500 on the Harris County DA's office for failing to hand over evidence to the defense under Brady v. Maryland/the Michael Morton Act.

The issue arose because the DA's office did not hand over evidence of sustained misconduct against an arresting officer in a DWI case until the eve of trial, many months after it was in their possession and the judge ordered them to turn it over. Reported Blakinger:

“The Court finds that the State has engaged in bad faith litigation tactics,” Wright wrote in an one-page order signed Aug. 23. “The Court further finds that this is a regular and pervasive course of conduct and that sanctions are necessary to deter future bad faith conduct.”

The DA's office claims the judge has no such authority, but Judge Mike Schneider was quoted in the story saying they have ample authority to apply sanction; he only questioned whether the one-page order was broad enough.

The District Attorney's office, however, claimed the only thing the judge could do was keep giving prosecutors ever-more time to comply: “The remedy for late disclosures is simple — more time,” DA spokesman Dane Schiller told the Chronicle.

The DA says they shouldn't have to turn over such information unless there's a protective order barring public disclosure of officer misconduct. But the officer was from the LaPorte PD, which isn't subject to the confidentiality provisions around personnel files in the state civil service code. That means the records under discussion are public under the Texas Public Information Act. 

Announcing you won't release public records unless a court makes them secret seems a tad disingenuous to this writer. Attorney Jordan Lewis bore down on that point, again, from Blakinger:

“They’re only asking for protective orders when they’re handing over police disciplinary files - so they’re asking for special treatment for police officers,” he said. “This is the same office that daily stands in front of a courtroom and repeats all of the bad unproven things that cops say about ordinary citizens.” 

In addition to the $500 sanction, Wright tossed all testimony from the former officer and banned any reference to him. 

Afterward, prosecutors moved to dismiss the case.

I have no idea who's right about the legality of monetary sanctions in such a situation, but this behavior has gone on for a long time and other sanctions haven't seemed to change it. By contrast, clearly the $500 fine got the DA's office's attention! 

Harris probation director clarifies case highlighted in Grits post

Last week, Grits posted an item about the Harris County probation department that included a critique of a Tweet touting a client who could now pay for a new child seat for her infant because she was rid of her probation fees. Theresa May, the director of the Harris County probation department, sent me an email clarifying some facts around that case. Although she expressly did not request a correction, I wanted to pass along her note for additional context:

Hello Scott! 

I hope all is well! I read your commentary on our post regarding one of our clients who was released early. 

As written, it was fair criticism and not something we would want to post as a pat on our back. Unfortunately, the summary of what happened with this client, as written, did not provide a clear picture of what actually occurred. Too many relevant facts and the context were not included. 

For what it’s worth, I did follow-up to look into the case as I had the same concerns you did when I read the post. In reviewing the case, the officer advocated for the DA’s office to release this client five months early (from a one year pre-trial diversion contract for a felony case) which would require agreement to waive all of the fees and community service hours for the entire pre-trial diversion and supervision of the case, not just the portion that would be granted automatically with early release. The client had not paid any fees to date for the pre-trial diversion case and had accrued a balance. It appears the officer felt the ADA would be more amenable to early release if the client completed one requirement, the Effective Decision Making Class and paid the class fee only. Reading the officer’s chrono entries, it appears the client’s parents helped her pay for the class and the client completed the class. It appears, the client’s parents were very supportive but the client struggled to be self-sufficient financially and struggled with her choices as well. The officer submitted the request for early release, noting the client completed the class and had made positive progress in making better choices. In turn, the ADA agreed to early release the client from the contract which discharged the entire balance the client had accrued. 

When the officer conveyed the message to the client that her case would be early released and that all fees accrued for the Pre-Trial case to date would be waived, the client told the officer she planned to use the money she no longer owed for the Pre-Trial case to purchase a better, more suitable car seat for her infant. During the course of her Pre-Trial Supervision, the officer worked with the client to make better choices, focusing on supporting and caring for her infant as opposed to going out with friends and using drugs. In reading the chronos, the officer clearly invested a lot of time working with this client one on one to help her learn to make healthier choices. The officer used EPICs skills (cognitive restructuring and reinforcement) and it appeared to pay off. The client made significant progress in making a deliberate choice to focus on caring for her infant rather than going out with friends and using drugs. This was a significant shift in this client’s lifestyle and choices that benefited both the client and her infant. Clearly, the officer was very happy to hear the client’s first thought was to purchase a better car seat for her infant as opposed to what may have occurred in the past. The officer requested early release for this client to reinforce the significant progress she made in her lifestyle by making better choices to the benefit of her and the infant.

The officers commonly advocate for early release for our clients if at all possible, so that is not the highlight of this story. This story was submitted by the officer’s supervisor because of the work the officer invested with this client and the progress the client made. Unfortunately, that point was completely lost in this post. 

Scott, I greatly appreciate the work you do in fighting for criminal justice reform and find your blog to always be fair. You were fighting before it became a major focus. We deserved the criticism in your blog based on what was written. I wanted to share this information with you out of great respect for all you do. There is no need to make any changes to the blog, please. We did not communicate clearly and earned the criticism. We are far from perfect and have a lot of work yet to do. I hope the day will come where we can change the way probation departments are funded to one that does not include reliance on fees. 

On a side note, I appreciate your insight as to how improvement in one aspect of the system has a positive impact on the rest…. That is an important take away from the Pre-Trial Diversion program and the RIC docket. 

Best wishes, 

Teresa May Ph.D.
Director
Harris County CSCD

A first-cut reaction to Harris-County DA Kim Ogg's reasons for opposing bail reform

Why does Harris County DA Kim Ogg oppose the proposed bail-reform settlement in Houston? Let's dig into this bit by bit, starting with the four, bullet-pointed reasons stated in her amicus brief filed today. The bulleted items are her language, then my comments follow each of them:

• Accords unfettered and unreviewable discretion to misdemeanor judges and magistrates to delay (or outright excuse) misdemeanor defendants from appearing in court, contrary to Texas law.

Ogg's claim that the settlement is "contrary to Texas law" is overstated. The case law she quotes to support the argument says judges can waive appearances for "good cause" and leaves that undefined. You could drive a settlement-sized truck through that loophole. Throughout the brief, Ogg expresses the view that judges will use their discretion unreasonably. Where does this distrust of the judiciary come from? Judges have always had extraordinary authority, and historically used it to disproportionately favor outcomes presented to them by prosecutors. She never complained then!

• Increases institutional dysfunction in the criminal justice system by disproportionately favoring convenience to misdemeanor defendants without regard to the impact on victims, witnesses, and the other stakeholders and the State’s efforts to produce them for hearings and trials.

"Convenience" dramatically understates people's liberty interests and the harms associated with locking them up in cages pretrial. A common theme throughout this brief is her failing to consider the violation of defendants' liberty interests as anything beyond a minor inconvenience, as opposed to the seismic, life-altering disruption it can be IRL.

• Increases the capability of the defendant to challenge and defeat motions by the State of Texas by and through the District Attorney to set bail at any amount, increase the amount of bail recommended, or impose conditions of bail through exclusion of any mention or committed support for the District Attorney in the Proposed Settlement, while guaranteeing such support for the defendant, Public Defender and all support services in Section VII.

Essentially, this is a request for unfettered power. Her complaint is that a defendant who is not in jail pretrial might be better positioned to successfully mount a defense. The only practical limits on a DA's power are imposed by courts in response to defense motions, and Ogg wants to make sure defendants don't have the "capability"  to "challenge and defeat" her office in contested proceedings. But shouldn't her office lose if a judge decides she's wrong? The criminal-justice system supposedly is adversarial and defendants get to file motions, too.

• Imposes post-release policies through federal court settlement instead of through democratic processes, essentially foreclosing state and local government from developing constitutionally sound new policies as circumstances change and limited county resources dictate.

This may be the weirdest one: The county commissioners, judges, etc., who were involved in approving the bail settlement were all local elected officials. The only officials not involved in this settlement are legislators. Is Kim Ogg really proposing - after bail reform crashed and burned in Austin this spring - that we put all this on hold and hope that the Texas Legislature can do better in 2021?

Grits may yet go through some or all of the rest of the brief in additional posts; it's really quite a document! When I heard Ogg had filed this, my first reaction was "Why?" And since she answered that question in convenient bullet-point format, I thought this was a good place to start dissecting the topic.

H/T: The Appeal. MORE: See Houston Chronicle coverage.

AND MORE: Defendants filed a brief in response to Ogg's. Here it is.

Roundup: Debtors prison practices, a hempsplainer, why the Harris DA opposes bail reform, and other stories

Here are a few odds and ends that merit Grits readers' attention:

Debtors Prison Blues
Texas was one of five over-represented states in this Governing magazine feature story on municipalities that get more than 10% of their budgets from traffic fines. Great piece; reminded me of this Marshall Project story. In Texas, the agencies most reliant on traffic fines are primarily in East Texas, and up and down I-35. Long-time readers may recall Grits wrote a theme song for these agencies:

District Attorney opposing Harris County bail settlement

Harris County DA Kim Ogg issued an amicus brief opposing the new bail-reform settlement agreed to by judges and the county.

On the pitfalls of state police patrolling local police beats

Texas DPS this spring began sending troopers to patrol in the Dallas city limits. But when they shot and killed somebody, it turned out they're not as accountable as local cops.

Hempsplainer

The Texas Forensic Science Commission put out an explainer document (a "hempsplainer"?) related to the new requirement that prosecutors prove the THC levels in marijuana to secure a conviction for possession. In related news: Add Amarillo to the jurisdictions where Class B marijuana cases are being dismissed.

Grappling with excessive police-union power

Check out an essay on "The Unjust Power of Police Unions."

On racial stereotyping

Grits found this interview on racial (and other) stereotyping interesting and useful.

Mitigating harm from if-it-bleeds-it-leads crime coverage

For the journalist crowd: "Doing No Harm: The call for crime reporting that does justice to the beat."

Harris County probation department making big improvements, but it's still probation

As part of reforms implemented with its MacArthur grant, Harris County consolidated all of its state jail cases into one district-court docket called the "Responsive Intervention for Change (RIC) Docket." According to the Texas Comptroller:

Before the reforms, a disproportionate share of Texas' state jail felons (SJFs) were from Harris County — 26 percent in 2014, well in excess of the county's 16 percent share of the state's population. Five years later, its share of the total had declined by 90 percent, from 5,817 to 611. Harris County still sends more felons to state jail than any other county, but its overall share of the SJF population has fallen to 10 percent

The difference, May explains, is that the county has increased the number of defendants willing to accept probation through its RIC Docket, specialized caseloads (e.g., for substance abusers) and pre-trial diversion (PTD) programs offering mental healthcare, drug rehabilitation and work-release programs rather than prosecution. The county also significantly reduced the time defendants spend in jail awaiting trial, which greatly curtailed “good time” credit, removing the incentive to just sit idle or plead out to state jail, thereby reducing incarceration costs. 

"When defendants are not racking up a substantial amount of back time in jail awaiting disposition," May says, "they are more open to diversion or community supervision." 

Before their cases are decided, defendants' risk levels are assessed and their needs identified to target what's causing their criminal behaviors. The most common contributing factors, according to the CSCD, are attitude, peers, personality, family, education/employment, activities and substance abuse. 

On the back end, greater community supervision has helped to halve the re-arrest rate of the county's released SJFs, from more than 60 percent to less than 30 percent.

These are excellent outcomes and a great improvement over past practices. Grits finds particularly interesting the correlation between reduced pretrial detention and people's willingness to accept probation in a plea bargain. Reducing inefficiencies in one part of the system generated ancillary benefits in another.

Even so, there are moments when Harris County reminds us even the best probation departments are still doling out harm. This week, they tweeted out a success story of a woman named Sarah who completed probation and was released five-months early. HCCSCD praised her for having paid money to complete an "Effective Decision Making" class, then patted themselves on the back that, now that she has no fees, she can afford a new child's seat for her infant!

"How many people still paying fees are making similar tradeoffs to complete probation requirements?" Grits wondered aloud on Twitter. Certainly, more than a few.

The department's use of early release for successful probationers is commendable and deserving of praise, as is the new state-jail docket. But the perverse choices forced on this successful probationer - whether to pay for an "Effective Decision Making" class or a car seat for her infant daughter - are commonplace throughout the system. At this point, they're more a feature than a bug.

RELATED: From the state comptroller, "Texas state jails: Time for a reboot?"

Additional Harris-DA staffing mustn't contribute to the 'low-rent arms race between prosecution and indigent defense' ... or, why Keri Blakinger is a journalism goddess

Now that Keri Blakinger exists, along with the Marshall Project, The Appeal, Google News feeds, and a variety of advocacy newsletters that weren't around before. Grits occasionally wonders if this blog still has much to offer.

Don't get me wrong. I know Keri existed before she showed up performing criminal justice coverage for the Houston Chronicle. I'm pretty sure I've read all she's written about her backstory. But her arrival on the scene in Texas was a game changer for journalism on criminal-justice topics, setting a new standard that's making politicians, journalists, and researchers of all stripes step up their game. In the last 30 years, I can't think of a reporter whose work has so significantly influenced the culture of Texas journalism.

The latest episode to make me consider her import involved Keri's coverage of a report from Texas Southern University's Center for Justice Research.

Normally, the findings of such a report would be promoted without comment by journalists of all stripes, first in the local newspaper, then on TV. Then, a few days later, it would fall to Grits to do all the "what abouts" and "isn't it true thats," which then may or may not be followed up on later if politicians or other stakeholders decide to press the point.

But Keri does this work right on the first pass. Amazing! What a breath of fresh air!

The biggest but not the only flaw in the report was that its top finding applied a standard of one prosecutor to 10,000 civilians to say Harris County needs 104 - prosecutors - magically, almost exactly how many District Attorney Kim Ogg asked for. Problem is, that one per 10k standard is completely made up!

The lead author of the TSU study backtracked, declaring, "the primary goal of the population analysis was to pick a baseline measurement for purposes of comparison, and that for the purposes of creating a ratio it didn’t matter if that standard was 'not adopted and not accepted.'" But for a standard that didn't matter, they leaned on it quite heavily: It's the top bullet point in their findings.

For the record, Grits is not among those, if they exist at all, who claims the Harris County DA's office has all the staff it needs. Rather, I believe 1) staffing increases should only be considered in the context of increases in indigent defense spending, where caseloads are also excessive, else the system become further imbalanced, 2) staffing increases should be targeted toward funding specific DA functions that reduce, not increase, incarceration (e.g., to manage diversion programming or expanding case screening at intake to include Class C misdemeanors), and 3) the office's decades-old structure of letting rookie prosecutors suffer high caseloads while more experienced lawyers supervise should be reconsidered from scratch. The office has been operated that way at least since Carol Vance's tenure; it's time to modernize. Funding an antiquated structure won't help.

This last point has been particularly under-considered. Jennifer Laurin at the UT-law school made the point in Keri's story that cross-agency comparisons don't consider differences in how agencies are staffed and what they do:

“There is sufficient variety in how jurisdictions staff cases, how they administratively count cases and how they structure workflow from police input to prosecutor decision-making that it is exceedingly difficult to compare,” Laurin said, after reviewing the document. “It might be that Harris County is not staffed at optimal levels but the comparisons the report provides in and of themselves do not provide evidence of that.” 

For instance, in some jurisdictions - such as Cook and Maricopa - the prosecutors’ offices represent the county in legal matters, a task taken on here by a separate entity, the Harris County Attorney’s Office.

For my money, it's possible and even likely the DA's office could use more staff. The same is true for indigent defense, and IMO those problems should be addressed simultaneously.

But Ogg proposed expanding her agency's attorney staff by nearly a third without identifying particular needs the new staff would solve. If she wants to make the case for more staff, take some of the office's asset forfeiture money and hire a consultant to identify new staffing that would contribute to reduced incarceration. Then the commissioners court will know what portions of the office's budget require expanded funding to achieve their decarceration goals, without simply aiding one side in the low-rent arms race between prosecution and indigent defense.

Cops make similar arguments to this report for more staffing all the time, complete with made-up staffing standards and fronting progressive goals while leaving lots of discretion to spend the money on regressive things. #cjreform activists, like myself, who distrust such broad grants of discretion, have simply been burned too often. If the problem is real, the request will survive (and IRL, be bolstered) by more research and specificity. What doesn't help is promoting a staffing standard somebody just pulled from their rear end.

It's breathtakingly awesome that Keri Blakinger exists and gets assigned to these stories. To me, her value has little to do with the fact that she's formerly incarcerated. I'm sure it adds something to the mix, but it's her skill set, work ethic, and tenacity that make her stand out. The fact that she essentially took over the Texas prison beat from a sycophantic senior reporter who just made stories up only heightens the contrast.

Grits for Breakfast is approaching the 10,000-post mark, and a huge proportion of those essentially add easily identifiable, counterfactual research to balance unsupported assertions published in MSM articles. I occasionally get mistaken for a reporter because that's a reporter's job, but not many of them do it. Keri does.

Indeed, the only problem with Keri Blakinger is that there is only one of her. If one or two more existed, your correspondent would have little to contribute here and could ride off into the sunset. But for now I'll remain a little longer; she is one of a kind.

Harris County bail-reform settlement a landmark defeat of Texas bail-industry lobby

There once was a county named Harris 

Whose bail system left them embarrassed

Then judges were sued

And elections did lose

So now lo and behold they can settle this!

The bail settlement in Harris County may not be as important, when viewed through an historical lens, as Brown vs. Board of Education, despite Harris County Commissioner Rodney Ellis' grandiose declaration to that effect. But it's still a Very Big Deal, and the first domino to fall in what will ultimately conclude with a 5th Circuit (or US Supreme Court) decision governing pretrial release of criminal defendants in Texas.

Harris County judges have enacted a "new policy of automatic, no-cash pretrial release for about 85% of low-level defendants," reported the Texas Tribune. 

Art by Grits. Click to enlarge.

The settlement news warms the heart of this aging polemicist. Excessive pretrial detention in Houston was one of this blog's earliest hobby horses, presaging many of the debates which ended up resolved through federal litigation nearly a decade-and-a-half later. For example, check out a series of Grits posts on the topic rounded up in 2005 after the Harris Co. probation department began using them as training materials. Most of those critiques would remain salient until well after the just-settled litigation got serious, at which point the county began to implement more significant changes. At the time, though, there were 1,900 people sleeping on the jail floor due to overcrowding, so in a way, the issue was even more pressing back then.

Which is why it's worth recognizing that it took the federal courts to accomplish these changes that every expert who ever looked at Harris County's system had been advising for more than a decade. For whatever reason, whoever won elections, red or blue, there was never any appetite for serious bail reform through the political process. Someone had to sue, and win, to get judges to stop ordering bail for most misdemeanor defendants. (Many of the reasons for that are specific to Houston; your mileage may vary in other jurisdictions.)

Another notable point: At the commissioners court, as at the Texas Legislature, bail bondsmen found champions but could not sustain a majority after an informed debate. That's my big takeaway from those two, recent bail fights, one where reformers lost and one where they prevailed: At both the state and local level, bail bondsmen have shown they can be beaten. They had an impressive track record before this year, and the first half of 2019 may have finally demonstrated some chinks in their armor.

Here's why I disagree with Rodney Ellis that this litigation settlement is as important as Brown vs. Board of Education: While it resolves the underlying issues, it also robbed the 5th Circuit (and/or SCOTUS) of the opportunity to set a baseline that applied to all Texas, Louisiana, and Mississippi jurisdictions. Instead, the settlement terms only apply to Harris County and at most are advisory recommendations everywhere else.

So it will be some other county currently being sued - probably Dallas, I'm told by attorneys involved in the litigation - which ends up setting binding precedent for Texas courts, particularly with regard to setting bail in felony cases.

Once that happens, the Texas Legislature will be in a much better position to know what bail-reform legislation should look like when they come back in 2021.

Hiring more Harris Co. prosecutors would harm the rest of the system

In Houston, liberal advocacy groups, including the Texas Organizing Project, the Texas Civil Rights Project, and the Texas Criminal Justice Coalition, are opposing Harris County District Attorney Kim Ogg's request for 102 additional prosecutor slots. (See initial press coverage.) Ogg says the slots are needed to make dockets move quicker. But Grits would favor expanding the public-defender office by that much LONG before I'd support that many more ADAs.

As it happens, an academic paper several years ago analyzed high prosecutor caseloads at the Harris County DA's Office, but recommended against addressing the issue by unilaterally hiring more prosecutors. Grits thought it relevant to revisit why those authors thought a hire-more-prosecutors approach was a bad idea:

The biggest problem with simply hiring more prosecutors is that doing so would have adverse effects on the rest of the criminal justice system. Increasing the number of prosecutors without a corresponding increase in public defenders would exacerbate the indigent defense problem. Defense lawyers would still be overburdened and would be in a worse position because they would then be facing prosecutors who were better resourced and thus better prepared for trial and less interested in plea bargaining. 

A second objection to simply appropriating money for new prosecutors is that there would be no guarantee that the allotted money would be used to reduce existing caseloads. Prosecutors’ offices may use the added manpower to simply file more charges. At present, overburdened prosecutors’ offices likely decline charges for minor criminal infractions that they simply lack the manpower to prosecute. Increasing the number of prosecutors may thus result in increased prosecution of low-level drug or prostitution cases without any real reduction in the caseloads of existing prosecutors. 

A third objection is that elected district attorneys in large offices (who are primarily administrators and typically do not handle actual cases) may view new staff as an opportunity to enhance their political reputations rather than reduce existing caseloads. At present, most local district attorneys have no choice but to use almost all of their budgets to handle violent crime. A sudden influx of new staff might lead elected prosecutors to create new departments or to allocate new lawyers to pet projects that will make political hay. For example, very few county district attorneys’ offices have the resources to handle long-term, paper-intensive, white-collar crime cases. Yet, in today’s political climate, many elected district attorneys would surely like to have robust white-collar divisions that focus on high profile issues such as mortgage fraud or investment malfeasance. Similarly, as it has become politically popular to “go green,” elected prosecutors might like to expand the size of their environmental divisions. Or district attorneys may simply be animal lovers who want to expand departments that focus on animal cruelty. All of these are worthwhile projects, but directing resources to new areas will do little to reduce the enormous caseloads facing existing prosecutors. (citations omitted)

Instead, the paper suggested tying any increase in prosecutor staffing with increases in indigent defense funding. That makes much more sense in the present political environment, and would reduce some of the unintended consequences that would likely arise from a one-sided arms race between prosecutors and defense.

Guerra-Thompson: Harris County bail compromise still discriminates against poor people

Sandra Guerra Thompson, Director of the Criminal Justice Institute at the University of Houston Law School, is unimpressed with the proposed bail settlement in Harris County, saying it continues to discriminate against the poor. Grits received this email from her this morning and am reprinting it with her permission:

I’ve spent much less time on the bail issue of late, but I have made some inquiries recently about the new Harris County policies.  Much to my chagrin, the county has tweaked the system to avoid constitutional issues, but in other respects the system still stinks.   Here’s my take: 

Under the old system, money bonds were set across the board almost immediately after people were arrested. Those with the money would bond out. The poorest of the poor would be stuck in jail.  These were the people who would be assessed using a risk assessment instrument and go before the magistrate without counsel where the magistrates would almost always completely ignore the recommendations of pretrial services (based on the risk-assessment instrument). 

You know well the problems with the use of money bonds that are imposed without a risk assessment.  Best practices call for universal risk assessment, and, obviously, decisions should be based (at least in part) on these assessments. 

Under the “new and improved” bail policy, money bonds are still set across the board, so the bail bond industry still thrives as usual. The difference is that now the poorest of the poor who are charged with misdemeanors (with a few exceptions for crimes of violence) will fall into a “presumptive personal bond” category. This means they are no longer assessed for risk by pretrial services, and the magistrate will simply release them on personal bonds. 

The result is this:  fewer people than ever are being assessed for risks. Plus, the unfairness persists. People with money are still released much sooner because they have money, usually within 12 hours. And, the poorest will be out within about 48. And why should people with access to money have to pay hundreds of dollars in bondsmen fees when those who don’t come up with the money (under the same bond schedule) will be released on personal bonds? It makes no sense other than to perpetuate the same money bond schedule while appeasing the federal judge.’ 

There is some good news. At the last County Commissioner’s meeting, they voted to bring in some experts, probably from the Pretrial Justice Institute, to assess their system and give advice for improvement. But for now, I remain disappointed.

TDCJ suicide record argues against state takeover of Harris County Jail

In a roundup post over the weekend, Grits pointed to an odd story emerging when "Sen. John Whitmire suggested the state should take over the Harris County Jail after its fifth suicide in two years. If the Texas Department of Criminal Justice did a better job, Grits might agree. Suicide attempts at TDCJ are quite high."

Then, on cue, yesterday Keri Blakinger published a story in the Houston Chronicle titled, "Mother sues Texas prisons after 'egregious' failure to prevent son's suicide." So TDCJ has its own suicide prevention problem.

When I made that passing comment, I didn't have the data on TDCJ suicides close to hand, but Keri did. From the story: "In 2017, the Texas prison system saw 34 suicides, the second-highest number in a decade. At the same time, suicide attempts have been on the rise, though previously officials chalked that up to a change in data recording."

The Harris County Jail, whose inmate population is about 1/15th of the state prison system, has had five suicides since January 2017, Blakinger reported last week. So TDCJ's suicide situation isn't notably better than the Harris County Jail. Why would a state government bureaucracy that can't stop suicides do a better job at suicide prevention than a county-jail bureaucracy that struggles with the same problem?

Perhaps the solution has nothing to do with who manages the facilities, but reducing unnecessary incarceration and vastly expanding mental health services outside of the justice system?

Grits believes that expanding TDCJ's jurisdiction isn't the answer to anything; that agency's footprint needs to contract. The institutional division should incarcerate fewer people. The probation division should supervise people for shorter periods. Understaffed, rural prison units should close and the property beneath them should be sold on the open market.

Anyway, if the state wants to take over the jail, will they pay for it? That's the reason it's incredibly unlikely such a thing will happen in 2019.

If legislators have that much extra money to throw around, there are better ways to improve the justice system. To prevent suicides in county jails, legislators would be better off reducing incarceration levels across the board through bail reform and sentence reduction, and financing outpatient competency restoration so fewer mentally ill people are incarcerated there.