HOUSTON (CN) — Harris County District Attorney Kim Ogg, the Houston-area’s chief prosecutor, has burnished her progressive bona fides with programs that have dropped marijuana arrests by 80%. But her Democratic primary election opponent says her resistance to bail reform is out of sync with a county moving away from mass incarceration.
Speaking Thursday at a forum hosted by the ACLU of Texas, Ogg said she’s proud of her record since taking office in January 2017 in the third most populous county in the nation, which at 1,777 square miles is larger than Rhode Island, where she works with 87 different law enforcement agencies.
“We’ve seen tremendous results with our marijuana program in that no one in Houston, virtually, is being arrested for misdemeanor marijuana. This saved 10,000 people a year a criminal record,” she said.
She said that under her tenure more than 40,000 people have completed pretrial diversion programs, enabling them to avoid jail and a criminal conviction.
“So we are pointed in the right direction,” she said. “Culture change is never easy. It’s not as fast as we wish it would be. But remember, this system took literally centuries being put in place and it’s going to take another term to finish it out.”
Sitting on a stage next to three other Democrats, Ogg took questions from three moderators and the crowd of more than 100 people at the headquarters of the nonprofit Interfaith Ministries for Greater Houston.
Shortly after taking office, Ogg said she supported a federal class action brought on behalf of misdemeanor arrestees who were held in Harris County Jail for petty, nonviolent crimes and were not able to pay the cash bail magistrates had set for them with no inquiry into their finances.
U.S. District Judge Lee Rosenthal found the system unconstitutionally favored those who could afford bail in an April 2017 ruling and issued an injunction ordering the county to release most misdemeanor arrestees on personal bonds, which require little or no upfront fees, within 48 hours.
But Ogg switched course after Rosenthal preliminary approved a settlement. She argued in amicus briefs that there was a danger of “exploding dockets” because the settlement would let judges excuse any defendant from ever having to appear in court, and it would endanger public safety by ordering the release of violent people.
Rosenthal shrugged off Ogg’s concerns and approved the settlement in November.
Audia Jones, worked as an assistant district attorney under Ogg, and said, “One of the best decisions I ever made was to leave this current DA’s office.”
She said: “When we are looking at individuals who are incarcerated because they cannot afford bail and we have a district attorney who made promises that she would support cash bail reform, but in fact was the only Democrat to oppose it, we have a problem.”
Jones said she would go a step further and institute similar bail reforms for people charged with felonies. She said 70% of the felony arrestees in Harris County Jail are awaiting trial and have not been convicted. “And these are nonviolent offenses,” she said.
There are also three Republicans running for district attorney. They declined the ACLU’s invitation to the forum.
Of the Democratic candidates, Jones is proposing the most extreme reforms. She said she would decriminalize any drug possession for personal use.
“We have a lot of felons in jail because they are drug addicts,” said Jones, who is married to Harris County criminal court judge DaSean Jones.
She was the only candidate on stage who said she would never seek the death penalty.
The Immigrant Legal Resource Center co-hosted the event and as a moderator its campaign strategist Carolina Canizales Ramirez asked the candidates if they would consider potential immigration consequences for arrestees at each stage of their criminal cases.
Jones said she would hire two or three immigration attorneys as in-house counsel for the DA’s office to guide prosecutors on the repercussions of charging undocumented people with nonviolent crimes.
“One of the things we have to remember is as district attorney, we have a responsibility to everybody in Harris County. not just those who have citizenship status but those who are undocumented. We have nearly 600,000 Hispanic individuals in Harris County. We have to respect citizens and the undocumented,” Jones said.
Todd Overstreet, a criminal defense attorney, said he grew up in Amarillo and moved to Houston in 1996 to work as an assistant prosecutor in the Harris County DA’s office.
He said a lot has changed in the 25 years since he started, when judges wouldn’t even tell defendants with immigration issues that they could be deported if they pleaded guilty.
“We are in a Catch-22 as a prosecutor,” Overstreet said. “We have a person here who has violated the law. We know under the federal system that the feds will come and get him if he takes a conviction, and the best we could do is make sure he or she knows their rights.
“I’m not going to bring in immigration lawyers into the office. As Kim [Ogg] would tell you, right now we need more line prosecutors in court handling the cases that are set now.”
He said it’s the judges and defense bar’s responsibility to make sure their clients know the consequences if they take a plea.
Overstreet, who has a thick handlebar mustache, said he has the endorsement of the Houston Police Officers’ Union and other law enforcement agencies because, like Ogg, he believes, “There’s been people who have been let out on bail, or no bail, or pretrial bonds who should have never been let out of jail. And they’ve then continued to do what they’ve done for quite some time, which is commit crimes over and over and over.”
In a lightning round of the 90-minute forum, the moderators asked candidates Yes or No questions and they held up signs indicating their answers.
Ogg was the only one to answer No when asked, “Would you create a policy of not using threats of increased criminal penalties to induce a plea bargain?”
Such coercion is prosecutors’ bread-and-butter in the U.S. criminal justice system and is very effective, as experts say only a small percentage of defendants take their cases to trial.
Asked if she wanted to clarify any of her answers, Ogg replied: “One of the questions said, ‘Would we allow our prosecutors to threaten somebody?’ Of course we would not. But circumstances change in cases, and so an offer may change from day one when you have 10 pieces of evidence, to day 90 when you have 400 pieces of evidence. And as evidence is collected, circumstances and what is an appropriate offer may change.”
All the candidates said they would not threaten defendants with jail time for probation violations that do not endanger public safety.
Houston native Carvana Cloud was a Harris County assistant district attorney for seven years before starting a solo defense and immigration firm in 2009.
She said sensible probation policies are needed to help end mass incarceration that costs taxpayers millions of dollars.
“You have to make sure that people are successful on probation and when they do mess up, if they don’t pay fines or fees, or if they have that dirty UA [urine analysis], that you absolutely are not revoking them, but you’re giving them help.”
Early voting for the March 3 primary elections starts Feb. 18.