Law and the New Order: A Fresh Wave of District Attorneys Is Redefining Justice
For generations, Harris County, Texas, was the nation’s execution capital. Throughout the 19th century, the county executed its own prisoners, hanging them from oak trees before finally constructing a gallows at the jailhouse. The state took over the job of executions nearly a century ago, but Harris County, which includes Houston, has remained its most demanding client. Since the U.S. Supreme Court restored the death penalty in 1976, 116 Harris County prisoners have been put to death. That’s more than twice the number recorded by any other county in Texas. Harris County alone has put more prisoners to death than any state (aside from Texas) that allows capital punishment.
That’s starting to change. The option to give defendants life sentences without parole has diminished support for the death penalty among juries and the public, even in Texas. There hasn’t been a new death sentence in Harris County for the past 18 months. And there may not be another one anytime soon.
Kim Ogg, the county’s new district attorney, has implemented a review system that seeks consensus among her colleagues before levying capital charges. Ogg grows visibly sober and circumspect when she discusses the ultimate penalty. A longtime advocate of victims’ rights, she doesn’t rule out the death penalty, but she clearly isn’t interested in keeping Harris County at its forefront. “I don’t think evidence supports a showing that death penalty verdicts deter killers,” Ogg says.
For too long, Ogg argues, criminal justice in her county has been run as a volume business, with Harris not only leading the nation in executions, but also acting as one of the epicenters of mass incarceration. By targeting and prosecuting more and more people for “smaller and smaller crimes,” she says, the county has sacrificed quality for quantity. The jail is filled with people locked up on minor drug charges, while burglaries go largely uninvestigated. “Harris County has become in some sense a haven for robbers and burglars,” Ogg told a local group in February, “because they know we’re not doing a good job of catching them.”
In order to prosecute crimes against people and property, Ogg wants her office, along with law enforcement in general, to pay less attention to minor drug offenses. In February, she announced she would no longer seek jail time in most cases for the crime of possessing up to four ounces of marijuana. Offenders will be diverted toward treatment instead. “Two-thirds of the people in jail are minorities and nonviolent offenders, based on minor drug offenses,” says Dwight Boykins, a member of the Houston City Council. “Kim’s program touched me because I saw real change in the system, rather than just talk about it.”
It’s unusual to think of a prosecutor as a progressive, especially in Texas. But Ogg’s election last November reflected an altered political culture, both locally and nationally, that made her new approach possible. Locally, demographic changes have converted Harris County — just a few years ago the most politically competitive large county in the country — into solidly blue territory. Ogg was part of a 2016 Democratic sweep in Harris County that extended from the presidential level on down to the sheriff and a slate of judges. No Democrat had been elected as district attorney for nearly 40 years, but Ogg defeated incumbent Devon Anderson by 8 percentage points.
Ogg is part of a wave of reform-minded prosecutors elected nationwide in 2016 in major jurisdictions including Chicago, Cleveland, Denver, Orlando, Tampa, Jacksonville and St. Louis. Many, including Ogg, had significant financial backing from liberal donor George Soros. They didn’t run on identical platforms, but each promised some form of change, whether it was skepticism about the death penalty and nonviolent drug cases, or greater scrutiny when police shoot unarmed suspects. Mark Gonzalez, who was elected last year in Nueces County, Texas, which includes Corpus Christi, has the words “not guilty” tattooed across his chest. Even prosecutors, he says, should believe that suspects are innocent until proven guilty. “This idea that in the past prosecutors have counted cases and wins like scalps on our belt is outdated,” Ogg says, “and it’s just not supported by data that shows this isn’t making people safer. The new breed of prosecutors, especially from large urban areas, are looking at being more effective in reality at protecting people.”
All of this represents a seismic shift away from the usual campaign message of prosecutors, which has been to brag about nothing so much as the number of rapists and murderers they’ve put away. In more and more places, talking tough is no longer the default mode. Ogg and her cohort argue that cracking down on crime means reducing the overall crime rate, rather than throwing individual offenders into prison for long periods of time. “It’s a departure from what for many years everyone thought was the inevitable playbook in these elections,” says David Sklansky, a Stanford law professor. “It’s possible to win an election as DA, running against an incumbent, and not just arguing that you’re going to be tougher but reform-oriented.”
Criminal justice is one of a small number of issues on which conservatives and liberals have begun to adopt overlapping policy positions, if for different reasons. Conservatives worry about the expense of mass imprisonment; liberals talk about the social costs of hollowing out communities through incarceration. But they are coming together. Following a period in which longer and longer sentences were meted out for increasing numbers of crimes, resulting in huge increases in corrections spending, most states have been rethinking their approach. More than 30 have approved laws that seek to reduce prison populations, while increasing funds for treatment or re-entry programs that can cut down on recidivism. The results have been encouraging, with crime rates remaining low in most jurisdictions even as the number of prisoners drops.
But prosecutors have been a piece missing from this puzzle. They not only have lobbied against softer sentencing, but also can sometimes sabotage it if they don’t like it. Prosecutors enjoy enormous authority and discretion. The way they frame charges determines whether an offender will face a long mandatory sentence or be diverted into treatment. “The prosecutors really are key because we make the decisions about who to prosecute and what to charge them with,” says Beth McCann, the new district attorney in Denver, who recently announced that her office will not seek death penalty charges. “We really need to get prosecutors involved in this new way of thinking about the criminal justice system.”
Prosecutors typically run for office countywide. In practice, that means they have often tailored their appeals to suburban white voters who are fearful of crime and like to hear tough-on-crime messages. Suburbanites turn out in higher rates than urban voters, particularly for local elections. “Prosecutors are responding to the incentives that our political system creates,” says Vikrant Reddy, a senior fellow at the conservative Charles Koch Institute. “You’re going to be rewarded electorally for locking up more and more people.”
Indeed, no prosecutor wants to be accused of coddling criminals. If, when and where crime rates climb back up, the public will certainly be leery of relaxing the rules. There’s already a mismatch between the actual drop in crime and the public’s sense, expressed in polls, that it has increased. And the Trump administration has made clear that a tough stance on crime will be among its priorities. Nevertheless, given the nation’s enormous incarceration rate, the amount that it is costing and the negative effect it has had on many communities, the idea of trying something different was bound to attract attention. Now it’s reaching the district attorney level.
Over the past decade, there have been scattered examples of prosecutors taking a different tack. After winning election as Dallas County DA in 2006, Craig Watkins created an in-house innocence project, using DNA to review old cases and exonerating some convicts. That approach seemed risky for a prosecutor at the time, but “conviction integrity” units have since become fairly common. In Seattle, King County Prosecuting Attorney Daniel Satterberg has a unit identifying prisoners who were rightfully convicted but may be ready for early release. “It’s such a turnabout,” says Marc Levin, policy director for Right on Crime, a conservative group promoting reform. “Normally, all the DA would do is intervene against people.”
The first swell of the current reform wave may have hit shore in Brooklyn in 2013, when Kenneth Thompson unseated a longtime incumbent by campaigning against prosecutorial misconduct and racial discrimination by police. The prosecutors elected since then on reform platforms, including those in the class of 2016, represent a small fraction of their profession — fewer than 20, out of more than 2,500 prosecutors nationwide. Still, many of them oversee significant jurisdictions. Harris County, with 4.4 million inhabitants, is more populous than half the states. The nation’s 35 largest counties prosecute a third of all crimes nationwide.
If a new approach can take root in Harris County, it might be possible to try anywhere. And there’s safety in numbers. It’s easier to explain to the media and the public that you’re diverting suspects from the criminal justice system because that’s already been shown to make people safer in other places. “Prosecutors are the most resistant-to-change individuals of anybody you’ll meet,” says Murray Newman, a criminal attorney in Houston and former prosecutor who writes a blog about the Harris County courthouse. “But if this new policy works, in two years you won’t have prosecutors talking about the good old days when they could do low-level offenses.”
Ogg, who is 57 years old, has always wanted to be district attorney. She grew up around politics, with her father serving as a state senator. But her mother may have had more influence over her ultimate career path. When Ogg was a child, her mother was abducted by a serial rapist who threatened to kill her. She managed to escape by jumping from his moving car. “I didn’t realize until I was 45 what an effect that had on my life and career,” Ogg says.
She joined the DA’s office right out of law school, handling dozens of murder cases and eventually becoming Harris County’s chief felony prosecutor. She subsequently ran an anti-gang task force for the city of Houston and directed Crime Stoppers, a private group that links civilian tipsters with police.
Ogg recognizes that she could not have been elected unless attitudes about crime were changing. Back in 2010, Pat Lykos, then the Harris County district attorney, announced that her office would no longer prosecute cases involving trace amounts of cocaine and other Schedule 1 drugs, arguing that they were clogging the jails and distracting police. Two years later, facing opposition from cops over the policy change, she was unseated in the GOP primary by Mike Anderson, “who did the usual tough-on-crime shtick during his race,” as the Houston Press put it. Anderson died shortly after taking office. His wife, Devon Anderson, was appointed to take his place. In 2014, she defeated Ogg to win election for the remainder of the term.
Anderson proved to be an unpopular incumbent. She was criticized from the left when she blamed the Black Lives Matter movement for the murder of a sheriff’s deputy. She took heat from the right after she brought charges against anti-abortion activists, later dropped, for falsifying government documents as part of a sting operation against Planned Parenthood. She was criticized from all sides for failing to report her knowledge that thousands of pieces of evidence had been destroyed at one precinct, leading to the dismissal of more than 100 felony cases.
But most damaging of all may have been her office’s decision to put a rape victim who had broken down on the stand in jail for nearly a month to compel her testimony. “If you talked to regular folks about that race, they said, ‘I’m not voting for Devon Anderson, she locked up that rape victim,’” says Gary Polland, a criminal defense attorney in Houston and a former chair of the Harris County GOP.
There are people in Houston who will tell you that Ogg won simply because of the unpopularity of Anderson and of Trump, or that she was swept in with other Democrats on a blue wave born of demographic change, notably the rapid growth of the Hispanic population. But Ogg’s message was amplified by a half-million dollar ad buy late in the campaign from Soros. And she did as much as she could to convince voters that shifting the priorities of the DA’s office would enhance public safety. “It’s no secret that I ran against the culture that was present in this office when it came to prosecutorial ethics and a quantity-driven approach to crime fighting,” Ogg says.
Problems with law enforcement became a top-of-mind issue for many of the area’s voters after the death of Sandra Bland in 2015. Bland was stopped by a state trooper in Waller County, just northwest of Houston, for failing to signal a lane change. The two got into an increasingly heated argument that drew national attention after dash cam and cellphone videos were released. Three days later, Bland was dead, found hanging in her cell. The incident crystallized concerns about the criminal justice system, says Tarsha Jackson, Harris County director of the Texas Organizing Project, a liberal advocacy group. Her group targeted 300,000 voters last fall and helped get more than half of them to vote early, including 56,000 who had never voted before. “Criminal justice was our platform,” Jackson says. “The people we targeted voted based on that platform.”
Along with Ogg, Harris County voters elected Ed Gonzalez as sheriff. Gonzalez promised to address overcrowding at the county jail by changing the bail system and creating diversion programs meant to keep drug offenders out of prison, either by offering them treatment or imposing fines instead of jail time. When Ogg announced her marijuana policy, Gonzalez was standing next to her, along with Houston Mayor Sylvester Turner; the new city police chief, Art Acevedo; and several other local officials. “We have a lot of things on our plate and not enough people to deal with it,” Acevedo says. “This is about being smart, focused and dealing with the stuff people care about most, which is violent crimes and people breaking into homes.”
Getting law enforcement on board with her new approach to pot was smart politics. Ogg isn’t out on a limb all by herself and faces less risk of being castigated the way Lykos was, although a spokesman for Lt. Gov. Dan Patrick said that the policy amounts to creating a “sanctuary city” for drug users. Brett Ligon, the district attorney in neighboring Montgomery County, held a preemptive news conference the day before Ogg’s announcement to blast it. “I’m not anti-Kim Ogg,” Ligon says. “The point I’ve consistently made is, ‘Hey, we’re the DAs. We enforce laws, we don’t change the laws.’ Today it’s marijuana, tomorrow it’s the death penalty. It’s just not our call.”
Ogg says that her decision not to prosecute most marijuana cases — which amount to about 10,000 charges annually in Harris County — will save her cash-strapped department $26 million a year. Some of that money will be put toward prosecuting more rape cases fully, rather than pleading them down, as was done in the past. The county’s crime lab will save an estimated $1.7 million by not having to process so much marijuana. Ogg wants half that money to be devoted to examining a backlog of “touch DNA” — physical evidence picked up by police or sheriff’s deputies at crime scenes.
Concentrating on the most serious crimes will go a long way toward silencing critics who warn against any “hug-a-thug” approach. Ogg says it’s been a mistake to judge prosecutors by the number of murderers and rapists they’ve convicted. She argues that like cops, they should live and die politically by the bigger bottom line: the overall crime rate. “We are making public policy decisions based on evidence,” she says, “and not emotion.”
This story originally appeared 3/31/2017 in Governing.