Nonprofit Aims to Close Modern-day Debtors’ Prisons in Texas

House prison

Debtors’ prisons aren’t legal. Authorities are not supposed to be able to lock up individuals who can’t afford to pay their fines—unless they “willfully refuse.” This is where the gray area forms, where poor people go to jail when they can’t afford the fines for minor offenses. Thousands of people are being jailed for fines they can’t afford to pay—and at least one nonprofit organization in Texas hopes to end that.

The Texas Organizing Project (TOP) is a 501(c)(4) nonprofit, which means it’s allowed to advocate and lobby as its main activity, unlike the more familiar 501(c)(3) charities. The organization has proposed a bill for the City of Houston that would improve how poor people are treated in municipal court. These offenses are particularly aimed at Class C misdemeanor cases, such as traffic violations.

“The whole idea is to not arrest people, especially indigent folks, on these traffic offenses—they are non-jailable offenses. They’re for debt. And they should be handled like debt,” says Tarsha Jackson, director of TOP’s Harris County chapter. “Police officers are currently acting like bill collectors, and they shouldn’t be.”
TOP suggests that municipal judges hold a full hearing into defendants’ ability to pay before imposing a fine upon them. For people below the poverty line, fines would be reduced or tailored to the individual’s financial circumstances, and community service would also be offered as an alternative. If someone is unable to pay or complete community service, they would get another hearing to explain the situation before being sent to jail.

Community service and reduced fines are already an option, but it doesn’t happen much. An investigation by a criminal justice transition team put into place after Mayor Sylvester Turner took office last year reported that community service was offered to less than two percent of the almost 170,000 cases in Houston municipal courts. Fines were waived for only six indigent people.

Other organizations have been researching the situation in Houston and coming up with the same answer: Impoverished people are being targeted for their inability to pay fines for minor offenses they commit. In November, the American Civil Liberties Union (ACLU) of Texas found that just over 20 percent of people facing Class C fines are living in poverty. Of the 500 people sent to jail for a failure to pay over a period of four months, 30 percent were listed as homeless or not having an address.

The ACLU even went as far as to sue the city of Santa Fe, Texas—a town with population of 12,000 just south of Houston—in November 2016 on behalf of three men, accusing the city of prioritizing raising revenue for the city over administering justice fairly. As of now, there is a pending motion to dismiss the case.

The Houston area may draw the most attention in Texas, and possibly the most cases due to its sheer size, but other regions in the state are having the same issue. Last summer, an Amarillo attorney released documents that showed the city jailing people, including a disabled veteran, who couldn’t pay municipal fines. Another resident fined there was a woman living on $490 a month from Social Security disability who owed $520. Then there’s Austin, where a mother of five was fined for a minor traffic violation, including not having a driver’s license. She couldn’t afford to pay for a driver’s license until she paid off her traffic fines, but she had to keep driving her children to school and her husband to work, and the cycle continued.

Various bills regarding debtors’ prisons are being tackled in the Texas legislature. In the meantime, TOP is leading the way in Texas’ largest city. If successful in this part of criminal justice reform, they just may be a model for other advocacy organizations to follow.—Angie Wierzbicki

This story originally appeared 4/6/2017 in Nonprofit Quarterly.

The Texas Organizing Project Has a Plan to Stop Debtors Prisons in Houston

Tarsha Jackson CJ

Michael Wilson had just got his first car when, that very same day, his driving record fell apart.

His mom had purchased the car in her name since Wilson, then 21, was in the middle of taking a driving course to obtain his license; he planned to finish it that week and then get car insurance, too. His mom wasn’t feeling well that night, so she asked her son to take the new car for a new spin down the street, to the grocery store, and buy her some soup and medicine.

On the way home, minutes away, he saw the red and blue lights flickering in his rear-view window: He was getting pulled over for failure to use a turn signal — with additional tickets for driving without insurance or a license. As a result, Wilson was looking at nearly $700 in fines. And on fixed Social Security income because of his disabilities, brittle bone disease and muscular dystrophy, paying them off was far out of reach for Wilson.

“I didn’t know what to do,” Wilson said. “I just couldn’t pay it. It’s not that I didn’t want to. I couldn’t.”

Michael Wilson is one of thousands of Texans every year who end up paying off their tickets behind bars rather than with cash. Two years after the traffic tickets, he spent one week in jail after he was picked up on warrants for failure to pay and failure to appear in court. And five years after the tickets, he is also one of thousands who cannot even obtain a driver’s license or insurance because of the DPS Driver Responsibility Program, which punishes those who cannot resolve their tickets with license suspension and more surcharges, making the tickets even harder for poor people to pay off.

Now, though, as the Texas Legislature grapples with several bills that would address the debtors prison problem, the Texas Organizing Project is taking it up on the local level with Houston City Council, proposing a bill that would reform how destitute people are treated in municipal court.

“The whole idea is to not arrest people, especially indigent folks, on these traffic offenses — they are non-jailable offenses. They’re for debt. And they should be handled like debt,” said Tarsha Jackson, executive director of TOP’s Harris County chapter. “Police officers are currently acting like bill collectors, and they shouldn’t be.”

TOP is proposing to require municipal judges to hold a full hearing into defendants’ ability to pay a fine before imposing one on them. For people below the poverty line, fines would be reduced or tailored to the person’s financial circumstances, and community service would also be offered as an alternative. And if someone still can’t pay the altered fine amount or can’t complete community service, instead of being whisked off to jail on arrest warrants, they would get another hearing before the judge to explain the situation.

“The question is, how can we create a system so that we’re not using jail to destroy people’s lives? Just for an unpaid fine,” said Jackson, who herself once spent a night in jail for failure to pay off traffic tickets during a rut of unemployment.

In Houston, it’s not that community service or reduced fines are not already options. The problem is those options are offered sparingly and sometimes poor people aren’t aware they can ask for them, according to recent research. After Mayor Sylvester Turner took office last year, his criminal-justice transition team found community service was being offered to people in less than two percent of the roughly 169,000 cases in Houston municipal courts, and fines were only waived due to indigence for just six people. Jackson, a member of the transition team, said TOP began thinking about the ordinance shortly afterward.

More recent research from advocacy organizations also suggests reform is needed in Houston: In November, the ACLU of Texas found that 21.2 percent of all people facing Class C fines in Houston are living in poverty. Of those sent to jail for failure to pay over a period of four months (more than 500 people), 30 percent were listed as homeless or not having an address — and 25 percent of the offenses they were jailed for were actually related to homelessness, such as loitering on a sidewalk. In February, Texas Appleseed and Texas Fair Defense Project reviewed 50 cases in Houston of people jailed for failure to pay, and found that in not a single case did a judge make a determination of ability to pay, as TOP’s proposed ordinance would expressly require. (The Houston Municipal Courts did not respond to a request for comment.)

On the statewide level, the February report also found that Texas municipal courts issued more than 2.9 million arrest warrants for non-jailable, fine-only offenses in 2015. By contrast, only five percent of arrest warrants, or roughly 129,000, were issued for more serious Class A and B misdemeanor crimes.

“What’s happened over time is Texas has created a system in which a single traffic ticket balloons into hundreds of dollars of debt, and that hundreds of dollars of debt can be something that a low-income person just can’t get out from under and can result in them having to go to jail,” said Rebecca Bernhardt, executive director of the Texas Fair Defense Project. “The courts just aren’t using the alternatives that Texas law provides to help come up with a reasonable way to hold people accountable for their tickets.”

Various bills in the Texas Legislature would also tackle debtors’ prisons, and one—HB1125 by State Representative James White—would end the practice of jailing people for unpaid fines altogether. Another, which passed through the House last week, would allow judges to order community service or even waive fines before waiting for a poor person to default on the payments, similar to TOP’s proposed ordinance.

Michael Wilson certainly could have benefited from any of these proposals.

Today, Wilson owes the City of Houston $1,400. A couple years ago, he got in a fender bender, resulting in hundreds of dollars in more fines for still having no license or insurance. He has simply given up, and has not gone to court to plead his case to a judge for fear that he will be arrested when he arrives. He still drives his car, though not without the fear that he could end up back in jail should he forget to signal a lane change.

“Every time I hear the sirens,” he said. “I think they’re coming for me.”

*Update, April 4: Tarsha Jackson, who also spearheads a coalition of advocacy groups called Right to Justice, said more groups in addition to TOP have been pushing the ordinance. They include Texas Appleseed, ACLU, Texas Criminal Justice Coalition, Truth 2 Power, Texas Civil Rights Project, Service Employees International Union, Mi Familia Vota and United We Dream.

This story originally appeared 4/3/2017 in the Houston Press.

Law and the New Order: A Fresh Wave of District Attorneys Is Redefining Justice

Ogg DA

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.