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

Sep 08, 2019

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.

Posted by: Pat Monks