Reform Candidates are Trying to Change the Definition of a ‘Progressive Prosecutor’ in Texas

Kim Ogg’s primary challenge for Harris County District Attorney is one of several prosecutor races in Texas that could redefine the bounds of criminal justice reform in the state.

Harris County District Attorney Kim Ogg.

Harris County District Attorney Kim Ogg. Yi-Chin Lee/Houston Chronicle via AP

When Kim Ogg first ran for Harris County district attorney, she had a simple pitch for criminal justice reform: stop jailing people for petty pot possession. The position, novel to Houston politics in 2014, proved so popular that even her Republican opponent embraced a version of it. Ogg lost that first race, but she tried again in 2016, this time adding bail reform and a promise to create “a system that doesn’t oppress the poor” to her platform. She beat the incumbent by 8 percentage points to become Harris County’s first Democratic DA in 40 years.

Ogg was among the first wave of reform-minded “progressive prosecutors” elected across the country in recent years. This new class rejected a tough-on-crime ethos, advocating instead for fairness and jailing fewer people. Ogg quickly declared herself “part of the national reform movement” and started dismissing low-level marijuana charges for people who took a class and paid a fine. She also rejected so-called “trace cases” involving miniscule drug amounts and called for diversion instead of jail for small-time offenders. 

Over the course of her first term, however, progressives have soured on Ogg. While she publicly supported bail reform, she continued to seek high bail for people charged with minor offenses. She further disappointed them by objecting to historic bail reforms that followed a years-long lawsuit to end the practice of keeping low-level offenders in jail simply because they’re poor. Progressives have also bristled at Ogg’s repeated attempts to expand her office.

Now at the end of her first term, Ogg feels squeezed between opposing forces: a police union that accuses her of being soft on crime and critics on the left who say she’s failed to live up to her reputation. She’s facing a combative Democratic primary next month, flanked by challengers who insist that she’s stood in the way of progress during her first term. A Democratic sweep in the midterms that turned Harris County solid blue further emboldened local organizers who are seeking a new kind of reform prosecutor. 

While Ogg credits herself with boosting diversion programs and reducing prison sentences during her first term, her critics insist more fundamental changes are needed to fix yawning racial inequalities in the local justice system and to decarcerate one of the largest jails in the country. There was palpable tension between Ogg and the forces that helped elect her at a ACLU of Texas candidate forum in downtown Houston last Thursday. Some people in the standing-room-only crowd jeered as Ogg urged them to stick with her “balanced approach” to reform. After the forum, a woman walked up to Ogg and began arguing with her before campaign staffers quickly intervened.

Harris County District Attorney Candidate Forum

Tonight we’re hosting a candidate forum with the Immigrant Legal Resource Center featuring some of the Harris County District Attorney candidates. Candidates will be asked questions from those affected by the criminal justice system, from other concerned county residents, and from audience members.

Posted by ACLU of Texas on Thursday, January 30, 2020

In a phone call this week, Ogg sounded aggrieved and unappreciated, the way incumbents often do during tough re-election fights. “I started running before people in our local political arena even knew what a district attorney did,” she said. “Everything I wanted to do was a reformation of decades of static prosecutorial policy in Harris County. So of course I’m a reformer, and to be labeled otherwise—that’s a political issue more than a factual one.”

Ogg’s primary is one of several prosecutor races in Texas this year that could redefine the bounds of criminal justice reform in the state. As state lawmakers fail to make meaningful progress each legislative session, advocates for change have increasingly focused on amplifying key district attorney, judge, and sheriff races to transform how their communities are policed and prosecuted.

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Carvana Cloud says racial bias pervaded the Harris County DA’s office when she first joined as a new prosecutor under former DA Chuck Rosenthal in 2005. “I sat in trainings under the Rosenthal administration where they encouraged or taught or implied that blacks needed to be struck from juries in certain cases,” Cloud said. Rosenthal resigned in 2008 after he was caught sending racist and sexually explicit emails from his work computer.

Cloud left the office in 2009 thinking it desperately needed to change. So when Kim Ogg ran on a reform platform in 2016, Cloud started block-walking for her. “People weren’t getting pretrial diversion opportunities, people weren’t being treated fairly, and then Kim came in saying she could change all that,” Cloud said. Soon after Ogg was elected, Cloud joined the office in a leadership role. 

Audia Jones was also eager for a change by the time Ogg took office in 2017. Jones, a young lawyer who’d joined the DA’s office a couple years earlier, says she was already bothered by what she’d witnessed in her short time as a prosecutor: lying cops, chain-gangs of black and brown teenagers, mothers prosecuted for stealing baby formula or diapers. Jones was stunned by the routine callousness of people in the system, from judges and prosecutors to court staff and defense attorneys. 

“I had a judge read out the facts of a guy’s prostitution case right in front of the other people he was being held with,” Jones recalled, thus endangering the defendant. “A lot of times, they would get attacked in the back for things like that. [The judge] did it on purpose.” 

Jones and Cloud eventually lost confidence in Ogg. Both accuse her of mismanaging the office. Jones quit in December 2018 and announced her run for the DA’s office three months later. Cloud quit last November, nearly a year after Jones did, chastising Ogg’s position on bail reform while also announcing her own run for the DA’s office. 

Their platforms sound similar, but Jones and Cloud offer differing ideas of progress. Cloud, for instance, has said she’d decline to prosecute certain low-level misdemeanors, a position similar to other reform-minded DAs recently elected in San Antonio and Dallas. Cloud also says she would not prosecute misdemeanor marijuana cases, drop all pending ones, and work to expunge low-level pot convictions going back to the 1970s. 

Jones, on the other hand, has drawn support from national reform groups by calling for even more sweeping changes like pledging not to prosecute people for sex work or drug possession, even felony cases, and refusing to seek the death penalty. In recent weeks, Jones has picked up key bellwether endorsements in Houston’s progressive circles, which seems to increase the chance of a runoff election. (Todd Overstreet, a third challenger backed by the police union, has hardly campaigned.) 

Both Jones and Cloud say more bail reforms are still needed in Harris County and have vowed to advocate for pretrial release for non-violent felonies. Ogg insists she still supports bail reform but last year opposed parts of the county’s bail settlement, which she says was out of a concern for public safety. Unlike Cloud and Jones, Ogg doesn’t have a list of charges she won’t prosecute. “To simply say we’re not going to follow the law, I think that does an injustice to real reform,” Ogg said. “I believe that public safety can coexist with reform. But I’m not for dismantling the system, I’m just not.”

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Like Ogg, Travis County DA Margaret Moore considers herself both a reformer and defender of the system. In her office overlooking downtown Austin, Moore told me one of her main responsibilities as DA is to build trust in the system, which she admits has been difficult lately. The day we spoke, local officials had just released a study of data from 2015 to 2018 showing racial disparities in police traffic stops and searches; black people made up 15 percent of motor vehicle stops by Austin police and 25 percent of arrests despite representing only 8 percent of the city’s population.

“The most important piece of my job is to build the trust of the community in this system, and the higher percentage of African American arrests has undermined confidence in the fairness of the system,” Moore told me. “When this sort of information comes out, a whole bunch of people in this community think, ‘It’s not fair, we’re not being treated fairly.’ And to me that has to be addressed for us to be a healthy community.”

Travis County DA Margaret Moore.

Travis County DA Margaret Moore.  Courtesy Travis County

Moore traces her roots as a self-proclaimed criminal justice reformer to 1977. That year, she joined the DA’s office under Ronnie Earle, a prosecutor famous for going after public corruption: He once prosecuted himself for filing a campaign finance report a day late. After a stint as Travis County Attorney (which prosecutes misdemeanors, unlike in Harris County where the DA handles all cases), Moore spent a decade working in the attorney general’s office and served a couple of terms as a county commissioner. Then, she circled back to the DA’s office, this time as its head. After her election in 2016, Moore started diverting more drug possession cases, promoted treatment options for addiction and mental illness over jail, and established a civil rights unit to review all police use-of-force cases. 

In the past, that track record would have made Moore a shoo-in for another term, but 2020 has been different—candidates to Moore’s left have launched serious campaigns that could force her into a primary runoff. Erin Martinson, a lawyer who has spent most of her career advocating for women victimized by violent crime, has largely spent her campaign highlighting the office’s dismal track record of prosecuting rape cases, which she argues perpetuates a larger hands-off approach to sexual assault by law enforcement in the city. “What I’ve seen time and time again is that victims often get nothing resembling justice out of this system,” Martinson told me.

Both Martinson and Moore’s other challenger, Jose Garza, say the office should prioritize serious and violent crimes over drugs. Garza, a former public defender and co-executive director of the labor rights group Workers Defense Project, wants the office to end all prosecutions for felony drug possession. His vision for reform as part of a broader populist movement to topple systems of oppression earned him an endorsement from Elizabeth Warren.

“We use our criminal justice system like a rug,” he said, sweeping people under it when the economy, education system, or mental healthcare network fails them. “It’s where we put people so that we’re not bothered by the failures of these institutions.” 

Garza also says he’d keep a public list of officers who prosecutors consider too untrustworthy to testify in court due to allegations of misconduct—a new benchmark that advocates are increasingly demanding of reform prosecutors—which Moore told me she’s currently “wrestling with.” The race has also amplified questions about Moore’s approach to innocence cases, in particular her recent decision to retry Rosa Jimenez, who’s been in prison for 17 years for a murder that four different judges have said she likely did not commit. 

In her office last week, Moore called the Jimenez case a “tough situation,” but one that she still wants to resolve with another trial. “We have a system, and I believe in it, I really really do,” she said. “I think there are some cases that just have to be tried.” 

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In Houston, Ogg’s primary battle may speak to the changing attitudes around justice and punishment in the nation’s fourth largest city. The same year Ogg ran for DA as a reformer for the second time, civil rights lawyers sued Harris County on behalf of poor defendants stuck in jail on petty charges because they couldn’t afford bail. The case was named after a 22-year-old single mom who’d been living on a friend’s couch when she was jailed for driving with a suspended license.

Alec Karakatsanis, founder and executive director of Civil Rights Corps, said his organization worked with local organizers on the lawsuit hoping that it would fuel a larger movement for reform in Harris County. “There was a lot of great advocacy and organizing already on the ground, which meant that our case wouldn’t be some sort of one-off constitutional victory that would just let those in power recreate the same system with a different label,” Karakatsanis said. “We thought there was a chance in Houston that if we won the case, there could be a movement towards lasting change there.” 

As the movement for criminal justice reform continues to target prosecutor’s offices, Karakatsanis, who is wary of the premise of a “progressive prosecutor,” has developed a list of questions to help voters determine whether candidates are pushing transformational change, including: Will you stop prosecuting drug possession, stop certifying juveniles for adult prosecutions, meaningfully explore restorative justice options, or shrink the size and reach of the DA’s office? 

Ogg bristled when I ran through some of the questions with her. “This is a very important race for Democrats, for progressives,” she said. “I don’t intend to let it be hijacked by a purity test.” 

Each of Ogg’s challengers align with that progressive-prosecutor checklist to varying degrees (Jones probably more of it, Cloud a little less). But one unifying difference between them and Ogg is the way they talk about the DA’s role in addressing a legacy of injustice. Both Cloud and Jones tell voters the criminal justice system needs to acknowledge and atone for past harms; each talk about how books on the racist roots of prisons and policing, like Michelle Alexander’s “The New Jim Crow” and Douglas Blackmon’s “Slavery by Another Name,” have transformed their thinking in recent years. “I did not have the perspective in 2005 that I have now,” Cloud said. “When I was a baby prosecutor, I did not appreciate the impact of the decisions that I was making.” 

When Jones speaks to voters, she casts her vision for the prosecutor’s office as part of a broader prioritization of treatment over cages, harm reduction over policing, and restoration over retribution. After the ACLU forum last week, Jones joined local Democratic Socialists of America members at a west Houston icehouse. Organizers with Houston DSA, which has endorsed Jones, say they’ve been canvassing outside the Harris County jail to raise support for her among people visiting loved ones in lockup. 

When she spoke to the crowd, Jones cautioned against reforms that don’t acknowledge and address class and race inequities. “We have a system that was designed to work a specific way by targeting people that are low income, that are working class, people that are from communities of color, those that are suffering from mental health issues, those suffering from drug addiction issues,” Jones said. “When we talk about progressive prosecutors and what does that look like, it looks like rebuilding a new system.” 

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