On a winter afternoon nine months into the pandemic, Harris County district attorney Kim Ogg held a Zoom meeting with felony judges and prosecutors to discuss the backlog of cases caused by COVID-19 shutdowns at the downtown Houston courthouse. But the backlog wasn’t the only issue to come up that day. For years, the Democratic DA had been publicly criticizing local judges who set what she deemed insufficiently high bonds for defendants accused of violent crimes. Now her office would deliver a direct warning. First assistant district attorney David Mitcham, Ogg’s top lieutenant, informed the judges that there would be a “reckoning” if they didn’t start setting higher bonds.
“My reaction was like, ‘Wow, that was bold,’ ” said Joe Vinas, the president of the Harris County Criminal Lawyers Association, who was on the call representing the criminal defense bar. “One of the judges asked if Mitcham was threatening him.”
Many in Houston’s legal community have thought back to that moment, now that fourteen Harris County prosecutors and one DA investigator have filed to run for criminal court judgeships this year—eight in Democratic primaries, seven in Republican primaries. It’s not unusual for prosecutors to run for judgeships, but the high number in this election cycle has raised eyebrows. In 2020 not a single Harris County prosecutor ran in any of the nine local criminal court races; in 2018, which featured 31 races, just one prosecutor ran. But with Ogg linking a sharp rise in homicides to the bail practices of reform-minded judges elected in recent years, perhaps it’s no surprise that so many of her prosecutors are challenging the 29 Democratic incumbents up for reelection this year.
Harris County has long been ground zero for the national debate over bail reform. In 2016 the legal advocacy group Civil Rights Corps sued the county on behalf of Maranda Lynn ODonnell, a 22-year-old single mother who was arrested for driving without a valid license. (Two other plaintiffs later joined the lawsuit.) ODonnell spent three days in jail because she couldn’t afford her $2,500 bail. Like Sandra Bland, who took her own life in a Waller County jail cell in 2015, ODonnell found herself behind bars not because she had been convicted of a crime but because she couldn’t pay.
The Constitution permits the use of cash bonds as a means of ensuring that defendants show up to their court dates. In practice, however, judges routinely set high bail amounts to keep defendants in jail before trial—a system that benefits wealthy defendants such as Robert Durst or O. J. Simpson, while keeping the poor behind bars for weeks or even months. The Texas constitution requires judges to set bail for nearly all defendants, although judges have broad discretion on how high those bonds will be.
ODonnell’s lawyers contended that setting bail without regard to her ability to pay violated the Fourteenth Amendment, which guarantees all Americans equal protection under the law. In essence, they argued, Harris County was jailing ODonnell simply for being poor. A federal judge agreed, declaring the county’s bail system unconstitutional.
In 2019 Harris County agreed to a sweeping set of reforms, including the elimination of cash bail for the vast majority of misdemeanor defendants. Instead, defendants would be released before trial on so-called “personal bonds,” which require no up-front payment. The landmark settlement, the first of its kind in the U.S., was endorsed by Harris County Judge Lina Hidalgo and every other major county-wide Democratic officeholder—with the exception of Ogg, who warned that letting defendants out on personal bonds would threaten the public by giving judges “unfettered and unreviewable discretion” to delay trials or excuse defendants from ever appearing in court.
In the wake of Harris County’s settlement, Travis County also eliminated cash bail for most misdemeanor offenses. Two recent academic studies have found that this reform has been effective. Fewer defendants are now incarcerated before trial and those released on personal bonds have proven unlikely to be rearrested. But that hasn’t stopped some politicians from arguing that more lenient bail policies are endangering public safety. And Republicans, who have not won a county-wide race in Harris County since 2014, hope to capitalize on the issue to regain some judgeships and other offices in 2022.
The concerns about bail reform have been exacerbated by local and national spikes in violent crime over the past two years. Between 2019 and 2020, murders jumped by nearly 30 percent across the country—the largest year-over-year increase in at least six decades—and homicides rose again in 2021 (although the FBI hasn’t released its final data). That trend has held true for Houston: there were an estimated 469 homicides in the city last year, an increase of 71 percent from 2019. That’s still well below the 701 killings in 1981, the city’s deadliest year, when the population was nearly one million less.
Violent crimes such as assault have also increased since 2019, both nationally and in Harris County, although nonviolent crime is down. While the national homicide rate remains below its historic peak in the early nineties, the rapid increase has received intense attention in local media, with crime stories frequently leading television news. Houston’s Fox 26 features a recurring segment called “Breaking Bond”—created in collaboration with nonprofit group Crime Stoppers of Houston—about felony defendants who are rearrested while out on bail. The series regularly features prominent local Republicans blasting Democratic judges for their bail practices.
Criminologists disagree on the reason for the rising crime, but most agree that pandemic-induced frustrations, the surge in gun sales during the coronavirus outbreak, and a general police pullback in reaction to protests sparked by the murder of George Floyd have something to do with it. There’s little evidence to connect bail reform with the surge in homicides, but one notorious case last September added fuel to the argument. After judge Greg Glass set bonds of $10,000 and $20,000 for two drug charges against thirty-year-old Deon Ledet, the Harris County man went free and allegedly killed one police officer and injured another. Prosecutors had asked Glass to hold Ledet without bond because he had twice been convicted of a felony. In March, Glass (who did not respond to an interview request) faces two primary challengers, one of them a Polk County assistant district attorney; if he prevails, he’ll face one of Ogg’s Republican prosecutors in the fall general election.
The bail controversy has attracted the attention of the Republican-controlled state government. Last August, the Legislature passed Senate Bill 6, which limits who can be released from jail on personal bond. At the bill’s signing, Governor Greg Abbott decried the “revolving-door releases of dangerous criminals back out onto the streets, who then go on to commit even more crimes.”
Harris County’s district attorney tends to frame the issue more colorfully. “When you have murderers running around on multiple bonds, people who have killed other people, who go back and kill the witnesses,” she told Fox 26 last October, “it’s a scary time, and I’m here to warn people: we don’t have to live like this.” Ogg has called on the public to pressure judges over their bail practices. Recently, her office confirmed to Texas Monthly that first assistant DA Mitcham did issue a warning to criminal court judges in December 2020. According to district attorney spokesperson Dane Schiller, “Mr. Mitcham briefly expressed his concern that some judges were releasing violent offenders on repeated bonds only for those offenders to commit more violent crimes while awaiting trial and that the situation would not be overlooked by the people of Harris County; the judges themselves would be judged at the ballot box.” (Ogg declined to answer questions for this story.)
The “reckoning” Mitcham promised will begin with the March 1 primary, in which many of the county’s judges—including some of the seventeen Black women elected on a reform platform in 2018—face challengers. (This being Houston, the prosecutors and others challenging them are a diverse group.) “The word on the street is that all these prosecutors who are running against sitting judges are doing so at least at the encouragement, if not the behest, of the district attorney’s office,” Vinas said. Schiller denied that either Mitcham or Ogg had recruited any of the prosecutors to run and added that Ogg does not issue political endorsements.
I interviewed three of the prosecutors running for judge, each of whom also denied having been asked to run by the DA. “I know that each and every one of these people is running of their own accord,” said Alycia Harvey, a prosecutor in the major offender division who is running for the 482nd District Court, speaking of prosecutors from her office. Joseph Sanchez, who is running for the 230th District Court, told me that Ogg “never came and asked me in any way to run, nor did anybody from her administration.”
One of the prosecutors, assistant district attorney Katherine Thomas, echoed Ogg’s arguments against bail reform. Thomas, who worked in the vehicular crimes division for two years and is running in the Democratic primary for the 184th District Court against incumbent Abigail Anastasio, expressed frustration that so many of her cases resulted in “very minimal bonds, even if they had several bond violations, even if they had serious criminal history. None of those things mattered. It was often like our victims didn’t have a voice.”
In all but one race—for a seat held by a Republican appointee—prosecutors will be challenging incumbents of Ogg’s own party, which observers note is also unusual. “It’s interesting to have this many prosecutors running against this many judges who are the same political party as their boss,” Vinas noted. “I’ve never, ever seen that happen here.”
For Ogg, clashing with fellow Democrats is nothing new. Since unseating Republican district attorney Devon Anderson, in 2016, on a pro–reform platform—becoming the county’s first Democratic district attorney in nearly four decades—Ogg has grown increasingly critical of fellow party members she perceives as soft on crime. In her 2020 reelection campaign, Ogg was primaried from the left by two of her former prosecutors, who said she’d broken her campaign promise to ensure fewer low-level defendants end up behind bars. Ogg won handily, going on to defeat Republican Mary Nan Huffman in the general election.
Since winning another term, Ogg has become even more vocal in her criticism of judges’ decisions on pretrial release. She has called bail reform pushed by Democratic judges “a driving factor in the crime crisis gripping our community.” In September, Ogg released a report connecting misdemeanor bail reform to the higher murder rate; three previous reports from the independent, judicially appointed monitor for the bail reform settlement had found no relationship. The Houston Chronicle’s editorial board characterized Ogg’s findings as misleading: “By singling out bail reform as a root cause of violent crime,” it wrote, “Ogg is tailoring a conclusion to fit her thesis.”
While Ogg and other prosecutors have pointed the finger at judges, a recent Chronicle investigation found that Harris County bail bond companies have also played a role in increasing pretrial releases. The companies lost business when cash bail was eliminated for most misdemeanor defendants in 2019; to attract clients, they have been forced to cut their fees and charge less up front to felony defendants. Since bonds have become so affordable, even a high amount may no longer keep a defendant behind bars before trial.
Ogg won handily, going on to defeat Republican Mary Nan Huffman in the general election. Since winning another term, she has become even more vocal in her criticism of Democratic judges’ decisions on pretrial releases. In October, she went on TV to warn that “when you have murderers running around on multiple bonds, people who have killed other people go back and kill the witnesses.”
Groups such as Crime Stoppers, an organization funded in part by court fees paid by defendants—and led by Ogg before she was elected district attorney—have repeatedly blamed local judges for rising crime. Unlike Ogg, Crime Stoppers has always supported misdemeanor bail reform. But the organization’s executive director, Rania Mankarious, argued that local felony judges have adopted many of the same reforms, even without a court order. “We’re seeing judges issuing glaringly low bonds,” she told me. “We don’t want the bail system to be used as a punitive measure, but we also don’t want it to be a joke.”
According to University of Houston political scientist Brandon Rottinghaus, the issue of public safety appears to be splitting local Democrats. “There’s tension in the party about how to proceed on issues involving criminal justice, specifically bail reform,” Rottinghaus said. “In a partisan environment, this could be an issue where perception outweighs reality. The perception of crime is politically as bad as actual rising crime.” Republicans see the issue as their best path to regaining power in Harris County. “There is a chance that in this very partisan, very polarized world, some of these crime issues might catch on,” Rottinghaus said. “I do think that some local jurists might be in potential jeopardy.”
This article originally appeared in the March 2022 issue of Texas Monthly with the headline “Give Us the Gavels!” Subscribe today.