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.
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.
There’s a lot in here to annoy me, starting with the conflation of the reforms to misdemeanor bail reform and complaints about the amounts of bail being set by felony court judges. The simple fact of the matter is that if your system allows for any possibility of bail, sooner or later someone, whether out on ten dollars bail or ten million dollars bail, is going to commit a crime. You could have a system that’s right 99.9% of the time, but given the thousands of people that go through the courts each year, that means multiple times each year when that happens. Unless your solution is to lock everyone up from the time they’re arrested until the time their case is completed in whatever fashion, no matter what the charge or their circumstances or anything else, then you need to accept this basic fact of life.
(Such a solution would be blatantly unconstitutional, of course. So is simply charging everyone more for bail, since that makes bail only accessible to the wealthy, and punishes others for being poor. Which is what the misdemeanor bail lawsuit was all about. That does introduce some risk as noted, but we’re trying to balance it against the enormous wrong of locking up people who have not been convicted of any crime. Sometimes these things don’t have simple answers.)
Look, you can read the various judicial Q&A responses I’ve published from incumbents and candidates. I’ll have run over 40 of them by the time all is said and done. I’ve no doubt some of these assistant DAs would be fine judges. But this isn’t a good look, and I’m not at all inclined to view their time in that office as a positive because of it. And speaking as someone who has voted for Kim Ogg in each of the past two primaries, I’ll be looking very carefully at my other options in 2024.