Judicial Elections Test Profound “Cultural Shift” in Houston
An unusual electoral confrontation between sitting judges and county prosecutors kicks off in Tuesday’s primaries, against the backdrop of Harris County’s landmark bail reform.
Maura Ewing, | February 25, 2022
The 2018 midterms shook up Houston’s criminal legal system. Democratic candidates swept to victory in dozens of judicial elections and then went on to champion a landmark bail reform in Harris County. Now these judges are up for re-election, starting with next week’s primaries, and their races have shaped up as an unusual confrontation between reform-minded judges and county prosecutors, with the police union jumping in on many prosecutors’ behalf.
The outcomes could mark yet another turning point in the yearslong fight over the bail system in the nation’s third most populous jurisdiction.
Civil rights advocates sued Harris County in 2016 on behalf of people stuck in jail because they couldn’t afford bail. The plaintiffs included a young mother arrested for driving with an invalid license and jailed for three days because she couldn’t pay $2,500—or pay a bondsman a $250 nonrefundable fee. In 2017, a federal judge declared the county’s bail practices unconstitutional and discriminatory, but Republican judges were spending millions in taxpayer money apealing the ruling—until they were booted in 2018. Their ouster transformed the bail debate. The new judges and county leadership settled the bail lawsuit and agreed to a landmark reform to reduce the number of people in jail pretrial over a misdemeanor. They also pushed for other changes like no longer jailing defendants for being late to court or testing positive for marijuana.
“It’s really remarkable,” says Sarah Wood, a public defender in Harris County who still marvels at the “cultural shift” that the new judges unleashed.
The 2022 midterms are testing the resilience of that shift. Prosecutors from the Harris County District have flooded the field of candidates for misdemeanor and felony-level judges. A Bolts review of the county’s 29 elections for criminal court judge found 15 candidates who currently work there—and three more former Harris County prosecutors who worked there during the tenure of DA Kim Ogg. Half are running in next week’s Democratic primary; the other half are running as Republicans, which means they would face the incumbents in November.
Houston’s police union PAC hopes to expel sitting judges, and has endorsed eleven of the Harris County prosecutors who are challenging them. The union says it is committed to “endorsing judicial candidates who will effectively replace judges at the court who are letting violent criminals back on the streets.” The union has also endorsed multiple candidates who worked in the Harris County DA’s office earlier on, or who work as an ADA in another county.
This dynamic is in stark contrast to 2018, when the bench was dominated by Republican judges and only one line prosecutor filed to run for judge, according to the Texas Monthly.
Ogg, a Democrat, has demonized the county’s bail settlement and publicly blamed its reforms for a pandemic-era rise in violent crime. In a statement to Bolts, a spokesperson from Ogg’s office, Dane Schiller, said Ogg’s position is that, “No one should be held in jail just because they are poor, but no one should be released without proper consideration for public safety.” Other local leaders like County Judge Lina Hidalgo and Sheriff Ed Gonzalez were supportive of the bail reform settlement.
Some of Ogg’s deputies echo her criticism. Katherine Thomas, an assistant DA who is challenging Judge Abigail Anastasio in the Democratic primary, recently said she was frustrated by what she considered to be low bond settings, saying, “It was often like our victims didn’t have a voice.”
There is no sign of coordination to field candidates from the DA’s office. But Ogg’s resistance to bail reforms, combined with a slew of her prosecutors running to unseat sitting judges has raised eyebrows, among judges and advocates in Harris County.
Franklin Bynum, a judge who has gained national attention for his progressive and decarceral outlook and for clashing with Ogg, says he’s “not at all surprised” he faces a prosecutor in next week’s primary. He believes the judges who took the lead on implementing reforms are being challenged by sitting ADAs for a reason. “All my colleagues are good but the ones they’ve targeted have been strategically targeted to weaken the group. I’m not the only one,” he said. Bynum’s primary challenger Erika Ramirez didn’t respond to interview requests for this story. If Bynum wins next week, he would face another assistant DA, Republican Mark Goldberg, in the general election in November. (The local police union has endorsed both of Bynum’s opponents.)
Advocates who have fought for bail reform worry that new judges could push back against old reforms and resist new ones if they have a different outlook. “They could start putting people in jail right away for missing court, for testing positive on a marijuana drug test, missing pretrial services,” Wood said. “And they could start levying large fines on defendants again. It used to be commonplace for judges to fine $1,000 for misdemeanors.”
In settling the bail lawsuit, Bynum and the county’s other misdemeanor court judges agreed to a federally monitored consent decree that required them to release people charged with most non-violent *misdemeanor offenses—one of the first of its kind in the nation. The reform also provides that people charged with misdemeanors are now guaranteed much stronger procedural protections at bail hearings including a lawyer and a full assessment of ability to pay. It also mandated that the court improve its system for reminding people of court dates, and that it better accommodate people’s work schedules or family obligations by allowing hearings to be waived or rescheduled.
While Ogg has claimed that bail reform “will continue to be a driving factor in the crime crisis gripping our community,” reports from the federal court monitor in the bail case have found that releasing people accused of misdemeanors on their own recognizance did not lead to a substantial increase in arrests or reoffending. Further, racial disparities between who is released pretrial and who remains in jail were eliminated. Sandra Thompson, a law professor from University of Houston who was appointed as deputy federal court monitor, said most of the cases critics point to have nothing to do with the bail reforms adopted by the county.
“When you drill down into what they’re upset about,” Thompson said, “the vast majority of cases are felony cases which had nothing to do with the consent decree.”
Still, the pushback against bail reform has been intense. Republican members of the Harris County Commissioners Court recently tried to prompt a vote to back out of the consent decree saying the county is threatened by people released on low or no cash bonds. Also last fall, as COVID-19 spread rapidly in Texas lockups, Republicans adopted a law to limit jail releases and require cash bail for people accused of violent crimes. Opponents of the law fear it will lead to more pretrial detention and compound existing problems inside local lockups.
Besides bail reform, the new misdemeanor court judges also pushed other changes over the past four years, including revamping the way judges assign lawyers for indigent people. “Before we were elected I had heard of judges that have appointed lawyers to cases then throw fundraisers, some of these lawyers would be making $300,000 a year from court appointments,” said David Fleischer, a misdemeanor court judge. “We wanted to get away from that.”
Fleischer faces challenges from two assistant DAs this year, one in the Democratic primary, and one Republican endorsed by the police union. Elizabeth Buss, this Republican candidate, has shared stories blaming the county’s progressive judges for violence in the county.
Kelley Andrews, who also won her misdemeanor court seat in the 2018 wave, said the judges also worked to reduce the number of court appearances defendants have to make. “It used to be that the person was required to come back to court every two to three weeks,” she said. This was most often for status hearings — when evidence has been submitted, for example, or to schedule a future hearing. “It was ridiculous to have people coming back when nothing was happening. It was an oppressive way to keep people under their thumb,” and added, “We waive appearances very freely now, unless there is a condition that needs to be addressed, or it is a trial, or a hearing where someone is entering a plea.” Like Fleisher and Bynum, Andrews is facing a contested primary, though her opponent is a defense and immigration attorney.
Some judges, including Bynum and Darrell Jordan, also pushed for a cite-and-release program to keep people accused of low-level from entering jail in the first place. However, local officials have struggled to get the program off the ground after launching it at the start of the pandemic.
These policy changes only scratch the surface of a much larger system of mass incarceration in Harris County. The current jail population is over 9,000 people, which is roughly the same as when this class of judges took the benches in January of 2019. A pandemic-induced court backlog and the spike in violent crime seen around the country have been major contributors to this—although it’s notable that fewer than 400 of the people there are held on misdemeanor charges, a class of people the judges have pushed heavily to not incarcerate pretrial.
Even with the misdemeanor bail reforms in place and the consent decree that county officials have agreed to, the progress that these judges have supported is far from set in stone.
“The stakes are high,” said Wood. “I think they need another four years to make things run smoothly. This stuff isn’t happening overnight.”
*Correction: The description of the bail settlement in the original story stated the wrong level of offense, and was corrected on February 25.