Houston's New District Attorney Stands By Her Bold Move to Decriminalize Marijuana


In February, the newly-appointed US attorney general, Jeff Sessions, indicated he backed a hardline stance against marijuana.

Also that month, the top prosecutor in the country’s third-most populous county announced that possession of small amounts of the drug would be decriminalisedin the Houston, Texas, area.

That prosecutor, Kim Ogg, was the first Democratic district attorney in nearly four decades, defeating her Republican rival in an election last November that saw an energized movement to oust bad prosecutors.

Ogg is part of a wave of local leaders – many newly elected – who are barrelling ahead with plans to reform the criminal justice system at the local level, even as Sessions has expressed his desire to reintroduce harsher sentences for drugs and other nonviolent crimes. In Texas, Ogg is also contending with state Republican leaders prepared to fight against progressive reforms at every turn.

“We represent a clear and present danger to the Republican power structure that’s basically ruled Texas for 30 years,” Ogg said earlier this month in her office in downtown Houston, noting that Houstonians elected Democrats all the way up the ballot. “We effected a Democratic sweep in an otherwise deep red state and we were a national anomaly and I’m really proud of our work.”

Already since taking office in January, Ogg has set about introducing reforms, including giving people caught with less than four ounces of marijuana the chance to take a drug education class instead of being arrested, and new bail recommendations so that those charged with minor offences may be released from jail while they await trial on personal bonds rather than being asked to put up cash.

“The math is ridiculous,” Ogg said of marijuana prosecutions. Her department calculated that it cost more than $25m per year to prosecute 10,000 people annually for low-level marijuana offences, which took up about a tenth of the county’s docket. “The return in terms of public safety has been nothing, nil. We are not a safer society or a safer greater Houston urban area because marijuana was aggressively prosecuted,” she said.

On bail practices, also the subject of a federal court challenge in Houston, Ogg said that about 75% of those held in the county jail had not been convicted. They are stuck in a process that can take 12-24 hours just to get bond, while others remain behind bars for years as they await trial. The cash bail system encourages defendants of limited means to plead guilty simply to get out of jail.

“Holding low-level offenders who can’t bond out because they’re too poor is against the basic principles of fairness,” Ogg said.

“I want poor people out of the jail if they don’t pose a safety threat to the rest of the community and I don’t want rich criminals to be able to buy their way out simply because they have the money regardless of their threat level.”

Ogg has worked as a felony prosecutor, a defence attorney, on an anti-gang task force and as head of Crime Stoppers in the city. She said that she realised a decade ago, in her mid-forties, that her career path was influenced by an incident that happened when she was a small child: her mother was kidnapped by a serial rapist in broad daylight in downtown Houston and only escaped by jumping out of a speeding car.

“It seems that our system had dumbed down and lower level prosecutions, especially of people who couldn’t make bond, became far more popular over the last decade and meanwhile our clearance rates on burglary, robbery and murder have all declined substantially,” she said. “That has to stop. Those are the crimes people care about.”

Dan Patrick, the Texas lieutenant governor, criticised the marijuana changes in February and implied that Houston was becoming the equivalent of an immigration “sanctuary city” for pot.

“All I’ve done is divert 10,000 offenders a year around jail and a criminal record through a lawful process through pre-charge diversion,” Ogg said.

The Trump administration has also threatened to slash federal funding in so-called sanctuary cities, as well as proposing a budget that would drastically cut urban grants.

“At the same time as state legislators are pulling back on the leverage that cities have to innovate and move their communities and economies forward, the federal government is not offering the help that perhaps it traditionally would have,” said Brooks Rainwater, senior executive and director of the National League of Cities’ Center for City Solutions.

“We’re seeing a lot of proposed budgetary impacts that would be detrimental for cities – pulling back dollars on community development block grants, slashing the EPA budget, ending a lot of grant programs and partnership programs between the federal government, states and local governments.”

Rainwater is the co-author of a report on the battles for control between states and cities on issues such as the minimum wage, paid leave, ride-sharing and taxation. The report found that 19 state legislatures have passed laws pre-empting cities from mandating that employers offer paid leave.

“It’s part of a broader scale trend that we’ve seen playing out over the last decade with a number of states of different political intent butting up against cities that are largely more progressive, particularly larger cities,” he said.

Despite growing urban and Hispanic populations, Texas’ Republican lawmakers have kept a firm grip on power. Uncompetitive statewide elections mean the only pressure they face is from within their own party during Republican primaries, a scenario that has seen them move further rightwards to placate their conservative bases rather than towards the centre to appeal to the millions who live in ever-more-diverse cities.

State politicians have tackled cities that dared to display an independent streak on culture-war topics large and small. When Sally Hernandez, sheriff of Travis County, announced this year that her department would not accede to federal requests to hold jail inmates for pick-up and possible deportation by immigration officers, Texas’s Republican governor, Greg Abbott, swiftly cut off $1.5m in criminal justice grants for the county.

Denton, near Dallas, prohibited fracking within city limits in 2014. Amid concern from the energy industry, Texas lawmakers quickly stepped in and banned the ban.

While sheriffs such as Hernandez are vulnerable to overrides, Ogg said prosecutors had significant powers that were hard for state officials to undermine – one reason why progressive activists campaigned strongly for her election, arguing it could have a profound effect on local communities.

“The legislative branch is trying very much at the statewide level to interfere with local political leadership and control, but prosecutors enjoy such discretion statewide [that] if they want to attack me, they have to attack all prosecutors – they cannot pass a law that simply limits the discretion of the Harris County district attorney and doesn’t impact their own district attorneys,” she said. “I think that is another safeguard in this process.”

It has long been a truism that demographic changes will eventually turn Texas purple; Ogg hopes that successful criminal justice policies will encourage a political evolution that will foster more common ground between cities and rural areas, not less.

“Our populations have the opportunity to change the political balance in Texas,” she said. “They have not been motivated to do so for the last 30 years and I hope that by good governance, sound policies that work and produce the intended consequence of a lower serious crime rate, it will be an unassailable argument and the rural counties will come along and want the same result: less crime.”

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