Idea to reduce backlog by dismissing thousands of felony cases proves too far for Harris County
By Zach Despart, Samantha Ketterer
The number of criminal cases pending before Harris County courts stands at more than 94,000.
That includes 41,000 misdemeanors and 53,000 felonies, numbers so high that if prosecutors stopped filing criminal charges tomorrow, it would take misdemeanor judges a year to clear their dockets; felony judges would need 19 months, based on their average pace for closing cases since 2017.
Forty-six percent of these cases are considered backlogged — defined as misdemeanors pending more than six months and felonies older than one year — beyond which the likelihood of conviction plummets as investigators retire, victims withdraw and witnesses’ memories fade.
“As the county recovers from natural disasters and navigating a public health crisis, it has put our justice system in a crisis state,” said Ana Yáñez Correa of the Harris County Justice Administration Department. “All county partners are diligently working to address this backlog which is counter to what procedural justice should look like.”
The backlog is so high that the Justice Management Institute, a Colorado nonprofit that has helped the county improve its criminal justice system since the early 2000s, offered a startling proposal last summer: Dismiss most nonviolent felony cases more than 9 months old, which would allow judges to focus on disposing the newest and most serious cases, including murders, rapes and assaults. Piecemeal solutions would be inadequate, the group said.
A year later, that proposal has proven too radical for commissioners, judges and Harris County’s chief prosecutor, many of whom ran for office on platforms that included criminal justice reform.
District Attorney Kim Ogg’s office said justice would be better served by hiring many more prosecutors, which Commissioners Court has refused to do, rather than dismiss cases without considering the facts of each.
“We have a duty to enforce the law, and the wholesale dismissal of entire classes of cases based on an arbitrary deadline is a violation of that duty and a slap in the face to crime victims,” Ogg spokesman Dane Schiller said. “Every case is unique and we prosecute on a case-by-case basis, based on the evidence.”
Case backlogs long have plagued Harris County courts, which this month added their first new felony judge since 1984, though the county’s population has almost doubled since then.
The number of pending criminal cases was declining in 2017 when Hurricane Harvey flooded the downtown courthouse complex that August. Large amounts of standing water seeped into the underground walls of the Criminal Justice Center, and the highest floors became inundated when water in the basement shorted out electronics controlling the building’s gauges. The pumping system sent massive amounts of water through the building, bursting water pipes even on top floors.
The flood damage stalled cases for two months and rendered much of the 20-story courthouse uninhabitable for years after. Hundreds of attorneys and staffers relocated to buildings across the city, and the criminal and civil court judges doubled up in undamaged buildings, limiting the number of criminal cases that could be heard per day.
“My poor court reporter, every week she would have to pack up and move to a different building,” state District Judge Brian Warren said. “I had to remember to bring my pen every day. It sounds trivial, and it is. It’s all these things that kind of work against us.”
Many judges had just returned full time to their regular offices when the COVID-19 pandemic reached Texas in March 2020, causing an even greater disruption in the criminal justice system’s operations.
Social distancing requirements limited courtroom capacity, eventually forcing judges to hold nonessential court settings at home over video conferencing platforms. In the immediate aftermath, trials were almost nonexistent, and judges could not hold daily in-person proceedings because cleaning requirements kept their courtrooms otherwise occupied.
Building repairs from Harvey are not scheduled to be completed until the second quarter of 2022, County Engineer John Blount said.
Harris County officials have made some investments to improve the situation. Since June, Commissioners Court has approved $17 million to fund several temporary positions, including three felony judges; two misdemeanor judges; 18 staff District Attorney’s Office; and six attorneys and one investigator for the Public Defender’s Office.
The court also hired temporary staff to help the county sheriff and constable deputies process body-camera footage, a major driver of case delays, and expanded jury selection at NRG Arena.
Ogg pioneered a $3.5 million pilot program in June to pay prosecutors overtime to review 30,000 misdemeanor and state jail felony cases, focusing on nonviolent offenses. It had been a modest success through August, resulting in 6,600 cases disposed through convictions, dismissals or court diversion.
Part of the reason prosecutors did not clear more cases is defense attorneys accepted less than 20 percent of plea deals they offered.
Mark Thiessen, a defense lawyer and past president of the Harris County Criminal Lawyers Association, said defendants have little incentive to plead guilty to even reduced charges, since the likelihood of securing a conviction falls as cases age.
“It’s in a defendant’s best interest to wait until they get to trial,” Thiessen said. “Time favors the defendant. And I can’t force them to take bad deals.”
Some jurists say inefficient practices by the District Attorney’s Office are causing other delays. Visiting misdemeanor Judge Michael Fields said in a letter to Ogg on Wednesday that prosecutors are ordering unnecessary blood alcohol tests in DWI cases and waiting six months to ask police for expedited processing of officer body-camera footage and 911 calls, which he said stalls many domestic violence cases.
“In a perfect world, cases would not be filed by your office until the evidence the defense needs to zealously represent their clients … is available,” the misdemeanor judge wrote.
Schiller denied the District Attorney’s Office had any policy leading to automatically delayed cases.
While the efforts by Harris County appear to have prevented the case backlog from growing — it has been roughly flat at 19,000 misdemeanors and 23,000 felonies since March — none has been able to significantly reduce it.
Dismissing nonviolent felonies remains an option, though few county officials are eager to endorse it. For one, it is a tough pill to swallow, essentially abandoning the pursuit of justice for a certain set of crimes in the hope of securing better results prosecuting the most serious offenses. It also is politically perilous as proponents expose themselves to accusations of being soft on crime.
Just one member of Commissioners Court, Democratic Precinct 1 Commissioner Rodney Ellis, said he supported JMI’s dismissal proposal. Republican Precinct 4 Commissioner Jack Cagle, a former civil court judge, said dismissing thousands of felony cases would send a message to criminals that they could operate in Harris County with impunity.
County Judge Lina Hidalgo, a Democrat who supports criminal justice reforms, said dismissing a chunk of cases is not a realistic proposal because judges oppose it. Judges also bristle at being told what to do by other elected officials; a felony judge last year blocked Hidalgo’s attempt to release some inmates from the Harris County Jail to ease crowding during the COVID-19 pandemic.
She said during Tuesday’s Commissioners Court meeting that the county should allow more time for its initiatives to succeed and measure progress.
“Perhaps they move the cases faster, but is it fast enough given the scale of the backlog?” Hidalgo said. “We need to project: Is this going to get us 2 percent of the way there, or 60 percent?”
For defendants who remain in jail pretrial, the continued delays mean more time behind bars before they have been convicted of a crime.
Marcus Ramirez, 51, has been in the Harris County Jail since April 2019 on a burglary charge. He refused a plea deal to serve 35 years in prison, court records show, and would rather go to trial. He maintains his innocence.
Six previous felony and 12 misdemeanor convictions led prosecutors to deem Ramirez a habitual offender, a classification that permits a judge to deny bail. Court records show Ramirez has struggled with mental health, homelessness and addiction in the decades leading up to his latest arrest.
Ramirez said he is frustrated his case has been reset a dozen times; he said letters and calls to his court-appointed lawyer have gone unanswered.
“I haven’t even talked to the man one time behind glass,” Ramirez said from a jail visitation room. “I don’t even know what the judge looks like.”
Correction: A previous version of this story misidentified Cagle as a former criminal court judge.
Nicole Hensley contributed to this report.