“Guilty” does not always mean actual guilt, especially in drug cases involving African-American defendants who elect to plead guilty in the Harris County Criminal Justice Center.
African Americans 5 Times as Likely to be Wrongfully Convicted
A March 7, 2017 report, titled “Race and Wrongful Convictions” and issued by the National Registry of Exonerations (“Registry”), found that sixty-two percent of at least 133 exonerations in Harris County over the past several years involved African-American defendants who elected to plead guilty in exchange for a prosecutorial promise a shorter criminal sentence.
The Registry offered the disturbing conclusion that African-American defendants are five times more likely to go to prison for drug possession than whites and 12 times more likely to be wrongfully incarcerated for drug cases than similarly situated white people.
Harris County Had More Exonerations Than Any State in the Country
In a March 7, 2017 report for the Texas Tribune, Alex Samuels pointed out that last year alone 48 people in Harris County were released from unlawful custody after being exonerated in drug cases.
According to its reports for 2015 and 2016, the Registry found that Harris County has had more exonerations than any other state in the nation.
DA Ogg Vows to End Racial Disparities
Recently sworn in Harris County District Attorney Kim Ogg told the Tribune that drug laws have historically been “enforced unequally” in Harris County and she wants to end this practice.
“Obviously, that’s going to require law enforcement leadership, training and policies that effect the way our laws are enforced,” Ogg said, “but as DA I can level the playing field by offering an equal opportunity to all offenders.”
Against the historical backdrop of race-based decision-making in the Harris County District Attorney’s Office in the Johnny Holmes/Chuck Rosenthal eras, Ogg’s promise of equal justice is a refreshing approach in the administration of justice in this county.
Conviction Review Section
Much of the credit for the increased rate of exonerations in Harris County goes to the Conviction Review Section (“CRS”), a unit that was created in the District Attorney’s Office several years before Ogg became the county’s chief law enforcement officer.
A February 12, 2016 BBC News Magazine report, authored by Jessica Lussenhop, pointed out that in 2014 CRS’s section chief Inger Chandler received a telephone call from an Austin newspaper reporter inquiring about why so many Harris County drug convictions were being reversed on appeal years after convictions.
Many of these reversals involved defendants who had pled guilty. Forensic lab personnel charged with testing all drugs confiscated in Harris County simply placed the guilty plea cases on the bottom of the pile of those cases in line for testing. That practice was a collateral consequence of a backed up crime lab.
“It made perfectly good business sense,” Chandler told BBC, “but if you’re talking about issues of liberty it’s a totally different story.”
Chandler took her concerns to Ogg’s predecessor, Devon Anderson.
“This is crazy,” Chandler told Anderson, “this is taking too long.”
Chandler was authorized to make some change in the CRS, including ensuring that “drug evidence” would be tested in the order it was received. If any test produced a non-narcotic result, this information was promptly sent to the public defender’s office which could then file the necessary writ to have a wrongful conviction reversed.
Assistant public defender Nicholas Hughes handled the bulk of these exoneration cases.
“Any case where the person is currently serving a sentence, I put them at the forefront,” he told BBC.
Defendants Plead Guilty to Crimes They Don’t Commit
Jay Jenkins has worked in Harris County for the Texas Criminal Justice Coalition for the past three years. He told the Tribune that it came as no surprise to him that so many drug defendants would plead guilty and that most of them were African American.
“A lot of those folks plead guilty before the lab has even gotten the test back to the court,” Jenkins said. “Low-income defendants have very little options if they can’t make bail.”
Criminal Justice System Flawed
It has long been known by professionals working in the system that defendants plead guilty to crimes they did not commit to resolve their cases, especially when prosecutors are threatening harsher sentences or offering probation. Large numbers of defendants simply plead guilty to get out of jail, regardless of their guilt or innocence. Courts are complicit in the process by encouraging pleas to clear their dockets.
The inevitable question naturally arises: why so many false guilty pleas by African American facing drug cases? A lenient sentence for a guilty plea over an assured harsher sentence following conviction after a jury trial is most likely the primary inducement to plead guilty. Another explanation proffered is that some of the defendants who plead guilty believed they possessed illegal drugs, when in fact the substance was fake.
Disparity Begins with Policing, Bail
Jenkins summed up this recurring criminal justice problem this way in the Tribune article: “The way that these [African American] communities are policed and the way that these individuals are prosecuted – it really is different than how they’d police a white person from a rich neighborhood. They almost get an entirely separate criminal justice system from what is used to police and prosecute low-income communities here in Houston.”
DA Embraces Exonerations
DA Ogg has taken the right approach in resolving this problem: embrace exonerations in drug cases as evidence that the system has the capacity to correct its mistakes, even in those cases where innocent defendants have pled guilty.
“I think the big takeaway for us is that every case of wrongful convictions has to be seriously considered because it shapes the public’s trust in our system,” Ogg told the Tribune. “I promise to help try and build a trustworthy system … These exonerations on these drug cases are part of that.”
Ogg continued: “We take the Supreme Court mandate to disclose evidence, even post-conviction, to heart. We’ve assigned resources to making sure that even in cases where someone has pleaded guilty, but did so without actually being guilty, that we take every measure to make that right.”
DA Ogg Begins Path of Reform
The DA has also committed to bail reform, which has also been cited as a necessary move to prevent injustices and wrongful convictions for those who cannot afford the cash bonds that currently dominate the pretrial release system.
After a legacy of harsh and discriminatory law enforcement policies that have corrupted the reputation of the law enforcement in Harris County, we embrace the new DA and her commitment that the door to justice is never closed.