07/03/19 Kim Ogg

Cultural Baggage Radio Show
Kim Ogg
Harris County District Attorney

Kim Ogg the District Attorney of Houston/Harris County Texas for the half hour. We discuss marijuana & hemp and conflicting laws, paraphernalia, Misdemeanor Marijuana Diversion Program, cops ability to search based on hemp smell, number of prosecutors, bail bonds, the Harding Street bust the corruption there of, gangs, Portugal & decrim, Switzerland and Heroin, overdose deaths, safe consumption facilities , what glue holds the drug war together

Audio file


JULY 3, 2019


DEAN BECKER: Hi folks, this is Cultural Baggage. I am Dean Becker, the Reverend Most High. The next 28:45 is totally unedited. Put your ears on.

Okeh, I feel quite proud and privileged. I'm here in downtown Houston, I'm in the office of the district attorney of our nation's fourth largest city. I'm with the district attorney, Kim Ogg. Hello, Kim, how are you today?

KIM OGG: I'm great, Dean.

DEAN BECKER: Thank you for this interview. It's been a while, but I think we need to talk. Things are changing. People are beginning to realize that drug laws have failed, major newspapers, even our Houston Chronicle is nibbling at the edges, politicians around the country are beginning to speak a little more boldly, and I think today we might just make some history.

First, I want to talk about what you're maybe best known for, it's the Misdemeanor Marijuana Diversion Program, and the statistics indicate that you have saved the futures of many youngsters, because that's mainly who gets caught out there on the roads with marijuana, and they won't have that black mark and they'll be able to have a decent life without, you know, being excluded from credit, housing, employment. Right?


DEAN BECKER: Right. Now, I noticed the numbers are good, but they're not quite what you had projected when we began, and I'm figuring that's some cops just don't want to quit what they had done before. Circumstances maybe of possession of paraphernalia compounds it, I don't know those sorts of things. What does create -- ?

KIM OGG: Well, we're -- we're really proud of our numbers. We hit ten thousand diversions in April, which was a milestone for Harris County, the most drug prosecuting county in Texas, historically.

Before my administration began, ten thousand people per year were being arrested and convicted of misdemeanor or felony possession of marijuana. It was a 28 million dollar waste for taxpayers and an enormous waste of human capital.

So the number is great. I think the reason we didn't see ten thousand per year diverted is because police have stopped stopping as many people. I think once we reached the agreement that we were going to divert and ask them to do it fair, at the point pre-arrest, that that probably influenced some police to stop stopping as many people in cars with the idea that they would then maybe have probable cause for a search, or at least reasonable suspicion.

So I think that we have affected things in a good way, and in somewhat an unexpected way, with fewer stops. I think there are some small jurisdictions who are utilizing class C citations. Our governor recommended it and wanted the law changed, but the lieutenant governor, it's my understanding, blocked all legislation to reform marijuana laws.


KIM OGG: Interestingly, there's a brand new law on the books that legalized hemp that we think makes an enormous difference in the prosecution of any marijuana cases, and that's something that's just breaking out of the news cycle now.


KIM OGG: And the law that changed basically requires prosecutors, if we are to prove a case beyond a reasonable doubt that the police have filed, in a drug case involving marijuana, we now have to prove through lab tests that the substance seized is actually marijuana, not hemp, the only difference in the same plant being hemp has a concentration of THC less than point oh three, and marijuana has a concentration in the plant that it is of more than point oh three THC.

Now the lab testing wasn't forgotten by the legislature, in fact the Department of Public Safety had a 35 million dollar fiscal note attached to the legalization of hemp bill. But the legislature stripped it, leaving local DAs with no way, and local law enforcement, no way of obtaining marijuana quantification tests, which is what the new law requires, at a local level.

This virtually ends new case filings of marijuana. We're telling law enforcement that we'll work with them on felony cases if they can get it tested, then we'll file them. But as far as misdemeanor marijuana, our program still stands. We divert everyone, regardless of criminal history, and I think that program has proven to be better than anything the legislature's been willing to give us.

DEAN BECKER: All right, now, hemp, you know, there's just no way to detect the percentage when a policeman stops you.

KIM OGG: Correct.

DEAN BECKER: He cannot determine whether it's hemp or marijuana. There's just no way. And I'm wondering, we did a little exchange on this and I wonder if it doesn't just negate their ability to bust people for small baggies of some green plant matter. Your thought there, please.

KIM OGG: Our thought is that we in this district attorney's office will require lab testing for any marijuana case that's filed. If it's a felony amount, there may be a way to extend the wait period, we can write a "to be" warrant after there's lab testing, and in some instances if it's a huge load, then of course we could go ahead and take the charges, but that will have to be determined on a case by case basis, because the law enforcement agency's going to have to pony up the money --


KIM OGG: -- to test the drugs so we can prove in court that the substance is marijuana. As you know, our marijuana diversion program has eliminated most case filings of misdemeanor pot cases in Harris County.

We still file a couple thousand a year because we had allowed the school police to file drug free zone school cases. I think now that's changed, without a lab test we're not willing to accept those cases. So everyone will be diverted through the MMDP.

DEAN BECKER: Okeh. Now, can a cop, I don't care, somebody just smoked a hemp cigarette in their car, and a cop pulls them over, is he going to have the right to search that car? I smell marijuana, as always? I, that seems to me unconstitutional. Your thought.

KIM OGG: Well Dean, not only are you ahead of your time, but you're a man who, you know, is maybe in the wrong profession. Maybe you should have been a lawyer because I think that's the issue of the day: Does the smell or odor of marijuana emanating from a person or a car still remain reasonable suspicion for the policeman to search for that drug or anything else that he might find? I think that's going to be litigated in Texas courts across the state.

DEAN BECKER: Okeh, I'm going to change the subject some here. Some, I'm seeing facebook posts, some ads and such on, and talking about your request for more prosecutors is suspect, that you're wanting more convictions, seeking more time, but I wonder, is that not just sniping by some of your future opponents.

KIM OGG: That's just sniping by current opponents, and there's always haters out there who will find fault with everything we do. But in truth, we are the poorest funded among the largest agencies in the country.

We have the lowest level -- number of prosecutors and one of the higher numbers of cases. We believe that it takes people to help people, and that when lawyers are afforded the time they need to evaluate an individual, the evidence against them, and the effect that the case disposition will have on the community, that we'll have more diversions, not more prison sentences.

And when it comes to investigations of police shootings, environmental crimes, rape, robbery, murder, I think everyone in the community agrees, you need a sufficient number of lawyers to do our job, to prosecute those investigations fairly, and successfully, so that we can help keep our community safe because after all, that is what people expect of their district attorney.

DEAN BECKER: No slap dash district attorney, I like it.

KIM OGG: Well, not for violent crime. I mean, I don't think anybody would agree to that. But the critics don't seem to distinguish, they just paint with a broad brush. And I think it's become a referendum that paints the issues falsely. It encompasses some belief that more prosecutors are just bad, and I think that's the same kind of narrow minded thinking that we're trying to eliminate.

DEAN BECKER: Well, I think you're doing a great job thus far. Those same people, they say that you have yet to do away with so many bail bond requirements. Address that thought, please.

KIM OGG: Well, it's untrue. I was the first agency to file an amicus brief in support of misdemeanor bail reform. The problem is, we have violent felons being let out on low bonds or PR bonds, without any conditions to protect their victims or other potential victims in the community.

So when I supported bail bond reform, I did it or misdemeanor cases because I felt that they were low risk offenders in general. There are some exceptions, domestic violence abusers, drunk drivers, but most misdemeanor offenders should be allowed to continue working in the community while their case was pending.

But violent felon are another story, and so I would suggest that the folks who are criticizing me are disingenuous and perhaps they don't mind violent offenders on the street. If you live in a nice neighborhood, let's say River Oaks or West University or even Sunset Boulevard, you probably don't face the same problems that everyday Houstonians have when it comes to violent crime.

DEAN BECKER: No, so true. Now, we're going to really move in a different direction here. The bust that happened on Harding Street, where the residents were killed, their dog was shot, four officers wounded. They were kicking in the door in street clothes, they had an illegal -- a bad warrant from my perspective. They fabricated an informant, they likely fabricated the -- a previous buy.

They said there was black tar heroin, all they found was a third of an ounce of weed and a smidge of cocaine. And I say this is one of the most classic examples of the horrible logic of the drug war gone bad. Your response, please.

KIM OGG: Well, the drug war is illogical. I don't think you can declare war on a population that chooses to either not abide by prohibition or simply against prohibition. I don't think that's grounds for a war against our own people. That's an issue that should be determined legislatively.

But we've got to have legislators with the political will to change those laws. As long as they exist, you're going to have police who will enforce them and you're going to have prosecutors who will try those cases in court.

We are doing a lot to change that here in Harris County, but what you've touched on, the Harding Street raid, is the biggest civil rights case certainly in this part of the country. It's perhaps the biggest case I've seen in my thirty-two years, when it comes to the implications for the whole department, especially the narcotics division.

And so the use of confidential informants, the payments, the records, I think these are all things that we are very interested in combing through for evidence of patterns and practices that may need to be changed.

As far as this particular shooting and the officers involved, they're all part of an open investigation right now, and I think this is a tragic case. Our community is understandably upset. They want justice, and I want it for them. So, that's where we're going.

DEAN BECKER: All right. You know, this is arbitrary, facetious, I don't know the word, but I figure if the cops were to kick in any ten doors in our fair city, any neighborhood you want to go to, they're going to find marijuana in three of them. They're going to find some coke or heroin or pills, something illegal, in one out of those ten.

And I guess what I'm saying is, it's just -- drug users are pretty good people normally. They don't draw attention as, I don't know, as historically put it, the movies or on the TV shows. They're just not that desperate or deadly.

And I guess what I'm saying is, we need to think again, why we do this. I probably botched this question, but, if you kick in ten doors in Houston, you're going to find weed in three and probably pills in another. Your thought to that, please.

KIM OGG: Well, I think that whether your statistic is right, I have no idea, but I can tell you that people who utilize drugs and do not participate in any type of violence pose the lowest threat to our community in terms of public safety.

Many people are self medicating because they have underlying mental health, even physical health issues. You know, I think if you looked in a lot of old ladies' purses, you might find pills that weren't prescribed to them.


KIM OGG: So, it's the disparate enforcement that makes people so angry with the system. When we see more black and brown people, more men, more young people than old people being stopped, searched, arrested, it's not just disturbing, it is a threat to our whole democracy.

People must believe our system is fair if they're going to keep participating in it, and I think that's why it's so important that the top law enforcement officials, myself, Chief Art Acevedo, Ed Gonzalez, all agree that social problems and ills are not appropriate for us to try and handle.

Those are huge problems that must be dealt with through appropriate resources by our governing bodies and direct service to people, and that declaring war on people who use drugs has not just been a huge waste of money, but it's cut our nose off to spite our face as a society.


KIM OGG: You can't send millions of people to prison and not -- and refuse to see what has happened in our society as a result.


KIM OGG: A lot of lost opportunity and a lot of bitterness.

DEAN BECKER: Now, you just mentioned our police chief, Art Acevedo. He has stated that we have at least 300 gangs here, that they, and I say, well, it's obvious, it's been proven over the years, they entice our children to lives of crime. Join up with us or if addiction, try our product.

Through legalization, they would not have a profit motive and I think much of their violent behavior would disappear. Your thought there, please.

KIM OGG: The regulation of drug sales in states where marijuana is legal has not yet been correlated with a decline in violent crime, but I believe there's room in research to absolutely analyze whether legalization, with appropriate regulation, is in fact a way to lower the crime rate. I really can't answer that question without evidence.


KIM OGG: But, my gut tells me that, when you remove a huge profit making product from the black market, you put it in the regular market place, you regulate it, that while it won't eliminate gangs, because they're going to find something else illegal to do, you take a huge chunk out of their profit margin now.


KIM OGG: And it would disrupt their criminal and violent activities in a way that I think could only be helpful to our society.

DEAN BECKER: I think there is a means to kind of prove what I was alluding to. I went to Portugal last year, I got to sit down with the European Monitoring Centre, they had asked me to come speak to them. I got no respect in the USA but I was respected in Portugal.

I got to meet Doctor João Goulão, the in essence drug czar of Portugal, and they stressed to me that once they decrimed all drugs, five days -- you can have a five days' supply in your pocket and you won't be arrested -- that the violence has gone down, the overdoses have gone down, the acquisition of diseases has gone down. It has made a major impact.

And it kind of reminds me of the situation where every state, every jurisdiction, if they're considering marijuana, they want a new study, as if the first ten thousand were not enough. Respond to both of those, if you would, please.

KIM OGG: That we've had enough studies to choke a horse in this county and in this country.


KIM OGG: And while we continue to need data, and research, and institutes that are credible to deliver the message to the public, I think most of us in law enforcement can see the futility that this war on drugs has bred.

And when we look at other countries, the only thing I caution is that gun laws are quite different there, especially different than Texas, and that while firearms are readily accessible to people who are trafficking drugs or humans or stolen merchandise on the black market, that we're going to continue to see violence.

But when we can disrupt them, through taking away a major commodity, that seems like a promising strategy. And I look for our -- I look for our state and our local government to embrace some of those strategies. I think MMDP was a start.

DEAN BECKER: Thought it was a great start. One second here. Just that much, okeh. You know, after my time in Portugal I went to Switzerland, I got to meet the designer of their heroin injection program. Over the, I think it's 26 years they've injected pure heroin 27 million times with zero overdose deaths, and in 2017, here in the US, I think it was 45 of the 72,000 overdose deaths were opium -- opiate related [sic: according to the CDC there were 47,885 opiate-related deaths in 2017].

And, it -- in essence, the heroin injection facility is a safe injection facility. Here in Texas we're afraid of needle exchange, the legislature passed it then they said not in my county. What do you think of the potential for needle exchange and a safe consumption facility for our fair city where folk are dying of these contaminated products?

KIM OGG: Well, poison is undetectable to the average user, so pills that are being pressed in the black market contain fentanyl, profanyl [sic], all kinds of deadly substances that are toxic.

When we begin to look at drug addiction as a public health concern instead of a public safety concern, everything's possible. But I think it's a preliminary reversal of position for most people who are in government.

I would submit that law enforcement would and could be the first out of the chute to do that. But I think it's going to take the will of the people, and they'll show that will by who they vote for and then what those individuals who are elected into the legislative branch do with regard to drug laws. That's where it must change.

DEAN BECKER: You know, I handed you those two cards I hand out at the civil courthouse every Wednesday before my TV show, and a lot of these judges and jurists and defense and prosecutors, a lot of them stop and talk to me, and I tell them my -- my rationale, the drug war is a failure, we've got to end it.

And they say, well, you're absolutely right, but it's never going to end. And it brings to mind, I know that terrorists and gangs and cartels, they love the drug war. It is a bonanza to them. But why do legislators and other public officials in Texas remain so in love with this drug war?

KIM OGG: Well, I think we still have a very misogynistic society, and that it's a macho thing to think that we can just find a problem and kill it. Public health is not a war. You know, public health is science based. And I think the more that our society can stick to the evidence when we govern and make policies, the better we'll be.

And if we look at the evidence and the data that relates to addiction and the spin-off crimes, I think the answer's clear. Low level users, people who take illegal substances, are not all involved in crime, especially violent crime.

They may be the victim because they're operating in a black market, and I worry that people who are part of a vulnerable situation and you have to -- you have to see that people who utilize drugs illegally are part of that vulnerable population. They suffer at the hands of criminals just like they suffer in our criminal justice system.

DEAN BECKER: No recourse to the law, they have, though there's no way for them to report their -- the crime against the drug.

KIM OGG: Well, they do, they do, but it lends itself to credibility problems in the court system, where the -- where the baseline is that drugs are bad, ergo drug users are bad, and not credible. I don't think the evidence supports that at all, but I do think that that is a prevalent problem --


KIM OGG: -- in criminal justice, when people who are using drugs are killed by those drugs or when they're harmed or killed by people trying to rip them off in these black market situations.

So, I want to stop that, and I think one way is through this MMDP program. We also divert all of our crack and meth cases, as many people as we can, into court supervised programs where they come out without a conviction.

We hope that just gets them out of the black market situation. We think it makes them safer and healthier. And what they do after they're off that probation or court ordered supervision is often quite different, and better, than what they were doing when they got arrested.

DEAN BECKER: That's a wonderful thing. Just a couple of days ago, Cory Booker, you know, was chastising John -- excuse me, Joe Biden, for his being the ramrod if you will for our nation's more severe drug laws, asset forfeiture, you know, and Joe hasn't backed down.

But it reminded me of the reluctance, the recalcitrance, of these officials. I've been saying for years that those who made their bones in the drug war, and this kind of ties into what we were talking about before, are so reluctant to admit they were wrong for fear of losing stature and reelection, and it's tough for them to back down.

We addressed this, but you know some people who were zealots at one time, maybe that have changed their minds, and how do we smooth things over for them, allow them to step forward and admit they were wrong, or at least point us in the right direction now

KIM OGG: Well, to your point about politics, I don't make endorsements, even in the presidential primaries.


KIM OGG: But I will say that having been around in the '80s and '90s, I've lived here in Houston all my life with short exception, that we lived through some very violent times. We once had a murder rate that was over 700 per year. That's 700 people.

There was a lot of violence on our streets. And times were different.


KIM OGG: Responses were 1980s and '90s responses. It's easy to kick back in 2019 and say, oh, well they were wrong. I think it's more realistic to say, these were the answers that government came up with at the time. Some of those answers panned out, some didn't, but we want to do it differently in 2019.

So I don't think to be right now, others had to be wrong back then. I just think it's important to remain flexible, open minded about how we govern and are governed, and to continue participating in our system, because if you don't, you have no voice.

And I think that is a travesty.

DEAN BECKER: Okeh, I've got a couple of questions left for you. Would it make your job easier if we decide to once again judge people by their actions, like we used to do before this prohibition, rather than by their possession of a pill or a powder or the cigarettes they smoke?

KIM OGG: Of course.

DEAN BECKER: Wouldn't it be easier?

KIM OGG: Yes. I've often said that I think where our community and law enforcement became so divided other than along racial lines, which it certainly was, was when Nixon declared war on the American people and called it a drug war.

I think that communities of color were clearly overpoliced. We know that young people were targeted. And we know that this bred an enormous organized crime problem that we haven't suppressed yet.

And so, I think, you know, I think that the divide, other than the racial divide, which was there, really began back in '72. And that it's important with the -- living in a time of limited government resources, that we take our focus and we put it on the violent actions of people, and we judge those actions, and this notion that, you know, you're hurting yourself is somehow a problem that law enforcement should inject itself into just seems like a new way of thinking that I hope more people in leadership positions will aspire to.

DEAN BECKER: All right. And this one, I know the answer to, it's -- it's why I do what I do, is to challenge the logic of this drug war, and I want to ask this question of the drug czar himself, of the US attorney general, of Dan Patrick, of Governor Abbott, any of them: What is the benefit of drug war?

KIM OGG: Well, I look forward to their answers.

DEAN BECKER: Kim Ogg, thank you so much.

KIM OGG: My pleasure, Dean Becker.

DEAN BECKER: I appreciate it.

KIM OGG: Always good to see you and thanks for remaining the maverick on the cutting edge that you have always been.

DEAN BECKER: Thank you.

Again I remind you, because of prohibition you don't know what's in that bag. Please be careful.