Political Opposites Find Common Ground On Banning Discretionary Arrests

June 20, 2018 by

Austin City Council recently passed a resolution that both the right and left seemingly agree on – reducing arrests for non-jailable offenses.

As the capital city’s council was passing the proposal, delegates to the Republican Party of Texas convention were, again, supporting a plank to prohibit arrests for Class C misdemeanors (non-jailable offenses) in most instances, except when used to prevent family violence.

Non-jailable offenses, fine-only offenses, and discretionary arrests are roughly the same concepts under different names, and they are a problem across Texas. These arrests are for minor infractions like seatbelt violations, failure to signal, and expired registration. Texas law currently gives police officers discretion to arrest for almost any violation, even those that don’t carry the penalty of jail time.

For example, in 2014, Janet Blair-Cato was arrested and spent 52 days jailed in Amarillo when she failed to make a payment on her city fines for speeding and not having her dogs properly registered. Another famous instance was the 1997 “Soccer Mom Case” in which Gail Atwater was arrested in Lago Vista, TX when she was found in violation of the state’s seatbelt laws. At that time, the maximum fine for violating the seatbelt law was $50.

In 2016, the Texas Criminal Justice Coalition did a 16-week study in Harris County where they reviewed every arrest. They found that 11 percent of those arrests were the result of fine-only offenses, or Class C misdemeanors and below. Of that 11 percent, 30 percent were arrested for a single Class C Misdemeanor, mostly a single traffic violation. The rest were arrested on a combination of fine-only offenses such as an expired registration and a failed inspection.

In the 85thsession, State Sen. Konni Burton (R-Colleyville) filed SB 271 to address this problem. If passed, the bill would have prohibited arrests for fine-only crimes and would have required officers to disclose at the time of the stop that the violation was a fine-only offense not punishable by arrest.

Although three companion bills, two authored by Democrats, were filed in the House and a number of Senate Democrats signed on to co-author Burton’s bill, the bill was not passed into law. Now, a year later, Austin Council member Greg Casar successfully pursued the issue at city council and the proposal was passed last week.

“I’ve authored a resolution – cosponsored by Mayor Adler, Council Member Garza, and Council Member Kitchen to 1) eliminate unnecessary arrests for nonviolent misdemeanors (and just give people citations instead), 2) confront racial disparity in all our arrests, and 3) spend our police resources on serious issues,” Casar wrote in a blog post where he laid out the data that he based his resolution off of.

The resolution directs the city manager to work with police to develop and implement a policy eliminating the use of discretionary arrests for non-violent misdemeanors; where state law allows and where feasible. It also calls for quarterly public reports, for at least the next 24 months, on ongoing discretionary arrests, including information on the race and ethnicity of those arrested. The resolution passed 9-0 with two council members absent.

Days after the proposal passed Austin City Council, RPT delegates gathered in San Antonio and approved a more robust measure.

“We call upon the Texas Legislature to end the practice of jailing individuals for offenses which jail is not an allowable consequence under the law,” reads the platform plank. Delegates originally passed the plank in the 2016 platform but their reaffirmation at the 2018 convention shows continued support for the issue.

Some support this policy because they feel it evens out the racial disparity in arrests, others argue that unwarranted jail time violates Texans’ rights, and many feel that imprisoning people for these minor offenses is a waste of police and taxpayer resources. For whatever the reason, supporters agree that arrests for fine-only offenses should be prohibited.

The booking for these arrests can take hours and remove officers from the streets, temporarily jailing offenders costs taxpayers, and the entire ordeal obviously impacts the person on the receiving end. All of these issues can be addressed by citing the offender rather than arresting them. Yes, state law provides officers the discretion to make these arrests, but local governments have the authority to tighten those parameters and Austin is taking a positive step in doing so.

Opponents, consisting largely of law enforcement, argue that enacting policies like this are unsafe because officers lose a valuable crime-fighting tool. But, remember, it doesn’t prevent them from stopping people, just from arresting them for a crime which does not carry jail time as a punishment.

The issue is likely one that will come up next legislative session and hopefully the results of Austin’s change will serve as proof that banning arrests for fine-only offenses is good policy. It would be wise, if only for fiscal reasons, for other Texas cities to consider enacting a policy of their own in the meantime.


About the Author

Charles operates the Houston office for Empower Texans/Texans for Fiscal Responsibility.