#FreedomCities policies yield drop in misdemeanor arrests, Austin police say

Via Statesman | Mark Wilson

Austin police have drastically reduced the number of people arrested on misdemeanor charges that were eligible for a citation, according to early 2019 figures from the department given to the American-Statesman.

In the first three months of the year, there was a 57% decline over 2018 arrest numbers. These so-called discretionary arrests, for which social justice groups say a racial disparity exists, comes after police leaders were asked to take a different approach to nonviolent offenders accused of crimes punishable by little or no jail time, including traffic violations like driving with an invalid license.

The final numbers could vary, as officials work on presenting final statistics to the City Council in May, but they offer a glimpse of the effect of “Freedom City” policies adopted by the council in June. Members unanimously approved a pair of resolutions aimed at reducing racial disparities in arrests and protecting immigrant communities. The resolutions called on police to end most discretionary arrests, which happen when police elect to arrest someone for misdemeanors punishable by either a trip to jail or a ticket.

As a result, Police Chief Brian Manley said, his department changed its policies related to several offenses — such as driving with an invalid license, graffiti and possession of the synthetic drug K2 — to make more people charged with those offenses eligible for only a citation, rather than a jail booking. Before, only cases of graffiti and driving with an invalid license that were deemed Class B misdemeanors were eligible for cite and release. Now, Class A offenses for those charges are also eligible, provided those who are stopped meet certain criteria. Police also expanded cite-and-release eligibility to those found with small amounts of K2, a change that mirrors its policy for marijuana possession.

Policing misdemeanors

Texas law includes three different classes of misdemeanor offenses. Class A misdemeanors are punishable by up to a year in jail and a maximum fine of $4,000; Class B misdemeanors are punishable by 180 days in jail and a maximum fine of $2,000; and Class C misdemeanors are punishable by a maximum fine of $500.

“If an officer came across an individual that was committing a violation that was eligible for cite and release, we used to have a long list,” Manley said. “I believe it was 11 disqualifiers, or reasons that the officer could state for making the arrest otherwise.” Police now have only four criteria that could be used to make the arrest versus issuing the citation, he said.

Officers are still allowed a bit of nuance in their decisions on making arrests. Before police can cut a person loose with a citation:

• The officer must be satisfied that the person has fully identified themselves.

• The officer has to believe that the safety of the person or property would not be endangered.

• The person must not ask to be immediately taken before a magistrate judge, which is allowed under state law, Manley said.

• The offense also must not involve exposure with sexual intent, for which police will always make an arrest.

Offenders suspected of driving with an invalid license won’t be released if they were involved a serious crash and deemed to be at fault, or if their license was suspended or invalid because of a drunken driving offense.

But as the “Freedom City” policies worked their way through City Hall, police union President Ken Casaday has spoken out against easing up on discretionary arrests. He said he was initially more concerned with offenders facing more serious charges, like theft or burglary, being allowed to go free.

“I would not want to live in a city like that,” he said.

Casaday remains worried about whether those who received citations in lieu of arrests would show up to court, pay their fines or take responsibility for their actions. The new policies will likely save officers time, but could create more risk in the long run if such cases result in warrants, he said.

“It endangers officers’ lives more when they turn into warrants,” he said. “That’s the negative to this.”

Manley, though, said officials are paying close attention to crime trends to ensure unintended harm to public safety doesn’t occur.

“I think policing always evolves, and I think we have to look at opportunities to handle violations of the law in the least intrusive way, as long as it stops the conduct and does not increase crime in your community,” Manley said. “So I am paying close attention to make sure that as we implement these changes, we don’t see any impact on overall community safety.”

‘It can overturn lives’

Austin police in 2018 arrested more than 1,400 people for traffic violations, most of which are punishable in Texas by only a fine and no jail time, according to an April report from the advocacy group Just Liberty, which analyzed Class C misdemeanor arrests and use-of-force incidents during traffic stops last year.

The report shows that law enforcement agencies across the state often book people into jails on low-level charges, like driving with a suspended license or other traffic violations. Arrests for these types of offenses can have devastating effects for people who are jailed, said Scott Henson, executive director of Just Liberty.

“For many of them it can completely overturn their lives,” he said. “Anytime you are plucked out of your life just driving down the road and taken to jail, there’s really no telling what impact that may have.”

In cases where the maximum penalty for an offense is a fine, simply being arrested can constitute a more severe punishment than anything intended under the law, he said.

Austin police ranked 20th in the arrest rate for Class C offenses among Texas municipalities with a population of 50,000 or more and counties with a population of 100,000 or more, the report said.

Data from Just Liberty shows Austin police conducted 119,320 traffic stops in 2018, which resulted in 1,466 arrests for traffic violations, or 123.6 arrests per 10,000 stops. Area agencies with higher rates include the Williamson County Sheriff’s Office, Killeen police and Waco police.

All told, a little more than 1% of Austin drivers who were pulled over for traffic offenses ended up in jail, a small statistical slice of traffic stops. Yet advocates like Just Liberty say Austin’s policy change can be an easy, common-sense way to divert even more people away from the criminal justice system.

Overall, the report estimated that more than 45,000 people were arrested at traffic stops in Texas for Class C misdemeanors in 2018.

“Taxpayers spend millions to book and jail these drivers, with no public safety benefit,” the report said.

The numbers from Just Liberty come on the heels of another report from Texas Appleseed that showed most jail bookings in Texas, including those in Travis County, were for misdemeanor charges.

“If the legislature were to end arrests and jail time for Class C misdemeanors, tens of thousands of Texans could avoid being booked into jail each year, saving individuals from unnecessary arrest records or other negative consequences, like lost employment, that result from a jail stay,” the report said.

Mary Mergler, director of the Criminal Justice Project at Texas Appleseed, said research has shown that even short jail stays have long-term consequences.

“It doesn’t take a long time for someone to lose their job or have their medical or mental health treatment interrupted. Being in jail for a couple of days can have pretty profound negative consequences on someone’s life,” Mergler said.

Furthermore, Mergler said those who are jailed are far more likely to be arrested again in the future than those who are cited for low-level offenses.

Manley said the move also may help more closely align police policy with the Travis County district attorney’s office.

In Travis County, where 46,310 people were arrested in 2017, nearly 70 percent of them were booked on a misdemeanor charge, Texas Appleseed’s report found. The remaining bookings were for felony charges.

Travis County Jail records show 9,717 people were booked into the facility on a Class C misdemeanor charges in fiscal year 2017, or about 12.5 percent of all bookings.

“I think that the officers understand the reason behind the change,” Manley said. “I think our department has shown that we are willing to take a look at how we’ve always done things and do them differently if we can achieve the same public safety goals that we set out to.”

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