Since 2007, Texas law enforcement agencies have been able to use a discretionary program known as “Cite and Release,” allowing officers to use their discretion to issue a citation, instead of arresting, for certain low-level, non-violent offenses.
The statute was approved by a predominantly Republican state legislature, signed by a Republican governor and since endorsed by both current Republican candidates for Hays County Sheriff — yet, in progressive San Marcos, our police department chose to arrest, instead of issue a citation, over 3/4ths of the time in 2019 in available circumstances, according to their own data.
Under Cite and Release, the person issued a citation must appear in court at a later time, must be a county resident, must not be a threat or danger to themselves or others, must not be publicly intoxicated, must have no outstanding warrants and must not be charged with a more serious offense.
By avoiding arrest, people accused of these eligible offenses are allowed to take care of any responsibilities they may have before the court makes a determination of guilt: childcare, work, bills, etc. This is particularly crucial for low-income residents as arrests for low-level, non-violent offenses often happen unexpectedly — resulting in job loss, impounded vehicles, and if they can not pay the tow company, loss of transportation.
If they’re jailed at the beginning of the month they can miss rent payments and face eviction. Low-income residents with children are also separated from them, and if they are unable to afford childcare, or have no other adult members in the household, these children are left unattended. This calamity can all result from a single officer’s discretion to arrest or give somebody a citation. On Tuesday, our city council will hold a discussion about forming a city law to provide guidance for officer discretion, resulting in these low-level, non-violent offenses being treated like a traffic ticket. Council has been urged by the police union to substantially weaken the proposed ordinance by reducing it to a toothless resolution, a mere cultural suggestion with limited effectiveness. Conversely, an ordinance would furnish concrete direction from council that the City of San Marcos supports the fair application and enforcement of the rule of law, one of the chief values of our great Republic. Unfortunately, in 2018, SMPD did not adhere to this principal: while Black residents accounted for only 5% of the San Marcos population, they nonetheless comprised 22% of citation-eligible arrests, meaning Black residents were quadruply over-criminalized relative to their population. Not a single Black person of 72 opportunities was given a citation; all were arrested.
It’s been argued perhaps we should start with a resolution then later change to an ordinance if substantial improvements aren’t made. I say, a resolution would be a continuation of the status quo, meager improvements and racial disparities. Justice delayed is justice denied.
A resolution would not mean all people charged with low-level, non-violent, citation-eligible offenses would be given a citation. An ordinance would however.
State law allows use of citation in lieu of arrest for all Class C misdemeanors (excluding public intoxication and assault) and certain Class A and B misdemeanors, including possession of marijuana, driving while license invalid, criminal mischief, graffiti, minor theft of property and minor theft of services. Council will discuss Tuesday which of these offenses to include in their guidance. I say, include all state-eligible offenses to maintain consistency between the priorities established by our legislators and former Governor Rick Perry.
Implementation of the ordinance in this inclusive manner will save the county and city large sums of money each year in booking, printing, officer salary and magistration costs. Moreover, it allows law enforcement to divert resources to more urgent public-safety priorities.
Judgment and punishment should be determined by the courts — not law enforcement on the street. Jailing people before they've been found guilty of the crime of which they are accused — particularly minor, non-violent ones — is a form of punishment.
After nearly a year of conversations around this topic I can wholeheartedly say I’m encouraged that all parties — council, police and advocates — are in unanimous agreement on one issue. We all agree on the need for public quarterly reports concerning the use of the Cite and Release in lieu of arrest, when allowable by state law, that also tracks race and ethnicity data.
One critical point of disagreement between Mano Amiga and police leadership for council’s consideration on Tuesday is the exclusive use of “disqualifying circumstances” in guiding officers’ course of action. When an officer reports citation/arrest data for eligible offenses, currently the draft ordinance outlines six “disqualifying circumstances” that make room for an officer to use their discretion to arrest somebody:
The subject does not provide satisfactory evidence of personal identification; the subject is not a resident of the county in which the offense was allegedly committed; the safety of persons (including the subject) would be imminently endangered by the release of the subject; the subject demands to be taken before a magistrate; the subject has an outstanding arrest warrant; the subject is also suspected of having committed a more serious offense.
Even Public Safety Director Chase Stapp, in a memo to council this week, acknowledges the disqualifying circumstances are “fairly exhaustive” — and he is absolutely right. Despite false rumors, the Cite and Release Ordinance does not get rid of officer discretion: rather it guides discretion by way of these disqualifying circumstances, still allowing for broad discretion, while simplifying data reporting. City Council has the opportunity to put an end to arrests for low-level, minor offenses and we hope they do the right thing for our residents.
Mano Amiga is a nonprofit, grassroots organization which aims to educate, advocate, coordinate and organize alongside and in favor of immigrants and low-income residents in the rural I-35 corridor between San Antonio and Austin: Guadalupe, Caldwell, Hays and Comal counties.
