Counties balking at giving officers discretion on low-level arrests

A lot of Texas counties with jail overcrowding problems have chosen so far to stare the proverbial gift horse in the mouth rather than implement a new statute passed by the Legislature last year to help the problem, reports the Dallas Morning News ("Marijuana tickets not catching on," Dec. 31).

The News mistakenly reported that Travis County is the only jurisdiction using the new authority; I know Colorado County set up a system to do so, as did Jeffereson County, and the Hays, Navarro, and Palo Pinto Sheriffs reportedly are using the new discretion.

Quite a few other jurisdictions are still looking at the logistical details, but those seem surmountable: Others have figured out how to do it, after all. The bigger barrier to implementation are attitudes of local officials, summarized by a Collin County ADA:

For Greg Davis, Collin County's first assistant district attorney, one of his qualms with the new law is the perception created by ticketing for a drug offense, instead of making an arrest.

"It may... lead some people to believe that drug use is no more serious than double parking," Mr. Davis said. "We don't want to send that message to potential drug users, particularly young people."

Regular readers know I consider all laws designed to "send a message" to be fundamentally flawed. Justice policies should be based on desired outcomes, not some esoteric "message" that no one receives. If you want to send a message, rent a billboard. That's not the function of an arrest.

Besides, what message does it send for jails to be dangerously overcrowded? What message does it send to house nonviolent offenders with dangerous ones? What message does it send to take officers off the streets for low-level crimes when more serious offenders are at large? For that matter, what message does it send that the War on Drugs incarcerates tens of thousands of people statewide and yet drugs are as widely available as ever? Why aren't officials worried about THOSE messages?

Officers still have discretion to arrest under HB 2391 if they think there's a reason; the bill only gives them an option to issue a citation when an arrest isn't really necessary. If there's an obvious flight risk or a question whether the suspect can be identified in court, the statute retains officers' authority to arrest them. It only gives departments another tool to bolster understaffed police forces and reduce unnecessary jail overcrowding, both of which to my mind improve public safety.

It's been fascinating to me how this debate has come to center around arresting for marijuana, even though the law designates several other B misdemeanors (graffiti, criminal trespass, driving with an invalid license, etc.) for using optional citations. In some of these jurisdictions where opposition centers mainly on pot, perhaps proponents should attempt to implement the new authority only for the other listed offenses - just getting the folks with invalid licenses out of the jails would be a big help.

Certainly by giving locals discretion, HB 2391 as written assumes that counties where local officials disapprove of the idea don't have to use the new authority. But then, voters in those counties should oppose on principle new jail building schemes. It's one thing to tell voters they should pay for a new jail because they have to, and quite another to build one as an optional expense.

HB 2391 saves taxpayers' money and focuses scarce criminal justice resources on more serious offenses, while still prosecuting non-violent B misdemeanors just like in the past. In counties like Harris, Dallas and Bexar where jail overcrowding has reached crisis levels, IMO it borders on irresponsible not to use this discretion. Officials need to get over their fear of being labeled "soft" on drugs and do what's best for their constituents' safety and the county's bottom line.

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