Wednesday, November 07, 2007

Counties that rejected new jails must now get serious about diversion

Now that voters in Houston and Tyler have rejected new jail construction, it's time for the commissioners courts, judges, and local law enforcement in those counties to get a lot more serious about their responsibility to reduce jail populations. They should start by implementing HB 2391, the only legislation passed in 2007 by the 80th Texas Legislature aimed at reducing jail overcrowding.

In both Harris and Smith counties, the Sheriffs and local PDs refused to allow their officers to use new discretion created this year by the Legislature to issue a summons instead of making an arrest for certain low-level, nonviolent offenses. Under HB 2391, signed into law by the Governor earlier this year, officers can choose to give tickets instead arresting people suspected of:
  • Marijuana possession, (up to 4 oz)
  • Criminal mischief with less than $500 damage
  • Graffiti with less than $500 damage
  • Theft by check with less than $500 stolen
  • Theft of service with less than $500 stolen
  • Contraband in a corrections facility (B misd. only)
  • Driving With an Invalid License
The idea was to reduce overcrowding at local jails and keep more officers out on the street instead of spending hours booking suspects for low-level crimes. But several DAs and local law enforcement officials have thwarted the law's implementation in much of the state.

In San Antonio, Bexar DA Susan Reed blocked the law's implementation, even though it would have saved the county more than $10,000 per day. In Harris County (Houston), DA Chuck Rosenthal announced he would use his prosecutorial discretion to refuse cases where officers exercised this new authority, undermining any possible use in that jurisdiction.

Rosenthal should now back off that position, and both county sheriffs and local police departments in Harris and Smith counties should reconsider their refusal to exercise this new authority. Ignoring the only tool given you to reduce overcrowding while simultaneously paying other counties to house local offenders doesn't make economic or political sense.

In Tyler, Judge Cynthia Kent came up with a slew of proposals after the last Smith County jail bond defeat to reduce overincarceration through alternatives and strengthened probation, but the county commissioners court only funded one of the long litany of ideas suggested in her plan. The new day reporting center has been a huge success, but by itself it's not enough. Smith County commissioners should go back to Judge Kent, hat in hand, and ask her to provide leadership to face the county's overincarceration problem head on. (UPDATE: Smith County Judge Joel Baker emails to add that the commissioners court also recently funded a new drug court and a special court for expedited cases, both of which were among Judge Kent's suggestions; I apologize for the omission.)

Both Smith and Harris counties need their judges to do more to reduce pretrial detention, particularly for non-violent misdemeanants and state jail felons. The purpose of pretrial detention is not to assist prosecutors in extracting a guilty plea. Both counties jurists need to rely more heavily on recommendations from their pretrial services divisions, which exist to recommend offenders who are good candidates for release on low bail or personal bond, but whose recommendations in practice in both counties are routinely ignored.

Now Harris and Smith counties have no choice. For the time being jail building is off the table, so all there is to do is seek community-based solutions and strengthen probation supervision. And they'd better get started soon. In fact, both counties should have started those initiatives a long time ago. Then voters might have more confidence that they'd exhausted all their alternatives before proposing hundreds of millions in new debt.

RELATED: Exploring alternatives to local jail building
HB 2391 - Cite and Summons for Low-level Misdemeanors
Harris County
Smith County


W W Woodward said...

What are the Bexar and Harris County DAs’ rationales? Have they made any explanations at all?

Is it possible that they do not trust police officers with the exercise of the necessary discretion to determine whether an offense is a class B misdemeanor? If an officer can’t determine a class B misdemeanor he/she shouldn’t be Texas peace officer.

Maybe they’re still pissed about the new weapons law? Do they believe that allowing “grunt level” street Po-Lice to write a class B citation may infringe upon their turf? Are they sulking children who are ready to take their marbles and go home because the non attorney, uneducated state legislators actually had the gall to pass a law without consulting them first?

I actually had a county attorney tell me once upon a time that a city council didn’t have the authority to write and pass a city ordinance and were practicing law without a license unless they had an attorney pen the ordinance.

Anonymous said...

The attitude expressed by D.A.'s and others in th epower structure shows how dear power is. It also shows how the "public interest" gets lost and/or twisted in meaning to prosecutors. All we know is punishment and, while it is clear that it does not work, we do not think outside the box. If we look around us to Australia, New Zeland, England, Canada and virtually all of western Europe examples of soultions abound. Indeed, we can look closer to home: New York City, Fresno, Minnesota and 200 other jurisdictions in the US including Austin and see "Community courts" working well. WHat is called "Police cautioning" in England, Australia and New Zeland would solve many of the lesser crimes virtually on the spot. Punishment without healing people and addressing the causes of crime, probably increases crime. The answers are all around those who look and don't worry about their power but only focus on the public good.
Dr. D

Anonymous said...

I agree with Grits 90% of the time. On HB 2391, I'm not sure.

The #1 collateral consequence for many of an arrest is the criminal record. So, if we decide who does and who doesn't have to go through the booking process, doesn't that discriminate against those who do have to go through the booking process?

If only a summons is issued, are any fingerprints recorded, sent to the NCIC? What kind of record exists for those who fall under the protections of HB 2391?

The only proof of a criminal record are fingerprints, not a name-based search.

Why should certain alleged lawbreakers be treated differently than other alleged lawbreakers?

Bobby S

Gritsforbreakfast said...

Bobby, right now police have discretion to arrest for anything, including Class C traffic tickets. So there's always discrimination between who gets arrested and who doesn't. Gail Atwater was arrested for a seatbelt violation even most people just get tickets, and the Supreme Court said it was fine in her case if some offenders are "treated differently" than others.

A Class C is still a criminal offense but the offender isn't usually booked into the jail except at the discretion of the officer. I don't see why expanding that discretion to include certain non-violent B misdemeanors would pose any more significant problem, either from a record keeping or rights perspective. The mechanisms already exist to use citations, the only question is what range of offenses should the tactic be applied to? The Lege has said it's okay to apply it to these additional offenses.

Hope that answers your concerns. Best,

Anonymous said...


That's true. I almost forgot that any violation of the Transportation Code is a Class C misdemeanor. Technically, officers could arrest that person. This would explain why most citations do not show up in hard background checks only driving records.

I guess HB 2391 simply expands the list of offenses which MAY allow a suspect to avoid the whole booking process.

Of course, Bexar and Harris Counties do, as a matter of routine, ignore the will of the people and the legislature thanks to their respective district attorneys; not because of the concern I originally pointed out, but simply because they do not agree with HB 2391.

Bobby S

W W Woodward said...

Code of Criminal Procedure - Art. 14.06 has never required an arresting officer to take an arrested person to jail and complete a booking procedure.

The arresting officer’s obligation has always been to take the arrested person before a magistrate without unnecessary delay.

The only change I can determine is; HB 2391 allows the accused person to drive himself to the magistrate’s office rather than being required to ride in a patrol unit.

It would appear that once the accused person arrives at the magistrate’s office, it’s basically business as usual.

H.B. 2391 amended Article 14.06 Texas Code of Criminal Procedure (Chapter 14 deals with arrest without a warrant) to read as follows:


(a) Except as otherwise provided by this article in each case enumerated in this Code, the person making the arrest or the person having custody of the person arrested shall take the person arrested or have him taken without unnecessary delay, but not later than 48 hours after the person is arrested, before the magistrate who may have ordered the arrest, before some magistrate of the county where the arrest was made without an order, or, to provide more expeditiously to the person arrested the warnings described by Article 15.17 of this Code, before a magistrate in any other county of this state. The magistrate shall immediately perform the duties described in Article 15.17 of this Code.

(b) A peace officer who is charging a person, including a child, with committing an offense that is a Class C misdemeanor, other than an offense under Section 49.02, Penal Code, may, instead of taking the person before a magistrate, issue a citation to the
person that contains written notice of the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged.

(c) If the person resides in the county where the offense occurred, a peace officer who is charging a person with committing an offense that is a Class A or B misdemeanor may, instead of taking the person before a magistrate, issue a citation to the person that contains written notice of the time and place the person must appear before a magistrate of this state as described by Subsection (a), the name and address of the person charged, and the offense charged.

(d) Subsection (c) applies only to a person charged with committing an offense under:

(1) Section 481.121, Health and Safety Code, if the offense is punishable under Subsection (b)(1) or (2) of that section;
(2) Section 28.03, Penal Code, if the offense is punishable under Subsection (b)(2) of that section;
(3) Section 28.08, Penal Code, if the offense is punishable under Subsection (b)(1) of that section;
(4) Section 31.03, Penal Code, if the offense is punishable under Subsection (e)(2)(A) of that section;
(5) Section 31.04, Penal Code, if the offense is punishable under Subsection (e)(2) of that section;
(6) Section 38.114, Penal Code, if the offense is punishable as a Class B misdemeanor; or
(7) Section 521.457, Transportation Code.