'Epidemic' of Class-C arrests poo-pooed in 2001 by SCOTUS now documented by new Appleseed report, racial-profiling data

"Data, data, data, I cannot make bricks without clay." - Sherlock Holmes

One of the frustrating aspects of debating the issue of Class C misdemeanors in Texas has been a general lack of information about how often people are arrested for these low-level infractions. When legislation to limit such arrests was heard in 2017, law enforcement claimed Class-C arrests almost never happened and were nothing to worry about. "Move along," we were told, "nothing to see here."

Except that was patently false: Now we know Class C arrests are common as dirt. They occur all the time, every day, all over the state.

Texas Appleseed just published Exhibit One for that contention: "An Analysis of Jail Bookings: How Texas counties could save millions of dollars by safely diverting people from jail." (See also the appendices.) This new report is based on an analysis of jail booking data from 12 of the state's 25 largest counties, and includes a number of new analyses and data points that weren't previously available. Among their findings, most jail bookings are for misdemeanors, not felonies. Here are the most common charges that result in jail bookings, according to Appleseed's research:

• DWI
• Pot possession
• Felony drug possession
• Misdemeanor theft
• Assault/Family violence
• Class C misdemeanor traffic violations

One notices from that list that the Legislature could do a lot this session to reduce jail bookings. Reducing marijuana penalties (either to a civil penalty or from a Class B to Class C misdemeanor) would go along way toward keeping low-risk people out of the jail who don't need to be there. Class C offenders are another large category of jail entrants who almost never need to be incarcerated. Legislation is being heard in House committees on both those topics this week.

Apropos of tomorrow's Homeland Security and Public Safety hearing on HB 482 (Thompson) limiting arrests for non-jailable offenses, Appleseed honed in on this problem of Class-C-misdemeanor incarceration. According to their research, "People charged with fine-only misdemeanors and no more serious charge make up an alarming number of jail bookings in most counties analyzed."

Appleseed found that, "Across 11 counties analyzed, more than 30,000 people were booked into Texas jails for a Class C misdemeanor and no more serious charge in a single year." (Numbers in Dallas were skewed downward because Class C defendants were mostly incarcerated in unregulated municipal jails for which Appleseed couldn't acquire data.)

That's an exceptionally large number, and for only a fraction of the state! It also jibes with other recent reporting. When Grits compiled new data on Class C misdemeanor arrests at traffic stops from about 60 larger Texas jurisdictions, I found more than 24,500 people arrested for violations of Class C traffic laws or municipal ordinances (excluding people arrested on warrants and for Penal Code violations). Assuming even more people are arrested in non-traffic-stop circumstances, 30k in 11 counties sounds reasonable. These are different data sources measuring different things, but the implications are the same: Tens of thousands of Texans annually are being arrested for Class C misdemeanors as the highest charge.

Before now, we knew that about 11 percent of jail bookings in Harris County were from Class C misdemeanors, thanks to a 2016 analysis Kathy Mitchell performed for the Texas Criminal Justice Coalition. But this Texas Appleseed data shows it's a statewide problem.

By law, magistrates in Texas must process Class C arrestees in 48 hours; in larger counties, it typically happens within 24 hours. However, if a driver does not have money to pay the ticket, they could wait longer. Appleseed suggested that jailing Class B and C misdemeanor defendants for longer than a few days worsens recidivism prospects and harms public safety:

In a groundbreaking study of defendants in Kentucky jails, low-risk defendants held at least 2 to 3 days were almost 40% more likely to commit a new crime before trial than a low-risk defendant held no more than 24 hours. Further, the longer low-risk defendants were held, the more likely they were to reoffend. Those detained more than a month were 74% more likely to commit a new crime before trial than those released within 24 hours. 

The point is that even a couple of additional days in jail increases one’s risk of rearrest. Each day in jail is a day of missed work, a day without access to substance abuse and mental health treatment, a day away from family and children. When jail booking cannot be avoided entirely, counties must prioritize releasing low-risk people as quickly as possible back to their community before trial. 

Yet, a substantial number of people are staying past this three-day mark after being charged with nothing more serious than a Class B misdemeanor. More than 24,000 people charged with either a Class C or Class B misdemeanor and nothing more serious spent more than 3 days in jail over the course of a single year in 11 counties. Of these, about half (i.e., more than 12,000 people charged with a Class C or Class B misdemeanor and nothing more serious) spent more than 10 days in jail in those counties. 

For 10 of the 12 counties, Appleseed was able to calculate the total bed days (at roughly $60 per day) spent on various misdemeanor offenses. Collectively:

• Class C misdemeanors accounted for 61,825 jail bed days.
• Class B misdemeanors accounted for 316,639 jail bed days
• Class A misdemeanors accounted for 480,495 jail bed days.

Jefferson County (Beaumont/Port Arthur) was by far the worst jurisdiction in the Apppleseed analysis when it came to Class C incarceration: 42% of all misdemeanor-bed days in the county jail were accounted for by Class-C defendants. That's unfathomable, really.

Appleseed's recommendations will ring familiar to Grits readers:

(1) End jail bookings for Class C misdemeanors.
(2) End most jail bookings for offenses eligible for citation.
(3) Quickly release most people after jail booking on personal bond.
(4) Implement diversion programs.
(5) Analyze local data to develop local solutions to reduce jail use.

Grits is delighted to see so much additional data produced about Class C misdemeanor arrests just before the Legislature considers limiting them.

Most readers have likely forgotten (but bill-author Senfronia Thompson certainly has not) that the Legislature in 2001 approved a bill similar to HB 482 limiting arrests for Class C misdemeanors in reaction to the Supreme Court's decision in Atwater v. City of Lago Vista. Rick Perry vetoed that legislation, as well as another, more modest effort to limit Class C arrests passed the following year.

At the time, law enforcement insisted these sorts of arrests were vanishingly rare. Sandra Day O'Connor's dissent in that case is an excellent primer on why such arrests should be limited, but even she thought arrests for non-jailable Class Cs didn't happen often. "Such unbounded discretion carries with it grave potential for abuse," she wrote. "The majority takes comfort in the lack of evidence of 'an epidemic of unnecessary minor-offense arrests.' But the relatively small number of published cases dealing with such arrests proves little and should provide little solace."

Now, the "epidemic of unnecessary minor-offense arrests" about which O'Connor rightly fretted has been thoroughly documented. Whether one looks at jail bookings, as does Texas Appleseed's analysis, or at recently published Class-C arrest data in Texas racial profiling reports, it's now clear that arresting Texans for non-jailable misdemeanors is a routine, everyday occurrence across the state.

Both the Republican and Democratic state party platforms call for ending arrests for Class Cs. HB 482 is sound, bipartisan public policy from both a justice-reform perspective and from a perspective of fiscal conservatism. It's correcting a wasteful, ill-considered policy that does more harm than good.

See prior, related Grits posts:

• Class C misdemeanor arrests in Texas by the numbers
• New reports show Austin police use force at traffic stops much more often than other agencies
• Defining an 'undue hardship': Updating last session's debtors-prison reform bill
• Texans incarcerated thousands of years over traffic ticket debt
• Texans think justice system skewed against poor, support end to debtors prison practices
• Banning arrests for Class Cs, giving drivers notice, would improve traffic stop culture
• Pretext-based policing and arrests for non-jailable offenses
• Bill to limit Class C arrests target of red-herring arguments
• New laws aimed at reducing ticketing in schools worked: 83% fewer last year
• Reflecting on Rick Perry's criminal justice vetoes