Six Reasons Why A Cite & Release Resolution Is More Appropriate

Dear Council Members:

As Hays County Criminal District Attorney, I urge the Council not to enact the proposed Ordinance 2020-18, which would diminish the discretion legislatively authorized to law enforcement officers in the application of Texas Code of Criminal Procedure article 14.06(c) (TCCP 14.06).

I will say that I am in favor of law enforcement’s judicious use of field release. The practice frees up officer resources during critical times, and it provides an intermediate tool for officers between a mere warning and a custodial arrest.

Officers on the street should have as many such tools as possible, given the near infinite variability in the circumstances that they must confront.

That said, I agree with the Criminal Justice Reform Council Committee, as set out in their background memo, that a resolution is a more appropriate action for the Council to take, for many of the same reasons set out in their memo. I would add several additional points.

1) Serious offenders will be released under the Ordinance.

Many offenses for which the proposed Ordinance would mandate field release are more egregious than the policy would suggest.

For example, marijuana possession in amounts approaching four ounces is the equivalent of 200 joints.

Theft and criminal mischief in amounts of under $750 may result in losses not easily absorbed by the victims of those crimes, who themselves are often low-income and struggling to get by.

Persons driving with invalid licenses are often doing so because they are uninsured, and field release may represent an enhanced risk to the law-abiding public, if not an imminent danger.

2) Passing the Ordinance will result in more jailings, not less

There has been a misconception promulgated in the media and by agenda-driven political actors, that minor offenders—such as those committing the offenses named in the proposed Ordinance—spend significant periods of time in jail. The exaggeration and outright misinformation on this point must be acknowledged.

While I cannot speak for every jurisdiction, I can say that minor offenders of the sort eligible for field release are not a significant part of the Hays County jail population.

I review jail population reports regularly. Generally, few persons are in jail for such offenses (unless they have other offenses or holds or prior failures to appear for court), and almost never for more than 24 hours.

Proposals for expanding field release on the premise that doing so will significantly reduce the jail population are either intentionally misleading or based on ignorance of the true circumstances.

I will say this as firmly as I can: Expanding the cite and release policy will have no significant impact on jail costs or jail population.

To the contrary, cite and release programs have historically resulted in dramatic numbers of offenders failing to appear.

Over a three year period in Travis County, their cite-and- release policy had a failure to appear rate of 40%, while arrested suspects (a far higher number) only failed to appear for court 15% of the time. When offenders fail to appear as required by the citation, a warrant must issue for their arrest.

The offender is then arrested at a later time, perhaps in another jurisdiction, and sent before a magistrate to set bond— now having failed to appear for court previously—resulting in a higher bond than they would have initially received, making it more difficult to obtain release.

If our experience is like Travis County’s, we can expect 40% of the people cited to spend more time in jail than they would have had they been arrested.

On top of that, if the Council makes clear that they do not trust the police to use their discretion appropriately, and indicates, as this Ordinance does, that police should be subject to criticism and scrutiny if they deviate from the default position of citation, many officers will desire to avoid the implication that they are using their discretion improperly by simply following the letter of the Ordinance.

In doing so, many of the warnings we now see will be escalated to citations requiring appearance.

After all, if an officer is going to be accused of making improper distinctions between who to arrest, who to cite, and who to release with a warning, the easiest way to avoid criticism is to default to citation under the Ordinance.

Thus, many minor offenders who would have been released with a warning will instead find themselves cited, required to report, or perhaps booked into jail.

3) Ordinance 2020-18 violates TCCP 14.06.

The Ordinance, as drafted, is contrary to both TCCP 14.06’s text and intent. The Ordinance mandates release for all Class B theft defendants, including repeat offenders and identification document thieves, both of which are explicitly excluded from the release provisions of TCCP 14.06.

In addition, the proposed Ordinance mandates field release for “Class C misdemeanors other than public intoxication, assault, or family violence.”

While TCCP 14.06 does permit citation for Class C misdemeanors, which would include many traffic offenses, the law requires field release only very rarely, such as in cases of speeding, using a cell phone while driving, and open container violations (See Transportation Code 543.004).

In fact, the law explicitly states that those traffic violations are the only ones for which field release is mandatory, likely preempting municipalities from requiring field release for other offenses.

4) The Ordinance is unnecessary

I am aware of the media reporting about the San Marcos Police Department’s use of cite and release, I am also aware of much more that goes unreported, such as the frequency with which the police confront minor offenders by issuing lesser citations or releasing offenders at the scene without charges.

Street-level “diversion” happens far more often than the reported cite-and-release numbers, results in less onerous consequences for the offender, and saves even more time and resources.

In the past, the SMPD has not kept easily accessible documentation of these informal enforcement efforts, but I understand that they have recently added reporting enhancements to counter some of the unfair criticism leveled at them.

I would urge the Council to consider all of these facts before passing an ordinance which would serve as an unfair indictment of honest and fair police practices.

The Council has the right and authority to appoint the police chief and to ensure that the chief is aware of the citizens’ concerns and needs.

The chief and his or her subordinates should be answerable to the Council, but the Council should treat them as the professionals they are.

Permit the police administration to give effect to broader City policies by utilizing the training and understanding of best practices that they possess, rather than depriving them of the essential discretion necessary to protect the public and enforce the law.

5) The ordinance risks unnecessary and potentially harmful evidence suppression in serious cases

The risk that an arrest decision will be second-guessed under the statute is not inconsequential. As a professional prosecutor for over 25 years, I have lost count of the number of time a serious felony offense has been revealed as a result of an arrest for a minor offense.

Evidence is often discovered during lawful searches upon arrest or during the booking procedure. The false identification provided in the field is often discovered only after the arrest and may be provable only through the fingerprints obtained during booking.

Officers who make an otherwise lawful arrest may find themselves accused of running afoul of the city ordinance. Under Texas law, evidence which was discovered due to a legal violation may not be admitted in court, whether or not the officer could be prosecuted.

An officer who arrests for an offense listed in the Ordinance, and who then discovers evidence of a serious felony, will predictably be accused of violating the statute, whether or not his reasons fall within the Ordinance’s parameters.

Serious offenders will use the Ordinance as a tool to suppress evidence of crimes, engendering at best unnecessary litigation, but potentially permitting a serious felon to avoid justice.

6) A Resolution is a better action for the Council to take

The San Marcos Police Department is filled with officers who are conscientious and professional in their duty. A Council resolution expressing a desire for judicious use of state-authorized cite and release provisions should offend no one.

But it would be unwise to adopt an unlawful ordinance requiring police to address a non-existent problem by changing policies in a way that will predictably do more harm than good.

Wes Mau | Hays County Criminal District Attorney