AUSTIN (KXAN) — More people accused of misdemeanor-level crimes may be able to walk away with a citation instead of an arrest now that the Austin Police Department will begin implementing a new version of its cite-and-release policy.

These changes came from the first three months of work from a new committee made up of law enforcement, justice, university and city groups. While the new policy goes into effect Thursday, there are elements of it still in discussion.

KXAN obtained a PowerPoint presentation from the Travis County District Attorney’s office which showed that during the 2017 fiscal year, the County Attorney’s office wound up dismissing more than 30 percent of the misdemeanor cases it took in from law enforcement. The new changes in what crimes end in an arrest versus a citation could have an effect on those numbers.

Previously, APD had a list of 11 items that could disqualify someone from receiving a citation and force an officer to arrest them. Through ongoing conversation between Austin Police officers and many community stakeholder groups, that list has now been whittled down to just four disqualifying items. 

The remaining disqualifiers include:

  • If the officer believes that people or property would be immediately endangered by releasing the subject.
  • If the subject demands to be taken before a magistrate or refuses to sign the citation
  • If the subject exposes himself or herself and appears to have a sexual motivation
  • If an officer cannot identify the person in question. 

The identification rule has been updated, and the new APD policy pushes officers to find other ways besides government issued ID to try and identify the person if at all possible, thus avoiding an arrest. 

“It actually mandates that the officer will use every means necessary that they have capable in their car, in their computers, in their phones to try and figure out someone’s identity prior to making that arrest,” said Austin Police Chief of Staff Troy Gay. He noted that for many reasons, plenty of people in Austin don’t have a government-issued ID. 

Citations instead of arrests

The new policy also expands the number of offenses that are eligible for cite-and-release, adding possession of a substance in a Penalty 2 group for both Class A and B misdemeanors (which includes the drug K2). 

“I believe that we are going to and will have one of the best cite-and-release policies and most comprehensive policies in the state of Texas,” Gay said.

Austin Police hopes this policy decreases the overall number of arrests it is making. Gay acknowledged that many people can get trapped in the cycle of never being able to get out of the criminal justice system, finding themselves financially devastated by even minor offenses. 

“As a law enforcement entity, arresting our way out of the system is not sometimes the best answer, so we are looking for alternative methods,” said Gay. He noted that another benefit of issuing citations rather than making arrests is that receiving a citation makes you eligible for certain county programs, including ones that can help you obtain a valid license. 

Still being discussed: What to do about those driving without a license

Chas Moore of the Austin Justice Coalition, one of the groups involved in shaping the new policy, acknowledged the committee couldn’t quite come to an agreement yet on how to handle cases involving driving while a license is invalid (DWLI). He said AJC and other community groups believe it is easy for people to get confused and caught up in the state system of surcharges, which ultimately render their license invalid.

AJC doesn’t believe people should be sent to jail for driving with an invalid license. Moore said Austin Police still has some reservations about the liability issues of letting someone without a license continue driving.

Chief Gay said APD met with the County Attorney’s office last week to look at alternatives to being arrested for DWLI. Gay said he feels confident APD and the community groups will be able to reach a solution that works for everyone. 

Addressing drug charges

Gay noted there are no changes in the APD policy on possession of marijuana. He noted that marijuana possession makes up about 44 percent of all APD Class A and B misdemeanor citations. Because it is APD’s policy to take marijuana away if they find it on someone’s person, APD assumes the criminal behavior stops at that point. Gay said in those cases, the person with the marijuana should be issued a citation under their policy. 

“Based on the definitions and direction we’re giving officers, the majority of folks that are actually stopped for possession of marijuana should be cited in this sort of situation,” he said. 

Gay added that APD has strengthened a few areas of their policy where if an officer feels it is necessary to make an arrest for a Class A or B misdemeanor, that officer has to call their supervisor and get approval before they can do so.  

Additionally, Gay said APD has been in talks with the Travis County District Attorney’s Office about how it can address drug charges in other ways besides taking someone to jail. 

Why the change?

These policy changes are a result of a resolution from Austin City Council in June to form a committee looking at racial disparities in arrests. The committee was tasked with finding ways to cut down on discretionary arrests for non-violent misdemeanors and to find other ways outside of government-issued IDs to identify a person and where they live.  This committee is set to present to council quarterly about the progress it has made. 

“It does stem from the overwhelmingly disparate numbers of arrests when it comes to people of color in Travis County,” Moore explained.

Moore and AJC were at the table for the conversations that led to APD’s new policy. 

The Austin Justice Coalition website highlights APD numbers from 2017, saying that Black and Latino residents make up almost 75 percent of discretionary arrests for driving with an invalid license, but Black and Latino residents collectively make up 45 percent of Austin’s population. 

“This is just a step in the right direction,” Moore said of the changes to the cite-and-release policy. “I think this is going to help a lot of people, mainly a lot of people of color, black people specifically.” 

William Kelly, UT Austin professor of sociology and director of the Center for Criminology and Criminal Justice Research, told KXAN that reducing the number of people arrested and booked into jail is a good idea because there are lots of negative consequences that can come with detaining someone.  

“First, it takes the police off of the street while they transport and process individuals to jail,” Kelly explained via email. “That is time they can’t be dealing with other issues, so there is some lost productivity. There are also substantial negatives for the arrestee. They risk loss of income, loss of job, loss of housing, and family disruption. If they have mental health problems, as the majority of people in jail today do, they risk decompensation due to the environment, lack of proper medication, etc.”

Kelly also noted that keeping someone in jail guarantees that the person who committed the offense will appear in court, so the new policy may make it more challenging to get people who are cited for offenses to appear in court. 

“I suppose there is also the risk of someone re-offending while in the community, but we are talking about pretty low-level offenders, so I don’t see that as a major issue,” Kelly said. 

Not everyone in Austin is excited about these policy changes. Retired attorney and legal commentator Mark Pulliam said he is concerned about the rate of no-shows in court with these citations. 

“You can give someone a ticket, but if they don’t show up and pay their ticket then basically they’ve gotten a slap on the wrist,” he said. “You cannot operate a society governed by the rule of law if you don’t enforce your laws.”