Sheriffs more likely than police departments to welcome new arrest discretion

by Scott Henson of Grits For Breakfast

Sheriffs are more worried about who's taking up space in the jail.

It's interesting to track which Texas counties will implement HB 2391 allowing citations instead of arrests for low-level misdemeanors - so far DAs from some counties with severe jail overcrowding problems have refused to let local police utilize the new tool, while other jurisdictions have welcomed the change.

Most of the controversy arises over provisions to give citations in marijuana possession cases. The Jefferson County Sheriff told the Beaumont Enterprise, "Philosophically, I don't like that it seems to be a step toward decriminalizing the offenses." That canard has been repeated elsewhere and deserves a stern rebuke: This bill doesn't decriminalize anything. Marijuana possession, driving with a suspended license and other named offenses are still against the law. Similarly, running a stop sign hasn't been decriminalized just because you get a ticket instead of arrested for the offense.

In Midland, local officers won't use their discretion in marijuana cases, but can issue citations in the other low-level misdemeanors included in the bill. "I believe if you have any amount of marijuana, you should be placed in jail," said Sheriff Gary Painter. (Ironically, the Midland jail administrator was one of the earliest proponents of the idea of issuing citations for B misdemeanors.)

Such anti-pot bluster masks an inconvenient truth: Lots of Texas officers around the state already use a de facto method for ticketing marijuana possession. Wrote a peace officer on the Texas prosecutor's user forum, "We already do it for small quantities of MJ, and have been for years. We cite for possession of drug paraphernalia if it's contained in some way to facilitate it's use such as in a rolled form." The main difference in that case would be that the person is charged with a Class B marijuna possession instead of a Class C paraphernalia violation. So what's the beef, I keep wondering? Quien sabe?

The Dallas News editorialized the new law "clears our jails and frees up our police to apprehend people who pose a real threat to society. We're happy (in a drug-free way) because pot smokers never belonged among the likes of rapists and muggers in our jails." No word yet on whether Dallas police will use the new law, but they damn well should given that county's ongoing jail woes.

So far, Travis is the largest county to have announced it will utilize this new authority, and the Austin Police Department is onboard, citing research that each arrest cost taxpayers $2,000 in addition to the officer's time off the street. "We like the ability to have discretion to make decisions," Austin's Assistant Police Chief David Carter said. The Hays County Sheriff and San Marcos PD have also announced plans to use the new discretion.

What's happening in Corsicana may wind up being a common outcome in the short term: The local sheriff's department will allow deputies to use their new discretion, while the local police department will not. Similarly, the Palo Pinto County Sheriff's deputies will use this discretion, but police in Mineral Wells, the county seat, will not.

I predict Sheriffs generally will adopt policies to use the new law much faster than police departments. The reason: The Sheriff's Office runs the jail, so they care more about overcrowding issues - local police departments and prosecutors frequently just figure that's somebody else's problem. Like the taxpayers'.

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