Recommendation 3.11: Reduce reliance on arrests and incarceration.

Stops, searches, and arrests contribute to our nation’s high incarceration rates — which, despite recent downward trends, remain the highest in the world.[1]These activities have uncertain deterrent effects, carry enormous societal costs, and funnel people into the larger criminal justice system. People who are incarcerated once, even for a short time, are more likely to be incarcerated again, studies show.[2]

Communities use fines to generate revenue, but these fines impose a high cost on low-income people.[3]The Supreme Court has held that officers may arrest people on the basis of probable cause for misdemeanors, no matter how minor.[4]Thus, the legal analysis does not consider the social costs of these interactions, but departments and communities can — and should — when setting policies and priorities.

Departments can adopt policies that minimize the risk of incarceration and fines that disproportionately impact poor communities because of the inability to pay. To meaningfully implement these policies, leaders should develop and promote an affirmative values statement that acknowledges that stops, searches, and arrests harm people and their loved ones and should therefore be used only when necessary. Specifically, departments should:

Encourage officers to issue summonses rather than making warrantless arrests when possible. When officers issue a summons, they deliver a written notification, or ticket, to appear in court at a later date to answer charges. When they make an arrest, they lock people up, possibly for extended periods. For this reason, department leaders should encourage officers to issue summonses rather than make warrantless arrests, unless they have reason to believe the person poses a danger to the public or a flight risk. Thus, officers identifying criminal violations in the field should exercise discretion and avoid making warrantless arrests unless people pose a threat to others or there’s an identifiable risk that they will not show up for court.

The Minneapolis Police Department takes this approach to misdemeanors including nontraffic offenses; traffic offenses in connection with accidents; arrests; driving after license revocation, suspension, or cancellation; and charges of DWI (driving while intoxicated), careless or reckless driving, or violations of laws prohibiting open containers of alcohol in vehicles.[5]The Department’s arrest policy calls for citations instead of arrests.

 

An Excerpt of the Minneapolis Police Department’s Arrest Policy

Adult misdemeanor violators shall be issued citations in lieu of arrest unless the officer [reasonably] believes that one of the following circumstances exists:

To prevent bodily harm to the accused or another.
To prevent further criminal conduct.
There is a substantial likelihood that the accused will fail to respond to a citation.
The officer cannot verify the identity of the accused.
The officer has found that the accused has an outstanding warrant.

Source: Minneapolis Police Dep’t, Minneapolis Police Department Policy and Procedure Manual Section 9‑103, Misdemeanor Arrests (Sept. 14, 2018), http://www.ci.minneapolis.mn.us/police/policy/mpdpolicy_9-100_9-100.

Some cities and towns are experimenting with alternative ways to ensure people appear in court, such as sending reminders.[6]Indeed, people often miss court dates not because they are avoiding charges but because they don’t have child care, can’t access transportation, or can’t take time off from work. A 2004 examination found that 25 to 33 percent of county jail inmates in Jefferson County, Colorado, were “compliance violators,” meaning they had been arrested for failing to appear in court, pay a fine, or perform some other task.[7]

The 2004 percentage was significantly higher than it was in 1995, when only 8 percent of inmates were compliance violators. To reverse the trend, county officials began exploring ways to reduce the negative impact of incarceration on local communities and to better use the resources spent on jailing people for missed court appearances. Ultimately, they opted for a telephone notification service that reminded residents of upcoming court obligations.[8]Technological advances now allow for text and e-mail notices.

In January 2018, New York City launched a pilot program that sends residents text messages to “nudge” them to appear in court.[9]The program is now testing the efficacy of different messages, such as describing the consequences for appearing in court (e.g., avoiding an arrest warrant) and reinforcing social norms (e.g., noting that most people appear in court to address citations).

Some departments don’t requireofficers to issue summons but doclearly state expectations that officers consider alternativesto arrest when making decisions in the field. The Bedford Police Department in Massachusetts, for example, identifies instances when arrests may conflict with department or community interests.[10]The department’s arrest policy encourages officers to exercise discretion and consider alternatives to arrest.

 

An Excerpt of the Bedford (Massachusetts) Police Department’s Arrest Policy

Although police officers must always be guided by the intent and purpose of the law, there are limited circumstances in the discretion of the officer involved when the public interest would be better served by not making an arrest, even though there is legal justification for such action. Arrest alternatives include citations, summonses, informal resolutions, warnings, and referrals to other agencies to include Restorative Justice or Diversion Programs including the Jail Diversion Program for mental health issues.

Circumstances where alternatives to arrest may be appropriate include the following:

• • When an arrest could aggravate community conflict or possibly precipitate a serious disorder.
  • When there is a greater priority to respond to a more serious crime or to an urgent public emergency.
  • In neighborhood quarrels, noisy parties, landlord-tenant problems and minor disturbances of the peace where no serious crime has been committed and the officer can successfully act as a mediator.
  • In other minor offenses where a summons can effectively accomplish the intended purpose.

Source: Bedford Police Department, Policies and Procedures, Policy 1-1, Arrest Policy 6 (Aug. 11, 2015), https://www.bedfordma.gov/sites/bedfordma/files/file/file/arrest_policy_chapter_1-1_0.pdf

Officers may not be able to consider alternatives if an arrest warrant has already been issued. In Arizona, the Tucson Police Department’s arrest policy states: “An arrest warrant is a written order issued and signed by a neutral Magistrate directed to all peace officers, commanding them to arrest the person named in the warrant and to bring that person before the court to answer criminal charges.”[11]Departments do, however, have substantial discretion in advising officers when and under what circumstances to seek arrest warrants.

Require officers to give verbal warnings rather than writing tickets or making arrests, when possible. Often, warnings sufficiently address problems, particularly those involving minor offenses and first-time offenders. Instead of writing tickets or making arrests, officers should give verbal warnings and counseling when responding to nonviolent offenses such as loitering, carrying open containers of alcohol, and littering.[12]Stricter enforcement policies have proven costly both to public confidence and community budgets — especially when they violate law. In 2012, New York City paid $15 million to settle a class action lawsuit over the NYPD’s practice of enforcing loitering ordinances that had been declared unconstitutional.[13]

Work with community members to explore alternatives to enforcement, such as diversion programs. Communities benefit when programs provide people who commit lower-level offenses with social services instead of jail and prosecution. Seattle’s Law Enforcement Assisted Diversion (LEAD) program steers people who have committed low-level offenses relating to drugs and sex work toward treatment and social services rather than to jail and the larger criminal justice system.[14]In Texas, the Hurst-Euless-Bedford Teen Court diverts adolescents from the criminal justice system and dismisses cases when teens successfully complete its diversion program.[15]

These programs don’t give offenders a “get out of jail free” card but rather an opportunity to access support services that have the potential to change behavior and produce better individual and community outcomes. A 2015 evaluation found that LEAD participants were less likely to be arrested again than those whose cases were processed through the criminal justice system.[16] The Tucson Police Department has piloted a program to deflect people with opioid addictions from arrest and jail to treatment. (For more detail, see Chapter 5.) This innovative program offers several avenues to treatment: self-referral, deflection from arrest, and officer outreach to people with substance use disorders.[17]

[1]           John Gramlich, Pew Research Center, America’s Incarceration Rate Is at a Two-Decade Low (May 2, 2018), http://www.pewresearch.org/fact-tank/2018/05/02/americas-incarceration-rate-is-at-a-two-decade-low/.

[2]           Mariel Alper et. al., U.S. Dep’t of Justice, Bureau of Justice Statistics, 2018 Update on Prisoner Recidivism:  A 9-Year Follow-up Period 2005-2014 (May 2018), https://www.bjs.gov/content/pub/pdf/18upr9yfup0514.pdf; U.S. Dep’t of Justice, Nat’l Inst. of Justice, Recidivism (last updated June 17, 2014), https://www.nij.gov/topics/corrections/recidivism/pages/welcome.aspx#statistics.

[3]           U. S. Dep’t of Justice, Civil Rights Div., Investigation of the Ferguson Police Department 13 (Mar. 4, 2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf(“the City’s finance director stated publicly that Ferguson intends to make up a 2014 revenue shortfall in 2015 through municipal code enforcement”); See also Policing and Profit, 128 Harv. L. Rev. 1723 (2015), http://harvardlawreview.org/wp-content/uploads/2015/04/Policing-and-Profit.pdf.

[4]           Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”).

[5]           Minneapolis Police Dep’t, Minneapolis Police Department Policy and Procedure Manual Section 9‑103, Misdemeanor Arrests (Sept. 14, 2018), http://www.ci.minneapolis.mn.us/police/policy/mpdpolicy_9-100_9-100.

[6]           Jennifer Elek, Sara Sapia, & Susan Keilitz, Nat’l Ctr. for State Courts, Pretrial Justice Ctr. for Courts, Use of Court Date Reminder Notices to Improve Court Appearance Rates (Sept. 2017), https://www.ncsc.org/~/media/Microsites/Files/PJCC/PJCC%20Brief%2010%20Sept%202017%20Court%20Date%20Notification%20Systems.ashx.

[7]           Timothy Schnacke et al.,Increasing Court-Appearance Rates and Other Benefits of Live-Caller Telephone Court-Date Reminders: The Jefferson County, Colorado, FTA Pilot Project and Resulting Court Date Notification Program, J. Amn. Judges Ass’n 86 (2012),http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1396&context=ajacourtreview.

[8]           Timothy Schnacke et al.,Increasing Court-Appearance Rates and Other Benefits of Live-Caller Telephone Court-Date Reminders: The Jefferson County, Colorado, FTA Pilot Project and Resulting Court Date Notification Program, J. Amn. Judges Ass’n 88 (2012), http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1396&context=ajacourtreview.

[9]           Press Release, City of New York Office of the Mayor, New Text Message Reminders for Summons Recipients Improves Attendance in Court and Dramatically Cuts Warrants (Jan. 24, 2018), https://www1.nyc.gov/office-of-the-mayor/news/058-18/new-text-message-reminders-summons-recipients-improves-attendance-court-dramatically.

[10]         Bedford Police Department, Policies and Procedures, Policy 1-1, Arrest Policy 6 (Aug. 11, 2015), https://www.bedfordma.gov/sites/bedfordma/files/file/file/arrest_policy_chapter_1-1_0.pdf(“there are limited circumstances in the discretion of the officer involved when the public interest would be better served by not making an arrest, even though there is legal justification for such action”).

[11]         Tucson Police Dep’t, Tucson Police Department General Orders: 2117 Arrest Warrants 7 (Mar. 31, 2015), https://www.tucsonaz.gov/files/hr/tpd/2100ARREST_POLICIES.pdf.

[12]         See, e.g., Consent Decree, United States v. Police Dep’t of Baltimore City, No. 1:17-CV-00099-JKB, ¶ 62 (D. Md. Jan. 12, 2017), https://www.justice.gov/opa/file/925056/download.

[13]         William Glaberson,Long Fight Ends Over Arrests for Loitering, N. Y. Times (Feb, 7, 2012), https://www.nytimes.com/2012/02/08/nyregion/new-york-settles-suit-on-illegal-arrests-for-loitering.html.

[14]         Law Enforcement Assisted Diversion, http://leadkingcounty.org/(last visited Dec. 18, 2018).

[15]         City of Bedford, Teen Court, https://www.bedfordtx.gov/163/Teen-Court(last visited Dec. 18, 2018).

[16]         Susan E. Collins, Heather S. Lonczak & Seema L. Clifasefi, Harm Reduction Research and Treatment Lab, University of Washington – Harborview Medical Center, LEAD Program Evaluation: Recidivism Report 22 (Mar. 27, 2015), http://static1.1.sqspcdn.com/static/f/1185392/26121870/1428513375150/LEAD_EVALUATION_4-7-15.pdf?token=Xt1EPYRnyYrl75W41XTC0DCg4wE%3D.

[17]         Caitlin Schmidt, New Tucson Police Program Will Refer Opioid Addicts to Treatment, Not Jail, Ariz. Daily Star (Jun. 30, 2018),https://tucson.com/news/local/new-tucson-police-program-will-refer-opioid-addicts-to-treatment/article_01b5576b-b401-5a2f-9c1a-8d8efd8a9a0d.html.