Law enforcement officers in many states are now issuing criminal and civil citations as alternatives to embarking on the usual criminal justice process that starts with arrest and that often results in jail time. Sometimes citations are issued in conjunction with various kinds of diversion programs that substitute community-based interventions for the usual sanctions of fines or jail time. But, even when they applied on their own, citations offer the potential for lower costs to taxpayers and greater efficiency for police. And, offenders benefit from avoiding the collateral consequences of an arrest, a criminal record or detention.
Two strategies have emerged to use citations as a means of reducing reliance on jails. One involves giving law enforcement officers the option to issue a criminal citation for an offense that might otherwise prompt an arrest. The other involves the re-categorization of offenses so that minor crimes become violations of civil statutes.
Citation in lieu of arrest
The National Conference of State Legislatures (NCSL) uses the following definition of a criminal citation: “a written or electronic order issued by a law enforcement officer or other authorized official” which, instead of using arrest or detention, “releases the person on the promise to appear in court (or other government office) at a specified date and time.“
Most states now allow the issuance of a criminal citation as an alternative to arrest for low-level crimes. The crimes eligible for citation and the circumstances under which the option can be exercised vary greatly from state to state, according to NCSL.
In four states citations can be issued for felonies, but more commonly the option is available only for misdemeanor and not always for all misdemeanors. Many states prohibit the use of citations for crimes that involve any form of violence or for traffic violations that result in injuries. The law enforcement officer issuing the citation is typically responsible for assessing whether the offender will appear in court as required and will not pose a danger to persons or property in the meantime.
When a criminal citation is issued in lieu of an arrest on a low-level offense, both the offender and law enforcement avoid a series of costly and time-consuming procedures. Instead of spending time with all the paperwork associated with an arrest, police return to patrol duties more quickly. Jails do not have to undertake booking and intake procedures for someone who is going to be released on bail and nor do they face the expense of housing someone who cannot make bail on a minor offense. Indeed, the budgetary benefits are often cited as a justification for citation in lieu of arrest.
“States may use citations to reduce jail populations and provide local cost savings. Citations divert lower risk offenders from detention, reserving limited space and resources for more dangerous offenders. By providing an alternative to pretrial detention and release processes for certain defendants, citation in lieu of arrest can be considered a component of state pretrial policies.”
—National Conference of State Legislatures. “Citation in Lieu of Arrest.” 2017
An important benefit for offenders is that citation in lieu of arrest often does not produce a permanent record of the offense. In many jurisdictions the citation itself will carry information on the offense committed, including the basis for the law enforcement officer’s finding of probable cause that a crime had been committed. But, in most states offenders are not fingerprinted before being released because they are never booked. As a result, there is no biometric identifier linked to the offense and hence no basis for recording the offense in state’s criminal history repository. For the criminal justice system this can create complications if the same individual is encountered later under circumstances which require accurate criminal histories such as prosecutorial decision making or in determining eligibility for diversion programs.
Citations are also used in many diversion programs that involve criminal offenses. Then the citation directs the offender to undertake activities such as counselling or rehabilitation treatment that aim to alleviate the condition that underlies the offense. In some jurisdictions no permanent record of the offense is maintained, and in some places charges are dismissed on completion of the diversion program.
Impact on Latinos and noncitizens
Settling misdemeanor charges without incurring jail time or a permanent criminal record is a significant benefit for all persons of lesser incomes. The threats to employment or housing are eliminated as are the costs of fines and fees. For noncitizens a citation in lieu of arrest, particularly if no full fingerprinting is involved, can reduce the chances that a minor offense will lead to a life-changing removal proceeding.
The consequences of a minor offense are even further reduced when jurisdictions take such offenses outside the criminal justice system altogether. The most obvious of these kinds of measures is the decriminalization of marijuana possession. But, as described below, a great deal can be accomplished by re-categorizing an offense from a criminal violation to a matter of civil law. By definition a civil offense does not lead to arrest and all that follows but instead typically results in a citation that requires some action, such as paying a fine in the case of a traffic ticket, or appearing for a judicial proceeding. For a noncitizen, the differences between a civil and criminal offense are enormous. Civil offenses normally do not require taking fingerprints which, as noted elsewhere, automatically brings immigration enforcement into the picture. Moreover, civil offenses typically do not figure into the loosely defined universe of offenses that can lead to removal for a lawful permanent resident, regardless of how long they have lived in the country.
Beyond the immediate impact, removing criminal consequences for low-level offenses helps to address the cumulative disadvantages faced by Latinos in the criminal justice system . For example, an analysis by The Marshall Project found that searches of Latino drivers in Colorado fell 58 percent after the legalization of marijuana. While disparities still remain, the gap between black and Latino drivers and white drivers decreased substantially.
Any crime punishable by a year or more of incarceration can be deemed a deportation offense, and it doesn’t matter whether a noncitizen actually receives such a sentence or even whether they are convicted. Simply being charged with a crime punishable by 365 days behind bars is enough and so too being convicted with a sentence of community service and no jail time at all. It is the potential sentence behind the charge — not the actual disposition of the case — that triggers immigration consequences for a legal immigrant.
a database of state laws related to immigration maintained by NCSL,
California and Washington have addressed noncitizens exposure to deportation for crimes punishable by a year or more of incarceration. Both states had a variety of misdemeanors on the books that were punishable by a maximum sentence of one year in jail. The legislative remedy simply reduced the maximum sentence for those offenses to 364 days.
Changing the nature of the offense and its penalty
The excessive use of arrest and pretrial detention for minor crimes has been addressed in many states by converting misdemeanors into civil infractions. Instead of taking an offender into custody and creating a permanent record of criminal activity law enforcement agencies issue citations. Issues that commonly arise from a violation of the law, such as findings of guilt and the imposition of consequences, are dealt with in the context of civil courts.
Studies estimate that each misdemeanor arrest costs a jurisdiction $1,000 to $2,000. A civil offense that is handled by citation greatly reduces the budget impact while avoiding the collateral consequences to the offender of a criminal charge. State and local governments have moved to convert many low-level crimes into civil citations such as driving offenses, street vending, marijuana possession, and “vagrancy laws” — which largely target the homeless.
Misdemeanors by Alexandra Natapoff of University of California, Irvine School of Law examines how the deregulated adjudication of millions of misdemeanors in our court system has serious systemic implications.
Driving offenses that involve injuries or intoxication can lead to jail sentences in many states. But, there are also indirect routes to incarceration for lesser infractions behind the wheel. Fines on traffic tickets present burdens on poor people beyond the monetary costs. Failure to pay fines can lead to a suspended sentence.
Not driving is not an option for many people, especially low income people, who have no other means to get to work or take their kids to school. And so they drive on a suspended sentence, and that can in turn lead to a misdemeanor charge and the possibility of arrest and detention. .
Recognizing this predicament, many states have moved to decriminalize driving without a license or with a suspended license.
In 1997 about 100 of the 4,000 persons in Idaho prisons were serving time for driving without a proper license. Multiple violations could lead to sentences of up to three years. The next year the legislature proposed a measure that converted driving “without privileges” from a misdemeanor into a civil offense. Instead of a mandatory jail stay of 2 days to six months, they proposed penalties of community service or a fine.
If an entire category of adults is unable to get a driver’s license, it is no surprise when many of them end up with violations for driving without a license. Twelve states and the District of Columbia have sought to remedy that circumstance by enacting laws that allow unauthorized migrants to obtain driver’s licenses. In California, the state with the largest unauthorized population, more than 1,000,000 licenses have been issued under a law that went into effect in January 2015. The various laws differ in the requirements and privileges associated with these laws, but for unauthorized migrants they all eliminate exposure to charges of driving without a license. As a corollary, they allow those drivers to obtain insurance to have their vehicles properly inspected. And, in the larger scheme of immigrant integration, these licenses serve as an identity document issued by a government agency which can be used in commercial and financial transactions and a variety of other circumstances. Under the terms of the U.S. REAL ID Act of 2005, they cannot be used as identification for federal purposes such as passing through airport security to board a plane.
Like driving infractions, criminal penalties for riding public transit without paying a fare disproportionately impact the poor, communities of color and youth, i.e. people who have no other option for getting around and who may be unable to afford the fare. Many states and municipalities have moved to handle these offenses with civil citations, and remove them from the criminal court system.
In 2008, the San Francisco Municipal Transportation Agency (SFMTA) announced that adult transit citations would be handled by SFMTA’s Customer Service Center rather than San Francisco Superior Court.
In 2016, California passed SB 822, which prohibits a minor from being charged with an infraction or a misdemeanor for fare evasion or other transit infractions.
In New York City in 2016, police arrested 24,600 people for fare evasion and convicted 9,629 people of misdemeanors for the offense. Despite opposition from Mayor de Blasio, in July 2017 Manhattan District Attorney Cyrus Vance Jr. announced the DA’s office would no longer prosecute fare evasion charges in order to relieve the overburdened court system.
Changing the laws
Lessening the consequences
Immigrants to this country, and across the world, have often relied on informal commerce as a way into an alien job market. Think of peddlers pushing their carts through lower Manhattan at the turn of the last century. Sidewalk vendors are the contemporary equivalent. In order to lessen the immigration consequences — and to lessen the impact on police and jails — a number of jurisdictions have downgraded offenses related to such activities. Peddlers pushing their carts through lower Manhattan at the turn of the last century. Sidewalk vendors are the contemporary equivalent. In order to lessen the immigration consequences — and to lessen the impact on police and jails — a number of jurisdictions have downgraded offenses related to such activities.
Camellia Tse for NRTse for NR
Removing criminal charges for street vending can help improve relations between police and immigrant communities by reducing the number of arrests for minor offenses when criminal charges can have major immigration consequences.
The Illinois Policy Institute, a libertarian think-tank, conducted a survey of nearly 200 Chicago street vendors before the the Chicago City Council legalized pushcart vendors in September 2015. Of those surveyed, 55 percent were women and 100 percent were Latino, mostly of Mexican heritage. The study estimated that legalizing street vending in Chicago would boost the local economy by $19 million to $78 million in annual earnings, $2 million to $8.1 million in new state sales-tax revenues, and $2.1 million to $8.5 million in new local sales-tax revenue. Chicago City Council legalized pushcart vendors in September 2015. Of those surveyed, 55 percent were women and 100 percent were Latino, mostly of Mexican heritage. The study estimated that legalizing street vending in Chicago would boost the local economy by $19 million to $78 million in annual earnings, $2 million to $8.1 million in new state sales-tax revenues, and $2.1 million to $8.5 million in new local sales-tax revenue.
National map and
Institute for Justice
Los Angeles with an estimated 50,000 street vendors had spent years grappling with a street vending ordinance when the City Council was prompted into action in 2017 by the Trump administration’s new immigration enforcement policies. A new ordinance swiftly decriminalized street vending, leaving the activity subject to administrative fines while regulations and licensing procedures are worked out.
"It does not make good economic or moral sense to criminalize Angelenos who are trying to make an honest living and support their families," said Mayor Eric Garcetti. "Finding a pathway to regulate street vending is not just the right thing to do for vendors, it's also good for the public and our local tax base."
Increasingly, states across the country are legalizing or decriminalizing marijuana for either recreational or medicinal purposes. Nevertheless, marijuana charges continue to drive high rates of incarceration. The Drug Policy Alliance reports that in 2016:
- Over 1.5 million people were arrested for drug law violations in the U.S. — 84 percent were for possession only.
- 41 percent or total drug arrests were for marijuana — 89 percent of which were for possession only.
- 57 percent of people incarcerated for drug offenses are black or Latino, despite representing smaller proportions of the population and selling drugs at similar rates to White people.
- Over 200,000 students lost federal financial aid eligibility because of a drug conviction.
Realizing that marijuana arrests drain the time and resources of law enforcement officials and jails, many cities and states have lowered penalties for personal possession of marijuana. Thirteen states decriminalized marijuana possession, making it a civil citation rather than a criminal offense. Eight states and the District of Columbia have legalized marijuana for recreational use as of March 30, 2018.
In January 2016, Pittsburgh City Council voted to decriminalize marijuana possession. What once carried the penalty of 30 days in jail and a $500 fine is now an inexpensive ticket. People caught by Pittsburgh city police with less than 30 grams of marijuana or 8 grams of hashish will be given a $25 ticket. If found smoking while in possession of that amount, Pittsburg police will issue a $100 ticket.
Some cities have not removed criminal consequences for marijuana but have severely reduced the fine and eliminated jail time. In September 2017, Atlanta City Council voted to reduce the penalty for possession of less than an ounce of marijuana to a fine not exceeding $75 which cannot be punished by imprisonment. (Read the statute here). Kansas City voters approved a similar law in April 2017 that reduced the maximum fine in city court from $500 to $25 for possession 35 grams or less of marijuana, and eliminating jail time. Like Atlanta, a guilty plea would still involve a drug conviction, which will carry collateral consequences — especially for noncitizens.