Three years after the pomp and circumstance of the announcement promoting its opening, the small courtroom on San Jacinto Street in downtown Houston was silent.
It was 1 p.m. on a recent Wednesday, the beginning of the day for cite and release court, and yet multiple rows of wooden benches sat empty in front of a camera atop a TV labeled “Judge.”
The cheerily hand-drawn whiteboard sign propped against the wall that read “Welcome to Cite & Release 5-24-23” seemed moot because nobody was there. Other than the quiet chatter of two sheriff’s deputies, the only noise echoing in the room emanated through a thin wall separating the courtroom and a first floor bathroom.
Meanwhile, across Buffalo Bayou, the Harris County Jail and the Joint Processing Center — where arrested people are processed — were bursting at the seams.
“They all got arrested today,” a staff member joked at cite and release court, before a court officer turned off the TV with a sigh and locked the doors at 1:50 p.m.
“That’s not our problem,” replied her colleague.
In September 2020, Houston Mayor Sylvester Turner hailed the city’s new cite and release policy — long pushed for by local advocates — as a “second chance on the spot.”
It was pitched as a win-win: Instead of losing hours to haul a nonviolent person downtown, process and book them into an overcrowded and increasingly deadly jail, officers would be able to issue a citation and be on their way to solving more urgent crimes.
“We are not throwing the book and putting people in jail when they have very low-level offenses,” Turner said, noting there were 3,000 people who could have been issued a ticket and released by HPD in 2019 alone rather than be booked and jailed.
He also pledged that “detailed reporting” of data would guide future policy.
“If we are reporting that we are not meeting our targets or that people are exercising far too much discretion, this is a living document and you address it accordingly,” Turner said.
But nearly three years later, the much-lauded cite and release courtroom often remains — quite literally — empty.
Only 19 people have been issued a cite and release ticket this year by any of the five law enforcement agencies in Harris County that participate in the program. HPD, which joined the program seven months after the Harris County Sheriff’s Office, has issued 227 tickets since Turner’s executive order in 2020, according to the Harris County Office of Justice and Safety. Meanwhile, thousands of others continued to be arrested.
Now, law enforcement, judges, advocates and the Harris County District Attorney’s Office are grappling over the program’s future and why police officers are writing few tickets, while the stakes only seem to rise for those taken to jail. One high-ranking member of the district attorney’s office says it should be canceled completely.
The mayor could not be reached for comment Friday.
“The mayor expects full transparency on government records and programs and supports Houston police officers in their work to keep our community safe,” wrote city spokesperson Mary Benton in an email.
Any arrest can have “life-derailing consequences,“ said Nick Hudson, policy and advocacy strategist at the ACLU of Texas.
“If you are undocumented, it can result in deportation,” Hudson said. “For many people, even a few days in jail can increase the risk of future crime, so there are negative public safety effects. It can result in loss of employment, loss of housing, loss of custody of children in some cases. Those punishments that the existing system are imposing upon people often exceed the seriousness of the crime.”
Decision to cite is discretionary
Just weeks before a Houston Landing reporter observed the empty court last month, a man died in the Joint Processing Center where arrests are processed — marking the fifth death of a person in Harris County jail custody this year.
Franklin Bynum, a former judge who led the charge to implement cite and release upon his election to office in 2019, said the processing center is “a crush of people.” Last year, 14 percent of those arrested waited more than 48 hours to be processed, according to reporting by ABC13.
The cite and release program was supposed to help ease that pressure.
If any police officer accuses a Harris County resident of low-level theft, contraband in jail, graffiti, driving without a valid license, vandalism, or possession of less than 4 ounces of a controlled substance — and the district attorney’s office accepts the charges — the defendant can be ticketed with instructions to appear in cite and release court three weeks later instead of being arrested.
While based on state law, the conditions that automatically disqualify a person for a cite and release ticket vary depending on local policy. In Harris County, to qualify for the program the person must live in the county, be over 17, provide identification, and agree to be cited, among other factors.
But the decision to issue a ticket is discretionary in Harris County. And in many cases, it isn’t happening.
Police are opting to arrest many offenders who were initially eligible for a cite and release ticket. The majority of arrests that qualify for cite and release by HPD are for theft followed by vandalism, according to Texas Appleseed, a criminal justice nonprofit which studied the city’s first year of the program. Law enforcement officials, lawyers and others said arrests for theft often happen at convenience or department stores like Walmart, Macy’s or Home Depot.
When someone does receive a citation and appears for their court date — as did four people during the four weeks the Landing observed proceedings — the process is fast.
In mid-May, the lone man to appear before a judge during the weekly Wednesday court waited a mere 18 minutes for his appearance.
During that time, the skinny, bearded defendant sat in the front row of benches in a blue polo shirt, black pants and gray boat shoes with his arms dropped to his sides. He stared forward, anticipating the moment the judge would appear on a blue screen sitting at the front of the courtroom.
“No Talking,” read a sign also placed below the bench. However, as on other days, there was little noise apart from the man’s sniffles as he battled what seemed to be a cold.
Soon, the Zoom session blinked to life, showing the distant face of Judge David Singer sitting in what looks like an office. The defendant’s name was called.
“Do you understand what you’re charged with?” asked the judge after the man approached, his face uncomfortably close to the TV screen and the camera’s bright red light.
The charge: class B theft, for which he faces six months in prison or a fine.
“And do you understand your rights as I’ve explained to you?”
“Yes sir,” said the man, who had no criminal history.
The judge explained that he was going to let him go from court a free man. But the judge required the man to appear in court on the date he was assigned, and sent him to speak with the court coordinator and pretrial services to take his prints and information.
“I’ll check the box over here that he was given his warnings and if you don’t have anything else I’ll see you next time,” Singer said.
But that is not the typical experience.
Some tickets issued mistakenly
Despite the policy’s intended benefits — namely, the hours saved by not having to drive a suspect to booking — officers still aren’t issuing many citations.
Since the beginning of cite and release locally, 268 tickets were issued by the Harris County Sheriff’s Office as of last week; 227 by HPD; 38 by the Pasadena Police Department; and six between two participating constables offices, according to the Office of Justice and Safety.
And the Landing has found that those numbers — long reported on HPD’s transparency dashboard — are deceiving: Nearly 200 of those citations were given by mistake to suspects who did not fit program criteria.
That means that only 342 of the 539 citations reported by Harris County’s various law enforcement agencies since 2020 were issued correctly, according to the Office of Justice and Safety.
Part of the reason for the low numbers, HPD and others have argued, is that the many low-level marijuana arrests are diverted directly to the district attorney’s diversion program.
But when local policy was created, law enforcement in Harris County were allowed discretion in deciding who to cite and release. And, it seems, they’re using discretion disproportionately.
According to City Council testimony submitted by Texas Appleseed this year, Black residents were arrested in cases eligible for cite and release at a rate that was 3.6 times higher than white residents.
A statement sent to the Landing from HPD said officers utilize many tools such as cite and release to “relieve the stress on our criminal justice system.”
But, HPD also noted the “more than a dozen disqualifications that cannot be overlooked.”
“The policy in place directs officers [to] follow a specific process in determining whether an individual meets the criteria for the (cite and release) program. If a disqualification applies, our officers are instructed to take the appropriate action, which may result in arrest,” HPD stated.
Those 16 disqualifications per HPD policy include “reason to believe the suspect would not appear in court,” or “safety (to self or others) is jeopardized by their release,” or the “officer believes that offering Cite & Release to an otherwise qualified suspect is not the best course of action,” according to policy distributed by the agency to officers.
It was something that, when cite and release was unveiled in 2020, concerned advocates who had lobbied for a stricter and more robust city ordinance which limited discretion.
“We project that their program, as presented, will fail to significantly improve community safety, wellbeing, and equity in the city,” wrote a coalition of advocacy organizations called Right2Justice.
Douglas Griffith, president of the Houston Police Officers Association, said because HPD never enshrined the policy internally as what’s known as a “General Order,” officers might even take it more as a suggestion.
HPD shared a copy of a “circular” bulletin sent to officers in September 2020 describing the program rules, which mentioned upcoming video training. Another, sent to officers in 2022, did not mention training.
Griffith said it is common to use force during an arrest — a disqualifier for cite and release — and that officers may feel pressure to arrest out of empathy for the alleged victim of the crime.
“They think you’re not doing anything, if you’re not putting them in jail, you’re not doing your job,” Griffith said. “And so we’re out there issuing citations and they’re getting mad going ‘Hey, wait a minute. This guy just took all the stuff from me, you’re not gonna put him in jail?’ So there is some public pressure there for us to do that.”
A lack of data
While decisions to arrest based on discretion instead of utilizing cite and release are supposed to be approved by a supervisor, and documented on arrest reports, neither the county, HPD, nor the sheriff’s office shared that information with the Landing.
Data regarding arrests is not regularly released by the county or city, and available data show vastly different figures.
Jennifer Carreon, director of the Texas Appleseed’s Criminal Justice Project, analyzed the first year of data on HPD’s cite and release practices in Houston, and found that citation-eligible arrests by the agency fell steeply after the pandemic, from 2,576 — close to numbers initially cited by Turner — in 2019 to 912 in 2020.
More recent data provided by the Office of Court Management, which runs the county courts, showed vastly different numbers.
It reported that arrests eligible for cite and release by all Harris County police agencies have ticked up from 530 in 2020 to over 900 in 2022.
But the Office of Court Management used different criteria than Carreon in determining who would be eligible. For example, its analysts decided not to include suspects who already had a pending Harris County case as eligible for the program. But the agency did not take into account many other basic disqualifications covered by Appleseed’s data, like residency outside of Harris County.
The discrepancies frustrated Carreon and other advocates.
“It’s no surprise that we’re getting different numbers from different [analysts],” Hudson of the ACLU of Texas said. “The bottom line is that there are just significant data transparency gaps in Houston and Harris County. We need to fix it.”
Toria Finch, the county courts administrative judge, said she often sees people arrested for eligible misdemeanors come before her bench at misdemeanor court every week. Though she doesn’t always know what may have disqualified them, she wondered why there were so few citations.
“If it’s not working, we’re always open to going back to the drawing board to fix it,” Finch said. “And this is one of them that we believe in, and we want it to work. And we are studying and trying to figure out …what are some things we can do to either not incentivize, but encourage, you know, the law enforcement entities to use it.”
Lt. Raymond Lomelo of the sheriff’s office lamented a lack of comprehensive data on discretion — required to be documented by officers — which he said would help him better understand why citations aren’t being issued more commonly, and, if officers are incorrectly arresting suspects, to better guide them as to how to use the program. Officers, he said, complete a yearly training by video.
“It isn’t rocket science,” he said.
Jason Spencer, a spokesman for the sheriff’s office, stated that “repeat offenders” were ineligible for the program, blocking out many potential candidates. Lomelo said though this wasn’t explicitly in the sheriff’s office cite and release policy, such factors could contribute to use of discretion by causing officers to believe that repeat offenders wouldn’t appear in court.
Another issue he raised was that if you live in another county and are arrested in Harris, you are automatically disqualified from the program.
“If I could amend the law I’d add adjoining counties,” he said. “As metropolitan as we are and transient as we are in this community, you can easily… be in Fort Bend for your job, you could live in Waller, and you could hang out in Harris County.”
Top staff at the Harris County District Attorney’s Office were not so optimistic.
“Cancel it,” said David Mitchum, the county’s second-ranking prosecutor, noting that it was his opinion, not District Attorney Kim Ogg’s. Prosecutors who field calls from police and officially accept or decline to charge a suspect, he said, were trained to stay neutral when advising officers who wished to cite a suspect on the scene.
“Really, they’re the ones that are calling the play on this. We’re just following the law,” he said.
Mitchum’s colleague Nathan Beedle, head of the misdemeanor trial bureau for the DA’s office, also stressed that it is ultimately the officer’s decision whether to cite.
But, he noted: “I believe based upon my experience that … the arrest itself has a deterrent effect from seeing them ever again,” he said. “It’s embarrassing. They go to jail. It’s horrible right? Jail is not a fun place to be when you stole makeup at Sephora, when you’re sitting in with capital murders. It has an impact.”
Who is in charge of the program?
Another issue that concerned Beedle: no-shows.
According to the Office of Court Management, a little over 30 percent of the 539 people cited by police officers since 2020 had warrants issued for their arrest because they didn’t appear at court. Of those warrants, 92 were executed by law enforcement.
Multiple law enforcement officers, as well as former Judge Bynum said prosecutors may be directly influencing officers to arrest rather than cite when a person is otherwise eligible. HPD also said the district attorney’s office ran the program.
Bynum and the DA’s office have long been locked in battle, culminating in an attempt by Ogg to legally remove Bynum from the bench for alleged bias against prosecutors.
“Are we in charge of the program?” Harris County District Attorney spokesman Joe Stinebaker wrote in an email. “Yes, we are in charge of ensuring that the program is employed legally, but the discretion of whether to use it lies with the law enforcement officer.”
Getting proper data — which includes discretionary decisions by police officers, ethnic and racial data, as well as numbers of citation-eligible arrests — is key, said Hudson of the ACLU of Texas.
One example of such transparency is San Antonio, which uses a dashboard and quarterly reports which show the number of eligible arrests and the reasons discretion was used. Hudson wants law enforcement and the county to track these additional factors and publish their results.
“Improving data transparency will help us find remaining opportunities to reduce unnecessary arrests, improve safety, reduce costs and root out inequity,” he said.
Texas Appleseed’s Carreon said she had once been arrested for a citation-eligible offense in Travis County, a “less-than-usable amount” of marijuana. The night she spent in jail was traumatizing, she said, and she later dealt with housing discrimination when she faced background checks.
Carreon said her findings in county data have led her to believe she must not stay quiet about what she sees as failures of a program with high opportunity and stark inequities.