WHY THE "SOCCER MOM" SHOULD WIN THE SEAT-BELT CASE: The Problem With Custodial Arrests For Offenses That Are Not Punishable With Jail Time

By BARTON ARONSON

Friday, Dec. 15, 2000

The Supreme Court's first ruling in the presidential election controversy was handed to reporters in the middle of the oral argument in Gail Atwater v. City of Lago Vista, Texas. The election ruling distracted the press' attention from the Atwater case — literally: they all rushed out of the courtroom. Too bad. The election case may engage all of us as citizens of the republic. But the seat-belt case hits us where we live: in our cars, with our kids.

Should You Be Imprisoned Before Trial Even If You Can't Be Imprisoned Afterwards?

In March 1997, police officer Bart Turek stopped Gail Atwater because she and her two children weren't wearing their seat belts. In Texas, the maximum punishment for not wearing your seat belt is $50. Jail is not an option. Having committed a crime for which the legislature had decided she couldn't be locked up, Atwater was nonetheless arrested and detained until she was presented to a judge.

Arrest versus Citation Release

Arrest and its main alternative, citation release, are different ways of getting into a courtroom so that you can be told you are (or are not) being charged with a crime. A person who is arrested is detained from the moment of arrest until she sees a judge. If, at that time, she is charged with a crime, the court then decides whether she will be detained until a later stage in the case.

In contrast, people who get citation release are simply stopped and informed that they must appear at some future date in court to find out whether there's a charge or not. Anyone who's ever gotten a traffic ticket is probably familiar with citations. Citation release allows a person to remain at liberty until he first goes to court, and pretty much guarantees he'll remain at liberty until his case is resolved.

The Process of Arrest and Initial Incarceration

Arrest is not meant to be pretty. Procedures are not at all uniform, but some features are fairly common nationwide. First, you're patted down, usually in public. Next, you're cuffed and driven to a lock-up facility that houses people overnight until they can be presented to a judge. Sometimes this lock-up is just a room with bars in a police station; sometime it's an actual jail, which also holds people awaiting trial or serving short sentences.

At the lock-up, prisoners are "processed." The police will ask for identifying information, including names and numbers of family and employers. They will fingerprint you, check to see if you have a criminal record, and maybe drug test you as well.

You'll also be searched again, this time much more invasively (it might be a strip search; it might be conducted by someone of the opposite sex). Most of your property will be taken and gone through. Some of your clothing might be taken as well (people have been known to hang themselves with shoelaces).

No wonder lock-ups are the most dangerous facilities in American corrections. Suicide rates in lock-ups are ten times those of the ordinary population; violence is endemic. Runner-up only to a profound respect for the law, the faintest possibility of a night in a lock-up is the second best reason to live your life on the straight and narrow. Gail Atwater was lucky: she only spent an hour.

The Police's Choice: Arrest versus Citation Release

Whether you're arrested depends mostly on your suspected crime. The police have the power to arrest nearly anyone whom they have probable cause to believe has committed a felony. Misdemeanors (like Atwater's seatbelt offense) are different. If an officer believes you've committed a misdemeanor in her presence, she can arrest you; otherwise, she has to get a judge to issue an arrest warrant.

But in every case except those involving an arrest warrant, the police have a choice between arrest and issuing a citation. Citation release is a widely used, efficient, and proven tool for getting people to court. It is not, furthermore, the product of a fevered liberal imagination: the National Association for District Attorneys recommends citation release whenever practical.

The Justifications for Arrest — None of Which Apply to Atwater

Arrest, of course, serves several critical law enforcement needs that citations cannot. A defendant's crime and criminal record may demonstrate that the defendant is too dangerous to be on the streets until his case is resolved. We don't usually arrest people for murder, then let them go until their case comes to trial.

Arrest may also help with an investigation. The police can find witnesses or secure and execute search warrants in the hours following arrest, all without the defendant's interference.

Finally, arrest (and possibly further detention) is necessary when there is reason to believe a defendant won't appear in response to a citation. Such failures to appear impose enormous costs on the criminal justice system. Cases get old (memories fade, witnesses disappear); victims are forced to wait for whatever healing a trial can bring; the court system gets backlogged.

The problem with Gail Atwater's arrest is that none of these excellent justifications apply to it. First, Atwater's crime certainly endangered her children and herself, but it is not the type of predatory behavior for which we detain people before trial. Most traffic offenses, and many misdemeanors, are victimless crimes. Second, the investigation of a traffic stop, and indeed of most misdemeanors, is over at the scene of the crime.

Finally, most people who are stopped for a traffic offense — as long as they aren't from out of town, and don't have a history of failing to appear in court — ought to be pretty good candidates for citation release. The penalties are relatively low, providing little incentive for people to try to avoid court, and when the locals don't show up, the police can usually find them.

Other Policy Reasons to Avoid Unnecessary Arrests

There are also bigger reasons for not arresting people for crimes, like Atwater's, that cannot result in imprisonment. Arrest, as the guided tour above shows, is punishment. The Texas legislature has decided that there are many crimes for which you cannot be punished by going to jail. It is important that the police not be allowed to end-run the legislature by opting for a custodial arrest of someone charged with such a crime.

Everyone, including the legislature, would agree that even an hour in the lock-up is far more severe punishment than the $50 fine the law authorizes. Of course, you may well think that people who don't have their children in seat belts should go to jail, but that type of question is always for the politicians, representing the people, to decide once and for all — not for the police to resolve, on an ad hoc basis, at a given intersection.

Finally, arresting people for minor offenses damages the delicate relationship between citizens and their police. No one expects cops and robbers to like one another, but not everyone who commits a crime is a criminal. Indeed, many citizens will commit minor crimes, and even not so minor ones: speeding, driving without a license or registration, even disorderly conduct (ever throw a fit at an airline ticket counter?).

Society has an enormous stake in a cooperative relationship between ordinary citizens and the police. That relationship is enhanced when encounters involving minor offenses are civilized and respectful; arrests are neither, at least for the arrestee. And that relationship is far more important to our safety and good order than where Gail Atwater sleeps before her trial.

Barton Aronson, a FindLaw columnist, is currently a prosecutor in Washington, D.C. Prior to that, he was in private practice in Washington, D.C. and an Assistant District Attorney in Massachusetts. The opinions expressed in this article are his own.

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