City makes progress with cite and release policy

City policy on cite and release is one step closer to coming to fruition. 

The San Marcos City Council heard an update from the Criminal Justice Reform Committee Tuesday evening on the committee’s progress on a draft cite and release ordinance. 

The committee — comprised of Councilmember Mark Rockeymoore, Councilmember Ed Mihalkanin and Mayor Pro-Tem Lisa Prewitt — shared information about the committee’s draft ordinance on cite and release. 

Cite and release under state law allows peace officers to issue citations for Class C misdemeanors, as well as certain Class A and Class B misdemeanors, instead of making an arrest. 

The committee’s draft states that “City Council supports the SMPD’s increased use of the cite and release process, rather than arrest, for individuals suspected of committing the following offenses: 1. Class C misdemeanors other than public intoxication or assault. 2. Possession of Marijuana less than 4 oz., Class A or B misdemeanor 3. Driving with License Invalid, Class B misdemeanor.” 

The draft also states that the city manager shall provide a quarterly report that would document anonymized records of every instance that a resident was issued a citation in lieu of arrest and every instance that a resident was arrested for a nonviolent misdemeanor “and shall include justifications for the arrests.”

The draft ordinance originally was written by Anita Gupta, staff attorney for Immigrant Legal Resource Center, before being adjusted and changed by the criminal justice reform committee. 

Gupta expressed concern with the revised draft, and said that “supporting the use of the cite and release process doesn’t actually mandate any action.” She also said all cite and release eligible offenses should be included in the ordinance, instead of limiting support for cite and release to possession of marijuana, driving with license invalid and Class C misdemeanors. 

“I’m also very concerned about the list of offenses,” Gupta said. “It went from eight offenses, not including all class C misdemeanors to two offenses. This is actually inconsistent with state law. Our state legislature has deemed these offenses low-level nonviolent offenses and thereby eligible for citation. Yet if we only reduce this to two offenses then it’s actually very inconsistent with state law and also inconsistent with the proposed cite and diversion program that the county is working on right now. Under that program, the DA will have the opportunity to review these citation-eligible cases for diversion and in that proposed program he will be reviewing all eight state eligible offenses, not just two of them.”

Interim Director of Public Safety Chase Stapp said that certain offenses were removed because they were crimes where there is a victim involved, such as theft or criminal mischief, vandalism or graffiti. 

“The question was, does council want to send the message that they support their officers issuing citations for those kind of offenses where somebody’s been victimized? Because sometimes victims get pretty passionate about what they want to see the police do and if the police say ‘Well I’m sorry my hands are tied by council policy,’ we didn’t know how that would go over,” Stapp said. “So that was sort of the discussion that led to that. Does not mean that the officers cannot exercise discretion and issue a citation for example for theft or criminal mischief or vandalism.”

Interim chief and head of the San Marcos Police Department Bob Klett said the department is working on an updated policy regarding cite and release, and has been working to increase cite and release already. He noted that in 2018, there were 150 street diversions for possession of marijuna to a possession of drug paraphernalia charge, meaning an individual was charged with a citation instead of being arrested. 

“So those are officers using that discretion in all of these cases without an ordinance, without that policy in place using their good discretion to do that,” Klett said. “Not even counting the cases where we don’t have a count of where they just destroy dope on the scene, there was no citation, there was no documentation, which is appropriate if they do that on camera.”

City Lawyer Michael Cosetino said a deciding factor for the committee and for council is whether they would like an ordinance that mandates police to use cite and release, or leaves police discretion.   

“The other major difference here between these two ordinances and which I think policy direction is needed on or your preference to this committee is do you want an ordinance that makes it mandatory to issue a citation in every instance where there’s an eligible offense or that continues to allow the police officers to exercise their discretion,” he said. 

Councilmember Saul Gonzales and Mayor Jane Hughson agreed with leaving officer discretion and then reviewing the data, and councilmember Melissa Derrick said she would like to see the city manager write new policy. 

“I’m kind of leaning towards in favor of having the city manager write up some new policy and then, you know, with that we trust and then we check the numbers and we go from there,” Derrick said.  

Councilmember Joca Marquez said she was undecided about mandating or leaving discretion.  

After receiving feedback from their colleagues, the members of the Criminal Justice Reform Committee will continue to work to bring back a recommendation to council.