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The punishment doesn’t fit the crime, says Derek Cohen, policy director of Right on Crime and Citizens Defense at the Texas Public Policy Foundation.

Then why are tens of thousands of Texans going to jail for minor infractions that are supposed to only result in fines? Cohen said it is a complex issue with multiple elements involved.

“But the issue at hand is why are we making arrests for these non-jailable offensive?" he said. "And so the bigger issue at hand is that when you have somebody that is charged with a crime, a crime defined as failing to signal a change, minor traffic offenses. None of these carry in their full force of law any jail time whatsoever. The maximum that most of these carry is a Class A misdemeanor range of about $500.

“And oftentimes it's much, much less than that when assessed by the county," he said. “The problem is, of course, we are charging somebody with a crime and facilitating an arrest, a booking and whatnot for an actual offense that even if the person is found fully guilty, there would be no jail time. The punishment has already outweighed what the status of the crime is.”

A Sept. 3, 2020, report from Pew Charitable Trusts said, on average, more than 50,000 drivers are pulled over every day, more than 20 million people annually.

“Police have enormous discretion in making traffic stops,” Farhang Heydari, executive director of the Policing Project at the New York University School of Law, a public safety think tank, told Pew Charitable Trusts. “If you’re driving it’s impossible not to break a traffic law – there are so many of them. Police are always going to have a reason to pull you over.”

Cohen said sometimes, jail is required.

“That isn't to say that there isn't the need for certain exemptions, like if the individual fails to identify who they are, if there's an ongoing breach of the peace, or if the officer has some reason to believe an articulable probable cause, reason to believe that this individual is not going to show up for trial,” he said. “You can make exemptions for that. But for other than those reasons, that punishment does not fit that crime and it costs a lot. And that what we're spending in terms of court resources and jail resources in order to do to punish these minor infractions.”

Another element is the resources invested in the arrest process. While people are being detained and in some cases, jailed, that keeps officers away from investigating or preventing major crimes. This crowds jails and increases animosity between the public and police.

The fact that minorities are stopped and searched at a far higher rate than white people only adds to tensions.

A 2019 study conducted by New York University and the Stanford Open Policing Project revealed that black drivers were about 20% more likely to be stopped than white drivers. The report examined 100 million traffic stops across the country.

“The study also found that once stopped, black drivers were searched about 1.5 to 2 times as often as white drivers, while they were less likely to be carrying drugs, guns, or other illegal contraband compared to their white peers,” the report states.

In Texas a study of 2017 jail records in 11 of the state’s largest counties conducted by the nonprofit Texas Appleseed found 30,000 people were jailed for Class C misdemeanors. The majority of those people – 24,000 – spent more than three days in jail, with half that group held for more than 10 days.

Cohen doesn’t think the rate of arrests in these cases has changed significantly in recent years.

“I would say it’s more or less the same," he said. "I don’t necessarily think that there is ill intent behind this. But I think what the problem is you have this expectation of revenues from the source being at a specific level. And even if not even consciously, patrol patterns and deployment strategies are going to reflect that understanding.

“And you always could have the option of doing, say, what North Carolina does, [where] everything assessed by the locals goes to the state general fund. And that's where we start getting into questions about the roles of government and the various different levels.”

It also raises the question of the amount of time and money devoted to enforcing these laws and arresting people charged with violating them.

“The imposition on resources is a net negative but most of these are handled with a citation,” Cohen said. “You get pulled over and you fail to signal a lane change. And they're going to give you a citation. You're going to take care of it with the justice of the peace."

“But if you have that arrest now, we're getting the courts involved. Now we're getting the jail involved. These all have fairly high per diem daily rates,” he said. “Fifty dollars a day is the actual rate for that individual that takes to kind of provide for those incidental to jailing somebody and all for failing to change or failing to signal range. It just isn't a good use of resources.”

It’s also unpopular. A University of Houston Hobby School of Public Affairs survey showed 74% of Texans oppose arrests for fine-only offenses.

Municipalities that rely on fines to balance their budget also need to consider the consequences of their policies, Cohen said.

"You raise a broader question of municipal governance,” he said. “And this is one of the notorious problems with the criminal justice system behind these attacks is that we are inherently balancing, something that we see as a recurring source of income ... a recurring core source of income on something that inherently volatile. But you pull over enough people and word gets out that this town tends to be a speed trap."

Cohen said this entire issue is being reviewed by elected officials. They see the inherent problems.

“Obviously, you have the issue of government system debt," he said. "And if you look around at the current [Texas] Legislature, they actually have some 700 decent bills that address the problem of criminal justice debt." 

It also causes further problems down the road for people who wind up behind bars for a crime that is supposed to only carry a fine for a penalty.

“I kind of stymies the re-entry process," Cohen said. "It basically works counter-purposes to what we try to do with our corrections system. The corrections system is literally to correct. And we spend a great deal of resources ... basically trying to get the person to realize the error in their ways. Then we release them back out into a situation in which hope seems to be a little farther afield than when they were in any event, and so that we were working across purposes that way. So getting that debt out of the way where possible is something that I think is a laudable goal.”

Cohen graduated with a Bachelor of Science in criminal justice from Bowling Green State University and earned his master’s degree and doctorate in criminal justice from the University of Cincinnati.

The Texas Public Policy Foundation is a 501(c)3 nonprofit, nonpartisan research institute dedicated to promoting and defending liberty, personal responsibility and free enterprise in Texas and in the nation.