With government asking citizens to show remarkable restraint by preventing them from earning a living and supporting their families, it is not too much to ask for the same restraint in our legal system. However, a Dallas judge took the extreme step of jailing Shelley Luther, who refused to close her hair salon, thereby exposing her to a cauldron of contagion far exceeding any retail establishment. After all, more than half of the top 50 COVID-19 hotspots in the U.S. are correctional institutions.

On May 5, Luther, a working mom of two, was sentenced to serve seven days in a Dallas County Jail after refusing to close her business pursuant to emergency edicts.

While the Texas Supreme Court freed Luther two days later, recent reports show she was among more than 200 Texans who were arrested for alleged violations of COVID-19 related orders. Fortunately, Gov. Greg Abbott’s May 7 executive order took jail off the table for such violations.

Technically, Luther’s case is still pending further review by the Texas Supreme Court and she was jailed for contempt of court, rather than the violation itself. The Texas District & County Attorneys Association indicates that it is “incredibly rare” for judges to invoke this power. In light of the governor’s action, even if a judge could theoretically still invoke this contempt power in such an excessive way, the tide has shifted. Hair salons and other businesses have opened and Texans are focusing on safely getting back to work.

However, Texas still has a problem when it comes to arresting and jailing people unnecessarily. Luther’s ordeal was just the latest chapter in this story. Just ask a Baytown woman jailed more than a decade ago for an overdue library book.

Perhaps the most tragic example of unnecessary jailing for a minor offense came in 2015 when Sandra Bland, a professor who suffered from mental illness, was pulled over, arrested and jailed for failing to signal a lane change and then getting into a tense exchange with the officer. Bland’s suicide in jail led to a proposal considered in the last session of the Texas Legislature, House Bill 2754 by Rep. James White. It would have precluded arrest for fine-only offenses, known as Class C misdemeanors, where there is not a breach of the peace or a clear and present danger to the officer.

In 2017 alone, there were some 30,000 arrests in Texas for fine-only offenses, mostly traffic violations such as a broken taillight and expired registration or inspection. While the vast majority of stops involving such violations end in a citation, jailing cannot be justified for routine traffic violations taken alone given that the conduct could never warrant a custodial sentence. Allowing this to continue effectively enables officers to impose a penalty more serious than a judge or jury.

Ironically, on higher level misdemeanors the state became national leader in 2007 when then Gov. Rick Perry signed legislation allowing police officers to issue a citation in lieu of arrests for certain Class A and B misdemeanors. Unless Class C offenses, these infractions, such as low-level marijuana possession and a second incident of driving with a suspended license, can potentially result in a jail sentence.

Here again though, Texas lawmakers missed an opportunity in 2019. Senate Bill 961 by Sen. Paul Bettencourt would have added criminal trespass to the list of offenses where officers can opt for a citation in lieu of arrest.

Just like the police offer who told Sandra Bland that he was “going to light her up,” it seems the judge in the Luther case wanted to make an example of her. Instead, we must use these examples of unnecessary jailing as an opportunity to better protect the liberties of all Texans.

Marc Levin, Esq. is Chief of Policy & Innovation for Right on Crime (rightoncrime.com), an initiative of the Texas Public Policy Foundation. Follow @RightonCrime and @MarcALevin. James Quintero is policy director of the Government for the People campaign at the Texas Public Policy Foundation. Follow @JamesQuinteroTX.

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