Criminal charges or municipal infractions?

Iowa City is the home of The University of Iowa and its 30,000 or so students. The core of the city and the core of the University are tightly intertwined, physically and socially. This inevitably leads to tensions having to do with the presence of drinking establishments in the downtown, over indulgence in alcohol, risky behaviors associated with excessive alcohol consumption, and the interaction between Police officers and inebriated young people.

In its April 1work session, the City Council of Iowa City discussed the City’s ability to issue municipal infractions in lieu of certain criminal charges currently classified as simple misdemeanors. Our Council’s discussion oriented around a March 27 memo from City Attorney Eleanor Dilkes and City Manager Tom Markus. We Councilors came to no definitive conclusions; however, Mayor Matt Hayek asked me to provide additional information and perhaps offer suggestions about how to proceed. I have offered the following in response to Mayor Hayek’s suggestion.

In making these suggestions I am fully aware there is a great deal that I do not know. I am eager to learn from others, and to make a decision that is in the best interest of all the people of Iowa City.

A summary of the staff’s memo

The staff’s memo reported that between January 1 and March 20, 2014, the Iowa City Police Department issued the following number of criminal citations (which I have placed in rank order):

  • Public intoxication – 1,097
  • PAULA (Possession of Alcohol Under the Legal Age) – 479
  • Open container – 144
  • Under 21 after 10:00 pm – 136
  • Obstruction – 17.

The memo also explained the legal, administrative, and financial differences between a criminal charge (simple misdemeanor) and a civil infraction (municipal infraction). It then offered comments specifically pertaining to disorderly conduct, Under 21 and open container, public intoxication and PAULA, obstruction, and the police’s ability to arrest.

In a summary paragraph the memo concluded:

  • Disorderly conduct cannot be made a municipal infraction.
  • PAULA and public intoxication can be made municipal infractions. Criminal convictions can be expunged after 2 years if the defendant has no additional violations, but a judgment in a civil PAULA could not be expunged.
  • Treating public intoxication as a municipal infraction would put the public and the person at risk.
  • Treating obstruction as a municipal infraction would put officers at risk and prevent them from carrying out their duties.
  • Open container and Under 21 can be made municipal infractions.
  • Administratively it is more difficult for the City to issue a municipal infraction but procedurally easier for the City to prove (and conversely, more difficult for the person to prevail).

The penultimate paragraph made the following recommendation:

With respect to the simple misdemeanors addressed in this memo that could be made into municipal infractions, PAULA and public intoxication account for the majority of the charges (1576 or 84% of the total charges for PAULA, public intoxication, under 21, open container and obstruction between January 1, 2013 and March 20, 2014 (1873)). Staff recommends against the creation of a civil infraction for PAULA principally because PAULA can be expunged after 2 years. Staff recommends against the creation of a civil offense for public intoxication both because public intoxication can be expunged after 2 years and nearly all persons charged with public intoxication are arrested for safety reasons and a civil charge does not allow for arrest. With respect to under 21, open container and obstruction, staff recommends against the creation of a civil infraction because we cannot identify a reason to do so that would justify the additional administrative burden.

Most important, the memo stated: “Staff is unable to identify a compelling reason for the creation of a civil infraction for the simple misdemeanors addressed in this memo, particularly in light of the availability of expunging the most frequent charges, safety concerns involved when arrest is not an option and the administrative burdens discussed above” [emphasis added].

My recommendations

I find the staff’s memo to be enlightening, helpful, and a necessary contribution to our decision making with regard to this topic.

With due respect to the staff, however, I do not believe we should make our decision based solely on the staff’s point of view and recommendation on a topic as sensitive and important as this. We need to obtain additional factual evidence, and to hear from the public and from local criminal defense attorneys on this matter before making a decision. We should also ask the Human Rights Commission and perhaps the Citizens Police Review Board for their advice.

There are five reasons why I think additional input would be beneficial.

First, as I see it, there might be at least one very “compelling reason” to substitute a civil charge for a criminal charge for certain offenses, namely to reduce the preventable harm that our arrest policies are doing to young people in our community. Instructors try to prepare young people at the university to succeed in the world, but I have been told that somewhere between 13% and 17% of those students have a criminal record when they graduate, with the situation being about twice as bad for males. This criminal record follows them for their entire life, and it hurts them needlessly.

Second, the code prohibits public intoxication throughout the city, but it is a crime that the police inevitably enforce very selectively. This selectivity largely results from the fact that so much of the police’s attention is focused on the downtown, at least on weekend nights. I do not challenge the need to have a significant police presence downtown; however, I do question the way that this selective attention results in criminal charges rather than municipal infractions. Public intoxication is currently defined as a criminal act, and it is an act that that most adults in Iowa City have probably committed. But only a select few of us find the crime on our records.

Third, it is my understanding that expunging the record about criminal offenses can be far more difficult to accomplish than the memo indicates, especially with regard to alcohol cases. Moreover, expunging a conviction does nothing to deal with the harm done by the ongoing arrest record, which is what employers and graduate schools ask about as often as they ask about convictions.

Fourth, I find it very hard to believe there is a safety issue involved in giving a citation for marijuana possession.

Fifth, I have been told many stories that clearly indicate many residents think the police regularly use the charge of public intoxication as a power tactic toward anyone who’s been drinking when those people don’t behave as the officer sees fit. Here’s one such story:

A 30-year-old white female was leaving the ped mall after a live music show. She had had a couple drinks at the show. As she walked past the ICPL, a couple police cars zoomed up and the officers confronted three young black men near her. The officers had the men lay flat on the ground to be searched. She watched. When it turned out these three young men were not the ones the officers were looking for but simply fit the “three young black men on the ped mall” description, my friend asked the officers if that whole treatment had just been because these guys, minding their own business, fit the description of three young black men on the ped mall. An officer responded to her, “You be quiet and leave right now, or I’ll arrest you for public intoxication.” Because she was afraid of being arrested, she did leave.

It’s easy to dismiss such reports as mere stories or hearsay. But personal stories are often all that people have. There is (at least to the best of my knowledge) no local repository of facts or data about occurrences such as the one just described. Who would generate such data, and how?

With these considerations in mind, I believe we should enhance our ability to make the best possible decision about possibly decriminalizing certain offenses, especially with regard to public intoxication arrests, by gathering more information from more sources. Some possible ways of doing this include:

  • Conducting an informal public hearing, with no police officers present, in which citizens can openly share their stories about how local public intoxication laws are being enforced, and explain why they either support or oppose changing public intox, PAULA, Under 21, and/or open container offenses into municipal infractions. Local criminal defense attorneys could also be invited to share their stories and rationales. Such a hearing could be conducted by a committee of 2-3 Council members, or by 2-3 people commissioned by the Council, and should take place in a very accessible location outside City Hall.
  • Obtaining statistics on public intoxication arrests by race.
  • Obtaining statistics on how many people arrested for public intoxication actually do have their records expunged later.
  • Reviewing actual police reports of the past year or so for public intoxication arrests and noting whether there was a safety reason for the arrest and, if so, what the specific reason was.
  • Brainstorming with police about alternatives to arresting people who are genuinely incapacitated but do not need hospital care and have no one to take them home.

I look forward to hearing my fellow Councilors’ and the public’s views about this topic, and engaging in a spirited discussion about how we should proceed.

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