Criminalizing Homelessness: Scourge on the Streets

My guest columnist, Emily Patricia Graham, is a Miami Beach and Clearwater - based attorney (admitted in Louisiana and California as well). The Immediate Past Chair of the Florida Bar’s Entertainment, Arts, & Sports Law Section and well published, Emily’s work as a board member of the Greater Miami Chapter of the American Civil Liberties Union of Florida and in Real Estate Development Law on issues involving the plight of America’s homeless drove her to respond to my June 5^th blog –‘Mad Assumptions Too Expensive to Reverse?’ –first with a comment and then with this thoughtful contribution:

“Anywhere I roam, where I lay my head is home”- Metallica

In a park next to the sand dunes on Miami Beach, beachgoers peacefully dozed, breathing in an out to the salty ocean air. The next thing these people knew, they were awoken by police officers and handcuffed, drowsily watching as their earthly belongings were snatched up and set on fire. Up in smoke burned their identification cards, medication, clothing and even a Bible, all then unceremoniously carried away as ashes in that light ocean breeze.

This incident, including the burning Bible, is not a maudlin sketch. It is a description of an incident documented in a court case, Pottinger v. City of Miami, brought by a group of homeless people against the City of Miami. Wait, they were homeless? Yes and they are people, and homelessness is not a crime.

“Criminalization is the practice of arresting homeless people for relatively harmless misdemeanors (obstructing the sidewalk, being in the park after hours, loitering, and the like) that they can’t help but commit while living on the streets. It typically also includes confiscation and destruction of homeless people’s belongings.“ Stephen Schnably, Professor of Law, University of Miami School of Law

The Pottinger case was brought in 1988 with a legal team from the Greater Miami Chapter of the ACLU of Florida, led by board of directors’ member Benjamin Waxman. Stephen Schnably, a cooperating attorney described how the case unfolded: “Judge Atkins issued his decision in 1992 finding constitutional violations (8^th amendment – status based punishment; 4^th amendment—seizure of property; and 14^th amendment – infringement of a fundamental right to travel.) The City appealed to the Eleventh Circuit, which remanded the case for further findings. Judge Atkins affirmed his earlier decision, finding no significant change in circumstances. In the City’s second appeal the 11^th Circuit ordered the parties to mediate, the parties reached agreement after nearly two years of negotiation, and the court (by then Judge [now Chief Judge] Moreno) approved the consent decree in 1998.”

The 8^th amendment argument was that homelessness is a status thrust upon people by unfortunate circumstances 1) of financial crisis, mental or physical illness and 2) that there are more homeless people than available shelter.

The Pottinger decree requires police who find homeless people committing "life-sustaining conduct" misdemeanors to offer shelter before they can make an arrest. Furthermore, Miami police may not arbitrarily destroy a homeless person's property and police must keep records on encounters.

Recently, the Pottinger case was back in the news. Stephen Schnably describes the effort to protect hard-won victories in the Pottinger agreement: “In September 2013, the City filed a motion to amend the consent decree, which the ACLU opposed. The court ordered the parties to mediate, which we did, and we reached agreement on limited changes, which the court approved in March 2014. It was all about whether there’d been a significant change in circumstances and, if so (we said there hadn’t been), whether the City’s proposed changes were suitably tailored to those circumstances.”

Examples of some of the 2014 changes include: “Arrests can be made, regardless of the availability of a shelter bed, for bathing or going to the bathroom in public if within a quarter mile of an open public restroom; The shelter that must be offered can be a three-inch mat instead of a bed; and Registered sex offenders will no longer be protected by the agreement; however, other options for legal challenges to draconian residency restrictions that render them homeless remain open…Neither party is permitted to request further modifications to the agreement before January 2016.”

The fact that homeless people may not be allowed in certain restaurants inflames the problem, and homeless people are forced to go to the bathroom in public. Arresting homeless people for this only serves to dehumanize them further. The problem has become so widespread, that a taxpayer funded poop map of Downtown Miami was offered to provide some sort of relief.

The Winter Miami-Dade County Homeless Trust semi-annual “Point in Time” homeless census shows that the homeless population has remained the same between 2014-1015. However, on closer review an alarming trend emerged: more homeless people were living unsheltered in the streets. Hopefully the midyear report, due out soon, will demonstrate a reversal of this trend.

Even with all of this, Miami and Florida are still doing better than other parts of the country. Between 2013 and 2014, the homeless rate in Florida decreased 13.2%, whereas the homeless rate decreased at the unstatistically significant rate of 3.9% in California. Even the favorable decision in Jones v. City of Los Angeles was vacated as part of a settlement. Stephen Schnably explained, “L.A. implemented a ‘Safer Cities Initiative’ not long after the Jones ruling…(it) was aimed at breaking up homeless encampments in Skid Row, and used arrests for a variety of misdemeanor offenses (like littering) that weren’t challenged in the Jones case.” However, a police officer fatally shot a homeless man this past March, an incident many have attributed the enforcement of Safer Cities.

In the end, Criminalization doesn’t solve the problem. Stephen Schnably explains, “Criminalization is counterproductive because it makes it harder for people to escape from homelessness. The U.S. Inter-Agency Council on Homelessness (USICH) has an excellent study on this, Searching Out Solutions: Constructive Alternatives to the Criminalization of Homelessness (2012), available through the Agency’s website. As the USICH report spells out in detail, repeated arrests for minor offenses that people experiencing homelessness can’t help but commit (like sleeping in public, obstructing the sidewalk, and loitering) just make it harder for people to get jobs or find housing. And when police sweep areas where homeless people congregate and confiscate their property, the loss of ID and medication can be devastating.

“At best, criminalization might temporarily reduce the visibility of homeless people (at the cost of great suffering and violations of basic rights), but it only makes the problem worse. Ultimately it’s policies like those mentioned at the Miami Housing Summit, and others like Housing First (which aims to get chronically homeless people directly into permanent housing rather than placing them in shelters), that will best deal with homelessness, and eliminate the occasion for city leaders to criminalize the very people they should be helping.”

There is hope. On June 22, 2015, USICH released a new “Opening Doors Federal Plan to Prevent and End Homelessness as Amended in 2015.” This report advocates preventing homelessness and increasing permanent housing options for low-income people. In the meantime, jail and fines set everyone back. 

I’m Emily Graham, and homelessness isn’t a crime, but kicking people while they’re down is criminal.

Dekom: Not that homeless folks get great job offers even when mental issues don’t apply, but adding criminal convictions to the existing pain and suffering pretty much assures that homelessness perpetuates. We seem to like making poverty and misery permanent. Oh, responding to an increase in the number of homeless in the city, the Los Angeles City Council just passed an ordinance (with criminal sanctions!) making it a lot easier to take down homeless encampments – as long as authorities store the property of those “cleared.” But for the grace of God go I.