Thursday, December 22, 2016

Advocates Take Stand Against Laws Criminalizing Homelessness

Policy experts discuss the far-reaching - and counterproductive - implications of ordinances targeting homeless individuals and take a look at upcoming legislation that could help cities and states combat homelessness without resorting to criminal or civil penalties.

ILLEGAL TO EXIST? Over the last 10 years, the National Law Center on Homelessness and Poverty (NLCHP) has noted a drastic uptick in the number of cities across America enacting ordinances barring homeless individuals from camping, sleeping and sometimes even sitting in public spaces. "It does not work, it's ineffective, it's expensive and it's often unconstitutional," said NLCHP Senior Attorney Tristia Bauman, "and it will not produce the results that communities need, which is to end visible homelessness."

By: James Swift

For the last decade the National Law Center on Homelessness and Poverty (NLCHP) has tracked ordinances criminalizing what senior attorney Tristia Bauman refers to as "acts of homelessness" - which includes sleeping in public spaces, panhandling and living out of vehicles, among many others - across 187 American cities. 

"What we've seen are dramatic rises in the laws that punish the existence of homeless people," Bauman said during a Dec. 13 webinar. These civil and criminal penalties, she continued, do absolutely nothing to remedy homelessness and actually make it more difficult for homeless individuals to obtain housing. 

"When someone is arrested for being in a public space, particularly when they have no other alternative, they may be incarcerated," Bauman said. "And while it's widely believed that homeless people are not employed, the data suggests otherwise - in fact, there are large proportions of homeless people who are employed and, if incarcerated, could risk losing their jobs."

Civil penalties regularly turn into criminal ones, she said, since many homeless individuals lack the money to pay off their fines. And having a criminal conviction on their records creates even more barriers - not only to employment, but also to benefits and public and private market housing.

"Even public housing, federally subsidized housing programs, can create lifetime eligibility bars for people who have convictions on their records," Bauman said. Furthermore, she noted that local-level public housing authorities that administer federally-subsidized housing programs have "wide discretion" when it comes to what types of criminal offenses may exclude applicants. "Even a simple misdemeanor," she said,  "can create a long-term, or even lifetime, barrier to ever receiving federal housing subsidies." 

Criminal convictions connected to anti-homeless ordinances can even prevent legally disabled individuals from receiving Supplemental Security Income (SSI). "If imprisoned for more than a year," Bauman said, "those benefits are terminated." 

The "collateral consequences" of these ordinances are counterproductive, Bauman said. By creating public service disruptions, suspending drivers' licenses and giving people criminal records that automatically prevent them from securing housing, she is adamant that the "criminalization of homelessness" does nothing but intensify the problem

"It wastes taxpayer dollars on a strategy that does not work," she said, "at the expense of investment in strategies that do."

A simple solution?

According to the U.S. Interagency Council on Homelessness, chronic homelessness costs American taxpayers an estimated $30,000 to $50,000 per homeless individual each year. Bauman said that figure factors in a litany of expenses, including the costs of cycling people through the criminal justice system, emergency medical services and conducting "homeless sweeps" - effectively, raids to "clean up" encampments. 

She said none of those approaches address the underlying issues of homelessness, or even attempt to remedy their symptoms. 

"Housing, on the other hand, ends homelessness," she said. "And the good news is that not only is it more effective in the long-term at ending homelessness, but it's also more cost-effective than criminalizing it and research has shown that permanent housing is even more cost-effective than producing emergency shelter or transitional housing."

She cites Utah as a case example of effective state-level policy-making. By simply housing homeless people instead of putting them behind bars or in temporary shelters, she said the state was able to save $11,000 per formerly homeless individual.

"In 2005, a statewide effort to enact a housing-first program - 'housing-first' meaning quickly pairing homeless people with housing without any unnecessary barriers before they could move into that housing, like for example, required sobriety or mandatory compliance with services - has produced fantastic results," she said. "In fact, they have experienced a 91 percent reduction in chronic homelessness since 2005."

That's not the only place where permanent housing solutions have seen success. A 2014 Creative Housing Solutions analysis in the Orlando, Fla. area estimated the total taxpayer burden for permanent housing and case managers was about $10,000 per person per year - about $21,000 less than what was already being spent on sheltering and jailing homeless individuals. Over the course of 10 years, the analysis said the program would save taxpayers about $149 million

A 2009 Journal of the American Medical Association study found that housing homeless individuals with severe drinking problems in Seattle resulted in a 60 percent decrease in per person costs compared to other interventions. And the Massachusetts Housing and Shelter Alliance found that not only would "housing first" programs save $9,000 per person in annual costs, the initiative would also result in less engagement with the criminal justice system or emergency medical services. 

All three reports, Bauman said, also included the costs of supportive services, such as case management, mental health treatment and substance abuse programming.

A for-profit cause?

Bauman does not mince words when it comes to the "criminalization" of homelessness. "It does not work, it's ineffective, it's inexpensive and it's often unconstitutional," she said, "and it will not produce the results that communities need, which is to end visible homelessness."

A major problem with many ordinances of the like, she said, is that they aren't written with public safety in mind. Rather, she said they are drawn up to effectively operate as revenue producers for city governments. 

"To end the criminalization of homelessness, it's important to eliminate those revenue generating incentives to criminalize," she said. "In Albuquerque, N.M., for example, it was recently found that police were encouraged to arrest at least five panhandlers a month."

That type of quota system, she said, encourages police to target poor and homeless people for what would otherwise be harmless acts. "It creates a perverse incentive to over-police and over-criminalize already vulnerable populations," she said.

There is some progress on that front - Bauman notes that Madison, Wisc. enacted an emergency moratorium on panhandling arrests recently, while jurisdictions across the country are allowing judges greater discretion to waive fees for indigent "offenders."

She singled out one program in the nation's capital. "The Washington Legal Clinic for the Homeless has, for the past 15 years, engaged in a very well received and popular training program of the Metropolitan Police Department that they call their "Homelessness 101' series," Bauman said. The program helps officers empathize and better communicate with homeless individuals - which, in turn, lowers the likelihood of homeless people being arrested or discriminated against, she stated.

Bauman urges cities to "collaborate across all stakeholder groups" to create low-barrier paths to connect homeless people with permanent housing opportunities. If long-term housing isn't available, she said she strongly believes encampments should be used as emergency interventions only, with "adequate" notice given to homeless individuals before clean-ups are ordered.

Avoiding "a race to the bottom"

Bauman said many local governments face a big dilemma when it comes to crafting solutions to homelessness - that being, a lack of buy-in from neighboring municipalities. 

"If they were to create the services and housing in their city when the neighboring city does not engage in similar policies," she said, "it doesn't sustainably end homelessness within their community."

The fear that homeless services and public housing may attract more homeless individuals to an area often produces something Bauman refers to as "a race to the bottom."

"Every city is writing their laws and enforcing them so aggressively such as to be the least hospitable place in an area for homeless people," she said, "with the desire being that homeless people are chased from one community to the next to the next."

This, she said, begs for a "regional" response, which three states are currently mulling for next year. California, Oregon and Colorado will all decide on whether or not to enact "Right to Rest Act" laws in 2017. The legislation, Bauman said, would prohibit cities from criminalizing "acts of rest" when there are no other community alternatives available for homeless people.

The "groundbreaking state level legislation," she said, is spearheaded by the Western Regional Advocacy Project, a consortium of homeless advocacy organizations such as Portland's Street Roots and Denver's Homeless Out Loud.

Indeed, three states have already passed Homeless Bill of Rights legislation. While the laws in Rhode Island, Connecticut and Illinois do not directly address the criminalization of homelessness, Bauman said the laws do guarantee homeless people have the right to move freely in public spaces, effectively overruling municipal "sit/lie" or loitering ordinances. 

"It also guarantees homeless people equal treatment by government agencies," she said, "and that is critically important because as the legal infrastructure stands now, homelessness is not a protected status."

Deterring evictions and foreclosures

With the federal Protecting Tenants at Foreclosure Act of 2009 expiring at the end of 2014, Bauman said there is no longer "any uniform protection" available to renters in foreclosed properties. 

"That leaves state and local laws as the only laws that would protect someone in that situation," she said. "Only a small handful of states have enacted laws that were as robust as the now expired PTAF Act ... in many places across the country, renters in foreclosed properties - even those that have been paying their rents on time, have been abiding by the terms of their lease and who may have no knowledge of the foreclosure process being conducted as it relates to their rental home - can be subject to very swift and legal evictions, sometimes with no notice or very little notice."

This increases the likelihood of an individual becoming homelessness, she said, because evictions make it difficult - if not impossible - to acquire private market rentals. This creates a great need for "just cause" eviction legislation. 

"Ideally, this would be one that would allow, of course, a landlord to evict when, for example, someone has stopped paying rent," she said, "but would not allow a landlord to evict someone upon no cause after the expiration of their lease agreement, or if they have a month-to-month lease agreement."

Such legislation would afford basic protections for landlords to ensure "good renters," Bauman continued, and it would also protect renters from being kicked out of affordable units by landlords who want to target higher income renters and jack up their prices.

However, as well-intended as the laws may be, she said they are all meaningless if renters don't have the ability to legally dispute "unjust convictions." Just as essential, Bauman said, is the need for "right to counsel" housing laws.

Making 'right to counsel' a reality

"There is currently no jurisdiction, not one, not city nor state, that provides a right to counsel in housing cases," said John Pollock, staff attorney for the Public Justice Center and coordinator of the National Coalition for a Civil Right to Counsel. "There are a few that provide it for very, very limited circumstances in housing cases, but the vast majority don't even authorize appointment of counsel at all."

New York City, however, has an opportunity to set a national precedence with the pending Intro-214a bill. If passed, Pollock said the legislation could create massive cost savings for the nation's largest city.

"We actually worked with an independent financial analysis company and they produced a report saying that even after accounting for how much it would cost to provide lawyers for these people," he said, "that the city would save $320 million a year if it were to actually provide a right to counsel." The bulk of the savings would be in reduced shelter costs, Pollock said - for which each year, the city spends in excess of $1 billion operating.

The bill had its first hearing last September. It would provide a citywide "right to counsel" for all individuals within 200 percent of the Federal Poverty Line who are facing eviction or foreclosure.

"Every time people are evicted from rent-stabilized or rent-controlled units, those units are lost to the city and the city has to replace them," Pollock said, "which is a significant cost."

Although Mayor Bill de Blasio has not announced he is committed to the legislation, Pollock said he has taken several steps towards citywide right to counsel - including increasing investments in eviction defense representation by $60 million since the bill was filed.

Interestingly, New York's state legislation also mulled two separate bills - S2061 and A05457 - which would have guaranteed right to counsel for all New Yorkers within 125 percent of the Federal Poverty Line facing eviction or foreclosure.

However, there were many questions about who would be paying for the services, with varying proposals culling the funding from county and city coffers, the state budget and even a county/city mechanism with a dollar to dollar state match. The bills stalled upon the introduction of Intro-214a; because the New York City legislation would be paid entirely by city funds, the cost of the state bills are expected to decline drastically upon its authorization.

Opportunities outside of New York?

Pollock brought up two other bills that would further right to counsel for those at risk of becoming homeless. 

Massachusetts' H1560 targets individuals withing 125 percent of the Federal Poverty Line or, as the bill language states, those who are unable to pay for an attorney without "losing the necessities of life." 

The proposal, which only applies to evictions, would be paid by the state with services provided by a new civil justice committee created by the bill. 

"The bill got sent for studying, so that means it's going to come back in the future," Pollock said. "We're looking forward to seeing what happens."

Another piece of legislation to keep an eye on, he said, is Washington D.C.'s B21-0879 - also known as the "Expanding Access to Justice Act."

The bill affects those within 200 percent of the Federal Poverty Line and is limited to evictions, housing subsidy terminations and affirmative code violations. "It's not RTC per se, it's a funded project," Pollock said. "When the funding runs out, then there's no more counsel provided."

Elsewhere, there are evictions representation research pilots ongoing or just completed in jurisdictions in California, Massachusetts and D.C., funded by a mixture of city and state funding streams. 

"This is really a fertile area to look for," he said, "with state governments and city governments investing in the research we need to basically make the case for right to counsel."

The benefits of adequate housing, he said, goes beyond stabilizing and improving the lives of working and middle class families. 

"Providing lawyers is significantly cheaper than dealing with all of the consequences of allowing people to lose their homes," Pollock said."It's a human rights crisis."

Abandoned hope?

Bauman said Title V of the McKinney-Vento Homeless Assistance Act, which allows service providers to obtain federally owned vacant properties, offers a glimmer of hope for cities struggling to develop or manage permanent housing programs.

"The Title V program allows homeless service providers, and that can include state, local governments or nonprofits that provide eligible services with a right of first refusal to unneeded federal property," she said. "This means, as a practical matter, that property is held for a period of 60 days for an interested homeless service provider to use the property for its programming needs."

The properties are transferred from the government to homeless service providers at no cost. Bauman said over two million have been served in Title V converted properties over 500 buildings, spanning 900 acres of property in over 30 states.

"There are thousands upon thousands of properties that are in the real property holdings of various federal agencies and when they are unused, that represents not only an opportunity cost - because that property can be put to better use," she said, "but also the overhead cost maintenance of these properties waste millions of taxpayer dollars each year."

One such example is San Francisco's Navigation Center, a city funded project that turned vacant school properties - with private grants - into low-barrier shelters without sobriety requirements, gender restrictions or curfews. 

"They have had a very high success rate in placing people into permanent housing and the Navigation Center that was originally sited in a school is being expanded to a total of six locations in San Francisco," Bauman said, "and the City of Seattle is looking at adopting a similar low-barrier shelter model."

Recent federal legislation, H.R. 4465, recently reformed real federal property disposal. "What these reforms will do is improve transparency into the government's real property holdings, streamline the ability of homeless service providers to successfully apply for these properties and it also expanded the use that these properties are eligible to be transferred for," she said, "most notably, permanent housing, even without supportive services." 

There is even state-level legislation seeking to transform vacant private properties into homeless service sites. Bauman notes Illinois' Abandoned Housing Rehabilitation Act, which allows nonprofits to obtain abandoned, privately owned homes and rehabilitate them. Within two years, if the former owner does not attempt to receive the title of the home, the title is transferred to the nonprofit - and if the former owner does, the nonprofit is still compensated for its investments. 

"That has allowed for expanded affordable housing available in Illinois," she said, "but also it has improved the quality of life in neighborhoods that had blighted, vacant, abandoned homes that are now turned into occupied, rehabilitated homes."


Uncommon Journalism, 2016.

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