Cities Try to Arrest Their Way Out of Homeless Problems

In the nine years he has been homeless, Kenneth Shultz has spent one of every three nights in jail.

The 71-year-old retiree has been charged with trespassing 96 times, including after he fell asleep behind gas stations, outside office buildings and in a city park. His 1,034 days in jail have come with a crushing debt of $41,311 in court costs, fines and fees and an estimated taxpayer tab of nearly $50,000.

"I don't do it on purpose," says Shultz, who became homeless sometime around the beginning of 2011 but can't remember why. "Sometimes I just get exhausted, and boom, sit down. That's it. You're trespassing."

Police in Okaloosa County, an area with few emergency shelters, have charged hundreds of homeless people with thousands of trespassing counts in the past decade, an analysis of court data found.

Across the country, even in places where housing prices are out of reach and shelters are scarce, communities are trying to arrest their way out of homeless problems.

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This project was produced by the Howard Center for Investigative Journalism at The University of Maryland's Philip Merrill College of Journalism, in collaboration with journalism schools at the University of Oregon, Stanford University, Boston University, the University of Florida, the University of Arkansas and Arizona State University.

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Cities have made it illegal to ask for money or food in public places, to sleep on a park bench, in a tent or car, or even to stand in one place too long. The laws create a cycle of arrests, hearings and unpaid fines that make emerging from homelessness all the more difficult.

In Eugene, Oregon, which has one of the nation's highest rates of homelessness, one of every four people hauled into the city's municipal court for non-driving offenses lacked a permanent place to live. In Boston, the unhoused account for almost one of every eight arrests.

Each case can cost taxpayers thousands of dollars to pay for jail, plus the hours worked by police officers, prosecutors, judges and other court staffers. And those costs pile up because governments haven't figured out other ways to deal with homelessness, or the alternatives they offer are inadequate.

In the past, the federal government has argued against using arrests and jail to address homelessness. The U.S. Department of Justice, in a 2015 court filing, said "criminalizing homelessness is both unconstitutional and misguided public policy, leading to worse outcomes for people who are homeless and for their communities."

But since then, the Trump administration has espoused expanding the role of law enforcement to rein in homelessness.

Some courts, hearing challenges to laws that criminalize the activities of people who live on the street, have sided with the homeless. For example, a federal appeals court last year ruled that the government cannot punish people for sleeping outside if no shelter beds are available. Other courts have struck down laws against begging as First Amendment violations.

But when a court strikes down one law, cities just use a different one.

The arrests reflect intolerance for the half-million people across the country who have no home at a time their ranks are expected to swell – one study predicts by as much as 45 percent – in the economic fallout from the COVID-19 pandemic.

The Howard Center for Investigative Journalism at the University of Maryland partnered with six university journalism programs to examine what happens when communities make homelessness a crime.

The consortium analyzed laws in 54 of the country's least affordable areas – places like Eugene, Boston and Fort Walton Beach – where median rent is about a third or more of median income. That's the point at which homeless rates rise sharply, according to a 2018 study. All but one had at least one law that penalized homeless people for trying to meet life's basic necessities: sitting, sleeping, relieving themselves and seeking money. Most had five or more. And only one had enough shelters or emergency housing for the number of people needing it.

People with no place to go have, in effect, no place to be.

NO PLACE TO SLEEP

The number of people in the United States without a place to live has hovered above 550,000 people in recent years, according to a nationwide count conducted for the federal government one night each January.

The supply of temporary beds has not kept pace. Based on the 2019 count, the U.S. had 178,166 more homeless people than beds. That gap has widened by 29% since 2015.

Police in Boston, Eugene and Fort Walton Beach said officers often attempt to divert the unhoused to a shelter or other services when possible. But some do not accept the help.

"You can't narrowly look at it like a bunch of us folks just turning a blind eye and not being willing to help," said Ginger Bowden Madden of Florida, who as assistant state attorney has prosecuted more trespassing cases than anyone else in Okaloosa County since 2010. "Some of us do not have the ability or the resources to help, short of taking them home with us. It's frustrating and it's heartbreaking."

Black people are disproportionately affected by criminalization, studies and statistics show. Nationally, 40% of all homeless people are Black, though they are 13% of the U.S. population. They are more likely to be homeless because they are more likely to be poor, unemployed, or earn lower incomes than whites, studies have shown.

A 2015 study in New Jersey found striking racial disparities in arrests for criminal trespass. That's a charge police increasingly use against homeless people as courts have struck down anti-camping and panhandling laws. And a study two years ago found that Black people are arrested for vagrancy at twice the rate of whites.

In Florida, for example, Blacks represent 17 percent of the population but 37 percent of those charged with criminal trespass in the past 15 years, a Howard consortium analysis of state court data found. Not everyone charged with trespassing is homeless, but a spot check of the 50 defendants charged most often found that all had a history of homelessness.

Protests of police brutality toward African Americans roiled the nation this spring after the deaths of three African Americans at the hands of police. As politicians consider reform, they must include reforms that divest dollars from police departments and invest them in affordable housing, said Marc Dones, a consultant who advises governments on ways to improve their homeless response systems with a focus on equity and anti-racism.

"You can't say to me you want to uplift Black and brown voices on one hand, but then when it's time to make material investments in things that would make the lives of Black and brown folks better, you're not there," said Dones, who is executive director of the National Innovation Service.

The courts have found more than two dozen anti-panhandling ordinances in violation of the First Amendment since 2015, when the Supreme Court imposed strict limits on local governments' power to restrict speech based on its purpose or content.

"The First Amendment," one federal judge wrote in striking down a panhandling ban in Lowell, Massachusetts, "does not permit a city to cater to the preference of one group, in this case tourists or downtown shoppers, to avoid the expressive acts of others, in this case panhandlers, simply on the basis that the privileged group does not like what is being expressed."

Last year, the 9th U.S. Circuit Court of Appeals ruled that Boise, Idaho, could not enforce its camping and sleeping bans against homeless citizens if no alternative shelter was available.

"As long as there is no option of sleeping indoors," the 9th Circuit majority opinion said, "the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter."

Even so, such laws remain widespread in U.S. communities. And at least 38 states have enacted prohibitions on begging, camping or loitering, according to an analysis of survey data from a forthcoming report from the National Law Center on Homelessness and Poverty.

Criminal trespass laws are frequently used by police to arrest homeless people and are tougher to challenge, legal advocates say, because they make a person's location the crime rather than what they are saying or doing.

Last year, Eugene police recorded 2,077 trespassing charges, exceeding the number of speeding tickets they handed out. Howard consortium reporters analyzed a random sample of 360 cases and found that 75 percent of the defendants lacked a permanent address, up from 60 percent three years earlier.

Eugene Police Chief Chris Skinner says his officers face a dilemma: many people living on the street don't want the help that's offered, and there's a lack of services for those who do.

"We haven't built that creative capacity to do something other than the traditional criminal justice system," Skinner says. "It's tough – all the tools that we've come up with or all the creative strategies we come up with need to have some kind of resource that supports it."

The Massachusetts Supreme Judicial Court ruled in 2016 that homeless individuals in that state who are charged with criminal trespassing can raise necessity as a legal defense. That allows jurors to acquit a defendant when following the law would do more harm than breaking it.

The case involved a 67-year-old homeless man charged with trespassing in various residential and commercial buildings on bitterly cold nights.

"Our law," the court said, "does not permit punishment of the homeless simply for being homeless."

NO PLACE TO BE

In Florida, where the courts have repeatedly found that state and local anti-panhandling laws violate the First Amendment, several cities have hired Melbourne attorney Michael Kahn to help their ordinances avoid the same fate.

Kahn said he designs them to target the conduct of panhandlers, not their speech.

"I'm not attempting to regulate homelessness," Kahn said. "I'm not attempting to prohibit it, encourage it or anything. I'm regulating panhandling."

Daytona Beach paid him $30,000 to draft an ordinance that prohibits panhandling within two feet of the person being solicited, 20 feet of a business entrance, bus stop, parking meter, public parking lot or public restroom, and 150 feet of intersections with traffic signals.

"This article is not intended to limit any persons from exercising their constitutional right to panhandle," the ordinance reads, but rather "to protect citizens from the fear and intimidation accompanying certain kinds of panhandling and begging that have become an unwelcome and overwhelming presence in the city by prohibiting aggressive panhandling and begging."

Jackie Azis, staff attorney with the Florida ACLU, said the passage does not make the ordinance constitutional. The courts "have been unequivocal that the First Amendment protects panhandling," she said. "Daytona Beach is one of those problem cities where they've been warned about this, and yet the reports are they continue to arrest people."

Between jail stints in Okaloosa County, Kenneth Shultz sleeps in a hotel room, when he can afford it. Otherwise, he has to find a place outside to throw his dirt-stained, purple blanket.

He recalls that he operated a dry cleaning business in Fort Walton Beach in the 1990s, eventually sold it, retired and then lost much of his savings gambling at the casinos in Biloxi, Mississippi.

For defendants like Shultz, prosecutors don't have leeway, says Madden, who is running unopposed in the November election for state attorney. Defendants can ask the judge to limit the sentence to time served in jail after arrest, she said, and allow those convicted to work off their fines through community service at minimum wage.

"I know that the numbers look bad," Madden said. "But from the inside looking out of the court and of the prosecutor's office, I feel like we have done as compassionate a job as we have the legal authority to do."

Shultz said he doesn't view the police as adversaries.

"Most of them give me about three warnings and I keep forgetting them. They say, 'You can't forget everything.' I said, 'I do.'"

The Okaloosa County Sheriff's Office arrested him for trespassing on March 6, when they found him resting behind a dumpster at a gas station. Three days later, they arrested him again at the same gas station.

"They're like, 'Why are you out here?'" Shultz said. "There is nowhere else to be."

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This project was produced by the Howard Center for Investigative Journalism at The University of Maryland's Philip Merrill College of Journalism, in collaboration with journalism schools at the University of Oregon, Stanford University, Boston University, the University of Florida, the University of Arkansas and Arizona State University. It was reported by Ryan E. Little, Gina Scalpone, Nick McCool, Theresa Diffendal, Zack Demars, Aneurin Canham-Clyne and Riin Aljas. Christine Condon, Lillian Eden, Bryan Gallion, Lukas Hanson, Julia Lerner, Clara Longo de Freitas, Maya Pottiger, Callie Tansill-Suddath, and Brenda Wintrode also contributed. For more on this story, see https://homeless.cnsmaryland.org/ or email [email protected].