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The debate over decriminalizing homelessness

Tuesday, June 5, 2018 by Jack Craver

A campaign to decriminalize behaviors associated with homelessness got a boost Monday from the Public Safety Commission, which voted to approve a resolution that instructs the city manager to review ordinances that may “create barriers for people who are trying to obtain housing or employment.”

The resolution, which was authored by Commissioner Daniela Nuñez, highlights three city ordinances. One bars “camping” in public places, another bars sitting or lying down in certain areas of downtown, and the third bars “aggressive panhandling,” which includes making physical contact, making threats, using obscene language or following people.

Nuñez highlighted a recent analysis by the city auditor that concluded that the ordinances likely made it harder for people experiencing homelessness to receive services that would put them on a path to housing or a job.

Andrew Keegan, an assistant city auditor who helped draft the analysis, noted that Austin police had written 18,000 citations for violations of the three ordinances in the past three years.

While violation of any of these ordinances is only a class C misdemeanor, which does not show up on a person’s criminal history, many of those who receive citations do not show up to court and are then hit with an arrest warrant, which makes it much harder for them to apply for housing or jobs, said Keegan.

Some have argued that a summons to community court is a way to get people into contact with necessary services. In practice, said Keegan, the community court is overwhelmed and unable to give every person before it appropriate attention.

“It did not appear to be an efficient method to connect people to services,” he said.

In a review of 65 people who had been cited more than 20 times in a year, the audit found that 25 percent of them had refused case management and only five were housed at the end of the audit.

Emily Gerrick, an attorney with the Texas Fair Defense Project, argued that some of the ordinances may be unconstitutional.

The laws could be interpreted as an unconstitutional targeting of people based on their status, rather than their actions, said Gerrick, who pointed to a 1962 Supreme Court ruling striking down a California law that outlawed being addicted to narcotics as a violation of the Eighth Amendment’s prohibition on “cruel and unusual punishment.”

Gerrick also suggested the ordinances could violate the First Amendment right to speech, arguing that the definition of “aggressive panhandling” was dangerously vague, adding that her organization has clients that have been ticketed simply for standing on the side of the road with a sign.

Steven Potter, who identified as homeless and is a member of the Homelessness Advisory Committee of Austin, urged the city to stop “treating the homeless as adversaries.”

Assistant Police Chief Justin Newsom emphasized his compassion for the homeless population and said that the issue was the lack of services and housing.

“What we give them is totally insufficient,” he said. “And everybody knows that in this town.”

Officers are not encouraged to ticket the homeless and only do so to “maintain public order,” he said. The crowds of people sleeping on the sidewalks downtown, near the Austin Resource Center for the Homeless, is evidence that the ordinances are not being fully enforced, he said.

However, said Newsom, to take away the right of the police to clear areas would only make the issue worse. If the police are not able to cite people for sleeping on public property, he said, homeless encampments could set up right in front of City Hall.

Without the ordinances, the only way to clear the area, said Newsom, would be for the police to make arrests for criminal trespassing, which is a higher-level offense that would be handled in state court, rather than community court.

Ed McHorse, a board member of the Ending Community Homelessness Coalition (ECHO), said that he believed the ordinances needed changes but that the potential unintended consequences cited by Newsom should be taken seriously.

There was not much debate among the commissioners, although Commissioner Noel Landuyt expressed discomfort in voting on a resolution without more consideration of the potential consequences.

Others noted, however, that the resolution was not advocating repeal of the ordinances but merely asking the city manager to study the issues more, including by seeking input from “stakeholders,” including people experiencing homelessness. The resolution also urged the city to boost funding for homelessness services.

The resolution was approved 6-2, with Chair Rebecca Webber and commissioners Ed Scruggs, Sam Holt, Michelle McCurdy and Carol Lee voting with Nuñez in support. Landuyt and Commissioner Brian Haley voted against.

This story has been corrected to clarify that the city audit found that 25 percent of those cited more than 20 times in a year, not 25 people, refused case management. Photo by Rui Duarte made available through a Creative Commons license.

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