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The Criminalization of Homelessness: An Explainer

Illustration by Hisashi Okawa

The Criminalization of Homelessness: An Explainer

In our Explainer series, Fair Punishment Project lawyers help unpack some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines — like bail, civil asset forfeiture, or the Brady doctrine — so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers quarterly to keep them current.

Most evenings, Aguirre Dick rides his bike about three miles from the streets of Waikiki in Honolulu to the slopes of a volcano, where he sleeps. If he doesn’t make that trek, he could be arrested. A 2014 law made it illegal to sit or lie down on the public sidewalks in Waikiki. As a result of this law, those without homes, like Aguirre, live in constant fear of being pushed into the criminal justice system simply because they are too poor to own or rent lodging.

In San Diego, police arrested a pregnant Alexis Leftridge as she slept in her tent and jailed her for several days. Leftridge became homeless after losing her nursing job in 2014 — without money for rent, she was evicted. To get out of jail, she agreed to an order to stay away from the area, but she now has so many that she does not know where to go. According to pleadings filed in a lawsuit against the city, she is afraid she will be arrested for “walking along the wrong street.” She has subsequently given birth to a baby boy and currently has a room at a shelter. But, because the shelter is within the “stay away” area, she is at risk of re-arrest.

In Houston, Texas, Spencer Stevens became homeless in 2015 after losing his job as a forklift operator. He has congestive heart failure, which prevents him from taking another manual labor job. Living under the highway median, he cooks meals on his griddle. If legal challenges fail, he could be arrested for both living and cooking there. Houston has made it illegal to block a sidewalk, stand on a roadway median, sleep on public property or in a makeshift shelter, or have a heating device in public.

Every day, law enforcement officers across the country issue tickets to those experiencing homelessness as they engage in basic, life-sustaining behaviors, like sleeping on the streets or cooking a meal in public on a griddle. Prosecutors then frequently charge those individuals with crimes. By relying upon law enforcement to address an issue that should more appropriately be considered as falling within the domain of public health, communities are expending a tremendous amount of public money unnecessarily and ineffectively, and exacerbating the underlying causes of homelessness. Below, we discuss the destructive and often devastating human and financial costs of criminalizing homelessness in America.

1. Homelessness is a chronic problem.

Experts believe that as many as two million people in the country experience homelessness at some point in a given year, with about 500,000 living without a home each night. [Alastair Gee, Liz Barney, and Julia O’Malley / The Guardian] About 15 percent of those are chronically homeless, meaning they have been without a home for years. [Alana Semuels / The Atlantic]

Racial minorities comprise a significant percentage of the population experiencing homelessness. While African Americans represent about 12.5 percent of the general population, they represent over 40 percent of the homeless population. [Eddie Kim / The Guardian]

In some communities, there has been a significant increase in the population of Latinos facing homelessness. [Esmeralda Bermudez and Ruben Vives / Los Angeles Times] Many experience acute fear or face unique obstacles as a result of their uncertain legal status. [Leslie Berestein Rojas /] Consider Hector, a homeless man in New York who does not utilize shelter services because he is afraid that he will be identified and then deported. He lives near the train tracks along with several others who have refused to enter shelters since President Trump’s immigration crackdown. [Caroline Spivack / Brooklyn Paper]

Military veterans confront homelessness at an alarming rate. More than 10 percent of the adult homeless population has served in the military. [FAQ / National Coalition for Homeless Veterans]

Survivors of domestic violence also experience high rates of homelessness. A recent study in Minnesota showed that 35 percent of homeless women reported domestic abuse as a cause. [Stephanie Nelson-Dusek / Post Bulletin]

A 2017 nationwide survey revealed that, on a given night, almost 41,000 people experiencing homelessness were 24 years old or younger, 12 percent of whom were below age 18. Many of these young people have suffered significant trauma. Youth who identify as LGBTQ, have special needs or disabilities, or are pregnant or parenting are also more likely to become homeless. [Youth and Young Adults / National Alliance to End Homelessness]

Half of those experiencing homelessness have a physical or mental disability, or both. [Gale Holland / Los Angeles Times]

2. The criminalization of homelessness is growing.

Hundreds of jurisdictions across the U.S. have criminalized homelessness, and the trend shows no signs of abating. Laws criminalizing homelessness have multiplied in the last 10 years in 187 studied cities. [National Law Center on Homelessness and Poverty / Housing Not Handcuffs] The report calls out several jurisdictions in a “Hall of Shame” section, including Honolulu, Denver, and Dallas. [Dennis Oda / Honolulu Star-Advertiser]

In 2016, Honolulu adopted a spate of laws that target homeless people, and police ramped up enforcement of these “quality of life” ordinances. Why? Pressure from the business and tourism industry, which in the past has funded airfare to the mainland for homeless people who came to Hawaii. [Adam Nagourney / The New York Times]

In Denver, the state’s 76 largest cities have, as a group, passed 351 ordinances that target homeless people, including bans on camping and bans on sharing food outside. [Bryce Covert/ The Appeal]

In Dallas, police issued 11,000 “sleeping in public” citations between 2011 and 2015. Police also stopped people for loitering, panhandling, and for sleeping in public spaces in the city — even though the city lacks sufficient shelter beds. [Stephanie Kuo / KERA]

In late 2017 in Portland, Oregon, the Columbia Sportswear CEO called for more policing of the homeless population after moving his company headquarters downtown. [Tim Boyle / Oregon Live] In response, the head of the Business for a Better Portland urged the city to adopt “holistic and collaborative solutions” to systemically address the underlying causes of homelessness. [Ashley Henry / Oregon Live] Activists also fired back by protesting the city’s “no-sit” laws in front of Columbia Sportswear’s downtown store, forcing the company to close for the day. [Abe Brettman / Oregon Live]

3. Criminalizing homelessness does nothing to address its root causes.

The causes of homelessness vary, but experts largely agree that both structural and individual factors play a role. Structural factors include poverty, inadequate affordable housing, inadequate access to meaningful public assistance, decreased availability of mental health care, and discrimination. [Jonathan Hafetz / Fordham Urban Law Journal]

In Detroit, for example, advocates report that an increasing number of families experience homelessness because the city lacks affordable housing and has a high rate of evictions. About 3,000 children experience homelessness each year in Detroit. [Violet Ikonomova / Detroit MetroTimes]

Similarly, in San Diego, skyrocketing rents, low vacancy rates, and a severe shortage of affordable housing have placed the city at a “tipping point.” Over the past year, there has been a 14 percent increase in people living on the streets in San Diego. This situation is likely to grow worse, as California has cut $200 million from the city’s affordable housing programs over the past six years. [Scott Wilson / The Washington Post]

There are also personal factors that can cause homelessness, including traumatic events, family crises, and the onset of mental or physical problems. [Jonathan Hafetz / Fordham Urban Law Journal]

In an interview with NPR, David Pirtle described why, even when temperatures dropped below freezing, he stayed on the streets. Suffering from schizophrenia, he feared large crowds and experienced paranoia, so he avoided shelters: “All I can say is that my fear of the unknown, of what might be waiting for me at that shelter, was worse than my fear of the known risk, you know, of staying out on the street.” [Jay Evensen / Deseret News] [Talk of the Nation / NPR]

Dorothy Edwards spent eight years on the streets of Pasadena, California, where she slept in alleys and ate food out of Dumpsters, smoking meth to ward off depression. During that time, she was repeatedly sexually assaulted. She checked herself into a psychiatric ward on numerous occasions, but kept returning to the streets. It took eight years for counselors to diagnose her with depression and post-traumatic stress disorder. Now receiving adequate treatment, she lives in an apartment with her dog and is actively looking for a job. [Rick Jervis / USAToday]

4. These laws criminalize what for many is life-sustaining behavior.

Instead of addressing the root causes of homelessness, states and cities have adopted hundreds of laws making it harder for homeless people to survive.

Camping, sleeping, or lying down in public

According to a 2014 analysis of 187 American cities by the National Law Center on Homelessness & Poverty, over half prohibited camping, sitting, or lying down in certain areas, and a third banned these activities citywide. [Robert Rosenberger / The Atlantic] Cities often outlaw these practices without providing additional shelter beds. [Emily Badger / Washington Post].

In Houston, a city ordinance, enacted allegedly for “safety,” makes it illegal to sleep in a tent, box, or other makeshift shelter on public property. A federal district judge issued a temporary restraining order against the ban, writing that those individuals targeted by the ordinance are “involuntarily in public, harmlessly attempting to shelter themselves — an act they cannot realistically forgo, and that is integral to their status as unsheltered homeless individuals.” [Gabrielle Banks / Houston Chronicle] But in December, the judge lifted her order. [Michael Graczyk / Boston Globe]

In Dallas, one individual, Sarge, has been ticketed repeatedly for sleeping in public, something he must do to survive. He estimates that he has received around 75 tickets over the years. [Eric Nicholson / Dallas Observer]

In Austin, a man named Ross reports being “herded like cattle” because of the city’s anti-camping law. “They have a law saying you can’t sit down. So if you don’t have anywhere to live and all the homeless shelters are full, then where do you go? Do you walk in a circle 24 hours a day? You have to sleep and if you slow down to sleep you go to jail for it, which I’ve done, that’s pretty much where you get to sleep.” [Kylie McGivern / KXAN]

Begging in public (panhandling)

According to the 2014 National Law Center on Homelessness & Poverty report, there was a 25 percent increase in anti-panhandling laws between 2011 and 2014. [Scott Keyes / Think Progress]

In 2014 in Denver, police arrested 300 people for panhandling. [Scott Keyes / Think Progress] In New York, police arrested a homeless man after he asked a police officer if he had a dollar to spare. [Fernanda Santos / New York Times]

Jason Metts of Fayetteville, North Carolina, reports that he is disabled and can’t work. “To survive,” he told a reporter, he has started panhandling. Police have arrested him seven times. “I’m not stealing, I’m not robbing people, and I’m not approaching anybody. Those that give to me roll down their windows, I’m not scaring them,” Metts stated. [Sheena Elzie / CBS North Carolina]

Encroachment — storing property in public ways

Laws across the country make it illegal for individuals to place property on public ways. For those with no home, there is no other place to store their belongings.

In San Diego, police cited Army veteran Eric Arundel several times after he placed his tarp, bedding, clothing, medication, and toiletries on the sidewalk. He suffers from pneumonia and uses the tarp to stay warm. Also in San Diego, police cited Jeff Hayes for encroachment, even though he had nowhere to store his belongings. Hayes became homeless as a result of suffering from multiple sclerosis, which made it impossible for him to work. He had no criminal record until receiving the encroachment charge. He then missed his court date because he was in the hospital for sepsis. Both Arundel and Hayes are plaintiffs in a federal lawsuit challenging the law. [Lisa Halverstadt / Voice of San Diego]

Living in vehicles

City laws often preclude people from sleeping in their parked cars during certain hours of the night.

Nearly 7,000 people live in their cars in Los Angeles, but the city recently enacted regulations banning parking “for habitation purposes” on residential streets from 9 p.m. to 6 a.m. New ordinances also make it illegal to live in a vehicle parked within a block of schools, daycare facilities, and parks. [Bianca Barragan / Curbed Los Angeles] Santa Monica, Malibu, and Culver City have similar bans in place [Dean Kuiper / LA Mag], as does San Diego. [Mike Madriaga / San Diego Reader]

Food sharing

Controversial city ordinances ban organizations from feeding people in public, claiming that doing so constitutes a public health and safety risk.

Police arrested seven people in Tampa, Florida, for distributing food to homeless people without a permit. Members of the Tampa-based organization Food Not Bombs stated that the arrests prove the city is criminalizing compassion. [Kathryn Varn / Tampa Bay Times]

In response to a hepatitis A outbreak in San Diego, the El Cajon City Council passed an emergency ordinance prohibiting food distribution on any city-owned property. In November, activists handed out 100 bagged lunches, calling the ordinance “a punitive measure to dehumanize and criminalize the homeless.” [Deborah Sullivan Brennan / San Diego Union Tribune] The city finally lifted the ban in late January. [Karen Pearlman / San Diego Union-Tribune]

In Atlanta, on the Sunday before Thanksgiving 2017, two Food Not Bombs activists went to a local park to hand out food to the homeless, as they do every Sunday. But on that day, police ticketed them, citing a rarely enforced law requiring organizations to obtain a permit before distributing food. According to a flier distributed by the Atlanta Department of Public Safety (that cites no actual evidence), enforcement is necessary because “many people become dependent on these activities, leading them to stay on the streets instead of seeking the help and support they truly need.” [Zaid Jilani / The Intercept]

5. Laws criminalizing homelessness make the problem worse.

In addition to being unfair and often inhumane, these laws exacerbate the problems they purport to address.

Individuals who are saddled with criminal records for engaging in survival activities like sleeping on the street face steeper challenges finding jobs, housing, or other benefits like food stamps, thus perpetuating the cycle of homelessness. [Jonathan Hafetz / Fordham Urban Law Journal] Under federal law, people who have spent more than 90 days incarcerated lose their “chronic homelessness” status and are no longer a priority for permanent housing. [International Human Rights Clinic / Yale Law School]

Stay-away orders—often issued alongside tickets for sleeping in public—also keep people from accessing social services that they urgently need. In San Diego, for example, most social service providers are downtown. But police regularly issue stay away orders from these locations to those found sleeping on the street. This means they can’t get food stamps or other assistance without risking arrest. [Lisa Halverstadt / Voice of San Diego]

Similarly, stay-away orders cause people to lose touch with service providers who are helping them find housing. According to one such service provider in Baltimore, when homeless people seeking housing  “are forced out of their (outdoor) home bases and seek refuge in other parts of town, people often lose touch with the points of contact we have for them. Thus, they lose their long-term housing opportunity.” [National Law Center on Homelessness & Poverty / Criminalizing Crisis]

These charges often carry fines that people cannot pay—and unpaid fines eventually lead to jail time. In Dallas, for example, citations for sleeping in public often carry $150-$300 tickets. Most homeless individuals cannot afford these fines, and may, as a result, skip court dates. Many also miss court because they have no address to receive court notices, or because they lack money for transportation. Missing court can lead to arrest warrants, more charges and jail, thus driving them deeper into the criminal justice system. [Stephanie Kao / KERA]

6. Criminalizing homelessness is expensive.

Studies show that it costs more to jail those who are homeless than to provide them with shelter. On average, one day in jail costs $87, whereas a shelter bed costs $28. [International Human Rights Clinic / Yale Law School]

And that, in turn, diverts money from implementing effective solutions. In San Diego, homelessness is a serious problem. But, while officials focus on ticketing and jailing people, they neglect to address the root causes of homelessness, such as an inadequate supply of affordable housing. This negligence was on full display during the hepatitis A outbreak that killed at least 16 people and caused over 400 to get sick. [Parisa Ijadl-Maghsoodl / HuffPost]

7. Criminalizing homelessness may be unconstitutional.

Aside from being counterproductive, there’s ample evidence that criminalizing homelessness violates the Constitution.

The First Amendment

Freedom of Expression: In 2015, in Reed v. Gilbert, the Supreme Court struck down a ban on the public display of signs for religious services, ruling that laws regulating the content of signs are presumptively unconstitutional. Relying on that case, the Seventh Circuit and other federal district courts have struck down panhandling laws in Colorado, Florida, Illinois, and Massachusetts, finding that they impermissibly regulate expressive conduct. [Joe Palazzolo / Wall Street Journal]

Fundamental Right To Travel: In Florida in 1992, a Federal District Court declared Miami’s sit-sleep-lie laws a violation of the right to travel, writing that, “Preventing homeless individuals from performing activities that are ‘necessities of life,’ such as sleeping, in any public place when they have nowhere else to go, effectively penalizes migration.” [Jeff Weinberger / Miami New Times]

The Eighth Amendment

Cruel and Unusual Punishment: In 2006, the Ninth Circuit Court of Appeals struck down Los Angeles’s city ordinance prohibiting sleeping, sitting, or lying on the street at any time of the day. The court ruled that the ordinance unconstitutionally criminalized unavoidable conduct. The city had a major housing shortage and an inadequate supply of shelter beds. Homelessness, the court held, is “a chronic state that may have been acquired ‘innocently or involuntarily.” Thus punishing people for sleeping on the streets—an inevitable consequence—violated the Eighth Amendment. [Theresa Walker / OC Register]

The Fourteenth Amendment

Vagueness: Courts have struck down anti-loitering laws as unconstitutionally vague. For example, in a 1972 Supreme Court decision, the court complained that, because of its unspecific language, an ordinance in Jacksonville, Florida, placed “almost unfettered discretion in the hands of the police.” [Aarian Marshall / City Lab]

Attorneys are challenging San Diego’s encroachment laws, originally enacted to force people to remove trash bins from sidewalks. However, police are using the law to force the homeless to leave public places. Attorneys are arguing that the law is unconstitutionally vague because it provides almost no notice for what is criminal —making it potentially illegal to even place a bag on the sidewalk for just a moment. [Lisa Halverstadt / Voice of San Diego]

Equal Protection: In response to an “emergency” homeless street sweep of encampments, the ACLU of Indiana recently filed a lawsuit against the city of Indianapolis. The lawsuit alleges that the city targets homeless people while exempting others, raising due process and equal protection concerns. [Fatima Hussein & Maureen Gilmer / Indianapolis Star]

8. Prosecutors and state legislators can choose to stop criminalizing homelessness.

Prosecutors can refuse to charge for violations of laws that specifically target the homeless population, like bans on camping and panhandling. [Violeta Chapin / The Appeal] In Spokane, Washington, for example, the city and district attorneys have embraced initiatives to dismiss citations for offenses that homeless people incur when engaging in life-sustaining activities in exchange for commitments to utilize housing and social services. [Rachel Alexander / The Spokesman-Review]

Prosecutors can side with those challenging the constitutionality of laws criminalizing homelessness. In 2015, the Department of Justice filed a “statement of interest” arguing that Idaho’s laws criminalizing sleeping in public were unconstitutional. “It should be uncontroversial that punishing conduct that is a universal and unavoidable consequence of being human violates the Eighth Amendment. … If a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless.” [Harrison Berry / Boise Weekly]

Prosecutors can also champion homeless courts and diversion programs, which allow people to avoid criminal charges after taking life-skills classes or signing up for social services. In Seattle and Santa Fe, officials have implemented a Law Enforcement Assisted Diversion (LEAD) program that places people in treatment programs pre-arrest. [Carlos Andres Lopez / Seattle Times]

Prosecutors can agree to dismiss outstanding warrants for unpaid fines and quality-of-life offenses. In Los Angeles, in 2015, the city attorney agreed to do just that if people accepted social services, job training, and drug and alcohol treatment. His office put together clinics to help the homeless population participate. [Gale Holland / Los Angeles Times]

The most straightforward path to ending the criminalization of homelessness runs through state legislatures. State and local officials should refrain from passing new laws that target homeless individuals, and they should repeal existing laws that criminalize life-sustaining and necessary behaviors. [Yale Law School Allard K. Lowenstein International Human Rights Clinic / “Forced Into Breaking the Law”]

How ‘El Chapo’s’ Attorney is Fighting For His Client’s Right to a Fair Trial

How ‘El Chapo’s’ Attorney is Fighting For His Client’s Right to a Fair Trial

Each day in his small cell in a Manhattan federal prison, Joaquín “El Chapo” Guzmán Loera battles severe headaches and vomiting, his lawyer says. He spends several hours with members of his defense team, reviewing 300,000 pages of discovery to prepare for his upcoming trial on charges including “leading a continuing criminal enterprise,” drug distribution, use of firearms, and money laundering. When he is alone, back in his cell, the Mexican-born Guzmán, the alleged leader of Mexico’s most powerful drug trafficking organization, the Sinaloa Cartel, reviews documents on a government-issued laptop. Excluding family and legal visits, Guzmán is locked in his cell at the Metropolitan Correctional Center (MCC) for 23 hours per day.

Since January 2017, when Guzmán was extradited to the U.S. and admitted to the facility — which was once described as “worse than Guantánamo”—his legal team has repeatedly challenged his extreme confinement as unconstitutional.

In a court hearing on February 15 ahead of his September 2018 trial, Guzmán’s lead attorney, Eduardo Balarezo, asked that his client be able to air his grievances about the conditions of his confinement. Prosecutors objected to the request, arguing he could “use the opportunity to pass messages to the media or others.” U.S. Eastern District Judge Brian Cogan agreed to consider allowing Guzmán to speak at his next court hearing in April, and instructed him to put his complaints into a letter.

Guzmán may be a notorious figure, but he has never been convicted of a crime in the United States, and Balarezo is determined to ensure that his client’s due process rights are not violated.

“Every defendant has a right to a trial, whether he is Joaquín Guzmán or Joe Smith,” Balarezo told The Appeal. “We are optimistic that he will get a fair trial and we believe that if he does, a jury will be able to see through all the chaff and see the reality of this case and not just what the government wants them to see.”

Balarezo says that his client endures bleak conditions at MCC. The area where Guzmán is housed, known as 10 South, is so isolated that some prisoners there have reported deteriorating eyesight, according to the New York Times.In a nearby unit known as 9 South with similarly restrictive conditions, one prisoner wrote to the federal Bureau of Prisons (BOP) that temperatures in the cells hover around 50 degrees and that he has observed roaches and insect eggs in his food.

“[Guzmán] is having a great deal of difficulty with the conditions of his confinement,” Balarezo said. “He is having psychological problems, he is having auditory hallucinations. The medical treatment he gets is minimal at best and non-existent at worst.”

In December 2017, a psychologist evaluated Guzmán after Balarezo told the court that his client’s mental health was suffering at MCC.

Balarezo declined to discuss the psychologist’s findings, but he said that she concluded Guzmán suffered from the issues he described “as a result of his confinement.”

The government argues that Guzmán’s extraordinary confinement is necessary to keep him from staging a jailbreak, noting that he twice escaped from high-security prisons in Mexico.

Federal prosecutors use the same reasoning to argue that discovery in the Guzmán case should be highly protected. The defense team is forbidden from taking discovery out of the country or showing it to third parties such as associates or family members, who could potentially help his team fight the government’s case. The government has also redacted significant portions of the hundreds of thousands of pages of documents it has provided to the defense.

“The majority of the discovery is not identifiable in the sense of there are no dates, names,” Balarezo said. “Also, because much of it is heavily redacted, it is basically useless at this point.”

Prosecutors have hinted they are planning to recount, in detail, Guzmán’s rise from a marijuana farmer to the head of a cartel that allegedly raked in $14 billion over four continents.

Balarezo says the government’s case relies primarily upon cooperators who have disclosed information about the cartel’s operations. The defense team doesn’t know the identity of most of the witnesses who will be called to testify during the trial, excluding two brothers who used to operate within the Sinaloa cartel, Margarito and Pedro Flores, who are reportedly expected to be star witnesses. Both received 14 years in prison instead of life sentences for handing over covertly recorded conversations with Guzmán.

Balarezo says their testimony is not to be trusted because they benefit from testifying against Guzmán.

“We believe their testimony will be suspect and tainted and we hope the jury sees it the way it is,” he said. “It’s going to be obvious that most of these people are admitted criminals. They will be individuals who have committed murders, who have done horrendous things, who have signed onto the government’s team to trade their testimony in exchange for more lenient sentences.”

Making the case even more challenging for Balarezo, Judge Cogan ruled in early February that an anonymous and partially sequestered jury would be empaneled in order to protect jurors from alleged Guzmán associates. Balarezo unsuccessfully argued that an anonymous jury would give jurors the impression his client is dangerous and therefore guilty.

“This is a very difficult case mainly because of the restrictions on my client and on what we can do,” he said. “However, we’re going to do the best we can to make sure the government doesn’t just steamroll him with a case that’s primarily composed of cooperator testimony.”

A spokesman for the Eastern District of New York declined to comment and referred In Justice Today to court documents.

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Philadelphia City Council’s Vote in Favor of Ending Cash Bail Bolsters Citywide Push

Activists cheer seconds after the Philadelphia City Council voted to urge a move away from money bail.
Philadelphia City Council / Youtube

Philadelphia City Council’s Vote in Favor of Ending Cash Bail Bolsters Citywide Push

In early February, the Philadelphia City Council made history: It voted unanimously in favor of ending the use of cash bail.

The resolution, passed February 1, urges the district attorney’s office and the courts “to institute internal policies that reduce reliance on cash bail” and called on the state legislature and state Supreme Court to eliminate cash bail statewide.

The Council’s vote doesn’t have legal force; the state legislature would have to act in order to end the use of cash bail in Philadelphia or anywhere else in Pennsylvania. But advocates say it is still important — and signals that more meaningful action may be on the way.

“Even if it doesn’t have legislative heft, it’s always helpful to have such vocal support from the [city] legislature,” said Julie Wertheimer, chief of staff of the Philadelphia mayor’s Office of Criminal Justice. “It just means that all three branches of government in Philadelphia are on the same page in terms of the direction we’re moving in as a city, regardless of what the state decides to do.”

Paul Heaton, academic director of the Quattrone Center for the Fair Administration of Justice at University of Pennsylvania Law School, agreed. “The City Council vote is not merely symbolic,” Heaton said in an email. “The recent vote signals some openness by the Council to consider budgetary or legislative requests from agencies that would support policies or programs that reduce cash bail, and this should encourage those interested in reform.”

Even without action from the state legislature, he said, the City Council, courts, and DA’s office can decrease the use of bail. “There is no ‘magic bullet’ solution that is going to allow the city to end cash bail,” said Heaton. “It is going to require parallel efforts across a variety of domains involving the entire criminal justice system.”

The city could provide earlier representation for detainees in the pretrial process, for instance, so attorneys could more effectively argue for release instead of bail. Judges and magistrates could use risk assessments to allow more people to be released. Perhaps most importantly, Heaton said, there should be fewer arrests in the first place, particularly for low-level offenses.

The City Council has already taken some legislative action: In 2016, it changed some low-level nuisance offenses, such as disorderly conduct or public drunkenness, into civil code violations, meaning that those who are charged are issued tickets instead of arrested. Advocates want even more offenses to be categorized as civil code violations so they result in summonses instead of arrests, effectively ending cash bail for those types of charges.

Meanwhile, municipal court has the power to formulate bail guidelines that focus on releasing people on unsecured bail — which doesn’t require arrestees to pay anything up-front to be released, only if they fail to return to court — or on non-monetary conditions, such as monitoring or drug tests. “If the president judge of the municipal court and a majority of the municipal court bench agreed on a set of guidelines making money bail an option of last resort, that could change overnight,” noted Arjun Malik, a board member of the Philadelphia Bail Fund.

“Discretion really does lie with these local actors — the courts, the district attorney’s office — to change their policies as they stand today,” added Malik.

Local actors include District Attorney Larry Krasner, who was elected in November on a pledge, among others, to end the use of cash bail. “There’s clearly vocal support from him to accelerate this work,” Wertheimer noted.

Ben Waxman, communications director for Krasner’s office, is enthusiastic about the City Council’s recent vote. “We view it very much as a positive step forward towards [the] consensus that is building around the issue,” he said. Even a few years ago, he added, bail reform wasn’t an issue that galvanized many voters; now it’s a widely discussed issue citywide.

The DA’s office plans to take action on bail reform soon, although Waxman couldn’t share specifics yet. “What we are engaged in at the moment is an internal review of current district attorney polices around how we ask for bail and for what amounts and for what types of offenses,” he said. In the next few weeks, he said, his office will have some “pretty significant announcements” coming out that will “outline a plan to move forward to turn that vision to reality.”

“Expect to see some changes,” he added.

The city’s push for bail reform got a boost in 2016, when Philadelphia was awarded a $3.5 million grant from the MacArthur Foundation to reduce the number of people held in its jails. Since then, its jail population has dropped by about 17 percent. Still, about a quarter of the people held in city jails are there because they can’t make bail. Wertheimer said it takes time to move from a grant to large-scale changes. “As you can imagine, these things, even with the funding and outside support in place, take a while to actually operationalize,” Wertheimer said.

One important change that resulted from the MacArthur grant is that if a defendant is given a bail amount of $50,000 or less for a nonviolent offense, he or she gets a review hearing five days later. According to Malik of the Philadelphia Bail Fund, about 90 percent of people who have review hearings are then released, which means they are now spending less time in jail due to an inability to afford bail. “But that’s not good enough,” he argued. “Putting them in jail for five days is incredibly destabilizing to their lives and there’s no real justification for it.”

“I don’t want to discount how much good it’s done compared to the previous status quo,” he added. “But it’s not anywhere near ending money bail. It’s not good enough.”

Ultimately, Malik hopes the City Council’s vote will help build momentum for reform. “It certainly helps put pressure on both the DA’s office and the court system, and even the state legislature, in saying, ‘Hey, Philadelphia wants to change and you need to catch up,’” he said.

Indeed, there is already pressure on the state legislature to eliminate cash bail altogether. “We’re watching to see if the state actually moves on it,” Wertheimer said. While bail reform bills have thus far been introduced but not enacted, she said, “that could change at any time.”

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