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‘You’re Breaking the Law As Soon as You Stop Walking’: How Colorado Cities Criminalize Homelessness

A man walks past the Denver Rescue Mission homeless shelter.
John Moore/Getty Images

‘You’re Breaking the Law As Soon as You Stop Walking’: How Colorado Cities Criminalize Homelessness

When Benjamin Dunning was homeless on the streets of Denver, Colorado for four and a half years, his number one priority was trying to stay out of sight.

“My biggest job … was to find someplace to hide where I wouldn’t have contact with the police, wouldn’t have contact with a security guard, wouldn’t have contact with Parks and Rec,” he said. For a while he had a regular spot to sleep where he was left alone — only to have a newly hired security guard find him one night and tell him he couldn’t sleep there anymore.

But security guards are one thing and police are another. “You do risk going to jail,” said Dunning, who now works with Denver Homeless Out Loud, an advocacy group.

That’s because sleeping outside is one of many activities deemed illegal in parts of Colorado. The state’s 76 largest cities have collectively passed 351 ordinances that target the homeless, from bans on camping to sitting or lying down in public to simply sharing food outside. Advocates say that’s how cities in Colorado have, for the most part, opted to deal with their homeless populations: by passing and enforcing ordinances that criminalize basic acts of life and wasting resources that could otherwise be spent on services, making life even harder for those without homes.

It’s illegal to stand still, it’s illegal to sit down, it’s illegal to lay down, it’s illegal to eat. You’re breaking the law as soon as you stop walking.Paul Boden, Executive Director of the Western Regional Advocacy Project

If someone is cited, they first face a fine and a court date. But most homeless people can’t afford to pay a fine and can’t make it to court. It’s a “cycle of criminalization,” said Nantiya Ruan, who leads the Homeless Advocacy Policy Project at the University of Denver. “People get a citation, they can’t pay it, they get a warrant for their arrest … then they spend anywhere from two to three days in jail. Then they can’t get a job because they have a criminal background.”

The ordinances could, on their face, apply to anyone. But that’s not how they’re enforced. “A high, high percentage of people who have gotten tickets under these ordinances are homeless,” Ruan said. For example, most of downtown Boulder has a smoking ban that should impact anyone who lights up a cigarette, and yet the vast majority of people given citations for smoking between 2015 and 2017 were homeless, according to Ruan’s team, which researches laws that target the homeless. Similarly, over half of all the trespass citations Denver issued between 2013 and 2014 were for homeless residents, even though homeless people represent just 0.6 percent of the population.

“Cops are only going to enforce [ordinances] against those guys and those people who are ‘the problem,’” Boden said. “Homeless people are not the only motherfuckers sitting on a sidewalk, but we’re the only ones going to jail for it.”

Colorado’s cities appear to be particularly vigorous in their enforcement. Video from 2016 showed Denver police officers taking blankets from people in freezing November weather. And it’s only intensifying. Ruan, whose team has done public records requests in the state, has found that citations and “move along” orders are increasing.

That may be because the state’s homeless population is increasing, due to a lack of investment in public housing, coupled with skyrocketing home prices. There are just under 11,000 homeless people in Colorado, nearly 4,000 of whom have nowhere to sleep at night. That’s up from about 2,300 homeless people in 2008, 1,800 of whom had no shelter. Existing shelters usually don’t have enough capacity to give everyone a bed, plus many people can’t comply with all of the rules regarding who’s allowed in and where. As of 2016, Boulder had only 280 shelter beds for its 440 homeless people.

“Cities have not been able to effectively support their homeless communities,” Dunning said, “so [instead] they try to scare them off.”

Criminalizing people’s attempts to survive outside, however, only makes it harder for them to get indoors. Landlords “do rent checks in ways that filter people out if you’ve got any [criminal] history,” Dunning pointed out. “It raises the bar that much higher.” It also makes finding a job or even accessing public benefits — such as subsidized housing or, in some places, food stamps — nearly impossible.

Criminalizing homeless people can also make them less likely to take advantage of the services that might be available. “When you give police officers the power to ticket and arrest and put people in jail … they’re no longer seen as someone providing services,” Ruan pointed out. “That’s what disrupts [homeless people] getting services.”

But the state’s homeless population and their allies aren’t letting the situation stand. For four years in a row, advocates have pushed for what’s been dubbed the Right to Rest Act in the state legislature, which would give homeless people the right to move freely in public spaces, eat and accept food, occupy a vehicle, and protect their personal property.

Boden’s organization was behind the original bill and has been aggressively lobbying for its passage. “We want to frame it as a social justice and a human rights issue for people’s ability to live with full protections in the local community of their choice,” Boden said. “No local communities should be able to pass ordinances that criminalize the presence of people they don’t like.”

And yet Colorado lawmakers have been slow to sign on. The bill had a hearing this month in the Colorado House of Representatives, but it again failed to get enough support to move out of committee. Most Republicans voted against it; only one Republican has ever voted in favor of it in the four years it’s been considered, Boden said.

“Instead of acknowledging their dignity and right to respect,” noted Darren O’Connor, one of the students who works on the Homeless Advocacy Policy Project, “our legislature voted out of fear of allowing people to be in public space.”

But the math is on the advocates’ side. Ruan’s team found that just six Colorado cities spent at least $5 million enforcing these ordinances over five years. “Criminalization pushes people down at the same time they’re trying to lift people up with services … and that money could be spent in a better way,” Ruan said.

The group’s calculation doesn’t even take into account the health impacts of these laws, which further drain resources. The lack of sleep due to a constant worry of being rudely awakened and hassled by police — not to mention the actual experience of being kicked awake by an officer — can quickly run someone down. Coupled with a poor diet of cheap food handouts and the effects of sleeping in the cold, that stress takes a heavy toll on the body. “Your immune system begins to break down so you get more colds, or if you’re susceptible of being diabetic, you’ll go diabetic,” Dunning said.

Some consequences are even more severe. One homeless man in the state who was woken up by police and told to move along went into an alley and was struck and killed by a truck, according to advocates. Some women have reported being raped when they were forced to leave well-lit or patrolled areas.

Even though the Right to Rest Act didn’t pass this year, momentum is building. “When we first introduced it, it was just us and service providers,” Dunning recalled. But now faith groups, business groups, and even some in law enforcement have backed the bill. “It just keeps growing and growing, and at some point, these guys won’t be able to get away with not supporting it.”

Boden agrees and says poor and homeless people will keep fighting. “We figure no meaningful civil rights legislation is easy or this would have been done already,” he said. “We’ll just keep coming back with it. If you know in your heart you’re fucking right, it doesn’t matter how many times they say no. The last thing they’re going to say is yes.”

Jailhouse Informant In High-Profile Texas Murder Cases Comes Under New Scrutiny

Jailhouse Informant In High-Profile Texas Murder Cases Comes Under New Scrutiny

When Steven Shockey was arrested at a San Diego port of entry in December 2011, he knew his luck had run out. The 52-year-old was trying to re-enter the United States after jumping bail and fleeing to Mexico because of an arrest in Williamson County, Texas, for the aggravated assault of his ex-wife.

Because of his long criminal record — which included state and federal arrests and convictions in both Texas and California — Shockey was eligible for Texas’s “habitual offender enhancement,” which could have landed him a maximum sentence of life or 99 years in prison instead of a maximum of 20 years for the second-degree felony.

Shockey’s late 2011 arrest at the border sent him right back to the Williamson County Jail. And then, like many other defendants facing lengthy sentences, Shockey decided to become a jailhouse informant.

As luck would have it, Shockey was in an ideal jail to do so.

When Shockey was incarcerated in the Williamson County Jail between January 2012 and August 2013, not one but two defendants in separate, high-profile murder cases were housed there. One defendant, Mark Norwood, had been arrested in November 2011 for the 1986 murder of Christine Morton after Morton’s husband, Michael, was exonerated in the case. Morton spent nearly 25 years behind bars for his wife’s murder. In 2013, the lead prosecutor in the case, Ken Anderson, pleaded no contest to charges of criminal contempt of court for withholding evidence that could have exonerated Morton. It was a notorious wrongful conviction case and it led to the brief imprisonment of Anderson, one of the few times in modern American history that a prosecutor was jailed for misconduct. The Morton case also spurred far-reaching state reforms of prosecutors’ handling of evidence.

The other high-profile defendant at the Williamson County Jail was also held for a decades-old murder. In July 2012, Steven Thomas was arrested for the 1980 murder of 73-year-old Mildred McKinney, after a marijuana possession arrest that year led to a DNA match of crime scene evidence.

So, in March 2012, Shockey contacted the Texas attorney general’s office from behind bars and claimed to have information about the Morton murder. In a March 29 interview with a lieutenant from the Williamson County sheriff’s office and an AG investigator, Shockey said that Norwood confessed to Morton’s murder during a conversation with him in the jail. Shockey claimed Norwood told him that he “went looking for money in that house and killed that bitch,” and that he’d lost his “lucky red bandana,” a reference to a bloodstained bandana found at the crime scene.

That the bandana was actually blue was apparently no matter to prosecutors, who, according to post-conviction pleadings, cut a deal with Shockey to cooperate in the Morton case. The state never even had him testify against the accused killer, Norwood. As part of Shockey’s plea agreement, prosecutors declined to apply the “habitual offender enhancement” to him and on May 16, 2013, Shockey pleaded guilty to aggravated assault with a deadly weapon and was given a 15-year sentence. He is currently eligible for parole beginning in April 2019. (When Norwood went to trial in the Morton murder in March 2013, he was convicted and sentenced to life in prison. The Texas Court of Criminal Appeals declined to review the Norwood case in 2015.)

But before the Norwood trial began in March 2013, an impatient-sounding Shockey told his sister on a jailhouse phone call that he was “working every angle I can to get out there and help” care for their ailing parents. In February 2013, Shockey contacted Lytza Rojas, an assistant district attorney with the Williamson County district attorney’s office. Shockey told Rojas that another alleged murderer — Steven Thomas — had confided in him at the Williamson County Jail.

While incarcerated in Williamson County, Shockey told his sister he would try to get out of jail to help care for his ailing parents.

“Think about how unlikely it is that the two most high-profile murder suspects in the Williamson County jail confessed for the first and only time to the same person,” Ashley Steele, one of Thomas’s post-conviction attorneys at the Office of Capital and Forensic Writs, an Austin-based public defender office that represents individuals in state post-conviction litigation, told The Appeal. “It just can’t be true.”

Shockey’s offer of information in the Thomas case, though, may have been particularly compelling to prosecutors because of the nature of the evidence against Thomas. DNA that allegedly tied Thomas to the crime scene only proved that Thomas couldn’t be excluded from a mixture of DNA found on medical tape on the victim’s thumb. At the time of the murder, according to his post-conviction attorneys, Thomas was employed as a pest control technician for a company that had the victim as a customer. In addition, according to post-conviction pleadings, Thomas’s DNA was not found in other DNA samples found in multiple places on the victim’s body.

Shockey testified at Thomas’s 2014 trial that Thomas confessed to the murder of 1980 murder of Mildred McKinney in “little outbursts and mumbles.”

When Shockey told Rojas that he had evidence against Thomas, Thomas’s post-conviction attorneys said, Rojas listened. On the day before the state rested its case in Thomas’s October 2014 trial, Shockey testified that Thomas confessed to him about the McKinney murder when they were incarcerated at the Williamson County Jail. Shockey told the jury that Thomas made inculpatory statements about the case in “little outbursts and mumbles,” describing a drug-addled robbery and murder scene. Under direct examination from Rojas, Shockey also told the jury that he hadn’t entered into any kind of deal with prosecutors.

“Do you recall … that I couldn’t promise you and would not promise you anything in exchange for the testimony and the things that you told John Foster [a Williamson County Sheriff’s Office detective] you heard?” Rojas asked.

“Correct,” Shockey replied.

Thomas was convicted three days later, and then sentenced to death on Nov. 18, 2014. Three months later, Shockey was transferred to a unit less than two hours away from his family.

When Thomas’s court-appointed attorneys began working on his appeal that November, they discovered a letter from Rojas to the Texas Department of Criminal Justice Correctional Institutions Division, charged with overseeing state prisons, stating, “In exchange for his testimony, I informed Mr. Shockey that I would reach out to TDCJ and the Parole Board to make it known he provided truthful testimony. I also told Mr. Shockey that I would request he be placed in a unit that would allow his elderly mother the chance to visit with a little more ease.”

After Shockey testified at Thomas’s trial, ADA Rojas requested that Shockey be moved closer to his family.

Under Brady v. Maryland, the state must disclose such promises, rewards, or inducements given to government witnesses, and a failure to do so represents a violation of a defendant’s constitutional rights. And under Napue v. Illinois, the government cannot knowingly elicit false or misleading testimony from witnesses during a trial.

Thomas’s post-conviction lawyers believe that the state’s failure to disclose its deal with Shockey, as well as its elicitation of false testimony from him, should earn Thomas a new trial.

In their February 2018 response to Thomas’ petition, the state does not assert that it informed the defense counsel about the scope of the deals before or during trial. And in a sworn affidavit, one of Thomas’s trial attorneys said that, “I have no recollection of the fact that the prosecutor had agreed to send a letter recommending that Mr. Shockey be incarcerated near his mother’s residence. Nor do I recall being informed that Mr. Shockey had been an informant in another capital murder case during the course of our representation of Mr. Thomas.”

In contesting the allegation that it failed to disclose its deal with Shockey, however, the state claims that Shockey’s trial attorneys still haven’t proven that it didn’t know about the extent of the arrangements.

“The inability to remember being told does not affirmatively establish that they were not told,” Williamson County ADA John C. Prezas wrote in a response to Thomas’ Habeas petition. “Instead, Applicant has merely demonstrated that his counsel cannot recall whether or not the very fact upon which he bases this claim ever occurred.”

Shawn Dick, the current district attorney of Williamson County, declined to comment to The Appeal about the case because it is still ongoing. Dick took office in 2016, and since his election, the prosecutor’s office has seen a large amount of turnover.

In cases that go unresolved for decades, the prosecution often can’t rely on witnesses, Jennifer Laurin, a professor at the University of Texas School of Law, explained to The Appealbecause witnesses either can’t be located or can’t recall specific details with certainty — so prosecutors often bring an informant in to grease the wheels in the case.

But while there is a growing awareness in Texas and nationally about the dangers of using jailhouse informants, juries are still not sufficiently skeptical of them and, perhaps as a result, prosecutors continue to rely on their testimony to prop up their cases.

“One of the challenges of jailhouse informants is how entrepreneurial they can be,” University of California, Irvine law professor Alexandra Natapoff, whose 2009 book, Snitching: Criminal Informants and the Erosion of American Justiceexplored the use of informants in the criminal justice system, told The Appeal. “What we have seen, is that they often come forward, or are invited to come forward, precisely when the other evidence in the case might not support conviction.”

Compounding the problems with prosecutors’ use of jailhouse informants is the fact that, according to Natapoff, “jurors are not that good at sorting out the significance of informant incentives. You see over and over again, jurors both in actual trials and also in research experiments are told that a witness is compensated and yet, they take that witnesses’ word anyway.”

On March 15, a District Court judge in Texas issued an order in response to Thomas’s Habeas petition, saying that several issues merit further investigation — whether Shockey testified in exchange for placement near his mother, whether prosecutors had made clear his involvement in the Norwood case, and whether his testimony at the Thomas trial was false and, if it was, whether that was material to the finding of guilt. The court will then hold a hearing on these issues and, if the court were to then find that any of these impacted the jury’s verdict, it’s possible that Thomas will be given a new trial.

According to a list compiled by the Death Penalty Information Center, of 15 defendants executed since 1976 despite their possible innocence, nine of them were in Texas. Carlotta Lepingwell, another attorney working on Thomas’s appeal, believes that given the new information they received about Shockey and his deals with the state, a new hearing is more than justified. “The people of Texas deserve to hear from ADA Rojas and Steve Shockey about this on the record, and have that tested in court.”

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NYC Mayor Remains Intent on Restricting Legal Help for Immigrants with Felony Convictions

Mayor Bill de Blasio addresses New Yorkers at a rally in Battery Park opposing President Trump’s travel ban on Muslim-majority countries, the morning after a large-scale protest at John F. Kennedy Airport in January 2017.
NYC Mayor’s Office

NYC Mayor Remains Intent on Restricting Legal Help for Immigrants with Felony Convictions

Legal defense for immigrants has long been central to New York City Mayor Bill de Blasio’s anti-Trump messaging. “We will use all the tools at our disposal to stand up for our people,” he assured immigrant New Yorkers during a high-profile speech at Cooper Union immediately following the 2016 election. His tone was similar during his 2018 executive budget announcement, when the mayor doubled funding for immigrant legal services to $31 million. “We need them to have some confidence that there will be support for them,” he said.

But his support doesn’t extend to all immigrants. As de Blasio first made clear last spring, he believes non-citizens convicted within the last five years of any of 170 felonies deemed “violent or serious” should be excluded from certain taxpayer-funded legal services, freeing up aid for the increasing number of vulnerable immigrants without criminal records. The same felonies — which include burglary and drug possession, as well as rape, murder, and arson — also exempt undocumented immigrants and green card holders from New York City’s sanctuary provisions.

“Those are all serious, and in many cases violent, crimes,” the mayor told The Appeal at an unrelated press conference Thursday. “I believe fundamentally that if someone has been convicted of one of those crimes, and we’re going to cooperate with [Immigration and Customs Enforcement] in their deportation, then it is contradictory to say that we are then going to offer legal services. I won’t do it.”

During last year’s budget negotiations, then-City Council Speaker Melissa Mark-Viverito, immigrant rights groups, and public defenders opposed the so-called “criminal carve-out” as it pertained to the New York Immigrant Family Unity Project (NYIFUP). The first-of-its-kind program, established in 2013 and almost entirely funded by the city, offers legal services for all immigrants in deportation proceedings, closing a legal loophole as the U.S. Constitution does not guarantee legal representation in immigration court. The debate over the carve-out was temporarily resolved last year when an anonymous donor provided $250,000 in unrestricted funds.

But this year, there’s no indication that the private donation will be renewed and the de Blasio administration has confirmed that the carve-out applies to all immigrant legal service contracts from FY 2018 forward. That includes help with citizenship, lawful permanent residency, and asylum through the Immigrant Opportunities Initiative; free legal consultations in multiple languages through Action NYC; and removal defense for adults and unaccompanied minors.

Critics say exempting immigrants with criminal records bolsters anti-immigrant stereotypes and undermines due process. “We know who generally has these criminal system interactions: low-income Black and brown people, people who are poor, who have mental illnesses,” says Nyasa Hickey, supervising attorney of the immigration practice at Brooklyn Defender Services. “With this carve-out the city is further exacerbating the perception that these individuals are less valued.”

And while City Hall insists the message has been consistent since last spring, public defenders told The Appeal that they did not know the carve-out would extend beyond NYIFUP to other contracts until December 2017. That month, de Blasio told WNYC’s Brian Lehrer that he considered the restrictions “common sense.”

At a budget hearing Monday, Acting Commissioner Bitta Mostofi of the Mayor’s Office of Immigrant Affairs reiterated his logic. “These are certain individuals who the administration has determined pose a public safety risk for all New Yorkers,” she said. City Hall estimates that fewer than 10 percent of immigrant clients will be impacted by the carve-out.

But critics say the mayor’s restrictions go far beyond any actual public safety concern, particularly since the disqualifying crimes include charges like drug possession. Not only does the carve-out eliminate crucial services for some of their clients, they say, it could scare many more potential clients away from the community organizations set up to help them.

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