Raising the Bar: Criminalizing Poverty
Last year, New York City Mayor Bill de Blasio and the MTA announced their plans to roll out the “Fair Fares” program, after many families living below the poverty line complained they could not afford to pay their MetroCard. A huge percentage of New Yorkers use public transportation to get to and from work. With consistent fare increase, poorer New Yorkers found themselves with a huge financial burden that forced them to train hop and received large fines by bystanding police officers.
Financial instability has left over 61,000 people–in New York City alone– without permanent homes. Homeless people rely on the streets and homeless shelters for a place to rest and use the trains as a place to beg for money and food. While, panhandling is currently not outlawed in New York City, it is in fact illegal to beg for money on public transportation. But, why does poverty seem like a never ending cycle?
Raising the Bar host Jason Clark, President of the Metropolitan Black Bar Association is joined by Esere Onaodowan, Managing Partner at the Law Offices of Onaodowan & Delince, PLLC, and Karume James, Supervising Attorney at The Bronx Defenders to discuss criminalizing poverty.
Aired October 13th, 2019.
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Jason Clark: Hello, and welcome to Raising the Bar with the MBBA. I am Jason Clark, President of the Metropolitan Black Bar Association. My co-host Adeola Adejobi couldn't be here with us today, but she will be back with us very soon.
Jason Clark: The Metropolitan Black Bar Association, is the largest association of predominantly African American attorneys in New York. Our goal is: to advance equality, and excellence and the pursuit of justice; assist in the professional development of our members; and address legal issues affecting new Yorkers. The goal of Raising the Bar, is to foster a substantive conversation about justice issues in the community, and try to identify a couple of solutions in the process.
Jason Clark: Today we're going to be talking about the criminalization of homelessness. Joining us today is Esere Onaodowan, managing partner at The Law Offices of Onaodowan & Delincem PLC. Along with us also, is Karume James, supervising attorney at The Bronx Defenders. Welcome both of you, and let's get to it.
Jason Clark: Today we're going to be talking about the criminalization of homelessness. I mean, I think most of us have seen it. It seems like there are so many more homeless folks who are just walking down the street, when we're in the subway station. And I think the last statistic I saw is, it's actually over 61,000 people who are homeless today. Even over 21,000 who are children, as well.
Jason Clark: One of the difficulties, is it certainly feels like trying to criminalize being poor. What can you tell us about the state of events, and really where we need to go from here.
Karume James: I think that this is really an outcome of mass incarceration, at the end of the day. When we start talking about criminalizing poverty and homelessness, we have to go back really 30 plus years. To the crack cocaine epidemic, and the whole Tough On Crime policies of cities like New York, and really all over the country. That started focusing rather than on really serious cases, but on low level offenses that are really the outcomes of poverty, and a broken social safety net.
Karume James: This is really a national epidemic, it's a problem. So man, legislatures pass laws that made it even more difficult for people to climb out of poverty. And for those who are getting ensnared in the criminal justice system, to stay there for even longer. I've seen this in my practice for a last several years, is that I deal with thousands of people who are by definition, indigent, meaning that they can't afford to have an attorney.
Karume James: These are folks who oftentimes, are at the margins of every possible aspect of society. These are people to deal with substance abuse, mental health, who are homeless, who have financial instability, economic instability, who don't have access to the resources that they need. Really what happens when they're ensnared in the criminal justice system, is that it leads to a massive disruption in entire rest of their life.
Esere Onaodowan: One thing that you mentioned, I'm not sure if everyone's familiar, but what I was thinking of when you just started to describe the issues that you saw. New York city went through a whole process, The Quality of Life Program. And while we're not criticizing it in any way, but as a practicing attorney at that time, what I saw was people getting arrested for sleeping on the bench, the subway. Taking up more than one seat on the subway, that was actually an offense. Or what we would call feet on seat, that was actually an offense.
Esere Onaodowan: So these are people that were homeless, had mental health issues, so they were not able to really function in whatever part of their life was stable. Then these are also people, that were dealing with abject poverty. So all of these Quality of Life crimes, urinating on the street, while I don't advocate for that, but there is a larger issue behind that, that the Quality of Life Program did not see.
Esere Onaodowan: In that time, so many of the people in that marginalized category were arrested. They would serve 10 days, time served, 30 days, and as many times as they kept getting arrested, the amount of jail time they served seemed to grow. Judges, at least I know from my experience in Manhattan, would that, "Well, you were here before you got 15 days. That didn't do anything, because you're still sleeping in Grand Central Station."
Esere Onaodowan: So, what we would do is, now we'll give you 30 days. Maybe that'll help you realize that what you're doing is a crime. [foreign language 00:04:44]
Jason Clark: They obviously didn't have the money for it- [crosstalk 00:04:44].
Esere Onaodowan: Exactly.
Jason Clark: Okay.
Esere Onaodowan: Then they enter civil judgment, if you can't pay the surcharge after pleading guilty. It becomes this huge snowball effect, and it creates this crime called poverty.
Karume James: One thing that you're talking about, is two things that I think are a good theme. One is that using the criminal justice system as a way to address really complicated social issues, and it's really a blunt force tool that doesn't get to the heart of the real issues that people face. Then separately, it's about the process. Many times, for many people, the process is just as much of a punishment as anything else.
Karume James: I think what's important here is that cities have a lot of tools that they have at their disposal, to address things like homelessness, and economic instability, and lack of education and things like that. There's from planning, to reallocating resources to shelters, things like that. There's things that we can do to address these issues, many cities have figured these things out.
Karume James: Steering people in the criminal justice system, doesn't do any of those things to help address those issues. I've seen the same thing, where people who may have been brought in for something that seems minor, low level, has all these attended consequences. We call them collateral consequences, but they're really what we think of as in-mesh penalties. Meaning, you separate the nature of the arrest and the prosecution of the case, from everything else that happens in this person's life.
Karume James: Just because someone gets arrested, even if it's for something small, small possession of marijuana, for jumping the turnstile, for instance, that can lead to losing their job, their home, their children, or even threaten their ability to stay in the country. These are the kinds of things that really were much broader than what people, I think, envisioned 30, 40 years ago when passing this legislation. But this is really what the real impact is on people, every single day across the city.
Esere Onaodowan: And what's interesting is, although on its face, the legislation seems to be neutral, right? "No, this goes for everybody," right? My favorite thing to do is look at the disparate impact, right? Who is it impacting? And the people that don't have the money, the people that qualify for your services, when I was at Legal Aid, the people that qualified for our services, the indigent community, are affected.
Esere Onaodowan: Because they don't have the money to a call an uncle, or somebody. Or a family structure that has that economic stability to help them, now get out of this hole that they've been sucked into, by becoming part of the criminal justice system. So it becomes a cycle. And then, that infects the family unit. We were just talking recently about a DV incident.
Esere Onaodowan: If something happens, it's a domestic violence incident, if it's small, something small, and this is a family that's not economically stable. The way it will work sometimes, is the breadwinner is the person who's been arrested for something small. Maybe there was no physical violence. That person now has an order of protection to stay away from the home, school, place of business or the named victim. Sometimes judges will even say stay away from the children. So, the order covers the children as well.
Esere Onaodowan: Now this is the person, the only person that probably works in the home. This is the person that also takes the children to school. So now what happens? This person has to find a place to live. And where are you going to find a hotel temporarily to stay, if you don't have connections or that larger family unit to assist you. So what starts to happen is, it's infecting the family unit. The family unit is breaking down.
Karume James: That's a another layer, is that if that person is not a US citizen, they could face deportation, even if they'd been lawfully in the country for many, many years. If that person's working at a job, where for instance they're getting notified about an arrest. Like for instance, that person's a teacher, for instance, or even a school bus driver. If they worked for the Department of Education, the Department's going to get notified immediately of the arrest. That person may lose their job and ability to pay, take care of themselves.
Karume James: Then if they're the persons on the lease, for instance, how are they going to be able to pay the rent? These are the kinds of issues that I've seen in my practice, that, Esere, I believe I've seen in your practice as well. That really just hits on, the criminal justice system is not really effective way to deal with all of these complicated issues, and actually brings about even more issues than anyone could imagine.
Jason Clark: Yeah. It's funny, because I imagine anyone who's watching this show at this time is probably thinking to themselves, "But isn't there supposed to be programs available, to help people who are homeless? Isn't there supposed to be some type of housing program, or things to help people? We hear so much about all these changes, criminal justice system, reducing the focus on criminalizing low level offenses."
Jason Clark: I guess, what would you say to someone who thinks... I guess there are programs out there, I imagine there are some. Why isn't it working, and what is the next solution?
Karume James: I'd say the first thing is, there has been a lot of amazing changes that have been happening around criminal justice reform over the last decade, and even this last year, that I'm really excited about. Our office, along with a coalition of other organizations around the state, has fought to ensure bail reform. To ensure that people aren't being held in on cash bail, and are now going to have an opportunity to be released for a whole range of cases. So that they are not ensnared and sitting at Rikers, just because they can't pay bail.
Karume James: There's been a lot of changes to, like marijuana possession laws are being decriminalized now. Also, because several people sued the NYPD to change, in a case called the Floyd case, basically, where the NYPD was using Stop and Frisk as a mass policy, to really stop black and brown new Yorkers around the city. That was found to be racially discriminatory, in terms of its use, and so arrests of [inaudible 00:10:31] have been down.
Karume James: So there's been a lot of changes, which has been happening, but there's still much more that we can be able to do. People are still being targeted for these low level offenses, and then the process is really where we need to continue to focus. On the financial burdens that happen with people, once they are actually arrested.
Karume James: So it's great if we can stem the tide of the people who get ensnared in the criminal justice system. But then once they're there, all of the other aspects of the system that come into play are challenging. So for instance, even if someone resolves their case with was something called a violation. It's not a crime, doesn't give the person a criminal record. It means that there shouldn't be consequences.
Karume James: But those come with mandatory court fees. Sometimes they come with fines.
Esere Onaodowan: Surcharge.
Karume James: Surcharges. These fines can trigger an arrest and a warrant, if you miss your court dates of pay, right? That means the person can get rearrested, brought back into court, and then put in jail sometimes for up to 15 days, because they weren't able to pay something that they couldn't afford in the first place. We need to shift our focus to these process kinds of issues, to ensure that the burdens that we are putting on people are minimum at best.
Esere Onaodowan: And to expand on that, to the folks who say, "Well, there are programs addressing homelessness, right?" I think it's so important to address the process, so that our clients at the end of the process, do not become those people that need programs addressing homelessness. Because it is during that process, that our clients fall apart financially, economically.
Esere Onaodowan: Because, if I'm going to piggyback off of your example, our client now misses the deadline to pay the fine. The judge is like, "You know what? I've given you so many chances. 15 days jail." He just got a new job. After being arrested and maybe missing work, he just got a new job. What's going to happen to that new job? He's going to lose his job again.
Esere Onaodowan: There's another issue too, that is happening. I know New Jersey has started to address it, but in terms of talking about criminalizing poverty, or the criminal justice system contributing to the financial deterioration of our clients, there are people that have been arrested for whatever crime and they're serving jail sentences. Sometimes state prison, sometimes just Rikers, and they have active child support orders.
Esere Onaodowan: Do you know, that in this great country, and I mean it, this great country, that those people's child support obligations continue to accrue while they are serving five, six, seven, 10 year sentences. So what happens to that person, once they are released? And if it's a situation where they're released into a halfway house, they go through the process before they're finally able to live independently.
Esere Onaodowan: I have met people that have come out of serving sentences $10,000, $20,000, $30,000, $40,000 in debt, in child support arrears. While I'm not advocating that we do anything to prevent children from receiving the financial support that they're entitled to from their parents, something has to happen in that process to stop, or to at least alleviate the expansion of the poverty in that community.
Esere Onaodowan: Something as simple as, I know that the federal government did come out with a directive that says... and they've instructed the States to do this. But if you are sentenced to six months or more incarceration and you have a child support order, you can file for a modification of that child support order. So, you can file to have it modified downward.
Esere Onaodowan: However, if in the process, this is the directive, my guy gets sentenced today, why can't we have it where once he is committed, or they finish his commit card and they send everything, also they hand him the child support modification packet application. We have social workers in the jails. Why can't that be a normal process? You sit with the social worker, or intern or whatever, and you fill out the modification application, and then you send it to the court.
Esere Onaodowan: That's something, I think it sounds really small. But you implement that, and then what the court decides is a whole other thing. But then you implement that as part of the process, so this person does not come out already underneath financially, and can't dig their way out.
Karume James: Some of these are really common sense kinds of solutions, just to make sure that people have information, to make sure that they have support when these kinds of things happen. And one of the things I think you're pointing out, and kind of to your question as well, global justice has really long tentacles that reaches into a whole host of other areas. And so kind of to your question about, "Well, what about the programs?" There's a number of programs that, because you've been arrested means that you're subject to not being able to participate in that program.
Karume James: So for example, if you're in NYCHA and you're waiting on a list, or if you're in a shelter, for instance, you're waiting list to get permanent housing, the fact that you've been arrested can threaten your ability to stay in NYCHA, you might actually get permanently evicted. It's actually in everyone's lease. My office and several others have been fighting to move that out of NYCHA leases.
Karume James: You could also face the risk of getting bumped back to the bottom of the list, if you have a criminal conviction. So these kinds of things don't need to be a part of your ability to live, to your ability to take care of your children. These are the kinds of things that we can change, so that the programs that are there really provide the support that people need, and they're not impeded by involving the criminal justice system.
Jason Clark: Yeah. So, it's interesting as we were talking about it. I like your, your analogy when you're talking about the tentacles. You have folks who are dealing with criminal justice issues, now you folks are dealing with homeless issues. You have folks who are dealing with incarceration issues, and all of these things can play a role together.
Jason Clark: What I do want to talk a little bit about, because I think we can't talk about this issue of homelessness and the criminalization of homelessness, without talking about the idea of mental health. I know there are a number of folks who are homeless, who deal with mental health challenges. I think there is a statistic where I saw, where it sounded that 43% of individuals who who have homeless issues, who were at least incarcerated at Rikers, also have been diagnosed with some type of mental illness challenge. What role does that play, in how we are able to figure out the best solutions for folks?
Karume James: It's a huge issue. One of the things that I recognize, is that when I meet my clients, I meet them oftentimes in a moment of really intense trauma. There may have had the most traumatic experience of their life happen a few hours before I meet them. That is compounded by their arrests, their incarceration. Then I meet them at that point where, sometimes I meet people who are going through withdrawals from substance abuse, right? People who have medication that they should be taking, that they don't have access to at the time.
Karume James: Many of my clients deal with a range of very serious mental health diagnoses from schizophrenia, bipolar, schizoaffective disorder. These are the things that impact their ability to survive, that impact their ability to navigate a really complicated criminal justice system, and all these hosts of in-mesh penalties.
Karume James: One of the challenges is that, when we're talking about poverty, you can't untangle the notion that people who have a struggle with mental health don't have the right support, often are ones who are targeted honestly, by law enforcement. Because those people who may be self-medicating, because they don't have the right support as well, are also being targeted. There's really not a lot of infrastructure within the criminal justice system to deal with these issues, or to provide those people the right support.
Esere Onaodowan: I would add also, it's an access to justice issue as well. Because for people who suffer with mental health issues, they get arrested, and the criminal justice system sometimes has a tunnel vision. It's retribution, retribution, retribution. But they're not looking at the client as a holistic person. If we want to rehabilitate someone, and put them back into society so they can be a functioning member, you have to look at that person individually.
Esere Onaodowan: And the fact that... What was your statistic? [crosstalk 00:19:11] 43%, right? I would think it's higher. I remember when I was working at legal aid, I noticed a lot of my clients were undiagnosed. So can you imagine the portion of clients that were undiagnosed, versus those that the statistic statistics we have. They don't have the same resources financially after going to jail, because the criminal justice system is retribution, retribution.
Esere Onaodowan: And those that are part of the criminal justice system pat ourselves on the back. "Okay, he's done 30 days in jail, he's better now." That's 30 days without being medicated. They might have been going to a program, speaking of these programs, that are offering bare minimum free medication, free services to address just the very top of the mental health issue. That's 30 days without medication, their stability deteriorates.
Esere Onaodowan: So now this person is back on the street. They don't have the proper resources financially to say, "I need to go here and get this. I need to tap into this person." So what happens? They get picked up again. They get rearrested again. No one is looking at what's happening in terms of mental health stability. I just think that the system perpetuates the further deterioration, of any hope of addressing mental health instability.
Karume James: I'll say it again, we were talking about this recently, this doesn't have to be this way. It doesn't have to be that people who deal with mental health challenges have to only just be traumatized by the experience, and then they're left without any proper support. We can have a different kind of a model of a criminal justice system, that allows people, if they have mental health challenges, that part of the disposition is getting them the services that they need, right?
Karume James: That social workers just can be part of criminal cases. We can have judges, that this is a top of mind kind of an issue. Law enforcement have this as top of mind issue. We can make sure that people actually get into shelters, or make sure that they get their medication. After somebody sees a judge for the very first time, after they've been arrested and sitting in jail for sometimes 18, 20, 24, 26 hours, they are released maybe. Which is great, but then they're back to wherever they may have come from.
Karume James: If they have nowhere else to go, and I've had plenty of people ask me. The only thing I can give them, maybe is like a Metro card. Then that's it. And my business card and, "I'll see you at the next court date." I don't have nearly as many tools available to support them. We have a really robust program in my office, where we have social workers who can work on people's cases, and help them resolve their cases, which is really great. We have immigration attorneys, and housing attorneys, and employment attorneys.
Karume James: All those different aspects, that we can support people. Because we're a holistic defense office, that believes in addressing these issues together. But even our ability, to tackle these things is limited because of what the criminal justice system does to people, and how it disrupts their lives.
Esere Onaodowan: In terms of solution oriented, why can't we have a system... And this might sound really crazy and farfetched to lawyers. The same way that our clients have a right to counsel under the sixth amendment, why can't we implement something. And you don't have to go and amend the constitution, but something where if our client has, or presents with, or if the court believes that there is a mental health issue, why can't that person have a right to a social worker? And the case cannot move forward without that person being treated, even on the lowest level.
Esere Onaodowan: I think if we start there, at some point we will see that the recidivism rates for people with mental health issues might drop. I might be oversimplifying the issue, because- [crosstalk 00:22:57]
Jason Clark: That's a great idea.
Karume James: I think it's a great idea.
Jason Clark: That's a great idea- [crosstalk 00:22:59]
Karume James: I'm all for it. [crosstalk 00:22:59] One thing I do want to just point out, that there is one aspect of criminal justice that actually deals with mental health, and that's specifically is what's called a 730 exam. Basically, it's an evaluation to determine if someone's mentally competent to stand trial.
Karume James: Now, what does that mean in actual practice? It means a person's evaluated to see if they can follow what's happening, follow the proceedings, know if they have a lawyer or not, know where they are, things like that. If the determination says that they're not, in a misdemeanor case, their case is dismissed. That's great, but then there's no followup about, "Well, what resource does this person need? What medication do they need? Do they need counseling, or therapists or things like that?
Karume James: In a felony case, they're actually civilly committed for a period of time. They're sent to a hospital, where the "mental defect", and I'm using air quotes because that's how the court defines it, a mental defect is addressed, such that they're able to come back and participate in their proceeding.
Karume James: So, the only options for many people who have mental health challenges is, maybe my case will get dismissed, if I have no ability to participate in my defense, like I don't even know who my lawyer is. And for many people with mental health diagnosis, they may have a clear idea of what's going on, but they have all of these other challenges that aren't addressed. Or, I get civilly committed, and then that's it. And there's no other conversation about that.
Karume James: But I think as you're talking about this, these are the kinds of really meaningful solutions that can be developed by policymakers, by judges, by institutional providers, by prosecutors, by law enforcement. Everybody can be part of this conversation, to really address these issues front end.
Jason Clark: Yeah. It's funny, because as we were talking about this, what I'm really hearing is, trying to make sure that folks who are, as you were saying, ensnared within the system have some type of civil benefits. So if someone is, for example, incarcerated, but they're also... They're dealing with bipolar disease, or schizophrenia or what have you. Making sure that at least if they're being released, that they have some type of discharge planning.
Jason Clark: So that someone can help them, with making sure that they have an application for housing. Or they're getting certain benefits, they may be entitled to. Or, that they have a way to be able to get their prescription treatment. So that that way, they're less likely to end up being on their own, or trying to figure it out all themselves, and then leading to more homelessness.
Esere Onaodowan: Yeah. And the problem or what I've seen as a common issue is, when you are stressed about money, you're not thinking about anything else. I mean, I know what that feels like to come from humble means. When money is the focus, I have to eat today. Do you think I'm going to that social worker's office at Bronx Defenders?
Karume James: Maybe not.
Esere Onaodowan: Probably not. I love your suggestion. If we create a system that takes care of all of these other things for our clients, so that maybe they can have some meaningful work. Or not have to choose between, am I going to try to get this job real quick, or get something to eat, or will I address my mental health issue? But I think that has to come from the criminal justice system. The criminal justice system has to make that a priority, or the same thing is going to keep happening. It's only going to affect the poor, people who don't have the resources to access proper justice.
Karume James: One thing I will say, is that the people watching this program, you have an opportunity to do things as well. You have council members, state legislatures, your governor. These are people who are elected judges, who are elected. We can hold them accountable, to make sure that they actually are thinking about: how do we ensure that the criminal justice system doesn't burden people who are ensnared in it? Who don't have to have facing the risk of deportation, of homelessness, of losing their job and their economic stability, losing their children.
Karume James: People created these things, and people can actually change them as well.
Jason Clark: Great. Well, unfortunately, that's all the time we have today. We'll have to come back and figure out new ways to change the world.
Jason Clark: But at this point, I just want to say, thank you for watching Raising the Bar at the MBBA, on the Manhattan Neighborhood Network. Goodbye.
Co-hosts Jason Clark, President of the Metropolitan Black Bar Association (MBBA), Attorney Adeola Adejobi, and their guests discuss legal issues facing the African American community.
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