The drug court model as a response to "Broken Windows" criminal justice for the homeless mentally ill.

• Author: Hodulik, Jennifer

INTRODUCTION

This Comment examines the current trend toward criminalization of homeless people and its impact on the mentally ill among them, and argues that drug treatment courts provide the best model for striking a balance between the "Giuliani approach" to the homeless mentally ill and opposing civil rights arguments. New York City, as governed by former Mayor Rudolph Giuliani's administration, illustrates the effects of criminalization as an ill-fitting solution to the city's homelessness crisis. The general academic consensus is that this approach is merely a band-aid solution to the more complex social and economic issues that force increasing numbers of Americans into the streets. (1) But despite almost universal condemnation of criminalization, no consensus exists as to the best alternative means to address homelessness.

The extreme diversity of the homeless community presents inherent difficulties in addressing its problems. Although there are commonalities, such as high percentages of mental illness and drug addiction, this community requires a broad range of social services. (2) Criminalization as a solution to homelessness has resulted in high incarceration rates of people who commit petty crimes associated with homelessness, such as sleeping in a park or begging in the subway. (3) At the same time, criminalization and incarceration of the homeless has failed to provide this diverse community with the comprehensive social services that it so desperately requires. (4)

Among those opposed to the Giuliani model are civil rights advocates who believe that the Constitution protects the rights to live on the streets and not to be institutionalized or detained. (5) These critics contend that short-term solutions, such as temporary shelters and involuntary confinement, detract funds from long-term projects addressing the needs of the homeless. (6) They argue that people have a basic, even constitutional, right to remain on the streets until social policy evolves to meet their needs. (7) Additionally, many of these advocates argue that the visible presence of homeless people in major cities will engender sympathy and foster public sentiment in favor of changing social policy. (8)

Civil rights-based criticisms are valid in response to forced detention of people who have not committed crimes or are being treated abusively in confinement. Humanitarian efforts facilitated, to a certain extent, the release in the 1950s of patients from mental institutions into communities, many of whom are now homeless. (9) However, civil rights advocates or civil libertarians impermissibly failed to provide tangible solutions by focusing "far more heavily on obtaining liberty for patients than on seeking services for them." (10) Their advocacy has resulted in what essentially amounts to a right to starve on the streets and to be effectively cut off from any form of treatment or assistance, (11) Although certain criticisms of institutionalization of the mentally ill as it existed prior to the 1950s were justifiable, anticipated relief upon their release into communities was woefully inadequate. (12)

This Comment argues that a middle ground exists between the extreme positions of criminalization of homelessness and complete freedom for the mentally ill among the homeless. Over-zealous protection of civil rights for the mentally ill is unjustified. However, funneling this group in and out of jails or prisons is equally deplorable and ineffective. Instead, this Comment looks to the emerging drug treatment courts as a viable model for involving the criminal justice system at a more therapeutic and individualized level of administering to the homeless mentally ill population. The appropriate and realistic goal is to find a means within an imperfect system for humane and individualized treatment for the homeless mentally ill.

Part I of this Comment discusses the trend in New York City to criminalize homelessness under the Giuliani administration, which supports its policies with a "Broken Windows" theory of crime deterrence. Part II considers the validity of crime deterrence and other reasons advanced in support of cities' policies that criminalize homelessness. Part III examines the complexities of the homeless community, which is composed in large part of former mental health patients released into the community following deinstitutionalization, and how jails and prisons have come to replace mental institutions in recent times. Part IV describes the role of civil libertarians in bringing about deinstitutionalization and argues that their efforts have not provided a better solution than institutionalization. Part V argues that in the wake of deinstitutionalization and resulting incarceration of former mental patients, a balance can be struck between jail and complete freedom, by involving the criminal justice system in a more therapeutic way. Finally, Parts VI and VII discuss the emergence of the drug treatment courts and argue that this apparently successful model could be useful in assisting the homeless mentally ill.

1. THE GIULIANI MODEL OF CRIMINAL JUSTICE IN NEW YORK CITY: A CASE IN POINT

   The election of Rudolph Giuliani as mayor of New York City in 1993 ushered in a new era in law enforcement policy, and brought with it a forty percent drop in the city's crime rate. (13) Many of the mayor's supporters, who have witnessed dramatic changes in New York City's landscape in the last decade, are quick to attribute the decrease in large part to the city's adoption of "a zero tolerance approach to seemingly minor crimes such as littering, panhandling and defacing property." (14) They marvel at how safe, or at least uncluttered, New York's streets have become as they stroll to the theaters around Times Square. Others are more skeptical in contemplating the current whereabouts of the city's transient community.

   In adopting this policy, Giuliani cited the "Broken Windows" approach to policing proposed in a 1982 Atlantic Monthly article by James Q. Wilson and George Kelling. (15) Wilson and Kelling argue that allowing indications of disorder, such as a broken window, to remain unaddressed demonstrates a loss of public order and control in the neighborhood, and thus breeds more serious criminal activity. (16) According to the theory, crime feeds on disorder, so the deterioration of "subways, schools or neighborhoods give[s] the impression that anything goes [and] that nobody cares," encouraging the criminally inclined to believe that they can get away with committing more serious offenses. (17)

   Perhaps no group has been hit harder by such quality of life initiatives than the New York homeless population. A key part of the Broken Windows policy is to keep the homeless out of sight, generally by sweeping large homeless populations and arrest violators of ordinances which prohibit "begging, sleeping or `camping,' sitting, lying down, loitering, or obstructing pedestrian traffic in public places," or imposing restrictions "on being in particular public places during certain hours." (18)

   One of the central aims of New York City's policy was to eliminate panhandling in the subway system. To achieve this objective, the Metropolitan Transit Authority ("MTA") and the New York City Transit Authority ("TA") employed a regulation that prohibited "solicitation for charitable, religious or political causes" in and around the subway. (19) For example, the ban extended to subway cars, areas not generally open to the public, areas within twenty-five feet of a token booth, and areas near subway escalators and elevators. (20) In addition, the TA launched a public relations campaign designed to discourage giving to beggars on the subway. (21)

   Detractors of this approach have questioned its legitimacy as a means to deter crime. They challenge that New York City's lowered crime rate can be attributed to various alternative factors, such as a nationally decreasing crime rate (irrespective of enforcement policy), an improved economy and increased police force. (22) However, "Broken Windows" author George Kelling has maintained that New York's lowered crime rates should be attributed to the new governance. (23) In a 1998 article, Kelling described "in your face panhandlers who terrorized passengers and TA employees," and asserted that "`homelessness' was frightening passengers and causing them to abandon the subway in droves." (24)

   As the debate continues, the City's criminalization policies have been subject to legal challenge by the homeless community and its advocates. (25) Two important lawsuits have attacked the subway policy on constitutional grounds. In Young v. New York City Transit Authority, the Legal Action Center of the Homeless brought a class action lawsuit on behalf of two homeless men alleging that "the prohibition of begging and panhandling in the subway contravene[d] the rights to free speech, due process and equal protection of the law." (26) The Second Circuit upheld the constitutionality of the statute, finding that "begging is much more `conduct than it is speech' and panhandling f[alls] far outside the scope of protected speech under the First Amendment." (27) Three years later, in Loper v. New York City Police Dep't, an additional class action challenged the constitutionality of a New York anti-loitering law that made it illegal to loiter, remain or wander about in a public place for the purpose of begging. (28) This time, the Second Circuit found that the statute was neither content-neutral nor narrowly tailored, thus "over-broad," in that it aimed to curtail a certain kind of speech--begging--and therefore violated the First Amendment. (29)

2. THE CRIMINALIZATION OF HOMELESSNESS: ARGUMENTS FOR AND AGAINST

   Despite this Comment's rejection of the means employed by New York City to sweep the homeless off the streets, it supports the general aim of removing people from the street. However, assistance or positive intervention...