Homeless Courts: An Alternative to the Criminalization of the Homeless, 0519 SCBJ, SC Lawyer, May 2019, #50

AuthorGeorge B. Cauthen and Jennifer P. Wilson
PositionVol. 30 Issue 6 Pg. 50

Homeless Courts: An Alternative to the Criminalization of the Homeless

Vol. 30 Issue 6 Pg. 50

South Carolina BAR Journal

May, 2019

George B. Cauthen and Jennifer P. Wilson

It is a cold, overcast afternoon, and a man with no money and no place to stay, carrying his belongings in a plastic garbage bag, walks down the sidewalk of a city in South Carolina. As it starts to rain, the man ducks under an awning of a store in order to stay dry. The store owner, for whatever reason, does not like that the apparently "homeless" man is taking up space under the awning. The store owner calls the police. The police respond and cite the man for trespassing.

Up until now that man had three options: appear in court and be fined an amount he could not pay, appear in court and be sentenced up to 30 days in jail, or choose not to attend court and risk having a bench warrant issued for his arrest. However, now there is a fourth option for a man like this who is homeless—Homeless Court.

In the beginning

In 1989, Steve Binder was working as a deputy public defender in the misdemeanor arraignment department of the San Diego Office of the Public Defender. At the time, misdemeanor offenses accounted for 80 percent of the criminal caseload of the department.

When people who are homeless appeared in court on misdemeanor charges, they explained to the judge about the circumstances that took them from their homes and put them on the street. In most cases they pled guilty to the charge and left court with a fine to pay, public service to perform, or time served, and a legal burden to add to their other problems.

The public defender, prosecutor, judges, even the police, were uncomfortable and frustrated with the futility of this revolving-door approach to law enforcement. They came to realize that a person who cannot afford a place to live cannot afford to pay a fine for committing a crime that occurred because they were homeless. The criminal justice system had a routine procedure. Unfortunately, that procedure did not adequately meet the needs of the homeless population.

Binder joined a group of criminal justice practitioners who were trying to find an answer to the problem. At one of the meetings a survey compiled by the Veterans Administration was discussed. The survey indicated that one in five veterans who were homeless requested help to resolve their legal problems.

This request for help became the foundation for the San Diego Homeless Court. The first Homeless Court session was held on the outdoor handball court at San Diego High School as part of Stand Down, an annual event held by the Veterans Administration to relieve the isolation of veterans who are homeless and to assist them in overcoming barriers to being housed. There are now over 50 Homeless Courts operating in 21 states including three in South Carolina: Columbia, Charleston and Myrtle Beach. Chief Municipal Judge Debra Jackson of Florence is forming an organizational committee for a possible Homeless Court in her city.

Why a Homeless Court?

The theory behind the Homeless Court concept is that people who are homeless, given their living situation, come into contact with law enforcement more often than other individuals. As a result, they are issued more citations, and at a subsequent court hearing—if they attend—they express their inability to pay the fines associated with those citations. If they do not attend, which is often, a bench warrant may be issued for their arrest.

There are a number of valid reasons why people who are homeless do not attend their court hearings. Attendance at court, or any mainstream agency appointment, requires planning and resources. For many individuals who are homeless, their day is spent trying to survive—searching for food, clothing, shelter, and employment. They may have no place to store their belongings or are too embarrassed by their lack of personal hygiene and proper clothes to attend court. Still others may not understand the need to attend.

However, the greatest single factor that prevents individuals who are homeless from attending a traditional court hearing is fear. They fear a system that in general has not treated them well in the past. They fear their inability to pay the fines imposed on them. They fear incarceration, especially when they are...

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