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Poor people keep going to jail on non-jailable offenses. How do we break the cycle?

From camps to courts


Limited transportation options can prevent the poor from getting to court. - NAT STEIN
  • Nat Stein
  • Limited transportation options can prevent the poor from getting to court.
Mary Jane Teigen accepts a steadying hand or holds onto a rail when she can since, at 71, her balance is more precarious than it used to be. Without a ride, getting from Dorchester Park to the Colorado Springs Municipal Court is an arduous and, frankly, dangerous prospect — especially in the winter. But she's had to make the trek frequently over the last year, because living on the streets means near-constant brushes with the law.

Teigen ended up homeless when her RV broke down about five years ago. Her husband had passed away some years prior, and she couldn't fix it on her own. Now, she spends nights at Springs Rescue Mission when she can. When it's full or she doesn't get there by curfew, she opts to stay at the adjacent Dorchester Park, since it's close to her morning meal at SRM and populated with people who help look after her. "I can't walk far, so I just sit there. There's nowhere else to go," she says. On those nights, however, she's vulnerable to citation.

Last February, Teigen was cited for camping on park property. She missed her scheduled court appearance — she says she couldn't physically walk that far — so a warrant was issued for her arrest. When she finally did get in to resolve the matter, she didn't have $150 for bail, and was sent to jail. Denied a personal recognizance bond (no-cost bail), Teigen stayed there for a week until her next court date, when she pleaded guilty to five counts of camping on park property that she had racked up. Recognizing that she was indigent, the judge waived all costs and fees. So, back out to Dorchester she went — another dizzying slog.

That series of events — getting cited, missing court and going to jail — cost her time she could have otherwise spent securing a place to live. (Teigen has yet to find anywhere affordable that'll take her.) It also cost taxpayers around $1,000 for administration, adjudication and incarceration ($150 for a court appointed attorney, $40 for the warrant, $25 in court costs and $712 for eight nights in jail). Now, she's in the midst of her third go-around in 2017, this time with three tickets for alleged violations of the same local law, making for a total of 11 so far this year.

Under city code, camping is defined as sleeping, preparing to sleep (like putting down bedding) or otherwise "occupying a shelter out of doors," where "shelter" means "any cover or protection from the elements other than clothing, such as a tent, shack, sleeping bag, or other structure or material." So, even covering oneself with a blanket or tarp can be considered a violation.

When Teigen takes shelter out in the elements, "getting away with it" isn't a top priority. She's more visible (and therefore more susceptible to citation) in the park, but she prefers it to the trails where she's less visible (and therefore more susceptible to robbery, assault or worse). "I'm a scaredy-cat," she says, "so I don't go there."

Teigen doesn't want to go back to jail either — "I hate it there," she says — and she may not have to, thanks to assistance she's been getting from Jerima King, a volunteer with Blackbird Outreach who helps indigent folks navigate the justice system. As a court advocate, she provides transportation to and from the courthouse and guidance on the process within. King has accompanied Teigen on her last two court dates. The assistance stops short of legal advice — King's not an attorney — but she does know the municipal court's people and procedures intimately, having served as Spanish interpreter there off and on for two decades.

This time, instead of pleading guilty just to be done with it, Teigen is heading to trial. Her goal is to avoid a sentence — she can't pay a fine or physically perform community service — either by convincing a jury of her innocence or getting her case dismissed "in the interest of justice." Most of all, her goal is to disentangle herself from the criminal justice system, since, she says, getting out of homelessness is hard enough.

Teigen says she once feared that if she went to court, she'd end up in jail. - NAT STEIN
  • Nat Stein
  • Teigen says she once feared that if she went to court, she'd end up in jail.

Through September of this year, 174 people were cited for violating the city's two no-camping ordinances — one (City Code 9.9.404) pertaining to park property and the other (City Code 9.6.110) to other public property. That's more citations than were handed out in the first five years those laws were on the books combined. The surge seems to be the result of more people sleeping in parks, where they often encounter regular patrol police, rather than on trails or other public property, where they're more likely to encounter a member of the Colorado Springs Police Department's five-member Homeless Outreach Team (HOT Team) — a group of specially trained officers who put more emphasis on helping homeless people than on ticketing them.

The Independent reviewed case sheets obtained via a records request, and indeed found the majority of citations, over 150, were issued pursuant to the parks ordinance. Running afoul of the parks ordinance, unlike the one pertaining to other public property, is not a jailable offense. Yet, about 40 percent of those cases included pretrial jail time.

Teigen's experience appears to be common: When someone cited for camping doesn't appear in court, the judge issues a warrant for his/her arrest. And when police discover an active warrant, that person often goes to jail, even though the original offense is non-jailable. Detention isn't inevitable — police can reschedule a court date in lieu of jail when bail is set at $200 or under — but, as in Teigen's case, that doesn't always happen.

In these cases, jail is used to assure the defendant's appearance, not as punishment for the crime. The city no longer uses jail as punishment when someone is too poor to pay fines, per a 2016 settlement with the American Civil Liberties Union of Colorado. The investigation that prompted the policy change found over 800 cases between 2014 and 2015 in which Colorado Springs Municipal Court converted fines into "pay or serve" sentences, meaning indigent defendants could serve time in jail to earn $50 a day in credit against their owed fines and fees. In 75 percent of those cases, "pay or serve" sentences were imposed for non-jailable offenses, like panhandling or breaking park curfew. An ACLU letter to the city attorney stated, "This practice violates Colorado law and over forty years of clear precedent from the United States Supreme Court."

There's less tolerance for camping on park property versus trails. - CAMERON MOIX
  • Cameron Moix
  • There's less tolerance for camping on park property versus trails.

More recently, the ACLU went after El Paso County for detaining arrestees who couldn't pay a $55 fee. The suit spelled out how the county only assesses low-level offenders for no-cost bail 15 percent of the time. Of those assessed, only 8 percent are approved for release on personal recognizance (PR bond). If the judge attached conditions, like attending substance abuse classes, to the bond, then the county charges a $55 pretrial services fee for monitoring compliance. Those unable to pay the fee, however, remained in jail. On Nov. 16, shortly after the ACLU filed suit against the county, county staff asked the Board of County Commissioners to increase the budget for the program that oversees those bonds from $117,000 to more than $500,000. The county also announced it will start assessing more people for no-cost bail in the first place and releasing those who are granted it from jail regardless of whether they can pay the fee up front. (See "Noted," p. 10.) While this case differs from the city's, they share a common denominator: policies and practices that jail people simply because they're poor don't pass muster.

"Debtors' prisons," or prisons for people too poor to pay debts, were common during the colonial period, but became restricted, disfavored and ultimately outlawed by 1833. According to the report, "The Hidden Costs of Criminal Justice Debt," by the Brennan Center for Justice, three decisions in the 1970s clarified that law. "More recently," the report states, "the Supreme Court has made clear that debtors' prison can be used to collect criminal justice debt only when a person has the ability to make payments but refuses to do so." The report details four paths to debtors' prisons that still exist, including pre-trial arrests. "Arrests for failures to appear ... raise significant concerns," the report says, "particularly because in many instances indigence is the underlying cause of a failure to appear."

In 2016, when Colorado Springs settled with the ACLU, it agreed to stop converting fines into jail time and compensate those who had served "pay or serve" sentences to the tune of $125 per day incarcerated on a non-jailable offense. All told, $103,000 was paid out to over 60 people. As part of the settlement, the ACLU trained municipal judges, prosecutors and court-appointed attorneys on the constitutional rights of indigent defendants.

The Colorado Springs Police Department also altered its approach to enforcement. Lt. Mike Lux, who oversees the HOT Team, explains that now, only HOT officers police the trails (where the public property camping law applies) while other officers, especially with the downtown unit, police the parks (where the parks camping law applies). Out on the trails, HOT officers give 48 hours' notice before evicting campers, don't write tickets if the shelters are full, and scale back enforcement in the winter months. But in the parks, Lux says, "There's less tolerance because we want to make sure the parks are used in the proper way for everybody."

According to city code, camping on park property "shall not be punishable by imprisonment, but shall be punishable by a fine not to exceed five hundred dollars ($500.00), by a sentence of probation, or by a combination of such fine and sentence of probation." (Camping on other public property, like trails, however, carries a possible jail sentence of up to 189 days.)

Mark Silverstein, legal director with the ACLU of Colorado, doesn't believe it's unconstitutional for a person to be jailed for failing to appear on a non-jailable offense. "That's how courts respond when someone doesn't show up," he says. But, he also doesn't believe it's just. "It's still a problem to have people put in jail on these really minor offenses, especially when it's behavior that they have to do just to survive."

Camping on the trails is a jailable offense, though violators get a warning and are given time to pack up and move. - MATTHEW SCHNIPER
  • Matthew Schniper
  • Camping on the trails is a jailable offense, though violators get a warning and are given time to pack up and move.

The City and County of Denver took steps long ago to deal with the "failure to appear" problem with their homeless population. Since 2005, their municipal court has been operating a "homeless court," modeled after the original in San Diego that started in the mid '90s and was followed by similar versions in Los Angeles, Houston and Phoenix. Essentially, the court is a once-a-week chance for people to come in, resolve warrants without fearing arrest, and have their fines lowered or eliminated.

After the homeless court got underway, then-Denver Mayor John Hickenlooper (now Colorado's governor) formed the Crime Prevention and Control Commission, "a broad-based group aimed at reducing recidivism and the growth of our incarcerated population through a focus on diversionary programs and alternatives to sentencing." Soon after its inception, according to Regina Huerter, the former executive director of the commission and current head of Denver's Office of Behavioral Health Strategies, members began studying "failure to appear" warrants, finding more than half had an address listed at a local shelter or no address at all. And that was after the homeless court had been set up.

"We gathered that they felt afraid to come to the courthouse ... and that they were walking around not accessing other services to avoid police contact," Huerter says. "So, that's when [the idea] was thrown out: Why don't we see if a homeless shelter would host court?"

Beginning in January, Denver's homeless court became "outreach court," held every other Wednesday at the Denver Rescue Mission. It's just like normal court in that there's a judge, magistrate, court clerks, marshals, prosecutors and defense attorneys. (Public defenders aren't a given in most of these low-level cases, but they go anyway to ensure defendants know their rights.) But it's not like normal court, in part because it's held in a chapel, and in part because of all the extra attendees. There are mental health clinicians, nonprofit staff and sheriff's deputies representing the county's work program. (The deputies help those found guilty to perform their community service hours right out of court.)

The court runs on a drop-in basis, meaning there's no set docket (and no failures to appear).

"The tone and tenor is different, too," says OBHS deputy director Nikole Bruns. "It's more appropriate for the setting ... If I have to go to court I put on career clothes to look presentable, you know. But when folks can't bathe or may not have slept and we ask them to come into court, they're just reminded of their place in the world. This is about meeting people where they are at rather than talking down to them."

And it appears to work. The outreach court at the mission processes more cases in a single day than the homeless court at Denver's City Hall did all of last year. Through Nov. 8, 139 individuals with active warrants appeared at the mission court, according to OBHS. Those individuals were able to clear their cases and remove the warrant, saving the city just under $100,000 by preventing their arrest. That means that around year's end, the court will break even on costs.

Huerter feels the new system is both more efficient and more equitable. "If someone has the means to pay for a ticket and they don't, it's on them," she says. "But when these folks don't have the means, then they're jailed because of the warrant, not because of the offense, it's an unnecessary waste of [public] resources. ... What this court does is actually treat people based on their circumstance, not just penalize them more."

Local homeless advocates want to see this sort of approach implemented in Colorado Springs.

"When someone has nine tickets for the same thing, it obviously doesn't work as a deterrent," King, Teigen's court advocate, says. "There's not enough [shelter space] or low-income housing, so what are they supposed to do?"

Indeed, there's fewer beds in the city than people who need them. The official measure of how many people need them comes from the federally mandated, annual Point-in-Time survey, otherwise known as the "homeless headcount." The most recent count was done in January of this year. Surveyors found that of the 1,415 people experiencing homelessness in some form, 457 were without shelter — a 46-percent increase over January 2016. The survey is generally regarded as an undercount. Realistically, HOT officers put the number needing shelter closer to 900.

"There's more people out there than we've ever seen before," Lux told the Independent. "It's overwhelming."

Recent expansions at the city's two emergency shelters — Springs Rescue Mission, at 5 W. Las Vegas St., and the Salvation Army's Shelter and Services at R.J. Montgomery, at 709 S. Sierra Madre St. — mean that, citywide, there's room for 520 people in shelters, when overflow space is included. (There are other beds available through other agencies, but they're few in number and limited to specific populations, like youth or battered women.)

Heading into the cold months, the Salvation Army plans to reopen its winter warming shelter, which operated on a seasonal basis for two years before closing in April 2016. The facility, at 505 S. Weber St., is nothing fancy — just floor space for mats and bedrolls — but it does add room for about 150 bodies to get in out of the elements.

"The city came to us to ask if we'd step up and help and we agreed," says Jeane Turner, Salvation Army spokesperson. "We want to do everything we can so that people aren't dying or getting frostbite."

Even with that addition, based on HOT's estimate, with all shelter space full, there will still be 230 people unsheltered this winter.

Lux says that enforcement will ease up in the winter months. "We don't want to look like we're pushing people out of their homes [tents] in the middle of a snowstorm," he says. But, at the same time, police can't just ignore active warrants.

When HOT officers evict campers, they don't always check for warrants. - CASEY BRADLEY GENT
  • Casey Bradley Gent
  • When HOT officers evict campers, they don't always check for warrants.

That's why King wants more opportunity for people to clear up their tickets before it comes to that. "It would be so much more convenient, more beneficial, to address them on one day, in one place, where transportation isn't an issue," she says. "It would also be easier to connect them with [agencies] that specialize in different areas, whether it's medical or housing, if they're not hiding."

When City Councilor Bill Murray first read about Denver's outreach court, he thought it seemed like a sensible solution to the Springs' struggles. "I sent a bunch of emails around saying, 'Hey, this is a good idea, what can we do about it?'" Murray says. "But, any idea you put forward here they say, 'Nice idea, thank you, move along.' ... This is where good ideas go to die."

Indeed, Judge HayDen William Kane II, court administrator who presides over daily operations at the municipal court, says a homeless court is not going to happen. By email to the Indy, Kane explained that the court already has some procedures in place to accommodate homeless people. If a defendant doesn't understand court proceedings, they're assigned a court-appointed attorney (which costs the court $150 per case). Upon a guilty verdict, judges usually waive fines (up to $500) and court costs (at least $25) if the defendant is too poor to pay, ordering community service instead.

"It is not feasible to take court proceedings to outside agencies because of the logistical challenges and associated expenses," Kane says. "However, the court has offered an amnesty day at different points in time for people who have received citations/warrants to appear in court to have their case absolved. Unfortunately, very few people took advantage of these opportunities."

The Fourth Judicial District, which encompasses Colorado Springs, does offer specialty courts (the Veterans Trauma Court, Family Treatment Drug Court, DUI Court, Child Support Court, Domestic Violence Court, Truancy Court and Recovery Court), but none exist at the municipal level.

There is one exception, sort of. Juveniles who plead guilty to misdemeanor charges in municipal court can get referred to Teen Court, which is its own nonprofit, at arraignment. There, they participate in restorative justice, as determined by a jury of their peers. It can include mediation, classes and mentorship, all designed to encourage teens to accept responsibility and repair the harm they've caused. The recidivism rate from Teen Court is less than 7 percent, according to the program's website. The city doesn't keep comparable data for municipal court, though Kane calls Teen Court "successful."

None of that matters, though, to Teigen, who's awaiting trial now. Since she's older, and barely able to walk, both the approaching court date and the coming winter hang heavy on her heart. She says she's anxious about going to court, but grateful for King's help getting there and getting through it. Once it's over, Teigen hopes to find a place to live and get out of this cycle for good.

Asked if a court that came to her, like the one in Denver, might ease her burden, Teigen's face lights up.

"Oh," she says, "it'd be so much easier."

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