Boulder recommends mandatory minimum sentences for homeless campers

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Saturday, Jan. 16, 2020

Boulder is floating new regulations and enforcement to remove camps of unhoused persons from city space, including mandatory minimum sentences for people who violate the camping ban. Recommendations from city staff — such as a new police unit for the downtown area and creation of urban park rangers — will cost more than $1 million if implemented.

City council will consider suggestions Tuesday. The discussion comes as Boulder grapples with proliferating and persistent camps during a pandemic in which sheltering and other services — formal and informal — have been reduced.

Boulderites have grown increasingly vocal in their concerns and fears over camping, reporting hundreds of sites for removal. But sweeps so far have been ineffective.

Staff contends that’s because there aren’t enough consequences for camping: “Increased enforcement of camping violations and other associated violations without increased consequences/jail, court mandated drug treatment, is futile,” they wrote.

Experts and advocates say that sweeps are harmful to persons experiencing homelessness and do nothing to advance housing-first goals. Others have raised human and civil rights issues with camping ban enforcement, given the racial and socioeconomic factors that contribute to a lack of shelter — points the city attorney’s office acknowledged in a supplement to the meeting memo:

“Overrepresentation in the unhoused community of societal harms such as mental illness, drug addiction, trauma, and racism are formidable barriers to using Boulder’s camping law to reduce street homelessness.”

More cops, longer jail stays

All of the remedies being advanced by staff — with the exception of possible residential treatment for users of methamphetamine — center around increased enforcement and deterrents to urban camping, rather than alternative or additional services for persons experiencing homelessness. Boulder’s Housing Advisory Board and Human Relations Commission were tasked with researching those, but their reports were absent from notes sent to council ahead of the meeting.

Read: HRC and HAB’s reports on Safe Parking and Tiny Homes, plus a summary of findings

Recommendations, crafted by a cross-departmental team, include:

  • Mandatory minimum sentences for violators of the camping ban. How long unhoused residents would be forced to stay in jail wasn’t discussed. Staff wrote that the goal of mandatory sentences would be to connect them with services from the jail: “The potential benefit of minimum sentences would be increased punishment for repeat violators and, in theory, access to existing treatment programming at the jail, which has minimum length of stay requirements.” But, they noted, “there is no certainty that … services will be available for them.”

 

  • Banning tents in parks. Though the current camping ban makes it illegal to “conduct activities of daily living, such as eating or sleeping” in a tent, tents themselves are still allowed. An amendment to Boulder Revised Code Section 8-3-21 — suggested by councilman Bob Yates — would fix that. Staff are proposing this language: “Tents and Nets Prohibited. No person shall erect any tent, net, or structure on any public property, park, parkway recreation area, open space, street, or public, unless done pursuant to a written permit or contract from the city manager.”

 

  • Banning propane tanks in parks. This one is another council member suggestion. Staff credits it to Sam Weaver, but Mary Young inquired about it at a Jan. 11 scheduling meeting. Dozens of propane tanks have been recovered from encampments, and others have exploded or otherwise sparked fires, causing injury to property and people. Boulder Revised Code Section 5-4-10 would prohibit propane tanks not attached to a grill using the following language: “No person shall possess a propane tank in any public property, park, parkway recreation area, open space, street, or public way, unless such tank is affixed to a grill or other device intended for the preparation of food.”

 

  • Additional law enforcement, including a downtown-specific police unit and urban park rangers. A six-person team of police officers would be stationed in and around the Civic Area and downtown between 9th and 13th “to prevent the re-occupation of an illegal encampments.” A potential drawback noted by the city is that this might push encampments elsewhere. Urban park rangers, meanwhile, would work in public space throughout Boulder, including multi-use paths and rec centers. Though they lack police powers, “simply having a uniformed presence in our parks should induce many members of the public to obey park rules and regulations,” staff wrote.

 

  • Building a skatepark underneath the library. This one falls under the official strategy of “Crime Prevention through Environmental Design” — that is, making the area itself less hospitable to camping or sleeping, an idea rejected by the previous council for its expense. The area under the library, referred to as “the underbelly,” has been housing a large encampment for many months. A skatepark would activate the space and meet the stated desires of “many youth” who participated in the Civic Area planning process.

 

  • Treatment for users of methamphetamine. According to the police department’s Homeless Outreach Team, “approximately 50 meth users are repeatedly identified during encampment clean-ups.” This population is hard to house, given the impacts of meth contamination on homes. Treatment in a residential setting could provide housing and treatment concurrently — though staff notes it will be difficult to site such a location without significant neighborhood opposition: “Such facilities are best served through single-family dwellings.”

 

  • Bringing encampment removal in-house. The city currently contracts with ServPro to handle sweeps. Hiring full-time city staffers to handle that “would provide greater flexibility while also supporting other unmet maintenance needs across the city,” staff wrote. A job has already been posted for a supervisor to manage and coordinate encampment removals.

 

  • Shorter time between notice and removal of a camp. Currently, the city provides 72-hour notice before it removes an encampment. Though it wasn’t referenced in staff’s notes, the idea of shortening that window has been discussed by council members and staff. Doing so may weaken the city’s continued defense of its camping ban: Staff included in a memo titled “Legal Analysis and Enforcement Options” that successful challenges to Denver’s camping ban resulted in the city offering a full seven day’s notice of its intent to clear a camp. “The city of Boulder has structured its cleanup process to allow for adequate notice and storage of personal property in the hope of avoiding liability while still enforcing the camping ban,” they wrote.

Looking to Denver — sometimes

How to pay for these initiatives wasn’t explicitly mentioned, but the council packet included a page on Denver’s Homeless Resolution Fund. After voters in May 2019 kept that city’s camping ban in place, they passed a 2.5 cent sales tax to fund shelters (500-600 additional spots), services and housing (1,800 units over 10 years). The tax will raise $40 million a year.

Council and staff have discussed a similar sales tax for Boulder’s ballots this fall.

Costs for staff-recommended initiatives

New police unit:$771,888 annually + $321,600 in start-up costs and $48,600 ongoing annual expenses

Urban park rangers: $70,000-$100,000 annually + $76,000 start-up costs

City clean-up team: $240,000 annually + $80,000 start-up costs
*minus $170,000 currently being spent on contractors for cleanups

Design changes: $62,500-$125,000

Total: $1.26 million – $1.35 million

*Cost estimates for residential treatment for methamphetamine users were not included

Part of Denver’s plan are tiny homes and designated campgrounds, which are now in operation. Council rejected those solutions in September when it voted to consolidate and reduce the number of shelter beds. Every available dollar should go to putting people in homes, they said; $769,875 in savings were used to do just that, according to staff.

Read: Safe parking coming to Boulder, by way of Longmont

Boulder Shelter for the Homeless has averaged 32 empty beds per night this winter season, though three people were turned away due to overcapacity before additional hotel rooms were made available through federal COVID funding.

Officials have pointed to this as proof that the lack of shelter is not contributing to camping. New policies — requiring screening and limiting the number of nights a person can use the winter shelter — have encouraged more people to engage with services, but it may also be discouraging people from seeking shelter even when available, other providers have warned.

Providers also report that unhoused persons say they are afraid to utilize shelter during the pandemic. (Boulder Shelter for the Homeless has an identical infection rate to the unsheltered population, according to staff.)

“Some individuals cite the pandemic as a reason for not engaging in shelter options at BSH,” staff wrote.

Additionally, on any given night, 30 people are out on the streets, having been suspended from the shelter. BSH has been criticized by clients and other providers for its restrictive policies and liberal suspensions; director Greg Harm defends them as necessary for a safe environment.

Staff rejects the idea that suspensions are contributing to camping, writing that “only a portion of these individuals remain in the community.”

“Many of the people who receive suspensions are traveling through the community, recognize that their options for services and sheltering have become limited, and choose to move to other locations once they are no longer able to stay at the shelter. Thus, suspensions from the shelter result in a small percentage of those camping in the community.”

‘Deterioration of support’

It’s hard to know how many individuals are camping in Boulder at any one time. More than 250 encampments were removed in 2020 and some 255 tickets given out, but residents often set up camp elsewhere in town. 

Though these are the most visible unhoused persons in town, the city attorney’s office noted how they represent a fraction of the total unhoused population locally.

“The population discussed in this memorandum is a small subset of a larger population,” they wrote. “This subset, however, has unique challenges … This small population presents complex, nuanced challenges that do not have simple solutions.”

Those challenges include extremely high rates of disability; mental illness (25% vs. 4.2% of the general population); addiction, itself a form of mental illness; and childhood trauma — 45% of men and 60% of unhoused women report at least one Adverse Childhood Experience, though these are likely vastly underreported).

Support for these struggles has been eroded by COVID, according to the city attorney’s office:

“Case management services, and particularly mental health services, have drastically changed during the pandemic,” staff wrote. “While the community continues to discover ways in which to provide services in a changing landscape, the inability to provide in-person counseling, severe limitations to substance use disorder assistance, and controlled access to mental health services have led to deterioration of support for some people experiencing homelessness.”

Image by Matt Collamer via Unsplash

‘Horrifying, cruel and dangerous’

As city attorneys also noted, “the majority of people experiencing homelessness never come into contact with the criminal justice system.” But they do make up a majority of criminal cases in Boulder: 55% of all arraignments in 2019 were people experiencing homelessness.

Underlying conditions often escalate contact with police officers, bringing additional charges. It also factors into sentencing.

“Prosecutors and judges often note a defendant’s attitude with the police when determining appropriate plea bargains or sentences,” the city attorney’s memo read. “The concept is that if a defendant had a good attitude with the officer, then some form of leniency is more appropriate than if the defendant was difficult or had a poor attitude during the interaction. The high rate of trauma in the unhoused population and its subsequent effects call this practice into question in the context of enforcement of Boulder’s camping law.

“A policy that punishes negative interactions with law enforcement must be based on the idea that the individual can control how they respond to stressful situations.”

All of these factors — a vulnerable population, racial and socioeconomic inequality and devastation wrought by COVID — make Boulder’s suggestion of mandatory minimum sentences “absurd, cruel and dangerous,” said Annie Kurtz, an attorney and Equal Justice Works fellow with the Colorado chapter of the American Civil Liberties Union.

Nationally, the ACLU has opposed mandatory minimum sentences for their lack of discretion and contribution to racial inequities. Kurtz said she was not aware of mandatory minimum sentences being used for low-level offenses at a municipal level.

They’ve been a stain on our justice system for decades,” Kurtz said. “That anyone (is) considering new mandatory minimums in 2021… It is pretty horrifying to see Boulder considering this instead it would increase punishment for those only crime is not having somewhere to live.”

City staff contend that more time in jail would allow adequate connections to services, since many programs are only available for those staying 45 days or longer. Examples from the city attorney’s office claimed that some unhoused persons “voluntarily” remain in jail beyond their release date to access medications “to help control their substance abuse.”

Though new resources have been directed toward services for shorter stays, another challenge remains: The time it takes to “establish necessary trust and relationships” between providers and individuals.

There are also simply not enough services to meet demand, the city attorney’s office wrote, at least when it comes to drug addiction. Though the court can mandate treatment, most available treatments don’t come with a place to stay — key in treating addiction.

“”An addict is unlikely to successfully mitigate their drug habit while living under a bridge or in a tent in a park regardless of the availability of outpatient treatment. The number of spots for inpatient drug treatment in Boulder County for unhoused individuals is so limited that it is not a realistic option for most people who could benefit from its use.”

Taken all together, Kurtz said the city’s overall plan — of which minimum sentencing is “just one piece” — is incredibly concerning.

“It’s more about Boulder trying to make homelessness less visible or trying to push people out of town,” she said. “As a package, I find this all pretty cruel and exclusionary and dangerous and just another example of punishing poverty.”

Housing the ultimate answer

Still unknown is the size of the population that would be subject to mandatory minimum sentences. Data on that wasn’t shared in notes to council.

The majority of people who receive a campaign ban citation don’t show up for their court dates — 60% of camping cases in 2019 had one or more associated failures to appear, according to the city attorney’s office. Those that do go before a judge are first offered a plea deal or access to two navigators whose job it is to connect them with services. The program has been incredibly successful at removing repeat offenders from the crime-and-court system.

“Among Boulder’s previously unhoused high utilizers who received assistance in finding stable housing … the number of charges and arrests were reduced by over 90%,” the city attorney’s office shared. “Many of these individuals would not or could not use the homeless shelter.”

Providing homes plus supportive services costs roughly $20,000 per person per year — less than half the costs accumulated from allowing a person to remain unsheltered, though their use of the medical and criminal justice systems. For the cost of initiatives being floated, some 70 individuals could be placed into permanent housing.

Housing is only provided to those who have resided in Boulder County for six months or more, an attempt to prioritize funding for local unhoused residents. Individuals identified as non-residents through the screening process cannot simply remain unsheltered locally until that threshold is met; they are barred from services for two years.

Some may leave; others remain. Screening data indicates that the share of non-residents among Boulder’s unhoused is growing. Non-residents previously qualified for navigation services, which providers said was helpful in helping people exit homelessness. Now, non-residents can only qualify for city assistance in leaving town — or stay behind and camp.

As city attorneys wrote, “there is no one answer to ending camping in the city of Boulder when the underlying causes of unsheltered homelessness remain unsolved in our society.”

More from the Jan. 19 meeting memo

CAMPING BAN
567 reports of camps submitted by community members to Inquire Boulder over four months

Camping is defined as “to reside or dwell temporarily in a place, with shelter, and conduct activities of daily living, such as eating or sleeping, in such place”
Max $1,000 fine, 90 days in jail
84% of tickets issued between 11 p.m. and 8 a.m.

RESOURCES ON ENFORCEMENT, BY DEPARTMENT
Parks and Rec: 970 labor hours in 2020
Utilities: $246,000 and 4,000 hours, past three years
Transportation: 730 hours, $40,000 in 2020
Police: 6,516 service calls involving unhoused = 9,500 hours, $438,520 in salary = 4.5 FT officer (25% increase from 2019)
543 calls per month (vs. 531 medical calls, 527 officer-initiated traffic stops)
Avg. time of 55 minutes per response
$29,000 in overtime from Dec. 16 to mid-January for Central Park patrols

CRIME
“Without a doubt, most individuals experiencing homelessness are law-abiding; however, police data reveal there may be some relationship between crime and this challenge”
614 serious offenses in 2020 (burglary, assault, homicide, robbery)
490 unique offenders
37% of offenders were homeless (181)

Enforcement actions by Boulder police
Camping ban
2018: 378
2019: 541
2020: 255

Trespassing
2018: 714
2019: 707
2020: 480

Unlawful Conduct
2018: 3
2019: 2
2020: 0

Stolen Propane Tanks
2018: 1
2019: 3
2020: 11

Decrease in 2020 violation has been attributed to COVID-19-related “store closures (where trespassing frequently occurs), jail restrictions, and officer directives to limit close interactions with individuals suspected of misdemeanors to prevent COVID-19 exposure and spread.”

Source: City council agenda packet

— Shay Castle, boulderbeatnews@gmail.com, @shayshinecastle

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