by Laticia Walker-Simpson
Homelessness in Greater Boston was rising even before the economic fallout from the COVID-19 pandemic. From 2008 to 2018, the region experienced a 26.7% increase in homeless families and a 42.5% increase in homeless individuals. As rents skyrocketed and the shortage of affordable housing worsened, the state’s Emergency Assistance (“EA”) shelter program has strained to meet the need of the growing number of eligible households. The public health emergency has laid bare the structural problems with the state’s housing safety net program all too familiar to those working directly with the vulnerable population.
To meet the statutory mandate to provide Shelter to impoverished households, the Commonwealth must substantially increase funding for the EA program, implement measures to create more housing affordable for extremely low income residents, and adopt initiatives to address the displacement crisis, such as right to counsel in eviction cases and rent control.
“Right to Shelter”
In 1983, Massachusetts enacted a “Right to Shelter” law, Chapter 450 of the Acts of 1983, and established the state’s first publicly-funded homeless Shelter for families while they search for more stable housing. Although referred to as a “right to Shelter” jurisdiction, the Commonwealth imposes strict threshold eligibility requirements for applicants to be eligible for EA Shelter: families must be Massachusetts residents; at least one person must have qualifying immigration status; the family must have a qualifying child under age 21, and the overall household income must be at or below 115% of the federal poverty level.
Additionally, the family’s homelessness must have been caused by one of four qualifying reasons: (1) domestic violence; (2) fire, flood, or natural disaster not caused by a household member; (3) a health and safety risk that is likely to result in harm; or, (4) eviction due to certain circumstances that are generally beyond the control of the tenant household, such as medical situations.
A household will be barred from EA Shelter for a variety of reasons, including “intentionally reducing” income to become eligible for benefits (i.e., EA shelter or a housing subsidy); receiving EA Shelter benefits in the last year; abandoning public or subsidized housing without good cause; or being evicted due to criminal activity, destruction of property, or non-payment of rent for public/subsidized housing.
Once admitted to an EA Shelter, the household must meet certain mandatory participation requirements, such as saving 30% of their income, spending 20 hours per week in housing search, job search, or in education or training programs like financial literacy classes. Participants are also required to complete chores in the Shelter, including cleaning the facilities’ kitchens and bathrooms.
A Perverse Cycle
The Commonwealth’s shortage of affordable housing for low and extremely low income families is driving the need for EA Shelter. At least three in ten low-income people in Massachusetts are either homeless or must pay over half of their income in rent.
Since 2013, the average length of stay in EA Shelters across the state is 267 days. Only 12% of families exit the EA program within one month, 28% exit within three months, and 27% stay for more than a year and up to 5.6 years. Compared to an average of 247 days in 2008, in 2013 homeless families spent an average of 300 days in EA Shelters. The duration has been about 150 days longer in the Boston and Central regions than in the Southern and Western regions. This disparity is not surprising given the higher cost of housing in Boston where, for example, the rent for a two-bedroom leapt from $1,237 in 2010 to $1,758 in 2019.
With the lengthening duration of stay in EA Shelters due to lack of permanent affordable alternatives, more families are placed farther away from their home communities and face limited transportation options to their original places of employment, child care, medical care, education, and important networks of support. And case workers assigned to each EA family face increased caseloads, reducing the time they can spend assisting each family with housing search and accessing other resources necessary to transition out of homelessness.
The budget for the EA program has not kept pace with the expanded need for EA Shelter and increased cost of temporary EA housing. In fiscal year 2013, 39,436 homeless families were served by the EA budget of roughly $156.5M (adjusted for inflation). In fiscal year 2019, 43,392 families were served by the allocated EA budget of roughly $179.8M (exclusive of any supplemental budget).
To meet the increased demand, the EA program has placed many families in inexpensive private apartments. These private market EA placements have resulted in the unintended, albeit foreseeable, consequence of further shrinking the supply of “naturally occurring affordable housing” (“NOAH”) available as permanent housing options, including for EA participants. That is, by competing in the private rental market for EA temporary placements, the state’s efforts have had the perverse effect of further decreasing the supply of NOAHs available to low-income families, thereby pushing more vulnerable households into homelessness, and exacerbating the supply barriers to permanent housing for EA participants, thereby extending their time until exit from the EA program. It is a pernicious and inefficient cycle.
The related trends of longer EA stays and shrinking permanent affordable options has transformed the EA program from its original purpose as a short-term measure to help families get on their feet into a long-term housing placement system for those with limited prospects for transitioning to stable, affordable housing. This dynamic is unsustainable at current levels of EA appropriations.
The COVID-19 pandemic has also underscored the public health costs of a system operating beyond capacity. EA Shelters are primarily comprised of congregate housing, where each family has a private room but shares a kitchen, bathroom, and living space with other families. Congregate physical facilities make social distancing impossible and contributes to the spread of the virus. The reduction in on-site staffing due to the public health emergency also means cleaning and maintenance also has come under increased strain.
Creativity and determination are necessary, but not sufficient, to disrupt the current inefficient patterns and cycles in the operation of the EA Shelter system. A substantial increase in EA Shelter appropriations will also be necessary, along with expansion of staff trained to develop resources, capacity, and resilience within homeless families, and more systemic efforts to preserve NOAHs as permanent affordable housing options.
The most effective, preventative response to the homelessness crisis would be a form of rent control. A more immediately needed response in the face of the tsunami of evictions expected at the end of the temporary eviction and foreclosure moratorium, Chapter 65 of the Acts of 2020, is a Right to Counsel legislation that would reduce the number of low-income residents who are evicted and need EA shelter by providing attorneys to low-income tenants, the majority of whom presently go unrepresented.
The pandemic has exposed the need for systemic reform for the EA program to operate effectively to mitigate the traumatic human, medical, and social costs associated with homelessness and to transform the “Right to Shelter” from a paper promise into a sustainable reality for our Commonwealth’s neediest families.
Laticia Walker-Simpson is a Staff Attorney focusing on EA Family Shelter in the Housing Unit at Greater Boston Legal Services. She co-chairs the Mentor project at GBLS and is part of the Massachusetts Right to Counsel Coalition. She is an avid baker.
Voice of the Judiciary
The Homeless Court is a specialty court or ‘problem solving’ court established in 2010 at the West Roxbury Division of the Boston Municipal Court. It addresses the needs of individuals who are residents of the Pine Street Inn and area shelters within the City of Boston and who have open default warrants for misdemeanor and low level felonies in all courts throughout the Commonwealth. This justice initiative is based upon the premise that there is room for treatment, compassion and for recovery within the court system. It recognizes that homelessness presents a complicated challenge to the courts demanding alternative approaches in the administration of justice. The court seeks to make the justice system more accessible, accountable and responsive to the needs and challenges faced by this most vulnerable population.
The Homeless Court is modeled after a court program started in San Diego, California for homeless veterans in 1989. Homeless courts currently operate in Phoenix and Tucson, Arizona, New Orleans, Louisiana, and Houston, Texas. This initiative in Massachusetts began as a collaborative effort of attorneys from the Committee for Public Counsel Services (CPCS) and from District Attorney Daniel Conley’s office, and representatives from the Lemuel Shattuck Shelter and court leaders. In the past four years, the Homeless Court has grown to encompass the Pine Street Inn and other area shelters within the City of Boston including Woods Mullen Shelter and St. Francis House. Homeless Court is commonly called “The Court of Second Chances” because it recognizes the importance and value of a ‘second chance’ and rewards those individuals who have demonstrated a commitment to change self-destructive behaviors that led to criminal activity by participating in substance abuse and mental health treatment and maintaining recovery through job training programs and employment. Lyndia Downie, the President and executive Director of the Pine Street Inn since 2001, embraces the concept of offering a second chance to her residents but recognizes that in Homeless Court, “No one is given a free pass; rather, they are just given a chance to rebuild their lives.”
The Problem: Challenges of the Homeless within the Criminal Justice System
The homeless population presents unique needs and challenges to the criminal justice system due in large part to the financial and social instability in the individual’s life and the concomitant personal issues that caused them to become homeless. It is evident that there is a far greater likelihood that a homeless individual will enter the criminal justice system than a housed individual. Experience shows that street violence and the widespread abuse of alcohol and drugs among the homeless population further increases the likelihood of an unfavorable police encounter. Mental health illnesses including depression, anxiety, and paranoia often plague men and women whose dignity, self-worth and identity have been eroded by the loss of a permanent home, employment and family support. Without proper medical treatment and social service interventions, the homeless find that the illnesses routinely spiral into criminal conduct and the consequential effects of arrest and detention instead of treatment and recovery.
Once a person is arrested and charged with a crime, the homeless individual is typically unable to navigate the court system. Confronted with the havoc and instability of living on the streets, homeless men and women are unable and often unwilling to comply with legal obligations and court orders. The homeless population lacks the standard ‘roots in the community,’ such as employment, residence, and family ties, that are contemplated in the bail statute and weighed by a judge or magistrate in determining bail and conditions of release. Default warrants are a chronic occurrence within the homeless population.
The immediate procedural consequence of an outstanding default warrant for a homeless person is the threat of arrest and incarceration. However, the collateral consequences of a default warrant are extensive. Default warrants interfere with a person’s eligibility to receive permanent housing,employment and can effectually bar placement in residential substance abuse treatment programs.
The consequences of default warrants on the homeless are compounded by the reluctance and fear of an individual to go to court to have the warrants removed. The failure to return to court to address an outstanding warrant increases the likelihood that a defendant will be held on bail. This cycle of arrest, detention, default, re-arrest on the warrant and further periods of detention, unfortunately often perpetuates the despair of the homeless population and reinforces ingrained suspicion and distrust towards the police and the court system.
Default warrants also inadvertently result in the victimization of the homeless. In many instances, an individual who knows that there is a warrant for his or her arrest, avoids all reckoning with the police. Similarly, a homeless person who is a victim of a crime is much less likely to seek help and relief from law enforcement officials if the threat of an arrest on a default warrant is imminent.
The Solution: Homeless Court, “The Court of Second Chances”
The fundamental difference between a traditional court and the Homeless Court is that the Homeless Court works with people who have already changed the behavior that led to their involvement with the criminal justice system. It has been described as a progressive plea bargaining system characterized by alternative sentencing
In the traditional judicial setting, the court requires the defendant to promise to change his or her behaviors while on probation. The primary incentive for a defendant’s compliance with the judge’s order is the threat of revocation of probation and incarceration. However, to be eligible to participate in the Homeless Court, an individual must have already completed a substance abuse program or be actively participating in mental health treatment and job training. All of these efforts and achievements occur prior to the Homeless Court hearing. In essence, the individual has already ‘repaid his debt to society’ and has fulfilled the conditions of probation that a judge would ordinarily impose.
During the Homeless Court session, social workers and case managers attest to the individual’s accomplishments and present the specific obstacles that the participants have had to overcome. After reviewing documented letters of support and the sworn testimony of the treatment providers who have monitored the individual’s achievements and progress, the Court is able to remove default warrants, remit outstanding court fees and dismiss cases. During the hearing, participants are recognized for their effort and resiliency in overcoming the stigma, isolation and diminished opportunity caused by their homeless condition and are provided a much coveted and well deserved ‘second chance’ to escape the boundaries of homelessness through permanent housing, employment and stability.
A critical component of the Homeless Court session is the spirit of cooperation and collaboration among the justice partners. Prior to scheduling a matter before the court, all cases are reviewed and vetted by the District Attorney and the participant’s CPCS counsel. If a prosecutor objects to the dismissal or termination of a case, the defendant would not be eligible to participate in the Homeless Court session. When a default warrant has been issued for non-compliance of a judicial order of probation, the supervising probation officer is given an opportunity to express his opinion regarding the progress and suitability of the probationer and suitability for the session. Additionally, as noted, eligibility for the initiative is limited to misdemeanor offenses and non-violent low level felonies.
Under the progressive leadership of Chief Justice of the Trial Court Paula Carey, the Homeless Court’s jurisdiction has been expanded. Currently, an outstanding warrant in any Municipal and District Court for a Pine Street Inn or area shelter resident may be addressed in the Homeless Court session in Boston. All Homeless Court sessions are held at the Pine Street Inn on the third Thursday of every month. Each participant’s progress is reviewed in open court. The participants are encouraged to share their life stories. For many it is an opportunity for reconciliation with a court system that they feared for years and struggled to avoid. Three hundred and eighty three defendants have been referred for participation and have met with a CPCS attorney. One hundred and one homeless individuals have successfully met the requirements of treatment and recovery and have participated in the Homeless Court.
Many of the justice partners and social service providers maintain that the numbers alone do not adequately measure the effect and the impact that the Homeless Court has had on the lives and futures of the homeless within the City of Boston. CPCS Attorney William Lane, who has represented many defendants in the session, notes that,
“Homeless Court reinforces in our homeless community that they matter, that they have value and that they deserve to have their dignity recognized and honored. Homeless clients are excluded people almost everywhere they go, but in Homeless Court, they are told they deserve the dignity of stable, safe and comforting housing, and the Commonwealth and the courts are going to be merciful partners and supporters in that process.”
District Attorney Daniel Conley has been a consistent and steadfast supporter of the Homeless Court since its inception and was instrumental in its development. He maintains that,
“Too often, the criminal justice system is where people end up when other systems and the social safety net fails.Today’s criminal justice system is asked to do far more than it was designed for, but specialty courts show our ability to adapt by helping low-level offenders on the road to recovery and productivity. Homeless Court in particular has a bright future of collaborating with shelters, job training agencies, and other community organizations to reach those with a history of homelessness and enable support, treatment, and stability.The barriers we remove and the progress we help the clients make are rewards that are unlike those in any other specialty court.”
And finally, it should be noted that Homeless Court makes economic and financial sense. In these times of budgetary constraints and reduced judicial resources, the Homeless Court is an excellent example of how collaboration and cooperation among justice partners can create new approaches and dynamic solutions to the rising costs of detention and incarceration. It is a jail diversion initiative that offers a beacon of hope and an end to a cycle of despair and mistrust toward the court system while concurrently providing a second chance for a needy and deserving population to enjoy a stable and productive life.
Appointed to the bench in 1993 by Governor William Weld, Judge Kathleen Coffey has been First Justice of the West Roxbury Court for the past eighteen years. She is the Director of Specialty Courts for the Boston Municipal Court Department. In 2007, she established the Mental Health Court, and in 2010, the Homeless Court.