Legislation Law Prof Blog

Combatting the Criminalization of Homelessness: Seattle U's Homeless Rights Advocacy Project Joins the Good Fight

The Legislation Law Prof Blog often features policy advocacy undertaken by law students around the nation.  Today, I'm excited to spotlight the work of my own students in Seattle University's new Homeless Rights Advocacy Project.  The students are releasing four cutting-edge policy briefs on the criminalization of homelessness in May; this Real Change article gives an excellent preview.  If you are interested in undertaking similar advocacy work at your institution, please feel free to contact me at [email protected]

Seattle University students build a resource to stop laws that criminalize homelessness

by Rianna Hidalgo | April 1st, 2015

A team from Seattle University has analyzed anti-homelessness ordinances. They are (back row from left) Josh Howard, Javier Ortiz and Scott MacDonald, (front row) Kaya Lurie, Prof. Sara Rankin, Justin Olson and Matthew Dick. Photo courtesy of Seattle University

Falling asleep. Sitting down. Standing still. 

“There are some activities that are so fundamental to human existence that it defies common sense that they might be treated as crimes,” begins a 2014 report from the National Law Center on Poverty and Homelessness (NLCPH). 

Yet the municipal codes of cities across the country prohibit sitting and lying on sidewalks, sleeping in cars, camping in public or having “offensive body odor,” as a recent Burien ordinance initially proposed.  

A group of students at the Seattle University (SU) School of Law have undertaken the first comprehensive examination of Washington laws that they say criminalize homelessness and will release four policy briefs analyzing their results in May. 

The leading professor on the project, Sara Rankin, minced few words about the purpose. 

“Our goal is to support the repeal of these laws,” she said.

The briefs, she said, will offer concrete, empirical data that can be used as a “potent tool” for advocates aiming to overturn or prevent such laws. The research is part of the law school’s Homeless Rights Advocacy Project, created last fall at the Fred T. Korematsu Center for Law and Equality. 

The argument behind the briefs is that criminalizing necessary, life-sustaining activities — such as sitting — violates civil and constitutional law and disproportionately affects those experiencing homelessness. The laws are often passed in the name of public safety, order and health. 

“When you have no reasonable alternative but to do these things in public because you are without housing,” Rankin said, “these laws criminalize people for just living.”

Students spent last semester gathering vast amounts of data, issuing public records requests, conducting surveys and crunching numbers. Now, they are in the process of vetting their findings with experts in the field. 

One brief, co-authored by student Justin Olson, surveys 72 Washington municipalities and charts every found nuisance and disorder law, looking at what behaviors are regulated and how they are enforced. The results are consistent with NLCPH research that shows a spike in these laws since 2011. 

“From densely populated urban cities to scattered rural townships, city councils pass these laws en masse, often drafting them in a way that raises serious concerns about constitutional rights,” Olson said in a statement. 

Rankin said she believes the overall increase in these laws is connected to negative public perception of homelessness and a visceral reaction to visible poverty. 

“Part of the reason I’m so fueled to do this type of work is that in my own view, the plight of people experiencing homelessness is one of the least illuminated and least understood forms of civil rights violations in contemporary society,” she said. “It makes people very uncomfortable to be reminded of human desperation. We resent being confronted with it.” 

More than half the surveyed cities criminalize camping and some form of panhandling, while nearly three-quarters of them criminalize sitting and lying on sidewalks. In Seattle, it is illegal to sit or lie down on a public sidewalk between 7 a.m. and 9 p.m. in areas such as downtown.

It’s a law, Rankin said, that she doesn’t see being enforced against SU students who sit on the sidewalk by the Starbucks across the street. 

“That law isn’t meant for them,” she said.  

Olson said one of the problems he sees in Seattle is a surge in the amount of jail time resulting from the Pedestrian Interference code, which prevents “obstruction of pedestrian or vehicular traffic” and “aggressive begging.” 

Another problem is the downward spiral that occurs when a small civil infraction with a monetary penalty leads to jail time: Under the city’s municipal code, failure to respond to a civil citation within 15 days results in a misdemeanor. For someone experiencing homelessness, it can be difficult to respond and impossible to pay. 

A second brief compares contemporary ordinances to historic discriminatory laws such as Jim Crow, Sundown Town and Washington’s 1875 anti-vagrancy act banning, “all persons wandering about and having no visible calling” and “habitual drunkards,” among others.

Though the language has shifted from criminalizing people to criminalizing behavior, students argue that the end effect is the same: to remove “undesirables” from public space.

A third brief delves into the intersection between marginalized groups, such as racial minorities and LGBTQ individuals, and homeless populations, while a fourth calculates the minimum cost of enforcing the ordinances in Spokane and Seattle, concluding that alternatives, even providing housing, would be cheaper. 

The dream is that the impact of these briefs, once released, will stretch beyond state lines. 

“We think these briefs will make an indelible mark on homeless rights advocacy,” Rankin said. 

Olson said it has been exciting to see how many people across the country have taken notice of the students’ research and are pressing for the results. To him, it’s a sign that people recognize the problem and want the tools to change it. 

Rankin said she thinks of the students as “poverty warriors,” because they feel compelled to do the work for reasons far beyond academic credit: “They are doing it because they are persuaded by the results of their own research.” 

Supreme Court Halts Missouri Execution, Then Reverses Eighth Circuit, Sending Case Back for Conflict-Free Counsel to Litigate Equitable Tolling of Blown Statute of Limitations

We are thrilled to welcome guest bloggers, Jennifer Merrigan and Joseph Perkovich, who worked with Saint Louis University School of Law students to halt Mark Christeson’s execution and reverse a lower court decision, exercising the federal statutory right to counsel for individuals sentenced to death by a state court. Ms. Merrigan and Mr. Perkovich, along with John R. Mills, are Mark Christeson's pro bono counsel and the principal attorneys of the Phillips Black Project, a nonprofit, public interest law practice focused on death penalty representation. Phillips Black’s attorneys founded and direct the Death Penalty Proportionality Project at the Saint Louis University School of Law. The Death Penalty Proportionality Project provides law students the opportunity to provide legal representation to individuals sentenced to death and allows them to contribute to research on Missouri’s death penalty statute.

On January 22, the U.S. Supreme Court, by a vote of 7 to 2, decided Christeson v. Roper, 574 U.S. ___ (2014), 2015 WL 232187, summarily reversing the judgment of the Eighth Circuit Court of Appeals and returning Mark Christeson’s death penalty habeas corpus case to the lower federal courts for further proceedings. The Western District of Missouri and the Court of Appeals had contravened the high Court’s decision in Martel v. Clair, 565 U.S. __, 132 S.Ct. 1276 (2012), where it established the “interests of justice” standard applicable to the federal statutory right to counsel for individuals sentenced to death. 18 U.S.C. §3599. Clair held that the interests of justice shall determine motions to substitute appointed counsel pursuant to §3599(e), which “contemplates that a court may ‘replace’ appointed counsel with ‘similarly qualified counsel . . . upon motion’ of the petitioner.” Christeson, (slip op., at 4). On October 28, 2014 the Court had stayed Mr. Christeson’s scheduled execution in order to consider his certiorari petition.

The need for Mr. Christeson’s substitution of his court-appointed counsel emanated from their violation, in 2005, of his 1-year federal habeas corpus statute of limitations under 28 U.S.C. §2254 (Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)). The court-appointed attorneys “failed to meet with Christeson until more than six weeks after his petition was due” and ultimately filed a cursory petition “117 days too late.” (Slip op., at 2). As the high Court noted, leading legal ethicist Lawrence Fox of the Ethics Bureau at the Yale Law School had reported to the district court that “if this was not abandonment, I am not sure what would be.” (Slip op., id). Over seven years ago, this error ended Christeson’s federal case in the Eighth Circuit without any substantive review of the constitutional violations in his 1999 trial in Missouri state court.

In April 2014, his federal court-appointed lawyers reached out for advice from the authors of this post, Jennifer Merrigan and Joseph Perkovich, after receiving an order from the Missouri Supreme Court to show cause why their client’s execution date should not be set. But, when the authors met Mr. Christeson, it was clear that he did not understand that his appointed lawyers had blown his federal statute of limitations. As the Supreme Court noted, Mr. Christeson “appears to have severe cognitive disabilities that lead him to rely entirely on his attorneys.” A Rule 60(b) motion to re-open his case in order to litigate equitable tolling of the missed statute of limitations would be the only way to obtain any federal review of the constitutional violations in his trial and appeal.

Noting that the court-appointed attorneys were “initially receptive to . . . assistance,” the high Court found that they “soon refused to allow outside counsel access to their files,” eventually precipitating the authors to file a pro bono motion for substitution of counsel to protect his interests. While Mr. Christeson’s pro bono counsel were litigating his statutory right to appointed counsel, the Missouri Supreme Court scheduled his execution. Overall, the federal district court twice denied motions for substitution and the court of appeals twice rejected appeals before the case was able to make its way into the U.S. Supreme Court via an application for a stay of execution pending disposition of the cert. petition, which was filed with the support of amicus briefing from Former State and Federal Judges by Goldstein & Russell,  P.C. and Legal Ethicists and Capital Habeas Practitioners by the Yale Ethics Bureau.

Capital warrant litigation is complex and enormously time consuming. In Mr. Christeson's case it was especially difficult, as counsel were litigating with no resources and no case file after having been on the case for mere months. As adjunct clinical professors at the Saint Louis University School of Law, the authors enlisted clinical students, Aly Ricci and Kristin Swain, to assist with research, record review, and witness interviews. The support of SLU's clinical program, especially by the Supervisor of the Criminal Defense Clinic Susan McGraugh, and Dean Michael Wolff were instrumental in the around-the-clock litigation.

 
Saint Louis University School of Law Clinical  Students, 3Ls

On October 28, roughly twelve hours before Mr. Christeson’s scheduled execution at 12:01 a.m. CDT, Justice Alito, in his capacity as the circuit justice for the Eighth Circuit, took perhaps the unprecedented step in Supreme Court history of ordering supplemental briefing in relation to an application for a stay of execution. The order called for the parties to brief “whether the record shows” that Mr. Christeson authorized pro bono counsel to seek substitution as his attorneys. About two hours later, the parties filed their briefs, wherein pro bono counsel, after obtaining over the phone a release from Mr. Christeson in order to file attorney-client privileged communications, lodged with the Court briefing and, pursuant to Rule 32.3,  documentation manifesting his retention of the pro bono attorneys months earlier and correspondence, typed by a fellow inmate working in the law library, expressing his desire to have his appointed lawyers replaced because they did not have his “best interest in mind.” Just two hours before he was scheduled to be executed at midnight, the U.S. Supreme Court granted Mr. Christeson a stay pending the determination of his certiorari petition. After six relistings, the Court entered its opinion simultaneously granting certiorari and reversing the Eighth Circuit.

Christeson found that the Court of Appeals’ “principal error was its failure to acknowledge [the court-appointed lawyers’] conflict of interest. Tolling based on counsel’s failure to satisfy AEDPA’s statute of limitations is available only for ‘serious instances of attorney misconduct.’” (Slip op., at 5), quoting Holland v. Florida, 560 U.S. 631, 651-652 (2010). The “serious instances of attorney misconduct” here regarded their abandonment of Mr. Christeson at the critical juncture in his federal case, namely when they needed to file a habeas petition within the 1-year limitations period. Justice Alito dissented, joined by Justice Thomas, acknowledging the “serious” error by the court-appointed attorneys and opining that full briefing and argument should have been ordered. (Slip op., dissenting opinion at 2-3).

Already, the Court's ruling has provided the basis for a remand in another capital case. On January 27, a panel of the Fifth Circuit Court of Appeals, “[i]n light of the Supreme Court’s decision in Christeson . . .,” sua sponte vacated in part its previous opinion denying a Certificate of Appealability under 28 U.S.C. §2553 of the denial of a federal habeas petition. Tabler v. Stephens, No. 12-70013 (unpub.), 2015 WL 327646. Tabler extends to ineffective assistance of federal habeas counsel the equitable rule in Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012), that the inadequate assistance of state habeas counsel “may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” The Fifth Circuit panel relied on Christeson to explain that “[b]ecause Tabler’s attorneys for his state habeas proceedings were also his attorneys for his federal habeas proceedings, they faced a conflict of interest that could have prevented them from arguing that their performance in Tabler’s competency hearing was deficient, and, accordingly, Tabler’s statutory right to counsel was violated.”

As for Mark Christeson’s case, the next step is for it to return on remand to the Eighth Circuit. In the meantime, the authors and their clinical students continue to work on his behalf.  

Scholar Spotlight: Professor Laura Merrifield Albright

Today, the Legislation Law Prof Blog is spotlighting a freshly posted SSRN article on the relationship between race/ethnicity and campaign finance in state legislative elections. The article is based on Albright's study of 15 states and 3000 candidates. Here's the general abstract:

In spite of the increasing campaign finance legislation aimed at equalizing barriers in political campaigns, a fundraising gap persists across racial/ethnic lines. In the era of modern campaigning, with the expenses of advertising and polling, among others, ample funds are necessary but not universally accessible to all candidates. This study addresses the relationship between candidate race/ethnicity and campaign fundraising, and the possible moderating impact of three dimensions of the state political context – state legislative professionalism, state Republican party strength, and state culture (South vs. Nonsouth). I evaluate fundraising totals across 15 states for over 3,000 candidates in the 2006 state legislative elections. Ultimately, the findings suggest that after controlling for other candidate characteristics, as well as district and state context, there is a negative, statistically significant relationship between candidate race/ethnicity and fundraising. In addition, the effect of race/ethnicity is moderated by two features of the state context - legislative professionalization and the state culture. This study finds that non-white candidates continue to fundraise less than their white counterparts and state context is important in understanding the race/ethnicity gap in campaign finance.

The SSRN link to Albright's article is here.  Albright is an Assistant Professor of Political Science at the University of Indianapolis in Indianapolis, Indiana, where she teaches courses on American government, state and local government, and public administration.

We love to spotlight scholarship on legislative topics that would be of interest to our blog community-- so if you have relevant articles to recommend, please contact us!

Law Student Spotlight: Michael Althauser on Juvenile Justice in Washington State

The Legislation Law Prof Blog is excited to announce a quarterly spotlight on a law student whose work in legislative advocacy, drafting, and/or policymaking warrants attention. If one of your students shows such dedication, please contact us so we can showcase the next generation of legislative and policy advocates!

The inaugural student spotlight gets kicked off today, with Michael Althauser and his work on juvenile justice in Washington State!

 

Michael is a third year law student at Seattle University School of Law. During Michael's time in law school, he has dedicated his studies to public interest service. As President of Seattle University's Public Interest Law Foundation, Michael works to ensure that students at Seattle University have the tools they need to be able to assist and represent under-served communities. Michael currently works at Columbia Legal Services as a Gates Fellow for the Children and Youth Project. Prior to this work, Michael worked as a legislative extern for Columbia Legal Services, advocating on behalf of low incomes communities in the Legislature. Before coming to law school, Michael was a spokesman for the Senate Democratic Caucus in the Legislature and worked on and managed numerous political campaigns. Here's Michael's blog on juvenile justice in Washington:

WA advancing legal rights of juveniles on two fronts

Until recently, WA ranked among the worst in the nation on protecting the legal rights of abused and neglected children in the foster care system. However, a dual legislation/litigation strategy may improve WA’s rank for the better.

Background

Until recently, WA was one of the few states in the nation lacking a law appointing attorneys to represent foster children in legal proceedings. Only a handful of WA counties guaranteed representation for foster youth in court. This led to the ironic, and sad, situation where everyone in court arguing over the best interests of a child had an attorney…except the child herself.

Legislation

Following mounting public pressure brought on by a series of high-profile stories by King 5’s Suzannah Frame (here and here), the WA legislature passed SB 6126 by unanimous votes in both the House and Senate this past session. The bill requires appointment of attorneys to represent children who have not been adopted following termination of their parents’ legal rights - mainly foster care children. The bill took effect July 1, 2014.

Litigation

At the same time, for the first time in WA State’s history, an appellate court ruled that failure to appoint counsel to a foster youth violated that youth’s legal rights. In the case, In re the Dependency of J.A., the court found that the interest of J.A. in having legal counsel outweighed the court’s financial arguments and concerns.

Continuing to move forward

Both these victories mark a momentous turn towards the positive for WA’s juvenile justice system. 

Congratulations, Michael!  The Legislation Law Profs Blog looks forward to continuing to celebrate the passion and vision of our students.  Please let us know a student you'd like to spotlight in the next quarterly student spotlight.

 

Georgetown Law Center’s Community Justice Project: Employing Eclectic Strategies for Social Change

Georgetown Law Center’s Community Justice Project takes a unique approach to clinical teaching and policy advocacy. Students represent both individual and organizational clients and learn that effective advocacy may require multiple approaches. Towards that end, students serve as advocates, consultants, advisors, capacity-builders, strategic planners, policy analysts and community organizers.

The clinic is directed by Professor Colleen Shanahan and was founded by Professor Jane Aiken, co-director and Dean of Clinical Education, Public Interest and Community Service. Students are supervised by Professor Shanahan and Clinical Teaching Fellows Amber Baylor and Daria Fisher. 

Issues tackled by the Community Justice Project students range from notario fraud and human rights to parole issues and environmental justice. Though recently focused on issues in Washington, DC, clinic students have represented clients as far as India and Nepal. The students’ efforts are always effective, comprehensive and of great assistance to the client and community.

The students have worked on geriatric parole legislation in Missouri, legislation to advance the confidentiality rights for sexual violence survivors in Nepal, comments to the Prison Rape Elimination Act, and other policy efforts. This past year alone, students developed

• a model Ban the Box Legislation and Implementation Guide to address discrimination and increase employment opportunities for returning citizens, to complement the private Ban the Box legislation they drafted for a D.C.-based coalition. Their comprehensive report is available here. 
• a strategic plan for a community organization serving the Transgender Community in Washington, D.C., available here. 
• a proposal for increasing resources for unaccompanied homeless adults, based on consumer interviews, an analysis of current gaps and resources in federal and local regulations, and including funding matrices. The proposal is available here.

             For a summary of past projects, click here. 

Congratulations to the Community Justice Project on their innovative approach to legislative and policy advocacy in the clinical setting, as well as their enormous success on behalf of the community.

For more information on this exciting approach to teaching policy advocacy, email Colleen Shanahan at [email protected]. 

Spotlight: QUSL's Civil Justice Clinic and Death Penalty Abolition

We’re kicking off our Monthly Spotlight series with an update on the legislative advocacy of the Quinnipiac University School of Law’s Civil Justice Clinic in support of abolition of the death penalty.

The Civil Justice Clinic works on a range of direct service cases, including wage and hour, prisoner re-entry issues, substandard housing conditions, and unemployment.  Beginning in January 2012, the Clinic added legislative advocacy to its menu and started researching the legislative history surrounding Connecticut’s 2011 failed death penalty repeal bill.  That bill was a “prospective-only” repeal—it left in place the sentences of those currently on death row but abolished the death penalty going forward.

One of the reasons the bill failed to pass, we discovered, was because several members of the legislature believed that prospective-only repeal of the death penalty in Connecticut would render the sentences of those currently on death row unconstitutional (on 8^th amendment or Equal Protection grounds).  These members wanted assurances that those on Connecticut’s death row—which included one (and later both) of the men who committed the now infamous home invasion triple murders in the town of Cheshire in 2007—would still face the death penalty after passage of a prospective-only repeal.

As the Clinic delved deeper into Connecticut case law and examined legal developments in New Mexico—the only other state to have faced this precise legal issue—we concluded that the legal argument against prospective-only repeal did not withstand scrutiny.  So the Clinic wrote legislative testimony that turned out to be a reference guide to the issue of prospective-only repeal for Connecticut legislators.  That testimony helped to change the debate from doomsday scenarios about how the Connecticut Supreme Court might interpret a prospective-only repeal, to a cogent legal argument concerning what the court most likely would do in light of binding precedent and persuasive authority, and it earned the Clinic CLEA’s Award for Excellence in a Public Interest Case in 2012.

This year, in the case of State v. Santiago, the Connecticut Supreme Court will be the first court in almost a century to determine the validity of prospective-only repeal of the death penalty.  It will not be the last.  Two inmates remain on death row in New Mexico following that state’s prospective-only repeal in 2009, five inmates remain on death row in Maryland following that state’s prospective-only repeal in 2013, and Colorado, Delaware, Kansas, New Hampshire, and Washington State, with a total of 42 inmates on death row, are poised to abolish their death penalties prospective-only in the (hopefully) near future.  For more on prospective-only death penalty repeal, see these two draft articles on SSRN, here and here.

Get involved:

Over the past seven years, six states have abolished the death penalty.  If you and your students would like to get involved in the abolition effort—from coalition-building with your state and local bar associations in support of repeal, to drafting testimony or reports addressing racial disparity or other problems in the administration of the death penalty—please contact me.  I’m happy to put you in contact with people on the ground in your state, provide materials for teaching these issues in class, and help you in whatever other ways I can.  If you are already involved—thank you.

Upcoming Spotlight: Quinnipiac's Civil Justice Clinic and the Death Penalty

In the Spotlight later this month:  the Quinnipiac Civil Justice Clinic's legislative advocacy in support of Connecticut's repeal of the death penalty in 2012, and the pending Connecticut Supreme Court case that will determine the future of that repeal by answering a novel question in modern death penalty law.

If you have an idea for a future Monthly Spotlight, please contact us.