Homelessness is not a crime, yet people living without shelter are far more likely to wind up in jail than those with even a temporary roof over their head. According to a multistate survey conducted by the California Policy Lab, unsheltered homeless folks are nine times as likely as people in shelters to report having spent at least one night in jail in the last six months. The nonpartisan research institute is affiliated with the University of California.
Living outside often leads to citations or arrests for low-level offenses such as loitering, public urination or sleeping in parks. And having those minor infractions on a person’s permanent record can limit future employment and housing opportunities, thereby furthering the cycle of homelessness.
But a new program, launched in February by the Buncombe County District Attorney’s Office, aims to give homeless residents accused of such crimes another option. The Unhoused Diversion Program, a specialized addition to the existing Adult Misdemeanor Diversion Program managed by the Buncombe County Justice Resource Center, is designed to spare low-risk, homeless offenders from the consequences of a criminal record while connecting them with resources to help break the cycle of arrest and homelessness.
“We’re not going to incarcerate our way out of homelessness, nor is it the right thing to do,” Buncombe County District Attorney Todd Williams declares. “If someone is unhoused and is going through a crisis, is this the time to fine them? Can you place them on probation? Can they reasonably be supervised if they don’t have an address or they don’t have a job? And is incarceration for a very marginal criminal act an appropriate response? I think the answer is ‘No’ to all of the above.”
Low-level misdemeanors such as camping, trespassing and panhandling are typically punished by some combination of jail time (usually less than a year), a fine and/or probation. Williams, who was first elected DA in 2014 and previously served 14 years as a public defender, says he considers many such offenses to be “crimes of necessity” that are a direct result of not having a place to live.
“There’s different issues involved if someone has an apartment or house to go to and is choosing to sleep in a park or urinate in public, but for someone who is unhoused and who’s staying in a tent, they may not have many options,” notes Williams.
Although many so-called nuisance crimes don’t initially lead to a jail stay, people accused of them can still be given citations. And if they’re unable to show up for required court appearances due to a lack of transportation or other homelessness-related problems, a warrant may be issued for their arrest. So the next time they cross paths with the police, they could end up in jail. After serving their sentence, many individuals end up back on the street — with misdemeanor charges now part of their permanent record.
That can have far-reaching consequences, says Kendra Queen, diversion services supervisor at the Justice Resource Center. “Having a low-level misdemeanor charge on your record might hurt your opportunity for employment,” she explains.“Those direct and indirect consequences of having any criminal charge on your record can impact housing and the ability to find a job.”
And those impacts, in turn, can lead to people becoming trapped in a cycle of homelessness and jail time.
Breaking the cycle
The Justice Resource Center’s Unhoused Diversion Program focuses on aspects of homelessness that the criminal justice system rarely addresses, such as poverty, trauma, mental illness and addiction. It specifically targets homeless residents who’ve been charged with nonviolent misdemeanors. People charged with violent crimes aren’t eligible.
Depending on the severity and type of offense, participants’ involvement in the program may last from three to nine months. During that time, they’re required to attend classes teaching skills that have been shown to improve people’s lives, such as anger management, acceptance-and-commitment therapy and coping with substance abuse.
Those who complete the program are eligible for case dismissal, which is at the discretion of the district attorney’s office; those who enroll but fail to fully comply with the rules are returned to court for traditional prosecution.
Dealing with such complex issues requires extensive collaboration. The District Attorney’s Office is working with the Buncombe County Public Defender and dozens of community partners, says Queen.
“Our team is made up of counselors, case managers and peer support, so we can really take this holistic approach to serving Buncombe County residents,” she explains. “There might be a need for outpatient treatment, other medical-related needs or transportation. We’re looking at all of that and helping meet those needs so participants can have their cases dismissed.”
The program also provides resources to help address common barriers that homeless people face, such as lacking identification or a permanent address.
“I would say the transportation and [access to] mail are critical to being successful in dealing with the justice system while unhoused,” stresses Marcus Laws, homeless services director at AHOPE Day Center, one of those partner agencies. “With COVID-19, the additional barrier of technology came into play, with virtual court sessions.”
Accordingly, the Justice Resource Center provides program participants with bus tickets and computer access, so they can send and receive email, conduct job search correspondence and print program-related documents and resumes.
AHOPE, meanwhile, serves as a hub where county Justice Services staffers can meet with participants to help them stay current with things like court notifications and appearances. “The services at our day center will also be available for use by participants,” notes Laws, adding, “It may not guarantee that they will be successful, but it does work to remove barriers to success.”
Not everyone is on board with the diversion concept, however. In December, Asheville Police Chief David Zack sent Williams a letter citing data from the state Administrative Office of the Courts concerning the DA’s handling of low-level arrests. Between 2018 and 2021, the letter noted, Williams’ office had dismissed almost all such infractions, which are “routinely complained of by downtown businesses and residents.”
Zack went on to say that “To date, I have received no notice from you, any judge, any attorney employed by your office, or any other judicial officer that APD personnel are making inappropriate arrests, bringing charges with insufficient evidence, or failing to show up for scheduled court appearances.” The letter also made it clear that the chief planned to share that information at an upcoming meeting with downtown business owners.
Williams, however, says there are various reasons that a charge may be dismissed. Sometimes, he explains, APD officers are required to appear in court as witnesses, and it may not be worth their while to show up. Other times, a low-level charge is dismissed to speed up prosecution of a more serious crime stemming from the same incident.
In addition, he points out, “There could have been people that did treatment or could have done community service, and then earned those dismissals.”
Although the DA says he hasn’t had direct feedback from Zack about the Unhoused Diversion Program, which launched two months after the chief sent his letter, Williams notes that the APD has been referring participants to it.
Despite repeated attempts, Xpress was unable to get a comment from Zack concerning the new program.
And while Williams and Queen both have high hopes for the program’s success, it’s too soon to tell. Only 10 homeless people have enrolled since Feb. 1, when the District Attorney’s Office began making referrals.
The broader Adult Misdemeanor Diversion Program, however, does have a successful track record. Since its launch in October 2017, 843 individuals have been enrolled and 587 — nearly 70% — have completed the program and had their cases dismissed.
Williams, however, says his principal concern is not necessarily how much the program reduces recidivism among homeless residents but that, in his view, prosecuting crimes related to homelessness is simply a nonstarter that neither increases public safety nor gets people off the streets.
Diversion “is a more constructive response than giving somebody a day in jail and turning them back out on the street,” the DA maintains. “Even if the numbers don’t show improvement, I don’t think that there’s a nexus between homelessness and prosecution of violent crime.”
July 21 10:37 a.m. — This story has been updated to reflect a more accurate description of the requirements of the unhoused diversion program.