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May 01, 2021 Public Defense

Pandemic Spurs Debate over Decriminalization

Malia Brink

What should be the punishment for individuals who steal food because their children are hungry? Or steal diapers for a baby? What should be the punishment for trespass or public urination if a person is homeless? Or for failure to pay a fine if you also cannot pay your rent? As the pandemic pushes more and more Americans to the economic brink, it should also force questions regarding the criminalization of poverty to the fore.

According to a projection by Feeding America, before the COVID-19 pandemic, roughly “35 million people, including nearly 11 million children, lived in a food-insecure household,” the lowest rate in more than 20 years. Feeding Am., The Impact of the Coronavirus on Food Insecurity in 2020 1 (Oct. 2020). But the economic hardship of the pandemic is projected to have pushed those rates to more than 50 million, including 17 million children, and many believe this projection is conservative. Experts say there is likely more hunger in the United States now than at any other point since the Census Bureau began collecting data on food security in 1998.

The prevalence of hunger is borne out by the long lines for food assistance across the country. In Arlington County, Virginia, one of the wealthiest counties in America, the local food assistance center reported a 45 percent increase in referrals at the start of the pandemic, and those numbers have continued to climb as the months of restrictions have worn on. In many other places, food banks report food distribution up more than 100 percent over the previous year, and surveys of recipients show many have never used food banks before. Despite the increase in food distributed, food banks cannot fulfill the increased need. And, according to an article in The Washington Post, “[t]he sharpest rise in hunger was reported by groups who have long experienced highest levels of it, particularly Black Americans. Twenty-two percent of Black U.S. households reported going hungry . . . , nearly twice the rate faced by all American adults and more than two-and-a-half times the rate for White Americans.” Todd C. Frankel et al., A Growing Number of Americans Are Going Hungry, Wash. Post (Nov. 25, 2020).

Not surprisingly, this level of food insecurity is leading to increases in certain related types of crime. In another Washington Post article, reporters noted that “[s]hoplifting is up markedly since the pandemic began in the spring and [is] at higher levels than in past economic downturns.” Abha Bhattarai & Hannah Denham, Stealing to Survive: More Americans Are Shoplifting Food as Aid Runs out During the Pandemic, Wash. Post (Dec. 10, 2020). What is being taken is not high-end items for resale, but “more staples like bread, pasta and baby formula.” Id.

The Washington Post reporters talked to one mother who, prior to the pandemic, was juggling a job and college. When the pandemic closed her son’s day care, she was forced to quit her job to care for him. Because she had quit her position, she was not entitled to unemployment and quickly found herself desperate for ways to feed herself and her son. She would hide food beneath her son’s stroller—things like ground beef, rice, or potatoes, and then check out, paying for only a small item like a candy bar. “It’s not something I’m proud of, but it’s what I had to do.” Id.

It is an accepted fact of the retail industry that theft rises with unemployment. But what should courts do to “punish” such theft? Jail time seems harsh, particularly when that might lead to further job loss, loss of benefits, and children going to foster care. The decriminalization movement has gained significant traction, but often this has meant demoting crimes punishable by jail time to civil infractions punishable by a fine. The ABA has been in support of this type of decriminalization for some time. In 2010, the ABA House of Delegates adopted policy urging all jurisdictions to undertake a comprehensive review of the misdemeanor provisions of their criminal laws, and, where appropriate, to allow the imposition of civil fines or nonmonetary civil remedies instead of criminal penalties, including fines and incarceration. 10M102C.

There are two problems with this type of decriminalization. First, the alternative punishment of a fine, combined with the restitution and fees that often accompany it, is also counterproductive—entrenching rather than helping to alleviate the poverty that underlies the crime itself. Second, this form of decriminalization often denies the accused an attorney, as the right to counsel under the Sixth Amendment is tied to the possibility of incarceration. Without counsel, any effort to explain the situation surrounding the crime or seek a reduction in punishment for inability to pay may be hindered.

In recent years, a wave of reform aimed at curtailing the courts from exacerbating poverty has swept the states. In New York, New Jersey, and Texas, bail reform has ensured that fewer individuals are jailed pretrial simply because they are poor. A number of states, including California, Michigan, and Mississippi, have moved to ensure that individuals are not subject to jail or driver’s license suspensions for inability to pay court fines and fees. Some jurisdictions have moved to reduce or eliminate court fees. California, for example, passed legislation (AB-1869) barring counties from imposing 23 different common types of criminal justice fees, including probation and supervision fees, public defense fees, home detention fees, electronic monitoring fees, and work furlough program fees.

These reforms too are consistent with ABA policies aimed at ensuring that no one is disproportionately punished for being poor in the criminal justice system. These policies include the ABA Ten Guidelines on Court Fines and Fees (18A114), which urge that jurisdictions strictly limit the use of fees, consider ability to pay in setting fines and fees, and ensure that such fines and fees can be waived for anyone for whom their imposition would cause substantial hardship. These reforms are helpful, but the pandemic is already causing some jurisdictions to question whether they go far enough.

In Seattle, Washington, the city council recently held a hearing on a proposal that would provide a defense to most misdemeanor crimes if the crime can be linked to poverty, mental illness, or addiction. The proposed law was crafted with the input of King County Public Defender Anita Khandelwal, who described it to the National Review as a way to improve the system for both perpetrators and victims. The current system is “meeting nobody’s needs,” she said. “This is not that we don’t care about the business community or about people who have experienced harm. It is that we know that this process—this processing of human beings through the system—is harmful to our clients and again very racially disproportionate, and also not getting business owners what they need either.” Mairead McArdle, Seattle Considering Poverty Defense for Most Misdemeanors, Nat’l Rev. (Dec. 14, 2020).

Critics say the measure would destroy the quality of life in Seattle. Conservative columnist Jason Rantz wrote, “If you’re poor or homeless, you could effectively get away with stealing from just about anyone or any business in Seattle. Just say you’re poor and needed to steal a bike or car stereo so you can sell it for money to buy food.” Jason Rantz, Rantz: Councilmember Lisa Herbold’s “Poverty Defense” Will Destroy Seattle, 770KTTH (Dec. 15, 2020). Fundamentally, by doing nothing, opponents argue, the courts sanction the crimes.

Proponents note that the law would not prevent prosecution, merely provide an avenue for arguing a defense that would be adjudicated by the court. A court is unlikely to find that stealing expensive jewelry can be justified by poverty, but it might find, with evidence of circumstance, that stealing rice is undeserving of punishment.

The city attorney in Seattle has responded to the proposal by suggesting it is unnecessary because his office already avoids prosecuting such crimes. “Good prosecutors don’t take any satisfaction in prosecuting that type of offense,” he said to KUOW. But he noted that excusing the crimes in their entirety might leave the community justifiably frustrated if “we don’t couple it with resources that are needed to make sure the behavior is addressed.” Amy Radil, Seattle Looks at New “Poverty Defense” for Misdemeanors, KUOW (Dec. 8, 2020).

The city attorney’s response points toward a broader issue than the appropriateness of a poverty defense. Criminal courts are often faced with individuals for whom the social safety net has failed. But these courts cannot lengthen unemployment benefits, provide housing, or increase food benefits for these individuals in an effort to ensure that they do not return. They often lack the resources even to question those who appear before them about whether they are receiving benefits and make appropriate referrals. Rather, criminal courts are asked to address the narrow situation of an alleged crime, and whether it occurred, and, if so, impose appropriate punishment. And far too often, without addressing the underlying issues, this becomes a revolving door that harms, rather than helps, the individuals caught up in it. Judges, prosecutors, and public defenders all know it. The issue has always been what else can we do?

As the debate in Seattle shows, the economic impacts of the pandemic will force courts to further wrestle with this issue. The solution may be in asking whether it is possible to determine appropriate punishment without understanding the full context in which the crime occurred and whether, even where a crime has occurred, the appropriate punishment may be none at all.

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Malia Brink serves as the associate counsel for public defense to the ABA Standing Committee on Legal Aid and Indigent Defendants.