Recently, the nice folks at Sisters Gourmet Deli on Monument Square (where I work, too) were confronted with a very unpleasant and potentially dangerous situation in their excellent sandwich shop, when an unwelcome visitor entered and threatened everyone in sight for several minutes before police arrived. With the help of surveillance video, Facebook and the press, the word has spread once again that, yes, the unholy combination of mental illness, drug and/or alcohol addiction and homelessness is a major problem in Portland and often results in criminal activity.

Throughout the peninsula, our brothers and sisters suffering from mental illness, drug addiction and homelessness are everywhere. Each day outside my window, somebody is yelling obscenities or peacefully nodding off, begging for money or stealing food and alcohol, chatting happily with passers-by or arguing with imaginary demons. Many of them I have represented in the criminal courts, and always the questions return: Who deserves to go to jail? Who deserves our help? And what can the courts possibly do?

In this case, the defendant was arrested and charged with disorderly conduct: the crime of being so offensive that it could cause a violent response by an ordinary person. And now we hear that although he pleaded guilty immediately and was sentenced to serve five days in jail, police would like for him to be charged with a hate crime as well (“Police ask Maine attorney general to review Monument Square deli incident,” Aug. 2).

As a court-appointed defense attorney, I often serve as the lawyer of the day (volunteer advocate for indigent defendants) when homeless people are first brought to court, and I see the homelessness problem as it interacts with the imperatives of the criminal justice system.

When a person is arrested and is unable to afford cash bail, they appear in court in an orange jumpsuit within 48 hours of their arrest to either plead guilty and be sentenced, or plead not guilty and try to bail out. Homeless people arrested off the street are almost always charged with drinking in public (the crime of drinking alcohol outside), criminal trespass (being somewhere you are not supposed to be), obstructing a public way (standing in the street), possession of drugs (not having a prescription for your drugs) or disorderly conduct.

These are all misdemeanors, all very easy for the state to prove and all typically punished by a short jail term (usually between 24 hours and 30 days). Prosecutors, court-appointed lawyers and judges are so experienced with the never-ending stream of homeless defendants that often an entire criminal case opens and closes, from a criminal complaint to a guilty plea, within an hour or less.

When I meet with these clients, most are happy to plead guilty as long as it means getting out of jail, and since none of them can post bail, pleading guilty gets them out. As in many other jurisdictions around the country, here in Portland we lock up homeless people, and then we let them out again.

Sometimes we pretend that locking up such people is good for them – they get a shower and a square meal and maybe a chance to detox from alcohol or drugs, the argument goes – but in a nation founded upon the sanctity of liberty and freedom, the idea of sending someone to jail for their own good is offensive. And besides, ask anyone who has been there: Nothing about jail is therapeutic.

Sometimes we pretend that locking up such people keeps the community safe – they committed a crime, after all, and jail should deter criminals from re-offending – but we all know this is not true, as we see the same folks in court over and over. A common strategy of prosecutors is to seek escalating jail time for so-called “frequent fliers” so that while a first offense may mean 24 hours in jail, the fifth offense may be punished by 30 days. The folly of this deterrence strategy is easy to see on a casual walk through downtown.

Sending mentally ill and/or intoxicated homeless people to jail is plainly not working to solve a problem that has gotten much worse in recent years. Nearly every corner has a beggar, nearly every park a zombie or two. Perhaps smarter minds can find a solution to help people move on from unhealthy and dangerous lives, but in the criminal courts we just lock them up.


Only subscribers are eligible to post comments. Please subscribe or to participate in the conversation. Here’s why.

Use the form below to reset your password. When you've submitted your account email, we will send an email with a reset code.