End Unsheltered Homelessness Now,

​​​​A PROPOSAL TO RESOLVE THE “SERVICE RESISTANT” CHRONIC HOMELESS PROBLEM: Expungement in Return for “H.O.P.E.” Enhanced Supervised Court Probation.

As you've probably noticed, most unsheltered chronic homeless are severely impaired.  They routinely refuse offers of shelter and assistance, putting the health and safety of themselves and others in jeopardy, while filling neighborhoods and parks with trash and human waste.  The chronic homeless suffer unspeakable squalor while diminishing the quality of life for residents and tourists.  Under the current paradigm, everyone is losing.

Since personal liberty is a fundamental right, the Constitution requires the government to meet very high standards in order to deprive a person of liberty.   Except under rare circumstances, depriving persons of their liberty is only constitutional for those who are convicted of crimes. 

The Supreme Court held that compelling a person to undergo psychiatric care entails a substantial loss of liberty,[1] even if that person is not committed to an institution, and is forced to take medication on an out-patient basis.[2] (The same constitutional issues would arise if the government tried to force the chronic homeless into shelters.)

The U.S. Supreme Court applies a standard of “strict scrutiny” when fundamental rights are at stake, which requires amongst other things, there be a “compelling governmental interest”, the means used must be “narrowly tailored” to achieve that governmental interest, and the means chosen must be “the least restrictive”.  [3]

To compel persons to undergo psychiatric care (or move into shelters) who have not been convicted of crimes (i.e. under civil law), the government must provide “clear and convincing” evidence they are an “imminent” danger to themselves or others, in order to satisfy the “compelling governmental interest” prong.[4]  Unless a person has already committed a dangerous act, the government has the almost impossible burden of proving a person is going to do something dangerous in the future. [5]

In 2013, the Hawaii State Legislature introduced Senate bill S.B. 310[6] and House companion bill H.B. 991.[7] These bills modified portions of Chapter 334 of the Hawaii Revised Statutes (“HRS”) to make the process of involuntarily committing mentally ill and substance addicted persons under civil law less onerous.[8]  Nonetheless, the statutory standards for civil, involuntary care necessarily walk a fine constitutional line, which undermines Chapter 334’s practical utility. 

For example, HRS § 334-1 defines “Dangerous to others” as likely to cause “substantial physical or emotional injury to another” which must be evidenced by a “recent act, attempt or threat”.  “Dangerous to property” means “inflicting, attempting or threatening to imminently” cause damage to property in a criminal manner.  “Dangerous to self” is defined under HRS §§ 334-1(1) — (2) as having threatened or attempted suicide, serious bodily harm, or show that without intervention, that person would probably die, or suffer “serious physical debilitation or disease . . .” [9]

Based on the foregoing definitions, a man lying in his own feces in front of the Royal Hawaiian, is not at risk of imminent death, physical debilitation or disease, and therefore should not be compelled to undergo psychiatric care. The “Royal Hawaiian” hypothetical depicts similar, real-world absurd outcomes (based on sound constitutional principles)[10] occurring all too frequently on the streets of Honolulu.   Using the civil code for involuntary commitment often leads to such absurd real-world outcomes,[11]  because many severely impaired persons don’t fit the legal definition of imminently dangerous. 

There are also procedural hurdles in HRS Chapter 334, which create practical difficulties, particularly when there are hundreds if not thousands of severely impaired chronic homeless in Hawaii. 

There’s no way to fix Chapter 334.  Moreover, any newly created section of the civil code would have the same problems; The constitutional requirements of due process, and the potential loss of liberty through involuntary commitment, requires any civil law to contain provisions which will make it a cumbersome tool for overcoming “service resistance”.  That leaves the penal code as the only viable option.

A Way to Use the Penal Code to Help, not Punish:  Expungement in Return for “H.O.P.E.” Enhanced Supervised Court Probation.

It’s common knowledge that loss of liberty pursuant to a criminal conviction is constitutional. That’s why those convicted of crimes can be sent to prison. Convicted persons are also routinely compelled by courts as part of probationary sentences, to undergo substance abuse treatment, psychiatric care, vocational training and to refrain from living on the streets. 

Most mentally ill and substance addicted homeless have a long record of convictions for petty crimes and misdemeanors.  They’re cycled in-and-out of courts and jails, or given summonses they’re unable to pay which in-and-of-themselves become additional offenses.  This puts a tremendous burden on the criminal justice system, while doing little to prevent aberrant behavior or rehabilitate offenders.  What’s worse, homeless persons who’re finally ready to turn their lives around, often find their extensive criminal records are a barrier to employment, and most ironically, housing.

In 2004, First Circuit Judge Steven Alm, launched the Hawaii Opportunity Probation with Enforcement program (“H.O.P.E.”), at the Hawaii State Judiciary.[12] H.O.P.E. works by providing probationers positive reinforcement, treatment and material assistance, while simultaneously enforcing swift and predictable sanctions, including jail, for detected violations such as drug use or missed appointments with probation officers.[13] 

A preliminary study of H.O.P.E. in 2008 showed remarkable results.[14] For example, a group of methamphetamine probationers’ “dirty” drug tests decreased by 80%; while “dirty” drug tests with another group fell from 49.3% to 6.5%, and missed appointments with their probation officers decreased from 13.3% to 2.6%.[15]  According to Judge Alm, a key component of H.O.P.E., is levying immediate sanctions for violating probation rules;  “The new paradigm is — if you test positive this week, you will go to jail this week.”[16] 

By providing probationers help and support, but mandating “swift and sure” punishment for violating probation rules,[17]  H.O.P.E. reduced prison time for both revocations of probation and new convictions by roughly 66%.[18]  Most noteworthy, is that 70% of probationers themselves had a positive outlook of the program.[19] The H.O.P.E. paradigm, often referred to as “swift and sure probation” is now being emulated around the country.

Here’s how “Expungement in Return for ‘H.O.P.E.’” could work.

  1. Defendants accused of petty misdemeanors and misdemeanors who are impaired,  would have the right to petition the court to expunge their criminal record, in return for pleading guilty to all outstanding charges, and successfully completing a sentence of H.O.P.E. probation in lieu of jail. 
  2. Sentences must be long enough for H.O.P.E. probation to work, but not so long they violate the 8th Amendment, which prohibits cruel and unusual punishment. (In other words, the sentence has to fit the crime.)  A possible solution is to calculate the length of probation by running the maximum terms of outstanding charges consecutively.  
  3. The court would have discretion over the terms of probation, which would be disclosed to the petitioner prior to pleading guilty, and prior to accepting a plea deal.  That way, the petitioner would be agreeing to whatever is in the probation order, thus avoiding the constitutional problems of involuntary commitment under the civil code. 
  4. “Expungement in Return for ‘H.O.P.E.’”  would relieve the State of the arduous burden of proving a defendant is an imminent danger to themselves or others.  The burdens of proof as they exist under HRS Chapter 334 pertaining to impairment would be completely reversed:  Defendants would have the burden to prove they are impaired in order avail themselves of the program’s benefits;  The burden on the State would be to prove the Defendant’s claims of impairment are false, and are a pretext to avoid jail and have their record expunged. 

[1] Humphrey v. Cady, 405 U.S. 504, 509 (1972) also see generally Jones v. U.S., 463 U.S. 354, 364 (1983).
[2] State v. Kotis, 91 Haw. 319, 340 (1999).
[3] Cited only for an example of standards of review  Skinner v. State of Oklahoma, ex. rel. Williamson, 316 U.S. 535 (1942).
[4] See  Addington v. Texas, 441 U.S. 418, 425-26 (1979).
[5]  In re Doe, 102 Hawai`i 528 (Haw. Ct. App. 2003).
[6] S.B. 310, 27th Leg., Reg. Sess. (Haw. 2013) (enacted) (companion to H.B. 991, 27th Leg., Reg. Sess. (Haw. 2013)).
[7] H.B. 991, 27th Leg., Reg. Sess. (Haw. 2013) (enacted) (companion to S.B. 310, 27th Leg., Reg. Sess. (Haw. 2013)).
[8] Haw. Rev. Stat. Ann. § 334-121 (Lexis Advance through 2016 Second Special [Legislative] Session).
[9] Haw. Rev. Stat. § 334-1 (available at  http://www.capitol.hawaii.gov/hrscurrent/Vol06_Ch0321-0344/HRS0334/HRS_0334-0001.htm  (last visited May 21, 2017).
[10] See generally Jones v. U.S., 463 U.S. 354, 364 (1983).
[11] Id.
[12] Hawai`i State Judiciary, Hawai`i’s Opportunity Probation with Enforcement; ‘H.O.P.E.’, http://www.hopeprobation.org/ (last visited July 19, 2014).
[13] Id.
[14] National Institute of Justice, Hawai`i’s Swift and Sure Probation, at 98 (Dec. 2008) available at http://hopehawaii.net/assets/nij-hawaii-s-swift-and-sure-probation-2008.pdf
[15] Id.
[16] Steve Lopez, Hawai`i Finds Success with Approach to Repeat Offenders, L.A. Times, Local (Dec. 1, 2012) available at http://hopehawaii.net/assets/la-times-total.pdf
[17] Id.
[18] Angela Hawken & Mark Kleinman, United States Department of Justice, National Institute of Justice, Office of Justice Programs, Supported by Award no.:  2007-IJ-CX-0033, Doc. No.: 229023, Managing Drug Involved Probationers with Swift and Certain Sanctions, at 4 (Dec. 2009) available at https://www.ncjrs.gov/pdffiles1/nij/grants/229023.pdf
[19] Angela Hawken, H.O.P.E.:  Theoretical Underpinnings and Evaluation Findings (Testimony prepared for the Oregon State Legislature) (Apr. 10, 2009) available at http://www.crimevictimsunited.org/issues/treatment/hope/hawken090410.pdf


A PROPOSAL TO SOLVE THE “NOWHERE TO GO BUT SHELTERS” PROBLEM: Bridge Dwellings, Using Alternative or Temporary Structures.

Homeless service agencies generally rely on outreach workers, who spend considerable time developing relationships with service resistant homeless people, while persuading them to accept help.  There are many successful outcomes, and as to be expected, some failures. 

The problem is that while outreach is on-going, unsheltered chronic homeless continue living in public spaces or private property, adversely affecting public health, safety and the quality of life.  Unsheltered homeless are also frequently victims of crimes committed by other homeless; Poor hygiene can cause horrifying medical consequences such as minor wounds becoming infected by drug resistant bacteria.  Illegal homeless camps in wooded areas also vastly increase the danger of wildfires.

In short, having unsheltered homeless living in public spaces or trespassing on private land, creates chaos unacceptable in a civil society.   But in order for the courts to uphold vigorous enforcement of no-camping  laws, every homeless person must have a commensurate alternative that doesn’t unduly restrict their liberty.  Most shelters are not a commensurate alternative.  Many are dormitories designed for sleeping, not living.  They have curfews, require residents to leave during the day, and other rules which may be necessary to operate the shelter, but aren’t commensurate with the liberties of independent living.  Shelters can also be traumatic for addicts and mentally ill persons who have problems co-existing in close-quarters with others.

“Housing First” works.  The data shows that 80— 90% of the chronic homeless who get into a Housing First program “succeed”.  But there is a severe shortage of funds to subsidize Housing First units. Perhaps the Legislature will appropriate more money for these programs in the future.  But right now, we only have the funding we have and not one penny more. We must therefore end the chaos with what we have today.

To confront this issue, the 2017 Legislature passed HB-83, which now awaits the Governor’s signature.  The bill directs the Interagency Council on Homelessness to establish a working group to make recommendations for the establishment of safe zones.  Then, only after the successful implementation of a pilot program, safe zones might be expanded at an unspecified time in the future.  

While we applaud any attempt by the Legislature to confront this issue, HB-83 doesn’t outline any specific goals; There’s no description of what specific aspects of the homeless crisis the bill is contemplated to solve and how it would solve them; Nor does the bill articulate a foreseeable outcome.

What’s more, the bill fails to take into account what service providers who’ve spent decades battling homelessness already know about safe zones; The experts know that what are normally referred to as “safe zones” don’t work.  What works are supportive services appurtenant to permanent homes provided through Housing First programs, and where there is a shortage of units, using  “Bridge Housing” as an interim measure.

Pilot programs as contemplated by HB-83 will waste valuable time because: (1) Homeless service providers have enough practical experience to correct problems with a Bridge Housing program as it’s being implemented.  (2) Whatever problems may ensue from an un-pilot-tested Bridge Housing program can’t be worse than the chaos that exists today. Unsheltered homelessness has continued for decades, and handwringing about what might go wrong is no longer an option. We need bold decisive action now, on a scale big enough to solve the problem of unsheltered homelessness, one-hundred percent.

 Fortunately in Hawaii, where winter temperatures are in the eighties, a home does not have to be a traditional apartment or a house! Hawaii’s tropical climate gives us a huge advantage.  We can build temporary and even permanent habitats at a lower cost than most jurisdictions, because there’s no need for heat and insulation.  Costs range from $1000 for a large tent on a platform, to $15,000 for a 400 square foot igloo with electricity, a bathroom and kitchen.   Compare that with traditional housing, which costs roughly $400,000 per unit.

By using low-cost alternative dwellings for Bridge Housing, we could completely end unsheltered homelessness in less than a year just with the money we’re already spending on homeless sweeps!

Like shelters, residents would access to hygienic facilities, a place to lock valuables, a mailing address, and access to public transportation.  Social workers could transition residents into permanent housing and offer supportive services.  Detox and out-patient psychiatric care could also be provided.  Unlike shelters, Bridge Dwelling residents would have some privacy, solitude, and a fair amount of independence. They would of course have to follow whatever rules are necessary for the Dwelling Parks to function, such as cleaning up after themselves.  

Even if all we can afford now are tents on platforms, residents would have a stable living environment, and be far more comfortable than they are today.  Note that stability is one of the reasons Housing First programs are so effective.  The stability afforded by Bridge Dwellings, could have many of the same positive outcomes, even before residents are placed in permanent housing.

As an additional benefit, Courts would likely find that Bridge Dwellings are a viable, commensurate alternative for the homeless, thus enabling governments to more vigorously enforce no-camping rules on public property.

Bridge Dwellings should be established in industrial zones; Not in tourist areas, and not in retail commercial areas or residential neighborhoods, because as a practical matter, “NIMBY” pushback would delay implementation.   We’ve identified hundreds of acres of undeveloped industrially-zoned government lands, which could be safe, comfortable places to create these Parks.  For instance, the Sand Island Recreation Area has 144 acres of parkland & beaches, complete with campsites and bathrooms.   

Some advocates express concern that locating Bridge Dwellings in industrial zones, would “sweep the homeless problem under the rug”.  They fear the absence of homeless in our midst would undermine the community’s motivation to help. I’ve talked to hundreds of people, and I’m convinced the opposite is true:  The spread of unsheltered chronic homelessness, and the ensuing chaos  (throughout Oahu in particular) has not changed apathy to empathy; Instead, it’s changed empathy into anger, and a desire to help into feelings of helplessness.  Virtually everyone I’ve talked to has gone from feeling compassion, to deeply resenting the homeless for the piles of trash left on beaches and in parks, for aggressive panhandling, or for the mentally ill who behave in bizarre and intimidating ways.  When advocates talk about the constitutional rights of the homeless, many constituents respond with cynicism, asking; “What about my rights?”  It may be unfair that so many people feel this way, but that’s the unfortunate outcome of allowing this situation to remain out of control.  

We Must Address Two Critical Issues:


1.    The "Service Resistant" Homeless Problem.
2.    The “Nowhere to go but Shelters” Problem. 

With The Money We're Already Spending.

"We'll never end the chaos, if all we do is try to build more affordable housing sometime in the future with money we don't have today."