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Joan Cheever, founder of the Chow Train, has been cited by San Antonio police for feeding a long line of homeless customers
Chef Joan Cheever has been feeding the homeless via her non-for-profit food truck for years, and this is the first ticket she has received.
In many parts of the country it’s a crime to feed the homeless. Just this past November, a 90-year-old man was arrested multiple times for feeding the hungry. Now in San Antonio, chef Joan Cheever, who has been running the non-for-profit food truck The Chow Train to feed the city’s homeless population for a decade, is now facing a $2,000 fine for the same “crime.” In response, Cheever set up a Go Fund Me campaign, and plans to fight the citation in court.
“It's now incredibly personal,” Cheever said in a Facebook post that cited the recent official court summons from the state. “The entire state of Texas v. little old me? This letter I received in the mail on Saturday just took my breath away. I dusted myself off and realized, I'm in it to win it. Not for me or The Chow Train, but for all of us. One meal, one sandwich, one hug and one smile.”
Cheever told The Washington Post that local cops check on her food truck from time to time, but that earlier this month, a pair of “unsmiling cops” approached her and gave her the fine. The “feeding bans,” which have been popping up all over the nation, are meant to “de-incentivize the homeless.” According to the National Coalition for the Homeless, 71 cities across the nation have made it illegal to feed the homeless.
Texas food truck owner fined $2K for feeding the homeless
A chef in San Antonio, Texas, has been using her nonprofit food truck, The Chow Train, to feed the homeless for years, but this week local police cited her with a $2,000 fine for breaking the city ordinance.
Chef Joan Cheever told a local NBC affiliate that police told her what she was doing was illegal, “and it’s against city ordinance.”
Ms. Cheever founded The Chow Train in 2005 to help fight hunger in her community.
“You can’t just turn away from your neighbor when they’re in need. We don’t do that in San Antonio,” she told the station April 10.
Ms. Cheever takes hot meals to Maverick Park outside downtown San Antonio each Tuesday and says she typically will serve anywhere from 25 to 75 homeless people.
The officer who issued the ticket told Ms. Cheever that if she wanted to feed the homeless she would have to bring her food truck to the park. Ms. Cheever, who has a certified food manager certificate, had packed the hot meals in her pick-up truck, arguing “restaurants deliver take out delivery,” the station reported.
Ms. Cheever plans to fight the ticket in court and says regardless of city rules she is protected by the United States Constitution to exercise her freedom of religion.
“One of the police officers said, ‘Ma’am, if you want to pray, go to church,’ and I said, ‘This is how I pray. When I cook this food and deliver it to the people who are less fortunate,” Ms. Cheever said.
Ms. Cheever is due in court on June 23rd. She plans to continue giving hot meals to the homeless in Maverick park on Tuesdays until then.
Chef Ticketed For Feeding The Homeless
It's a war against the hungry! Good Samaritans are being ticketed, fined, and jailed for opening up their hearts and feeding the homeless and hungry.
Joan Cheever, founder of the nonprofit mobile food truck Chow Train, has fed homeless people for the last 10 years. Last week, San Antonio police officers gave Cheever a ticket with a potential fine of $2,000 for transporting and serving food without a permit. Cheever does have a permit for her food truck. But, on the day of the ticket, Cheever was serving food out of another van which she did not have a food permit for.
Is this a legitimate regulation of food safety laws or a violation of Cheever's religious rights?
Restriction on Religion?
Cheever argues that the fine infringes on her right to free exercise of religion. I'm guessing she means feeding the poor is part of her religion.
Usually, a law that burdens the free practice of religion must pass strict scrutiny. Mainly, the law must further a compelling government interest and be narrowly tailored.
However, this standard may not even apply to Cheever's case. The police didn't prohibit her from feeding the homeless. They ticketed her for not having a food permit for her vehicle. If she had been serving the food out of her food truck, for which she does have a permit, she probably wouldn't have been ticketed.
Cheever plans to fight the ticket at an upcoming hearing.
Other Good Samaritans In Jail
Cheever is not alone in her fight against authority for the right to feed the homeless.
In Fort Lauderdale, Florida, a 90-year-old man and two pastors were arrested for feeding the homeless. They were charged with violating a city ordinance that required food stations to be 500 feet away from residence, provide a portable bathroom, and have a permit from the city.
In Texas, a 76-year-old man spent nine days in jail for violating a law that prohibited the feeding of feral cats. The man had been feeding the cats for the last 10 years, and racked up several tickets with fines equaling $900. In protest of the law, he refused to pay the fines, opting to go to jail instead.
In Orlando, volunteers from Orlando's Food Not Bombs were arrested and banned from Lake Eola Park for a year for feeding 40 homeless people. The ordinance they violated only allows groups to feed more than 25 people in a park, within a 2-mile radius of City Hall, up to twice a year. The city claims the law is a reasonable time, place and manner restriction on park use. I say it's discrimination against the hungry!
While these heartless laws may seem unfair, courts have generally upheld ordinances that prohibit feeding the homeless and hungry kitties.
Texas chef hit with possible $2,000 fine for feeding the homeless
Despite the ticket being issued a week earlier, Joan Cheever, founder of a San Antonio mobile food truck called the Chow Train, was nevertheless out feeding the homeless on Tuesday. There has been an outpouring of support for Cheever after news of the ticket surfaced, which she still has to fight in court in June &ndash and which she said she would do under the Religious Freedom Restoration Act.
Cheever told Texas Public Radio she was inspired by the show of support.
&ldquoIt warms my heart but it doesn&rsquot surprise me because the community is behind me and they are behind every other nonprofit that does what I do and there are a lot of them,&rdquo she said.
Texas chef issued hefty fine for feeding homeless http://t.co/OVUZlcZbAB
&mdash Houston Chronicle (@HoustonChron) April 14, 2015
A week ago, four bike-patrol police officers stopped in the park where she was feeding homeless people. They asked about her license and her permit. Cheever is a licensed food handler but police found the permit had expired and was issued for a truck &ndash not the car that the food was transported into the park with. Police said she was being cited for transporting and serving the food from a vehicle other than a truck.
The ticket carries a potential fine of $2,000. As a result, Cheever said she would fight the ticket under the Religious Freedom Restoration Act, a federal and state law that protects the free exercise of religion, which she says her charitable work qualifies for. She is due in court on June 23.
Cheever&rsquos philanthropy is well-established and her efforts were featured on the nationally syndicated Rachel Ray cooking show in November.
Cheever's fine is the latest in a series of efforts by local governments to discourage people from feeding the homeless in public space. In Florida, Fort Lauderdale police twice arrested a 90-year old pastor last fall for feeding homeless people. In the past two years, 21 cities have restricted street feeding of homeless people, citing public safety.
However, street feeders and their legal advocates say the campaign is part of an effort to keep the homeless population out of sight &ndash and part of a national trend to criminalize poverty.
A new report by the Institute of Policy Studies found that many local governments, strapped for cash after the 2008 financial crisis, were bilking the poor through elaborate schemes of &ldquooffender-financed criminal justice services.&rdquo
The report argues that while there has always been prejudice and stigma about poverty in the US, the criminal justice system expanded misdemeanor charges in the midst of the financial crisis, which led to an increase in fees, fines and court charges that can be levied.
&ldquoAs state and local budgets were squeezed following the 2008 recession, local authorities all over the country levied more fines and fees on those people least able to pay &ndash and aggressively pursued them,&rdquo said Karen Dolan, an IPS fellow and lead author of the report, titled, &lsquoThe Poor Get Prison: The Alarming Spread of Criminalization of Poverty.&rsquo
These increases also aligned with the privatization of probation services in operating jails and prisons. The report, for the first time, brings together disparate news stories and studies that illustrate the broad movement underway that involves criminalizing poor people and trapping them in the criminal justice system for errant behavior such as truancy, not paying parking fines or sleeping on a park bench.
The report refers to a state-by-state investigation by National Public Radio into the fines, which found that since 2010, 48 states have increased criminal and civil court fees as governments passed many of the costs of running the criminal justice system on to defendants.
Apart from targeting the poor with fines, and the resurgence of a &ldquodebtors&rsquo prisons,&rdquo the report shows increased arrests against homeless people, as well as those feeding the homeless, and suggests that governments are criminalizing life-sustaining activities such as sleeping in public when no shelter is available.
Chef Fights $2,000 Fine for Feeding the Homeless
A Texas-based chef who was recently ticketed for feeding the homeless will soon appear in court to fight her citation. Earlier this month, chef Joan Cheever was fined $2,000 for giving away food to a line of hungry and homeless people. The Atlantic writes that Cheever has been donating meals every Tuesday night for the last 10 years at the same park in downtown San Antonio. However, last week she was given a ticket by the police. While she prepared her menu of lamb meatballs, pasta, vegetable soup, and braised greens in a commercial kitchen and had a food handler's license, that wasn't enough for the cops. Cheever was lacking an oddly specific permit to give away "food free of charge."
Cheever is not alone: The Atlantic notes a number of local governments around the country are "coercing individuals and organizations to stop helping their least-well-off neighbors." The National Coalition for the Homeless reports that 71 cities last year restricted or banned food sharing." The Washington Post writes that last year, police in Florida busted a 90-year-old man twice in one week for feeding the homeless. Church groups say that authorities have "threatened to arrest them" if they kept trying to feed the homeless as well.
Cheever — who is also a lawyer — is standing her ground. The Washington Post notes that so far she has ignored the citation. Cheever says she is going to continue to fight the citation and is waiting for an apology from the city: "I shouldn't be the one on the hot seat here."
Cheever even filed a lawsuit against the city of San Antonio "on the grounds that her religious freedom was violated." Cheever states: "The Bible says, ‘When I was hungry, you fed me,' and I take that seriously. This is the way I pray, and we'll go to court on this." So far, Cheever has seen an outpouring of support: There is even a GoFundMe campaign set up to cover the cost of her citation.
Luckily not all operations to help feed the homeless have been shut down. In January, a pizzeria in Philadelphia revealed that over the a span of nine months, it managed to give away 8,500 slices of pizza to feed between 30 and 40 homeless people per day.
City dismisses citation against chef who fed homeless
Cliff Snipes, right, homeless in San Antonio for two year, shows his gratitude to Joan Cheever, for feeding him at Maverick Park. Two weeks ago Cheever was ticketed for serving meals without the proper permit. Tuesday, April 21, 2015. Bob Owen, Staff / San Antonio Express-News
The jury trial requested last week by a local chef who was facing a $2,000 fine for feeding the homeless will not take place, after the city this week decided to drop the citation.
Aside from seeing a copy of a news release the city sent to local media, Joan Cheever said neither she nor her attorney have gotten official word that the Class C misdemeanor ticket she received in April was dismissed.
&ldquoI&rsquom happy that the citation was dismissed, but I&rsquom a little surprised . they&rsquove had 13 weeks to dismiss this citation,&rdquo Cheever said before speculating about what may have prompted the city&rsquos about-face. &ldquoA combination of things probably happened. I think they were probably incredibly surprised by the backlash . 66,000 signatures on a petition are very loud.&rdquo
As of Wednesday nearly 66,500 had signed a change.org petition in support of Cheever, founder of the nonprofit mobile food truck Chow Train, who had been serving meals to the homeless for 10 years when she was cited by San Antonio police for handing out meals in Maverick Park.
&ldquoAlso, I think calls to City Hall were many,&rdquo Cheever said of the city&rsquos decision to drop the citation. &ldquoAnd I think they probably assumed since I wasn&rsquot intimidated by getting the ticket, since I wasn&rsquot intimidated by being in court and since I refused to plead guilty to something that was not a crime, they knew something was coming down the road &mdash which would probably be a lawsuit.&rdquo
Police said the citation was issued because Cheever, who cooked the food inside her permitted food truck, was transporting and serving the food from her non-permitted pickup &mdash a violation of city code. Cheever said she used her pickup because the food truck was too big to navigate around some of her weekly stops.
The citation in April didn&rsquot stop her from feeding the homeless, and she&rsquos continued doing it ever since. Last week she appeared in municipal court and declined a plea deal that offered her deferred adjudication probation. Under that plan, if she would have pleaded guilty and completed the terms of probation successfully, she would have avoided any official record of being issued the citation.
Instead, she requested a jury trial, which was set for September.
The city news release stated the citation was dismissed &ldquobecause the city&rsquos food and mobile vending regulations do not address feeding the homeless&rdquo and so city staff will be directed to &ldquodevelop alternatives to address compassionate efforts to provide food for the homeless in a safe manner that does not compromise their health and welfare.&rdquo
City staff will research policies in other cities and present options to a council committee in August and to the full council in the fall. And the city has set a summit for July 28 to get input on how to best coordinate services for the homeless Cheever and others who feed the homeless are invited to participate.
Meanwhile, Melody Woosley, director of the city's Department of Human Services, said the city has no plans to cite individuals who are currently feeding the homeless &ldquoin a safe manner.&rdquo
As far as Cheever&rsquos concerned, that doesn&rsquot go far enough.
&ldquoWhile I&rsquom happy the ticket was dismissed, it&rsquos not over,&rdquo Cheever said, &ldquobecause that ordinance needs to be repealed or put on hold as it relates to Good Samaritans in the city.&rdquo
Jury Trial Set for Cheever’s Homeless Feeding Case
Joan Cheever didn’t back down when she received her first ticket in April for feeding the homeless and she isn’t backing down now.
When Cheever appeared before a municipal court judge on Tuesday morning she was offered a plea bargain, but she didn’t take it. She plead not guilty and her jury trial was set for Sept. 23.
“I would like for the people of San Antonio to decide whether or not this is a crime,” Cheever said Thursday.
Cheever, an attorney and chef, received a citation and cease and desist order on April 7 from the San Antonio Police Department. The citation, which could carry a fine of up to $2,000, was issued because the permit for her nonprofit food truck, the Chow Train, does not extend to the truck she uses to distribute the meals.
For the past eight years Cheever has prepared restaurant quality meals in the Chow Train, a process that takes a day and a half, packs the food in Health Department approved catering equipment, and drives to Maverick Park in a pickup truck on Tuesdays to disperse the food to the working poor and homeless.
One of Cheever’s friends started a Change.org petition which has received 65,127 signatures of support as of Thursday afternoon.
Cheever has distributed food to the homeless at Maverick Park 13 times since her first ticket on April 7 and she plans to continue her efforts.
“The citizens haven’t decided whether or not this is a crime. So I’m going to continue feeding the homeless and working poor of San Antonio until the jury tells me that what I’m doing – what the Chow Train is doing, what every good Samaritan is doing – is a crime,” she said.
Cheever said her case represents every “good Samaritan” in San Antonio who feeds the homeless.
“I’m just the one that got the ticket so I feel like I’m fighting for everybody in San Antonio who doesn’t want to turn their back on their neighbor or turn a blind eye to someone in need,” she said.
*Featured/top image: Joan Cheever prepares soup as part of a free meal in Maverick Park. Photo by Scott Ball.
Feeding the Homeless: Joan Cheever’s Simply Complicated Mission
Local attorney and chef Joan Cheever and her small team of volunteers served about 40 three-course meals to homeless and poverty-stricken people Tuesday night at Maverick Park. She started off with an appetizer of farmer’s market vegetable soup and smoked trout, a main course of chicken curry and two salads, and topped it off with watermelon for dessert. Cheever said it takes her a full day and a half to prep and cook the meal.
She rolls up to the park in her pickup truck every Tuesday to feed those in need. She’s been doing it for about eight years and she’s not stopping now, despite the citation and cease and desist order she was issued April 7 from the San Antonio Police Department. The citation, which could carry a fine of up to $2,000, was issued because the permit issued for her food truck does not extend to the truck she uses to distribute the meals.
Cheever told the police it’s her religious freedom to feed the homeless, and her story has garnered attention from people around the city and the country. Her citation has also become a topic of debate in the mayoral race.
But for the community members scoring a decadent, filling meal like this one, it’s not about politics. It simply eases the struggles – namely hunger – of being homeless, said one man attending the feast.
For this particular meal, Wilson Elementary School donated potatoes from their school garden, Trader Joe’s donated the trout, and vegetables for the soup came from farmers from the Olmos Basin Farmers Market.
“I think (the citation) offends people’s sense of justice and freedom and religious freedom. You are taught at an early age to take care of your neighbor and be a good Samaritan and help those in need,” she said.
Bexar County Commissioner Tommy Calvert Jr. (Precinct 4) said a citation like Cheever’s would not have been issued under the leadership of Mayor Julián Castro and the criminalization of compassion should never happen in San Antonio. Calvert spoke last week at an endorsement event for mayoral candidate and former state Sen. Leticia Van de Putte.
“Joan Cheever and good people of faith should not be penalized unfairly. We are San Antonio, where neighbor helps neighbor, in hunger, in health and to keep each other safe,” Van de Putte said Tuesday.
The former state senator is in a tight race for the June 13 runoff election, challenging Mayor Ivy Taylor for the position. Early voting has already begun and continues through June 9.
Taylor said the City needs to look again at the rules pertaining to feeding the homeless.
“We also need to revisit Haven for Hope and determine whether or not it’s been a success. … Being that we’re still having these types of challenges, I think we need to look at that model and take a comprehensive look at how we’re addressing (homelessness and hunger),” Taylor said last week.
Some say “handouts” like Cheever’s incentivize homelessness, others say people have the right to offer charity. Cheever said the City of San Antonio wants the homeless to receive aid from the homeless shelter, Haven For Hope instead of her weekly post at Maverick Park.
Chicken curry with potatoes donated by Wilson Elementary and mixed greens is served as a main course. Photo by Scott Ball.
“I don’t know what the problem is with the City,” she said. “They think ‘out of sight out of mind,’ that we’ll hide the homeless from the church or hide the homeless from other people in San Antonio.”
But, Cheever said, Haven For Hope doesn’t offer services for the working poor. Just the homeless.
“I have people who are off work, wanting to get home, grab the bus, and come by for food to go so that they can eat it on the bus on the way home,” she said. “And I don’t go and ask people in the line, ‘Are you homeless, are you working poor, or what exactly is your story?’ I don’t care if they are a Jew, a Christian, a Muslim, a Buddhist, an atheist. All I care about is that they are hungry.”
Brian Lane has come to Maverick Park for the past eight months to receive food from Cheever. He’s been living in and out of motels for the past two years, resorting to the streets when he’s out of money.
“(Cheever’s) a real good lady,” he said. “It’s a good nutritious meal, it’s like gourmet food. It’s the best meal that I’ve seen anywhere, right here.”
Lane said he doesn’t go to Haven for Hope for shelter or handouts.
“They’ve got too many drugs down there,” he said. “There aren’t too many of us who do go down there.”
On that Tuesday evening in April, Cheever was performing her weekly ritual of handing out food to those in need. She prepares the food in her commercial grade food truck, the Chow Train, packs the food in Health Department approved catering equipment, drives with the food to Maverick Park in her pickup truck, and disperses the food to the poor and homeless.
When she arrived to the park, she saw the usual bicycle cops she sees every Tuesday, but this time the four cops weren’t their usual friendly selves.
“I always see them every Tuesday and we wave and sometimes they come over and we chat about the menu,” Cheever said. “(On April 7) they looked pretty glum and I said, ‘Is there a problem?’ And they said, ‘Yeah, the problem is you.’”
One police officer told Cheever she was breaking the law because she was serving food from her pickup truck instead of from the Chow Train. Cheever told the officer he was infringing upon her religious freedom, and even tried to hand him a printed copy of both the Texas and national Religious Freedom Restoration Act. He refused both.
Cheever recalled the officer saying, “Lady if you want to pray, go to Church.”
“I said, ‘Officer this is how I pray. I pray while I cook, I pray while I serve, and this is my prayer,’” Cheever said.
So, Cheever bantered with the police for some time to ensure that the 45 people at Maverick Park that night didn’t go home hungry.
“(The officer) said I was lucky that they weren’t stopping me and I thanked him for that,” Cheever said, who has vowed to fight the citation.
Cheever said she started the Chow Truck to teach her children about compassion.
“I’m not a criminal,” she said.
*Featured/top image: A volunteer passes out free cups of soup in Maverick Park. Photo by Scott Ball.
What happened when this feisty woman got fined $2,000 for feeding the homeless
(WashingtonPost) Joan Cheever, red-headed, bespectacled and feisty as all get out, is the kind of person who gets known around town. There goes Joan, puttering through San Antonio in her non-profit food truck and a bandanna, which she has done since 2005, serving up hot plates of food to the homeless. And here comes Joan, appearing on celebrity chef Rachael Ray’s television show, palling around with cops for pictures, and materializing every Tuesday with more food for more homeless.
So that’s why, given her local status, what happened earlier this month came as such a surprise. Cheever’s accustomed to seeing cops when she’s doing what she calls her “religious duty.” They come by “to check on me,” she recalled in an interview, and sometimes she jokingly asks if they, too, are hungry. But on one such Tuesday night, she saw some cops approach. Something about them gave her pause. None of them were smiling.
Within minutes, Cheever was hit with a citation. It carried a potential fine of $2,000. All of that, she said, for feeding the homeless.
That ticket, as well as what came next, has made Cheever the latest flash point in what has become a contentious national debate over whether local municipalities have the right to criminalize street donations to the homeless and panhandlers. Called “feeding bans,” a growing number of cities have taken up the call to restrict food-sharing, activists say, in an attempt to de-incentivize homelessness. According to an October report by the National Coalition for the Homeless, 71 cities have either passed or attempted to pass an ordinance that restricts food-sharing.
The effect: Late last year, police in Fort Lauderdale busted a 90-year-old World War II veteran named Arnold Abbott twice in one week for feeding the homeless. In Raleigh, N.C., a church group said the cops threatened to arrest them if they served food to the homeless. And in Daytona Beach, Fla., authorities unsuccessfully levied $2000 in fines against six people for feeding the homeless at a park.
(Courtesy of the National Coalition for the Homeless)
At heart in the issue are two questions. Does giving food or money to the homeless abet, if not perpetuate, homelessness? And does restricting — and criminalizing — such an act constitute an infringement upon someone’s rights? “We’re all human,” said Megan Hustings of the National Coalition for the Homeless. “Giving someone a sandwich at a park is not going to keep them in homelessness it’s not encouraging anyone to remain homeless. This is just an act of charity, and do we really want to criminalize that in our society? This is a moral issue.“
That’s not, however, how former San Antonio Police Chief William McManus saw it. Panhandling is already illegal in San Antonio. In 2011, the city passed an ordinance that outlawed begging for money near ATMs, banks, parking meters and other public locations. Then last year, McManus pushed for a new law that would prohibit giving money or food to panhandlers. “If it’s a crime to panhandle, it should be a crime to give to panhandlers as well,” McManus said at a city council meeting, later telling the San Antonio Express-News that panhandling is a “quality of life issue.” Some homeless, he said, had become too aggressive, spitting on windshields if they’re not given something. The proposal was dropped following public outcry, and McManus stepped down at the end of last year.
But even now, Joan Cheever said, some local authorities still want to crack down on giving to the poor. You don’t have to look any further, she said, than what happened to her.
It was the night of April 7. She had just pulled her vehicle up to Maverick Park. She began dispensing food that she had prepared in her food truck. Out of the corner of her eye, she soon saw a group of grim cops approaching on bikes. “They said, ‘You’re breaking the law,’” Cheever recalled. They told her that her food-truck permit didn’t extend to doling out food from anywhere beyond that vehicle. She said that didn’t make sense. If true, why not outlaw pizza delivery men handing out pizza from their cars? What was really at work, she said, was an attempt to crack down on feeding homeless. She framed it as a violation of her religious freedom, protected under Texas’s religious freedom law, an iteration of which has attracted considerable controversy in Indiana.
“He said, ‘You think I’m infringing upon your right to practice your religion?’” Cheever recalled. “Then he said, ‘Lady, if you want to pray, go to church.’ And I said, ‘This is how I pray. I pray when I cook. I pray when I serve.”
San Antonio Police Spokeswoman Romana Lopez said she couldn’t comment “on what was discussed” that night.
Cheever, also an attorney, says she’s going to fight the citation and is awaiting an apology from the city. She has ignored the citation and orders that she desist. If anything, she’s accelerated her efforts, attracting dozens of supporters, and hitting the streets last Friday and Saturday to feed the homeless. Even Joaquin Castro, San Antonio’s Democratic congressional representative, has called on the city council to “do right by Joan Cheever” and “allow her to feed the homeless.”
Cheever may even take her protest to the next stage. She says says she’s considering filing a lawsuit against San Antonio on the ground that her religious freedom was violated, potentially setting religious freedom and local laws on another collision course. “I shouldn’t be the one on the hot seat here,” she said. “This is about every church group or individual who wants to serve a meal. It’s terrible to criminalize the poor, but it’s just as bad to say to the good Samaritans that you’re a criminal too. The Bible says, ‘When I was hungry, you fed me,’ and I take that seriously. This is the way I pray, and we’ll go to court on this.”
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Absurd, Abusive, and Outrageous: The Creation of Crime and Criminals in America
The U.S. is a world leader in the jailing and imprisoning of its own citizens. The FBI estimates that local, state, and federal authorities have carried out more than a quarter-billion arrests in the past 20 years. As a result, the American criminal justice system is a robust behemoth that, across the country, costs taxpayers billions of dollars each year.
The American criminal justice system and the criminal law have their roots in English common law. Developed over hundreds of years, the criminal law reflected what conduct English society and government would not tolerate. Crimes developed either as malum in se&mdashcriminal because of the innate wrongfulness of the act&mdashor malum prohibitum&mdashcriminal because the government decreed it. Mala in se crimes include murder and rape. Mala prohibita crimes include everything from traffic tickets to drug and gambling offenses.
Modern American criminal law has seen an exponential increase in mala prohibita crimes created by various legislatures. The natural result of creating more and more crimes has been the filling of more and more jail cells with newly-minted criminals. Some of these crimes are absurd, and some are outrageous. Many are subject to shocking abuse in the hands of police officers and prosecutors.
The explosive increase in what types of behavior have been criminalized is not the only reason America arrests and imprisons individuals in such large numbers. By design or not, the criminal justice system in the U.S. has evolved into a relentless machine that is largely controlled by law enforcement authorities and prosecutors.
The authority to arrest people and enforce the criminal law at the initial stage is vested almost exclusively within the broad discretion of the police. Police exercise their authority to arrest liberally statistics show that police arrest more than 11.5 million people each year.
While the initial arrest decision is important, the charging decisions made by prosecutors are, arguably, much more consequential. The power of the prosecutor in the modern American criminal justice system can hardly be overstated, given the inordinately high percentage of criminal cases that are disposed of through plea agreements. The prosecutorial discretion to charge the crimes and enhancements deemed appropriate drives plea negotiations and ultimately convictions.
Legislators, police, and prosecutors are powerful agents of crime creation, enforcement, and control. As the criminal justice system has grown at the hands of this influential triad, it has crept even further into the lives of everyday Americans. They include children who are being pulled into the criminal justice system at an alarming rate. They also include the poor and homeless, for whom policies are specifically designed and implemented to suck them into the system and ultimately to jail. Policies that mandate the jailing of the poor simply for being unable to pay fines are alive and well in America.
As the American public comes to grips with the out-of-control, all-consuming monster that the criminal justice system has become, efforts to address the situation have begun. Unfortunately, these efforts rely on data and crime rate trends that do not tell the whole story. Current legislative and executive solutions address symptoms of the illness, but not the illness itself. An examination of some of the various outrageous and absurd practices in the modern criminal justice system illustrates just how far we have to go.
Crime Creation: Legislatures at Work
The creation of law is the work of federal and state legislatures. A significant change to the criminal law in almost every American jurisdiction in the last quarter century is the legislative manufacturing of habitual offender charges and sentencing enhancements. These laws allow for significantly longer sentences when an individual charged with a crime has a criminal history.
The enactments of these laws were largely driven by public perception of skyrocketing incidences of violent crime and by legislative embrace of the theory of incapacitation as the solution to the increasing crime rates. Because these laws remove the discretion of the judge in sentencing decisions, they have led to lengthy and, in some cases, absurd sentences.
Take the case of Lee Carroll Brooker, for instance. Brooker, a 75-year-old disabled veteran, was arrested in Dothan, Ala. in July 2011 for growing three dozen marijuana plants that he intended for his own medicinal use. Because of the weight of the marijuana and the fact he had been convicted of armed robberies in another state over two decades earlier, Brooker was sentenced to life in prison without the possibility of parole. To put that into perspective, Brooker served 10 years for his previous armed robberies, but he was sentenced to life in prison for growing medicinal marijuana due to his record.
Brooker&rsquos trial judge lamented the sentence that he was required by law to hand down, telling him that if &ldquo[I] could sentence you to a term that is less than life without parole, I would.&rdquo
Similarly, in May 2015, The Baltimore Sun reported that Ronald Hammond appeared in court for possessing 5.9 grams of marijuana. Because he had been on probation at the time for selling $40 worth of crack cocaine to an undercover officer, he received a 20-year prison sentence.
Habitual offender laws are not limited to drug crimes. In Mississippi, Winfred Forkner, 51, was sentenced to life without the possibility of parole for stealing an air conditioner. Forkner was sentenced in 1999 under Mississippi&rsquos &ldquothree strikes and you&rsquore out&rdquo law because of two prior convictions in the 1970s&mdashone for armed robbery and one for escape.
In September 2009, Mark Anthony Griffin, a homeless Floridian, was sentenced to 15 years in prison for stealing a box of cereal and a can of evaporated milk. In December of 2013, Dana Brock, a 43-year-old Texas woman, was sentenced to 70 years in prison for stealing her neighbor&rsquos Christmas lights. Both of these cases involved habitual offender enhancements.
There are countless more examples of shocking sentences imposed for relatively minor offenses as a result of habitual offender laws. It strains credulity to think that legislators could possibly have intended some of the more dramatic results.
Judges have long decried the inflexible and sometimes draconian results of sentencing schemes that require such lengthy sentences. Judge Raymond J. Dearie of the Federal District Court in Brooklyn, N.Y. recently said that the country must &ldquojettison the madness of mass incarceration&rdquo and find alternatives to overly punitive sentencing in order to address the problem of crime.
Real change requires legislative action, and that has been in short supply for some time. Habitual offender laws are, of course, not the only questionable changes legislatures have made to the criminal law. Most jurisdictions in the U.S., for example, have enacted laws criminalizing the possession or sale of &ldquocounterfeit&rdquo controlled substances. These laws make it a crime to possess an otherwise legal item if that item is an imitation of a controlled substance.
For instance, in September 2014, Cameron Mitchell, 30, was arrested after he allegedly sold a crushed Pop Tart, which he claimed to be cocaine, to an undercover police officer. He was charged with selling a counterfeit controlled substance and manufacturing a counterfeit controlled substance. A Pop Tart is a completely legal sugary snack, but the moment it was crushed and purported to contain cocaine, it was statutorily transformed into an illegal item to purchase or sell.
Other incidences of absurd offender laws include the criminalization of putting one&rsquos feet up on a subway in New York City. William D. Peppers discovered this when a police officer woke him up on his way home from work and arrested him for having his feet up. He spent 12 hours in jail, and he is not alone. He is one of 1,600 people arrested in 2011 for the heinous crime of resting their legs on a New York City subway.
Putting your feet up on the subway in New York City is not the only non-threatening, everyday behavior that might attract unwanted and unwarranted police attention. In July 2012, fresh from an evening of jazz at Lincoln Center, Caroline Stern, 55, and George Hess, 54, were arrested for dancing on the subway platform while waiting for their train.
When police approached and asked the couple what they were doing, Stern answered, &ldquoWe&rsquore dancing.&rdquo The officers responded, &ldquoYou can&rsquot do that on the platform,&rdquo recalled Stern. When Hess began recording the incident with a camera, he claimed that the officers called for backup, tackled him to the ground, and cuffed him. The pair was then charged with resisting arrest and disorderly conduct for impeding the flow of traffic.
In Kalamazoo, Michigan, failure to license your dog is illegal and punishable by up to 90 days in jail. Becky Rehr, a 47-year-old mother, was arrested and jailed when she went to the local sheriff's office to prove that she had renewed her 11-year-old dog&rsquos license. She had been late renewing the license.
As state and federal authorities attempt to get a handle on America&rsquos problem of mass criminalization, legislatures should pay careful attention to the overzealous creation of crime. Given the terrible and often life-long consequences of involvement with the criminal justice system, we must ask ourselves whether criminalizing the way an otherwise law-abiding citizen sits, waits for a subway, or speaks makes sense.
Police: Service and Protection or Relentless Incarceration?
Legislatures enact criminal laws, but law enforcement bodies investigate possible crimes, make arrests, and participate in the prosecution of arrestees. In both policy and practice, law enforcement personnel have wide authority to interpret criminal law and make arrests. Given the broad discretion law enforcement officials are granted, they wield enormous power over the lives of every person in America.
Consider the following examples of law enforcement gone awry. Christopher Lewis, a South Carolina man working in construction at the Veterans Administration Medical Center in downtown Charleston in April 2014, was detained in the hospital cafeteria for failure to pay .89 for a refill of his drink. He was collared by no less than the chief of the federal police force at the hospital and issued a citation for shoplifting that carried a $525 fine. He was also fired from his job.
&ldquoEvery time I look at the ticket, it&rsquos unbelievable to me,&rdquo said Lewis, who admitted to refilling his drink without paying, unaware that he was committing a federal crime by doing so. &ldquoI can&rsquot fathom the fact that I made a .89 mistake that cost me $525.&rdquo
In response to news coverage of the incident, the VA Medical Center released the following statement, quoted in pertinent part:
&ldquoThe Ralph H. Johnson VA Medical Center is fortunate to have a highly trained federal police force to ensure the safety of our patients, visitors and employees. As federal police, they are responsible for enforcing the law. Today a federal citation was issued for shoplifting in the VA cafeteria to an individual who stated to VA police he had not paid for refills of beverages on multiple occasions, even though signs are posted in the cafeteria informing patrons refills are not free. Shoplifting is a crime.&rdquo
Also, in Midway, Ga., police officers were keeping a careful eye on local neighborhoods in an effort to fight crime. In 2011, officers came upon an illegally operating business the operators of the stand had failed to secure the $230 peddler&rsquos permit and food permit prior to opening for business. This resulted in officers shutting down the business. So just what was this illicit enterprise? The criminal masterminds were two kids who opened a lemonade stand to raise money for a trip to a water park.
Midway Police Chief Kelly Morningstar defended the officers&rsquo actions, saying that the &ldquopolice didn&rsquot know how the lemonade was made, who made it, or what was in it,&rdquo said Morningstar.
Battery on law enforcement is a serious crime and punishable by a lengthy prison sentence. So 34-year-old Jose Cruz, of Clarksburg, W.V., was undoubtedly concerned when he was charged with battery in September 2008. The criminal complaint alleged that after being pulled over and arrested for DUI, Cruz passed gas and made a fanning motion toward Patrolman T.E. Parsons.
&ldquoThe gas was very odorous and created contact of an insulting or provoking nature with Patrolman Parsons,&rdquo the complaint charged. But in a minor victory for sanity and commonsense, the Kanawha County Prosecutor&rsquos Office refused to prosecute the battery charge.
Feeding the homeless can also lead to police intervention. In April 2015, Chef Joan Cheever was cited for feeding the homeless in Maverick Park, which is located right outside downtown San Antonio, Tex. Chef Cheever, who founded the nonprofit food truck, The Chow Train, had been feeding the homeless in Maverick Park for about a year when she was cited.
The citation was for failing to obtain a permit to deliver the meals in the back of a pick-up truck, instead of the food truck. Failure to do so violated the city ordinance, and the citation carried a fine of up to $2,000.
In Florida, romantic gestures can trigger police intervention. Anthony Brasfield, 40, thought it would be romantic to release a dozen heart-shaped balloons while on the beach in Dania Beach, Fla. with his girlfriend in 2013. But a Florida highway patrol trooper did not see romance in the air instead, he saw a crime.
Brasfield was charged with a third-degree felony for violating Florida&rsquos Air and Water Pollution Control Act. The crime is punishable by up to five years in prison. According to the Florida Department of Law Enforcement, 21 arrests were made under the statute between 2008 and 2012.
Law enforcement authorities have almost unlimited ability to interfere in the life of American citizens. Post 9/11, attitudes and policies have permitted local, state, and federal authorities to advance a rigid, militarized approach to law enforcement.
The Problem with Prosecutors
Despite the great power of lawmakers and the wide discretion of law enforcement authorities, no player in the criminal justice system has a greater ability to influence a person&rsquos experience and fortunes than the prosecutor. Virtually every aspect of the criminal process, from bail and charging decisions to plea bargaining, is controlled or influenced by the prosecutor.
To make matters worse, there is a decided and undeniable tendency by some of today&rsquos prosecutors to do everything in their power to obtain as many convictions for as many years as possible, regardless of the actual guilt or innocence of the defendants.
Judge Dearie has questioned the widespread practice of prosecutors gauging their success by the number of years a given defendant spends in prison.
&ldquoWhy this love affair in this country with lengthy incarceration, to our great embarrassment as a civilized nation,&rdquo asked Judge Dearie rhetorically in a 2016 speech to a group of New York lawyers.
Most members of the general public likely have no idea how much power a prosecutor has and how brutally it can be wielded.
For instance, data consistently show that well over 90% of state and federal criminal cases end in plea bargains. But as The Atlantic observed in its September 2017 issue, &ldquoplea bargains make it easy for prosecutors to convict defendants who may not be guilty, who don&rsquot present a danger to society, or whose &lsquocrime&rsquo may primarily be a matter of suffering from poverty, mental illness, or addition.&rdquo
Stephanos Bibas, a professor of law and criminology at the University of Pennsylvania Law School, described today&rsquos criminal justice system as a &ldquocapacious onerous machinery that sweeps everyone in.&rdquo Plea bargains &ldquoare what keep that machinery running smoothly.&rdquo
Prosecutors often wield their discretionary power with devastating consequences for those who get sucked into the criminal justice apparatus.
Consider the case of Tanya McDowell. She used a false address to enroll her kindergartener son into Brookside Elementary School in Norwalk, Conn. Tanya, a homeless single mom from the economically depressed city of Bridgeport, simply wanted to improve her child&rsquos educational opportunities by enrolling him into a better school. This resulted in a first degree larceny charge for enrolling a child under a false address, which is a crime punishable by up to 20 years in prison and $15,686 in restitution.
Given the enormous power prosecutors have, unscrupulous ones have the ability to completely undermine the integrity of the criminal justice system with catastrophic consequences for defendants. In 2010, Edward McGregor was convicted in a capital case and sentenced to life in prison. His conviction was based largely on the prosecutor knowingly and intentionally using perjured testimony. Her misconduct eventually came to light, and McGregor was granted a new trial. The truly alarming aspect of McGregor&rsquos case is not the prosecutor&rsquos misconduct rather, it is the fact that his experience is not at all unique or uncommon. What is rare about his case is that there is actually an effort to hold the prosecutor (somewhat) accountable for her actions. Although she is not facing any criminal charges, the State Bar of Texas filed an action against her in September 2017, seeking reprimand, suspension, or disbarment.
McGregor&rsquos case is covered in greater detail in another article in this issue of Criminal Legal News titled &ldquoState Bar of Texas Pursuing Disciplinary Action against Prosecutor Who Lied about Deals with Jailhouse Informants in Capital Case.&rdquo
Debtors&rsquo Prison and the War on the Poor
Debtors&rsquo prisons have been statutorily eliminated from the criminal law for many years. In America, we pride ourselves on not imprisoning those who are in debt and unable to pay.
But is that true? The fact is countless Americans are arrested and jailed each year for nothing more than owing money to the government. This remains legal in a particularly insidious way: When a person is fined by the government and does not pay, he or she can be jailed and often is.
The fines that typically go unpaid, and result in imprisonment of the debtor, stem from what are referred to as nuisance crimes. These include low-level offenses such as jaywalking, littering, parking infractions, moving violations, and similar types of very minor mala prohibita offenses.
A study by UCLA law professor emeritus Gary Blasi titled, &ldquoPolicing Our Way out of Homelessness? The First Year of the Safer Cities Initiative on Skid Row,&rdquo looked at petty citations in Los Angeles in 2007. Skid Row is, of course, home to a large homeless population in L.A. The study found that in Skid Row jaywalking or other petty citations were issued at rates 48 to 69 times higher than those in the rest of the city.
The study further noted that &ldquoof the 1,000 people per month who receive citations and are unable to pay the fines, most will face subsequent arrest and jail, even though the original offense may have been littering or a pedestrian signal.&rdquo
It was no secret to the L.A. police that the overwhelming amounts of citations given to the homeless resulted in jail time at a disproportionate rate for so many poor and homeless citizens. In fact, some activists believe that L.A.&rsquos Safer Cities Initiative was part of an overall plan to drive the homeless out of downtown L.A. and into county jails.
&ldquoThe goal of the Safer Cities Initiative is to force poor people of color to move,&rdquo said Blasi. &ldquoWhen they don&rsquot move, they go into the criminal justice system.&rdquo
Pete White of the Los Angeles Community Action Network, a poverty activist group, made it clear that law enforcement&rsquos pursuit of petty citations such as those detained by Blasi are nothing more than &ldquoan excuse for search, harassment, and intimidation of the poor.&rdquo
Also, jailing debtors for unpaid fines is economically absurd because the cost of jailing someone for unpaid fines generally amounts to significantly more than the value of the fines themselves.
To illustrate the point, the City of Los Angeles has spent over $250,000 arresting, prosecuting, and incarcerating a single homeless person&mdash59-year-old Ann Moody.
Moody has been arrested 59 times in six years, according to the Los Angeles Times. Indeed, it turns out that Moody has been arrested more than any other person in Los Angeles, mostly due to her sitting on a public sidewalk. She has spent 15 months in jail since 2002. Moody remains unrepentant and notes that &ldquowe&rsquore human beings, not to be pushed around like cattle. We have a right to be stationary.&rdquo
Professor Blasi may not be able to explain the warped economics of the LAPD&rsquos &ldquooperation bad Moody,&rdquo but he does have an opinion on why Moody aggravates police officials to the point of spending a quarter-million dollars to continually arrest and jail her: her persistent opposition to the police on remaining on the sidewalk. &ldquoUnlike other targets, she just doesn&rsquot go away,&rdquo observed Blasi. &ldquoThat corner is where she thinks she should be.&rdquo
Activists have been fighting the scourge of modern debtors&rsquo prisons for years. In April 2016, the Texas Civil Rights Project sued the City of El Paso, Tex. in federal court for constitutional violations related to the city&rsquos policy of jailing those who cannot pay their fines.
Carina Canaan is one of the two plaintiffs in the suit. She racked up over $3,000 in tickets for driving without a license while she was attending school and working for $8 an hour. She spent 10 days in jail for failure to pay the fines while pregnant with her first child, and she still cannot get a license because she owes additional fees.
Levi Lane is the other plaintiff in the suit. Earning $8 an hour at a pet food factory, he did not have enough money to pay for his registration and insurance. With no public transportation available, Lane continued driving to work, but he was uninsured and unregistered, which resulted in $3,400 in citations before he was arrested. Unable to pay the fines, Lane spent three weeks in jail and lost his job.
In 2006, the El Paso implemented a program whereby people with tickets could satisfy their fines through a payment plan, but the plan required a down payment of 25% of each ticket&rsquos total amount in order to utilize the payment plan option. Of course, many potential participants could not afford even the down payment.
Brian Jacobi, an attorney for the Texas Civil Rights Project, said that reforms proposed by El Paso were not enough to cover for those who simply could not pay out of their pocket.
&ldquoThe city has not gone near far enough to address the problems,&rdquo charged Jacobi. &ldquoThis is an issue of fundamental fairness for poor Texans.&rdquo
More recently, the U.S. Department of Justice (DOJ) has begun investigating and suing officials at the city, county, and state levels who promulgate policies that result in the jailing of individuals simply for failing to pay fines. In June 2016, the DOJ reached a settlement agreement with Hinds County, Miss. prohibiting some jail sentences for failure to pay court-ordered fines and fees.
According to The New York Times, the fees in question could include everything from traffic citations to the cost of a prisoner&rsquos incarceration, which have been found to fall disproportionately on minorities and have long been a source of frustration among the unemployed and the working poor.
But the most forward-looking aspect of the DOJ settlement agreement is a mandate for the county to form and staff a criminal justice committee. According to the DOJ, the committee will be composed of judges, the county sheriff, members of the board of supervisors, mental health professionals, and local residents. The committee will work to find alternatives to incarceration.
Where Do We Go From Here?
The epidemic of mass criminalization and incarceration in America is not a new development. Nor are proposed solutions to the problems of the modern criminal justice system. Unfortunately, most of the current reform-based practices and policies address the bleeding, not the wound. Easing prison overcrowding and decriminalizing some drugs, such as marijuana, is a start. But similar to the meatball surgery done on wounded soldiers by combat surgeons, it is a patch job that fails to tackle the source of the problem.
Recognition of the criminal justice system&rsquos problems as systemic in nature is the first step to moving forward with change. We must recognize that schoolchildren are being handcuffed and arrested by unnecessarily aggressive police that human lives are being flushed down the toilet by overly ambitious prosecutors that legislatures are criminalizing more and more commonplace behavior and that this system is unfitting for an America that prides itself on civil liberties.
We could also adopt alternative policies like those in Portugal. The Washington Post reported that Portugal decriminalized the use of drugs in 2001 and reshaped the portrayal of drug addiction as a public health issue. This resulted in the lowest rate of drug-induced deaths in Europe and also lowered the HIV infection rate. Similarly, we can seek guidance from the approach adopted by Nelson Mandela and the Truth and Reconciliation Commission, which was created in the 1990s to confront South Africa&rsquos apartheid atrocities. The consensus among members of the commission was that &ldquoit was not punishment but the acknowledgment of wrongdoing&rdquo that would bring a peaceable future, reported Truthout in September 2016. Thus, in South Africa, if torturers and murders involved in the apartheid publicly denounced their atrocities and asked for forgiveness, they were granted amnesty for their crimes. Perhaps this is the approach that the U.S. should adopt as a part of a nationwide social healing process.
Understanding just how unrecognizable the criminal justice system has become leads to an obvious question: Why? This is where real solutions to the problem of an out-of-control system begin to surface. And this is the question that every American must answer.
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Christopher Zoukis is the author of College for Convicts (McFarland & Co., 2014), Prison Education Guide (PLN Publishing, 2016), and the forthcoming Federal Prison Handbook (Middle Street Publishing, 2016). He is a regular contributing writer for The Huffington Post, New York Daily News, and Prison Legal News. He is currently incarcerated at FCI Petersburg Medium, Va.
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