Miami Beach

Tourists are rarely jailed for breaking Miami Beach laws. Not so for the homeless.

Amid a growing national movement away from jailing people for low-level crimes — which critics say can trap defendants in a cycle of poverty and incarceration — Miami Beach has taken the opposite approach.

Last January, after learning that the Miami-Dade state attorney’s office was routinely dropping charges for “quality of life” offenses such as drinking in public and entering a park after hours, Miami Beach hired its own prosecutor to target people who violate city laws. The program, which is the only one of its kind in Miami-Dade County, was part of a broader effort to address nuisance crimes.

But despite residents’ complaints about rampant public drunkenness during spring break and other times that draw a lot of tourists, a review of the cases prosecuted by the new program shows that few tourists have been arrested and prosecuted for drinking in public or for other nuisance crimes.

Instead, public records show, the majority of the cases have involved homeless people. An analysis of 212 cases prosecuted between mid-January and mid-August 2018 revealed that at least two-thirds involved a homeless defendant. In another 15 percent of the cases, the defendant’s circumstances were unclear, although details on many of the arrest reports suggested that he or she was homeless. In contrast, just 12 arrests involved defendants who may have been tourists, based on the address listed on the arrest report. In another 13 cases, the arrest report did not include an address.

Most of the prosecutions were for drinking in public, although roughly a dozen were for urinating in public and a few were for camping in a prohibited area or entering a park or the beach after hours.

While the number of arrests for violating Miami Beach ordinances decreased last year, the number of convictions rose dramatically. More than 40 percent of the cases resulted in jail time. Many also resulted in “stay away orders” — court orders that bar a defendant from returning to the area where he or she was arrested for a certain period of time.

The number of homeless people prosecuted raises red flags for activists and lawyers who work with this population.

“I thought my tax dollars were going to target actual crime,” said Valerie Navarrete, a local activist who reviewed the Miami Herald’s findings. “If you’re talking about 60 to 80 percent being homeless, that’s targeting.”

Carey Haughwout, president of the Florida Public Defenders Association, echoed these concerns.

“There is a growing consensus that these types of prosecutions that really are prosecutions based on poverty are not appropriate,” she said. “We’re just housing them in the jail instead of housing them somewhere else.”

Miami Beach officials said that neither the police department nor the city prosecutor are targeting homeless people or avoiding charging tourists. The city prosecutor is responsible for prosecuting all cases involving only criminal municipal ordinance violations, according to the city attorney’s office. If a city law is broken and there is an accompanying state charge, the case is prosecuted by the state attorney’s office.

“An important component in maintaining a high quality of life throughout the City involves the enforcement of the laws under which all citizens and guests must live and abide,” the city said in a statement. “And while no such leniency is shown for felony or most misdemeanor offenses, the officers of the Miami Beach Police Department typically provide a warning to those individuals who violate the City’s municipal criminal ordinances prior to effectuating an arrest.”

Mayor Dan Gelber said that the people prosecuted were “mostly repeat and habitual offenders,” which was the idea behind the program when it was first created. City officials did not say at the outset that most of the people prosecuted would be homeless, however, although Police Chief Daniel Oates said that police wouldn’t prioritize tourists who were unaware of the city’s laws.

“The people that are arrested are self-selected as people who generally refuse to comply with lawful direction from police,” Gelber said. “They may include part of the homeless population but that’s not why they’re being arrested at all. When a police officer asks somebody to not drink in public and they refuse, it’s very likely they’re going to get arrested. I think tourists tend to comply. That’s the difference.”

Jose Montesino takes in the sun in Lummus Park on Thursday, Jan.10, 2019, on South Beach, where a new municipal prosecutor program targeting low-level offenses has mostly affected the homeless. Carl Juste

Some of the arrest reports reviewed by the Herald indicated that the defendant had been previously warned or arrested for the same offense — sometimes that same week or even that same day. There were also cases in which defendants were walking in traffic or yelling at pedestrians when they were arrested for drinking.

But in other cases, according to the information on the arrest reports, homeless people were arrested for simply drinking a beer on the beach or for trying to find a place to sleep. Of the 156 people prosecuted between January and August, 78 percent were arrested only once over that seven-month period.

Nearly 88 percent of the cases were for drinking in public, which is punishable by up to 30 days in jail and carries a fine of up to $250 for a first violation.

The Miami Beach Police Department recently started a new program to help homeless people with an alcohol or drug problem get treatment. In collaboration with the South Florida Behavioral Health Network, police so far have gotten court orders to send 11 homeless people to 90-day treatment facilities.

But at least 95 homeless people were booked for “nuisance crimes” in those seven months, which advocates say isn’t an effective or humane way to address homelessness.

“Arresting a person experiencing homelessness may temporarily remove that person from the streets of Miami Beach,” Jeffrey Hearne, director of litigation at Legal Services of Greater Miami, said in an email. “But, in the long run, the arrest ultimately makes it more difficult for the person to access housing, jobs, and public benefits — things they need to get back on their feet.”

Advocates say that prosecuting homeless people typically ends up being more expensive than providing housing and other services.

It costs Miami-Dade taxpayers roughly $230 per inmate per day to put someone in county jail, according to a spokesman for Miami-Dade County Corrections. That’s in addition to court costs and, in Miami Beach, funding the municipal prosecutor program, which costs the city $129,000 a year.

Stay away

On a recent Thursday afternoon, Michael, a homeless man who asked to be identified only by his first name, was resting in Lummus Park. Michael said he’d seen “a big change” in the punishment for low-level offenses since the municipal prosecutor program started last January.

“They’re giving out ‘stay away orders’ for a year for taking a sip of beer,” he said.

But Michael, who said he was arrested last year for drinking in public, said he doesn’t see police going after tourists for doing the same thing.

“They don’t say anything,” to the tourists, he said. “They tell them to pour it out sometimes.”

Nearby, a homeless man named Alfonso complained that homeless people in Miami Beach are repeatedly arrested for minor offenses. “They don’t respect the rights of the people who live on the street,” he said in Spanish.

Concerns about Miami Beach’s treatment of homeless people aren’t confined to the new municipal prosecutor program. Homeless people on the island say they are frequently arrested for trespassing and other misdemeanors prosecuted by the state attorney’s office, which can result in hundreds of dollars in fines and court fees. The arrests and fines can also limit their access to some services. Until recently, for example, homeless people in Miami Beach weren’t eligible for bus vouchers through the city’s relocation program if they had unpaid court fees.

But for city officials and the members of a local crime prevention group, the municipal prosecutor program has been a success. The prosecutor achieved an 81 percent conviction rate last year, the city said in a statement, compared to a success rate of less than six percent when the state attorney’s office was responsible for prosecuting the same crimes. The number of arrests in which a defendant was charged with violating at least one municipal ordinance also fell from 739 in 2017 to 460 last year, a drop the city attributed to the success of the new program.

John Deutzman, a Beach activist who moderates the crime prevention group’s Facebook page, said that as a result of the program and other efforts, “people who are habitual offenders or chronic offenders are now seeing more time in jail, the proper people who need rehab are being filtered to rehab and we’ve got a better handle on things these days.”

Deutzman, who advocated for the creation of the program, said that it has created a “deterrent to lawlessness” in Miami Beach. “Essentially a lot of the drinking in public stuff leads to everything from aggressive harassment of residents and tourists to other things and most of these guys escalate to other things,” he said.

Deutzman and city officials also point to “stay away orders” as a measure of the program’s success.

“We may have someone who gets a conviction with no jail time penalty, but the ‘stay away order’ is so effective that these folks stay away or they’re re-arrested if they come back, and many of them have left the beach,” Oates told commissioners at a recent meeting.

Nearly a quarter of the cases prosecuted between January and August 2018 resulted in a stay away order, according to information the city provided in response to a public records request. It’s unclear how long the orders last and how broad a geographic area they cover because Miami Beach did not respond to questions about their scope.

But activists and lawyers who work with the homeless question the use of “stay away orders.”

“The ‘Stay Away’ orders only move these folks to a different area while the underlying problems of homelessness, mental illness and poverty are not addressed,” Haughwout said in an email.

Miami Beach saw a 28 percent increase in the number of homeless people without shelter between August 2017 and August 2018, according to the Miami-Dade County Homeless Trust. (These figures reflect the number of homeless people at a specific point in time and not necessarily the average over the year.)

In an email, chairman Ron Book said that while the Homeless Trust recognizes that nuisance crimes can have a negative impact on residents’ quality of life, “communities cannot arrest their way out of homelessness.”

There are no homeless shelters in Miami Beach, but the city has roughly 100 beds set aside for its homeless population in shelters in Miami-Dade County and provides transportation. Roughly 1,400 people in Miami Beach identified themselves as homeless during the last fiscal year, according to city figures, and the city offered services, such as shelter placement and help finding a job, to 1,200 people.

The ‘root cause’

Across the country, a push for criminal justice reform has seen prosecutors elected in both majority Democrat and majority Republican states on platforms based in part on less incarceration. Some cities are also moving away from sending homeless people to jail for minor crimes.

One alternative approach, known as homeless court, has taken root in dozens of places across the country. Last week, Fort Lauderdale launched Florida’s first homeless community court, which is designed to help homeless people cited for minor crimes like trespassing and public drinking get mental health services and other aid. In lieu of going to jail, defendants are asked to do community service.

Miami-Dade has a similar program for people with mental health issues — known as the Criminal Mental Health Project — which diverts people with mental disorders out of the criminal justice system and sends them to treatment.

Miriam Krinsky, the executive director of national advocacy group Fair and Just Prosecution, said that the most effective solutions are ones that provide public health and housing services.

“If the effort is really to solve these problems rather than simply prosecute people for manifesting deeper concerns, then the criminal justice system isn’t the player that should be responding here,” she said. “I think one has to look at the question of why are these individuals homeless and how do we deal with the root cause of the problem rather than trying to put a band-aid solution on the manifestation of the problem.”

But in Miami Beach, city officials are now discussing the possibility of expanding the city prosecutor program to cover additional low-level crimes. Those might include trespassing and petty theft, which are violations of state law, but which a city prosecutor could target by prosecuting the corresponding city code and ordinance violations, chief deputy city attorney Aleksandr Boksner told commissioners at the Dec. 12 commission meeting.

That would require getting approval from the state attorney’s office. Some commissioners expressed concerns at the meeting about both the financial impact of expanding the program and whether the state attorney’s office would be willing to relinquish that authority. The Miami Beach City Commission has not yet voted on whether to pursue this idea.

The state attorney’s office doesn’t appear eager to let the city prosecutor’s responsibilities grow, however. Spokesman Ed Griffith said that state prosecutors already “work closely with the Miami Beach Police and citizens groups on the prosecution of state statutes.”

“As you know, we have 250 well-trained Assistant State Attorneys handling all violations of state law, both felony and misdemeanor,” he said in an email.

Miami Herald staff writer David Ovalle contributed to this report

UPDATE: This article has been updated to clarify that Valerie Navarrete spoke to the Herald in her capacity as a local activist and not on behalf of the city’s homeless committee. Her comments were based on a review of the Miami Herald’s findings.

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Kyra Gurney lives in Miami Beach and covers the island for the Miami Herald. She attended Columbia University and Colorado College and grew up in New Mexico.
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