TAMAR EZER & DAVID STUZIN
The coronavirus has surfaced inequalities in our society, where poor and marginalized communities are particularly vulnerable to infection and denial of care. In this context, the criminalization of poverty and marginalization can be deadly.
In the Fall of 2019, the Human Rights Clinic at the University of Miami (“UM”) School of Law hosted a Symposium on Petty Offenses: Challenging the Criminalization of Poverty, Marginalization, and Gender Non-conformity, in collaboration with National Homelessness Law Center, UM Law Review, UM Social Justice Law Review, UM School of Communication, and Open Society Foundations’ Human Rights Initiative. In the late 2020, UM Law Review published a special issue on the symposium, capturing lessons and reflections and complementing a report on the symposium.
The symposium brought in leading legal practitioners, academics, and advocates from the United States, Uganda, Sierra Leone, Nigeria, Malawi, Madagascar, Kenya, Jamaica, Israel, India, Hungary, Guyana, Guinea, and Ghana to critically examine the intersection of petty offenses and marginalization through a variety of perspectives. It provided an opportunity to connect local, national, and global conversations on criminal law and social justice and for learning across movements and countries.
The first session probed local issues and focused on “Policing Public Space in Miami.” This session highlighted a number of concerns. First and foremost, people experiencing homelessness should be at the center of any advocacy on homelessness. Moreover, communities experiencing homelessness are not monolithic, and each community has particular needs. Secondly, while cities have a legitimate interest in keeping their streets clean, they cannot simply displace people experiencing homelessness. Rather, they should offer public services, such as public bathrooms, and work collaboratively with communities experiencing homelessness to achieve public health aims. Finally, policy solutions must focus on the root cause of homelessness: the lack of affordable housing in major metropolitan areas. Julieta Perucca, the Senior Aide to the UN Special Rapporteur on the Right to Adequate Housing, remarked, the only way to solve the problem of homelessness is to “reclaim a right to housing where housing is a human right, not a commodity.” She further emphasized, “Homelessness should not be perceived as a personal failure, but rather as an egregious violation of human rights, including the right to housing and the right to life.”
The next session broadened the discussion beyond homelessness to the criminalization of poverty. This session examined the severe and seemingly inescapable cycle of poverty and incarceration, trapping the poor within the U.S. criminal justice system. Too often the justice system does not focus on public safety, but rather has become a mechanism for racialized control and revenue generation. The panel underscored the impossible choice facing low-income defendants unable to make bail: plead for a reduced sentence to a crime they did not commit or sit for weeks in jail awaiting trial at the risk of losing employment. The panel further highlighted the predatory nature of fines and fees, functioning as a regressive tax on low-income defendants struggling to make ends meet. This includes fees for appearing in court, fees for spending time in jails, and fines for minor traffic violations. These fines and fees can trap people in a cycle of debt that further deepens systemic poverty. “How we deploy resources matters,” panelist Lisa Foster, Co-Director of the Fines & Fees Justice Center noted, “When the justice system is taking money in the amounts that we are in the United States today out of low-income communities of color, you have homelessness, you have increased poverty.”
Another panel explored the role of litigation as part of advocacy strategies. While the panel agreed that litigation was necessary, as Dante Trevisani, Executive Director of the Florida Justice Institute noted, “Litigation is just one tool and can’t be the only tool.” Panelists highlighted that while litigation frequently does not solve underlying social problems, it creates space for public discussion and an effective policy response. Litigation further brings visibility to issues facing marginalized communities and can empower clients by giving them a chance to tell their story before a judge. Finally, the panel emphasized the benefits of combining litigation with media engagement to impact public conversation. This public conversation can create widespread empathy for marginalized groups and lead to wider changes.
A panel on human rights advocacy focused on simultaneously pursuing advocacy on the local, national, regional, and international levels to effect policy change. Panelists discussed engaging with human rights bodies at the U.N. and African Union to pressure domestic officials to address the criminalization of poverty and marginalization. Panelists also discussed the opportunity of international and regional human rights advocacy to facilitate coalition-building and mobilization, both at a national level, as well as across borders. Local initiatives at the community level are further strengthened by comparative examples and by strong international and federal standards.
A fifth panel focused on the gender impacts of petty offense laws. This panel underscored intersecting discrimination based on gender identity, sexual orientation, and race in policing petty offenses. Loitering laws often give police absolute discretion to question why someone is in public space and allow them to deconstruct a woman’s clothing and appearance to determine whether her conduct is lawful. These laws aim to police gender and racial hierarchies and to control the reproductive and economic autonomy of women, people of color, and queer and other marginalized communities across the world. Advocacy must, therefore, also take these various perspectives into account. As Andrea Ritchie, Researcher-in-Residence at the Barnard Center for Research on Women, stated, “The State is intersectional in its policing, so our response has to be intersectional.”
Finally, the symposium highlighted strategies for creative campaigning and new media engagement. This creative campaigning element focused on using art, storytelling, and social media to build empathy for the peoples targeted by petty offenses laws. The speakers argued that these strategies were just as important as those targeted towards the legal system because, as panelist Anneke Meerkotter, Litigation Director for the Southern African Litigation Center, put it, “While legal change can and must be pursued, real change comes down to people treating each other with dignity.”
Moreover, a communications workshop prior to the symposium provided an opportunity for advocates to strengthen communication strategies and creative campaigning to complement legal advocacy. At the workshop, advocates developed a shared hashtag for work in this area: #PoorNotGuilty.
A report providing a synopsis of the symposium, videos from the various sessions, and a special symposium issue of the UM Law Review capturing lessons and reflections are now available on the symposium website listed under the resources below. These materials can be reviewed for Florida Bar CLE credits.
- Petty Offenses Symposium, website at https://www.law.miami.edu/academics/clinics/human-rights-clinic/petty-offenses-symposium.
- Petty Offenses Symposium Report, at https://miami.app.box.com/s/q891w54b661c6bismf190x23835kamsq.
- Conclusions of the Sessions on “Policing Public Space in Miami,” video at https://echo360.org/media/34dfc6bb-378b-4bdb-b7de-8e51a990c30e/public
- Poverty Offenses Panel, video at https://echo360.org/media/c917d79e-0f34-47db-9a33-4c26c1766d2b/public
- Litigation to Address Petty Offenses Panel, video at https://echo360.org/media/f16c9e2c-8789-4755-813e-62a8423aeb0a/public
- Human Rights Advocacy to Address Petty Offenses Panel, video at https://echo360.org/media/1c1eac98-6a95-4912-8868-0affe6ff4351/public
- Creative Campaigning to Address Petty Offenses Panel, video at https://echo360.org/media/827f3256-660d-4270-841e-d9a627e6279b/public
- A Conversation on Gender and Petty Offenses Panel, video at https://echo360.org/media/06bd36a5-7b14-4449-98b7-86148abc08da/public
- UM Law Review Special Symposium Issue at https://lawreview.law.miami.edu/petty-offenses-symposium-special-issue/