A ban is not a plan 

SJC ruling on panhandling is a start, but not a solution 

THE MASSACHUSETTS SUPREME JUDICIAL COURT has reminded us that we are not going to ban our way to social justice and public safety. 

The SJC on December 15 declared that the state ban on panhandling is in violation of the Massachusetts Declaration of Rights, our state constitution. The court ruled on a Fall River case in which police had arrested two men 43 times on panhandling charges. 

The Declaration’s Article 16 states, “The liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this commonwealth. The right of free speech shall not be abridged.”  

Because the state does not ban related activities such as selling flowers at stoplights, the SJC ruled that the similar activities must be treated equally under the law. Panhandling is protected speech. We would all agree that no one should surrender rights because of their status. In any case, the unintended consequences of bans and other poorly considered or poorly-implemented public policy land in the laps of the police. Among the undesirable results of this dynamic are sour relationships between the police and the people adversely affected. 

We have a collective and longstanding penchant for bans. Massachusetts has been banning people, ideas, art, and behavior since the beginning. Boston even had a city censor until 1982 —  the late Dick Sinnott, a former Associated Press reporter and Mayor John Collins loyalist, served in that post from 1960 to its elimination just over 38 years ago. Sinnott’s technical title was head of the Licensing Division. He made famous the label “Banned in Boston.” By his own account, the last censor claimed he browbeat Edward Albee into making word changes in “Who’s Afraid of Virginia Wolf,” among other notable plays he censored. The puritanical Archdiocese of Boston once published a “Condemned List” of movies in its newspaper, The Pilot. 

In 1675, Massachusetts banned Native Americans from walking town streets. (Boston did not repeal this measure until 2005.) Puritans once banned Roman Catholic priests with the threat of hanging them. In 1865, we passed a broad ban on “loitering and sauntering.” Consider what else happened in 1865 and you know at whom that law was aimed. The ban on panhandling was enacted in 1930. Again, the historical context explains it. We banned a woman’s right to choice until Roe V. Wade in 1973. Bans frequently are built on biases. 

Ironically, the current plight of homeless mentally ill people and drug-addicted people, which, in my opinion, drives the panhandling issue, began with an idealistic vision of humane treatment and overcoming bias. In 1963, President Kennedy initiated a new departure on the care and treatment of people with mental illness. He signed the Community Mental Health Act (CMHA) a month before he was assassinated. It promised to develop community-based programs; to move mentally ill persons out of “existing, anachronistic state public health institutions;” and to base future services in the community. Today, we see the evidence of a reform forsaken, in the people reduced to begging and early deaths on our most unforgiving streets. Addicted people on the streets experience the same options. 

NIMBY — Not In My Backyard — crushed the Kennedy reforms. Siting a center or residence in the community seems about as simple a task as siting a nuclear waste dump. Residents agree that arresting and warehousing people is inhumane, but will not allow a community program in their neighborhoods. As a result, we did not de-institutionalize as much as re-institutionalize. Our prisons and homeless shelters have become our de facto mental hospitals and substance abuse treatment centers. What phone number do we know to call whether we are annoyed or concerned? 9-1-1. The police remain by default our first line of “treatment.” As you read this, police in the US are responding to thousands of people in crisis. 

We have a paradoxical history in our Commonwealth when it comes to caring for the sick and the suffering among us. We have some of the flintiest NIMBYists in the land, but also some of the most heroic reformers.  

In the century before JFK and the Community Mental Health Act we had Dorothea Dix’s indefatigable campaign to get people with mental illness and developmental disabilities out of filthy prisons and into the therapeutic mental health hospitals she championed. Many of us forget too easily what these visionaries taught us. 

The SJC did its job correctly in deciding the constitutional question. The ban violated free speech. Prohibiting panhandling wasn’t enforced uniformly in any case. Urban police officers never have relished the idea of arresting mentally ill homeless people for the offenses of being sick and impoverished. Typically, once we push a problem out of sight by pushing the people into the criminal justice arena, we wash our hands of the bigger problem. NIMBY and criminalizing the behavior arising from poverty, mental illness, and addiction are not remedies. 

We still will expect the police alone to conduct balancing tests of rights. My freedom of speech and expression might obstruct your right to use the same sidewalk. We will expect the cops to figure out whose rights prevail. And all panhandling is not the same. Aggressive panhandling, such as walking the sidewalk and approaching people directly with something more like a demand for money, is a very different thing from sitting or standing still with an extended hand and a cup. The New York City subway system wrestled with aggressive panhandling (and behavior such as graffiti vandalism and fare beating) that disrupted public order underground. In the end, a federal court ruled that under the US Constitution panhandling is free speech.  

A ban is not a plan. Nor is simply recognizing the free speech rights of the destitute a plan. We are left where we should be left in a democratic republic, with a balancing test to conduct and questions to answer. We sweep them under the rug of criminal justice at our peril. 

We need to establish a robust program of community-based services.  We need to house these programs in proper facilities across our communities. Too often in the past we have crammed facilities into Boston neighborhoods such as the South End and Lower Roxbury. In the interim, let’s invest in the capacity of the first response to crises. We have the resources. We can mobilize the right agencies – mental health first and foremost — and institutions to collaborate, in the best interests of sick and suffering people. 

Meet the Author
Answering those questions will go much farther than the SJC ruling on panhandling – correct though it certainly was – toward establishing a comprehensive approach toward our fellow residents who are contending with mental illness and other challenges that put their plight before the court. 

Jim Jordan is the former director of strategic planning for the Boston Police Department and co-principal of Public Safety Leadership. He has taught policing courses at Northeastern University and the University of Massachusetts Lowell.