OPINION: Hard truths about Anchorage homelessness

As the homelessness situation in Anchorage has evolved from a subject of community concern to a fiasco, it is difficult to decide who has more incompetently ill-served those of us who have a home: Mayor Dave Bronson, who was elected after a campaign in which he touted the fact that he knew nothing about municipal government and who to date has accomplished nothing other than to open and close and open and close the Sullivan Arena and enrich Roger Hickel Construction to the tune of $2.4 million. Or Felix Rivera, Chris Constant, Meg Zaletel and the other comically “woke” members of the Anchorage Assembly who attest that, as the Anchorage Coalition to End Homelessness (the organization on which Zaletel depends for her livelihood) says it is certain: “Homelessness is first and foremost a housing crisis and can be addressed through the provision of safe and affordable housing.”

That is not a joke. They actually believe that.

If there are individuals who, because of bad decisions, bad luck, old age, or physical or mental illness, need a safe and affordable place to live, not only should the Municipality of Anchorage do what it reasonably can to try to find them housing, but I am prepared to be taxed more than I presently am to pay for it.

But if those cohorts of the Anchorage homeless population are provided housing the tent cities that now exist downtown along Third Avenue and in midtown adjacent to Cuddy Park will not disappear. That is because too many of the individuals living at those locations are shoplifting and backyard-raiding miscreants, meth and fentanyl dealers, sexual predators, alcohol or drug-addled or, most disturbing of all, full-crank crazy.

If you do not believe that is true, and if you dare, take a tour through those encampments.

Given that reality, what can be done?

The emergency shelter plan Rivera and the members of the Housing and Homelessness Committee he chairs have written is instructive in its candor. According to the plan, the Municipality of Anchorage “cannot sustain the current path we are on. Historically, we’re spending roughly $12 million on homelessness operations. We are now entering the 2023 Emergency Shelter Season with $0 because we have appropriated our money away to external partners. We have reached a fiscal cliff. All funding for this year is one time.”

Since that is a lament, not a plan, I have three suggestions:

First, the Anchorage Assembly should pass a new ordinance that prohibits panhandling at intersections and makes violating the ordinance a misdemeanor.

At the instigation of the Alaska chapter of the ACLU, in 2014, Superior Court Judge John Suddock issued a decision in which he announced that, in his view of it, the ordinance then in effect that prohibited panhandling “impeded constitutionally protected speech in an overly broad manner not narrowly tailored to remedying the core harms of aggressive panhandling.” But Suddock did not say that no ordinance whose targeted objective is to remedy “the core harms of aggressive panhandling” can pass constitutional muster.

Panhandling at Benson Boulevard and Minnesota Drive, 15th Avenue and C Street, the New Seward Highway and Northern Lights Boulevard, and other intersections is both a public nuisance and a public safety hazard that it is overdue for the Assembly to direct the Anchorage Police Department to stop.

Second, shoplifters, backyard-raiders, front-porch thieves, drug dealers, and other miscreants and felons who use the homeless camps as their bases of operation should be incarcerated. If that means more public money is spent to hire more prosecutors and public defenders, so be it.

Third, all homeless camps in Anchorage, including the camps along Chester Creek and on the hill across the street from the original Alaska Railroad headquarters building, should be cleared and the occupants told that if they want to live in a tent, they can do so only in one of the tent cities along Third Avenue and adjacent to Cuddy Park.

In 2018, three judges of the U.S. Court of Appeals for the Ninth Circuit, whose jurisdiction includes Alaska, issued a decision in which they held that it was a violation of the prohibition against cruel and unusual punishment in the Eighth Amendment for the city of Boise, Idaho, to enforce its ordinances that prohibit sleeping and camping on city property unless the city could demonstrate that an individual who has been arrested for violating the ordinances had access to an alternative place to sleep. But in their decision, those judges pointedly noted that “we in no way dictate to the City that it must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets at any time and at any place.”

In other words, they did not say that an individual has a constitutional right to pitch a tent at any location he or she wishes. So it is entirely lawful for the Municipality of Anchorage to tell everyone camped around town that if they want to live in a tent, they can do so only within the confines of one of the two tent cities.

To be sure, as Jeff Landfield on his blog and the Anchorage Daily News on its front page have reported, living conditions at both locations are dystopian. When winter arrives, the situation will get worse, and between freeze-up and break-up, there will be individuals too alcohol or drug-addled or too mentally incompetent to care for themselves who are going to die.

When that happens, blame Bruce Ennis the attorney at the national office of the ACLU, who in 1971 decided that the dysfunctionally mentally ill should no longer be involuntarily institutionalized. In Florida, he found the perfect test case plaintiff. In 1975, the lawsuit Ennis filed resulted in the U.S. Supreme Court issuing O’Connor v. Donaldson, a decision in which the Court announced that it henceforth was unconstitutional for a state to civilly commit “a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members.”

In response to the O’Connor decision, in 1984 the Alaska Legislature rewrote its civil commitment statute to prohibit the state from getting someone who should be off the street unless the state can prove to a judge that the individual is in danger of physical harm arising from his or her “complete neglect of basic needs for food, clothing, shelter, or personal safety,” or, if not treated, that the individual will suffer “severe and abnormal mental, emotional, or physical distress, and this distress is associated with significant impairment of judgment, reason, or behavior causing deterioration of the person’s previous ability to function independently.”

In 2007 the Alaska Supreme Court, citing the O’Connor decision, added to that gobbledegook by announcing in a decision called Wetherhorn v. API that henceforth, the requisite “distress” an individual must be in is a level of incapacity that prevents the individual “from being able to live safely outside of a controlled environment.”

According to Supreme Court Justice Dana Fabe, who wrote the Wetherhorn decision, that judge-invented requirement was necessary because of the danger “that the mentally ill may be confined merely because they are physically unattractive or socially eccentric or otherwise exhibit some abnormal behavior which might be perceived by some as symptomatic of a mental or emotional disorder, but which is in fact within a range of conduct that is generally acceptable.”

It’s a laudable sentiment. But the practical consequence is that there are individuals living in tents along Third Avenue, adjacent to Cuddy Park, and at other locations around Anchorage who this winter will need assistance but might be too addicted to alcohol or drugs or too disconnected from reality to agree to be helped. And thanks to Ennis, that is a decision they each get to make.

For some, death will be the consequence.

That hard reality is too emotionally disconcerting for many to want to accept. That is why on Sept. 12, the Anchorage Assembly voted to spend $4.1 million of its remaining one-time funds to buy as many as 450 residents of the tent cities and homeless camps indoor accommodations, presumably in whatever hotels around town will agree to rent out their rooms. According to Rivera, the “emergency winter shelter should be a maximum of 90 days, with a heavy focus on successfully transitioning folks into housing.”

What housing? If it exists, who — beginning in 90 days — is going to pay for it? And what should the Municipality do about residents of the tent cities and homeless camps who don’t want a free warm place to live for the winter? Since it is reasonable to assume he doesn’t know, it is no surprise that Rivera didn’t say.

And so it continues to go.

Let’s hope that in April, Anchorage voters end Bronson’s quixotic failed experiment with public service — and in May, when a new mayor moves into City Hall, he or she can do better than the jury-rigged mess that, for the past two years, Bronson and Rivera and the other members of the Anchorage Assembly have made of it.

Donald Craig Mitchell is an Anchorage attorney, author of two books on the Alaska Native Claims Settlement Act, and “Wampum: How Indian Tribes, the Mafia, and an Inattentive Congress Invented Indian Gaming and Created a $28 Billion Gambling Empire.”

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