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"The Criminalization of Homelessness"

January/February 2012 issue of Poverty & Race

The following is an excerpt from the National Law Center on Homelessness & Poverty’s June 2011 report, “Simply Unacceptable: Homelessness & the Human Right to Housing in the United States 2011,” available at http://nlchp.org/view_report.cfm?id=357. The excerpt, prepared by Eric Tars of the Center, had in its original submission nearly two dozen footnotes supporting the text; as P&R eschews footnotes, readers who want to obtain that can contact Tars at 202/638-2535, etars@nlchp.org, who will provide a copy of his original submission. Post-dating this report, the Law Center also organized a ground-breaking meeting with the U.N. Rapporteur and officials from the Departments of Housing & Urban Development, Justice, and State to discuss the Rapportuer’s report and actions the U.S. can take domestically and abroad to implement its recommendations.

The Criminalization of Homelessness

Despite our nation's treaty commitments and obligations to uphold the basic human dignity of every person, many states have enacted laws or ordinances that target homeless individuals by making it illegal to sleep or sit on the sidewalk, ask for money or “camp” outside. These ordinances are being enacted even though nationally, as well as in cities enacting them, there is a severe shortage of shelter space to meet even the emergency needs of the homeless population. Other ways that cities have criminalized homelessness include: sweeps of areas in which homeless people sleep, laws that restrict their freedom of movement, search and seizure of their personal property, selective enforcement of general provisions, and anti-panhandling laws.

In Orlando, Florida, for example, an anti-camping law prohibits camping on all public property without authorization. “Camping” is defined as “sleeping or otherwise being in a temporary shelter out-of-doors, sleeping out-of-doors, or cooking over an open flame or fire out-of-doors.” Similarly, police in Fresno, California engaged in targeted sweeps of areas in which homeless individuals were known to congregate. In the sweeps, police destroyed homeless peoples' property, including medicine, identification documents, and clothing.

Many of the individual laws targeting homeless individuals have faced Constitutional challenges. In Pottinger v. City of Miami, for instance, homeless individuals brought a class action suit against the city of Miami, Florida, claiming that police were harassing them for performing life-sustaining activities in public when no alternative shelter or location was available. They argued in part that such harassment was unconstitutional under the Eighth Amendment bar against cruel and unusual punishment and a violation of the Equal Protection Clause of the Fourteenth Amendment, and the City of Miami was ordered to provide redress. The decision of the district court survived on appeal.

Similarly, in Jones v. City of Los Angeles, the Ninth Circuit Court of Appeals struck down as unconstitutional a Los Angeles city ordinance, which prohibited sleeping, sitting or lying on the street at any time of day and was selectively enforced in the downtown area of Los Angeles known as “Skid Row.” The Ninth Circuit held that the ordinance violated the Eighth Amendment's prohibition on cruel and unusual punishment for criminalizing conduct that is unavoidable.

Despite the decision in Jones, Los Angeles has continued its trend of criminalization of homelessness through the so-called “Safer Cities Initiative.” This policy has sent hundreds more police officers to Skid Row, but rather than addressing violent crime, the officers have been targeting homeless and poor African Americans for minor violations such as jaywalking and littering. This program has drawn the attention of both the UN Special Rapporteur on Racism and the Special Rapporteur on Housing, prompting recommendations to cease the disparate enforcement and allow homeless persons to shelter themselves in public when there is inadequate shelter space.

During a mission in March, 2011, the UN Independent Expert on the Right to Water & Sanitation heard testimony from the Law Center and visited a homeless encampment in Sacramento, CA. The Independent Expert released her preliminary report on March 4. She noted the increase in criminalization of homelessness and detailed the story of Tim, a homeless man who facilitates the removal of hundreds of pounds of human wastes from the homeless encampment each week. The Expert stated, “The fact that Tim is left to do this is unacceptable, an affront to human dignity and a violation of human rights that may amount to cruel, inhuman or degrading treatment. An immediate, interim solution is to ensure access to restrooms facilities in public places, including during the night.” This is the strongest, clearest statement by a UN expert to date on the issue of criminalization, and given its condemnation in terms similar to our own Eighth Amendment’s protection from cruel and unusual treatment, one that may lend itself to protecting homeless persons rights in the courts.

In 2009, Congress passed the HEARTH Act, which required the Federal Interagency Council on Homelessness to produce a plan to end and prevent homelessness; that Plan was published in June, 2010. The Plan includes the following quote from Maria Foscarinis, Executive Director of NLCHP: “Criminally punishing people for living in public when they have no alternative violates human rights norms, wastes precious resources, and ultimately does not work. In a separate provision, the Act requires the Interagency Council to promote alternatives to the criminalization of homelessness. Although the Council has to date held a national Summit, bringing together cities, providers and advocates to discuss constructive alternatives to criminalization of homelessness, it has to date not taken concrete steps to prevent their enactment.

Several cities have had great success in combating homelessness by finding creative alternatives to criminalization. “A Key Not a Card program,” enacted by the city of Portland, Oregon, enables outreach workers at various city-funded agencies to offer permanent housing immediately to people living on the street. The funding is flexible and can be used to pay rent, back rent and security deposits. From the program’s inception in 2005 through Spring 2009, 936 individuals in 451 households have been housed, including 216 households placed directly from the street. At twelve months after placement, at least 74% of households remain housed.

Puyallup, Washington responded positively to a national trend of “tent cities” by passing an ordinance that provides permits to religious organizations for the specific purpose of hosting tent encampments for homeless individuals. The ordinance is part of a Comprehensive Plan drawn up by the Puyallup City Council describing various objectives for eliminating homelessness in Puyallup. The ordinance provides a critical first step because it offers religious organizations the ability to host one encampment for up to 40 people at any given time. However, there are numerous areas for improvement, such as granting this right to non-religious organizations as well as religious ones and expanding the size and number of the camps, given that one encampment of 40 individuals is insufficient to meet the needs of the hundreds of homeless individuals in Puyallup. Moreover, as advocates and the Comprehensive Plan make clear, legalized tent cities are not a long-term solution to homelessness—that is something only adequate, affordable housing can provide.

Selected Resources

Catarina de Albuquerque, UN Independent Expert on the right to water and sanitation: Mission to the United States of America from 22 February to 4 March 2011, (Mar. 4, 2011), available at http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=10807&LangID=E, (last visited Mar. 31, 2011).

Gary Blasi et al., Policing Our Way Out of Homelessness? The First Year of the Safer Cities Initiative on Skid Row (Sept. 2007), available at http://www.law.ucla.edu/docs/Skid%20Row% 20Safer%20Cities%20One%20Year%20 Report.pdf.

Kaaryn Gustafson, Cheating Welfare: Public Assistance and the Criminalization of Poverty (New York University Press, 2011).

Rukmalie Jayakody, Sheldon Danziger, Kristin Seefeldt, & Harold Pollack, “Substance Abuse and Welfare Reform,” National Poverty Center Policy Brief (April 2004). Available at: http://www.npc.umich.edu/publications/policy_briefs/brief02/brief2.pdf

Lebron v. Wilkins, No. 6:11-cv-01473-Orl-35DAB, 2011 U.S. Dist. LEXIS 124818 (M.D. Fla. Oct. 24, 2011) (pending ACLU lawsuit against Florida Department of Children & Families challenging Florida Statute §414.0652, which requires drug-testing for each individual who applies for benefits under the federally-funded Temporary Assistance for Needy Families program).

Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006).

National Law Center on Homelessness & Poverty, “Simply Unacceptable: Homelessness and the Human Right to Housing in the United States 2011” (June 2011). Available at: http://www.nlchp.org/content/pubs/SimplyUnacceptable Report1.pdf

National Law Center on Homelessness & Poverty, “Criminalizing Crisis: The Criminalization of Homelessness in U.S. Cities” (2011), available at http://nlchp.org/view_ report.cfm?id=366

Pottinger v. City of Miami, 40 F. 3d 1155 (11th Cir. 1994).

U.N. Human Rights Council, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living and on the right to non-discrimination in this context, Raquel Rolnik, on her mission to the United States of America (22 October - 8 November 2009), U.N. Doc. A/HRC/13/20/Add4 (Feb. 12, 2010, at para. 95.

United States Inter-Agency Council on Homelessness, Opening Doors: Federal Strategic Plan to Prevent and End Homelessness (2010).

Loïc Wacquant, “The Penalisation of Poverty and the Rise of Neo-Liberalism,” 9 European Journal on Criminal Policy and Research 4, 401-412 (2001). Available at http://loicwacquant.net/papers/on-penal-state/
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