Feds Condemn Criminalization

The wheels of justice move slow, and often in the wrong direction, but homeless plaintiffs from Boise, Idaho, have just seen the first major victory in their long struggle with the City government: The United States Department of Justice has filed a brief in district court agreeing with the plaintiffs that enforcement of anti-homeless laws when there are not adequate shelter beds, or when restrictions on those beds makes access impossible, is a violation of the Eight Amendment to the US Constitution: It is cruel and unusual punishment.

In 2006, homeless plaintiffs in Los Angeles had made a similar claim, and the Ninth Circuit Court of Appeals agreed with them. However, a further appeal was settled by the depublication of the Ninth Circuit ruling, meaning that the determination in Jones v. Los Angeles was not binding and could not be considered precedent. It was not, however, reversed, which has meant that Jones has floated in a grey area: It doesn’t have the status of legal precedent, but it does notionally represent the legal reasoning of judges in one of the country’s highest courts. On August 6, the DOJ urged the courts to adopt the Jones framework:

“[T]he United States files this Statement of Interest to make clear that the Jones framework is the appropriate legal framework for analyzing Plaintiffs’ Eighth Amendment claims. Under the Jones framework, the Court should consider whether conforming one’s conduct to the ordinance is possible for people who are homeless. If sufficient shelter space is unavailable because a) there are inadequate beds for the entire population, or b) there are restrictions on those beds that disqualify certain groups of homeless individuals (e.g., because of disability access or exceeding maximum stay requirements), then it would be impossible for some homeless individuals to comply with these ordinances… [I]n those circumstances enforcement of the ordinances amounts to the criminalization of homelessness, in violation of the Eighth Amendment.”

The authors of the brief make the case that criminal penalties may only be imposed for activities that society has an interest in preventing. “No inquiry is required to determine whether a person is compelled to sleep; we know that no one can stay awake indefinitely.” If access to shelter is inadequate, then a person has no choice but to engage in this life-sustaining activity. Per the Department of Justice, enforcement of laws preventing sleeping in public under these conditions would be cruel and unusual punishment.

As the case is currently only before a District Court, the court’s ruling will have no immediate impact for San Francisco—the case would have to be appealed up to the Ninth Circuit Court of Appeals (like its predecessor Jones) before it would create precedent that applied here.

However, San Francisco is guilty of the same form of criminalization that the DOJ deems unconstitutional. And how. Right now, there are 23 laws on the books in San Francisco that criminalize some form of rest for homeless people. This is a greater number of such laws than in any other city in California. We may be the single most criminalizing city in the country.

With a mere 1,200 shelter beds and an official count (indisputably an undercount) of over 6,600 homeless people in San Francisco, this city is in precisely the same situation as Boise: that of criminalizing homeless people for sleeping outside while not ensuring that there are adequate alternative options.

If Bell v. Boise does create precedent at the Ninth Circuit, it is unlikely to lead to the repeal of all laws that prohibit rest for homeless people: Those that are location-specific may stand. But the overall camping bans and California’s infamous public lodging ban would certainly fail to meet the criteria for constitutionality that such a ruling would create.

But the City doesn’t need to, and shouldn’t, wait for legal precedent before changing bad policies. The DOJ notes that the unconstitutionality of laws such as Boise’s and San Francisco’s is not merely academic, but has serious consequences:

“Criminalizing public sleeping in cities with insufficient housing and support for homeless individuals does not improve public safety outcomes or reduce the factors that contribute to homelessness. As noted by the U.S. Interagency Council on Homelessness, ‘[r]ather than helping people to regain housing, obtain employment, or access needed treatment and service, criminalization creates a costly revolving door that circulates individuals experiencing homelessness from the street to the criminal justice system and back.’ Issuing citations for public sleeping forces individuals into the criminal justice system and creates additional obstacles to overcoming homelessness. Criminal records can create barriers to employment and participation in permanent, supportive housing programs. Convictions under these municipal ordinances can also lead to lengthy jail sentences based on the ordinance violation itself, or the inability to pay fines and fees associated with the ordinance violation. Incarceration, in turn, has a profound effect on these individuals’ lives. Finally, pursuing charges against individuals for sleeping in public imposes further burdens on scarce public defender, judicial, and carceral resources. Thus, criminalizing homelessness is both unconstitutional and misguided public policy, leading to worse outcomes for people who are homeless and for their communities.”

The same week that the DOJ filed its brief, the US Interagency Council on Homelessness—a body comprised of all of the Federal agencies that work on the issue of homelessness—released new guidelines for municipalities in addressing encampments.

The report, with the dulcet bureaucratic title Ending Homelessness for People Living in Encampments: Advancing the Dialogue, does not signal a major change in Federal homeless policy: It sticks to the recommendations that have been the core of Federal recommendations since the George W. Bush administration. These recommendations are right-minded: Municipalities serious about addressing homelessness will do so through the provision affordable housing, some of it supportive, which homeless people will be connected to through intensive, long-term outreach.

The failure of Federal homeless policy has been the continued insistence that homelessness be addressed on a local level, and the refusal to restore public housing resources to the levels they were at before the advent of modern mass homelessness. That is, the Federal government’s entirely right in pushing for sustained, intensive outreach as a gateway to affordable and possibly supportive housing. But the report is, characteristically, mum about housing costs.

But while the position paper is fairly typical Federal fare in its greatest strengths and weaknesses, it also sounds some surprising notes, welcome to homeless people and advocates.

USICH takes a very strong position against criminalization:

“The forced dispersal of people from encampment settings is not an appropriate solution or strategy, accomplishes nothing toward the goal of linking people to permanent housing opportunities, and can make it more difficult to provide such lasting solutions to people who have been sleeping and living in the encampment.”

Additionally, the report recognizes homeless people themselves as the primary stakeholders in addressing encampments. They need to be at the table when figuring out options: “People living in encampments have a strong interest in planned efforts and outcomes, may regard the site as their home and community, and understandably expect that others will respect their privacy and personal property. Planning should assume that people are entitled to participate in decisions that will affect their lives and should seek ways to incorporate their input.”

Advocates, too, are accorded a special role in these discussions: “Advocates can ensure that the voices of people in encampments are being heard, can use their positions to affirm the human need for housing, and can make the case for increased investments in affordable, safe, high-quality housing and services. Advocates can also help research and articulate the impact of counterproductive ordinances that criminalize homelessness.”

These two documents do nothing to reverse the Federal government’s nearly four-decade history of neglect in addressing homelessness. Neither, by itself, binds local governments to better policies, or restrains them from criminalization. But they are welcome steps. If the courts decide with Bell and the other plaintiffs, then the current administration’s Department of Justice will have made one great contribution to the struggle for homeless people’s civil rights.