Criminalization of Homelessness

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Criminalization of Homelessness–

Violation of Human and Constitutional Rights

1. US Interagency Council on Homelessness

from Searching Out Solutions: Constructive Alternatives to Criminalization, 2012 Report

“These [criminalization] law enforcement measures do not solve the underlying causes of the problem. These measures punish people who currently live on the street and do nothing to reduce the factors contributing to homelessness. Rather than helping people to regain housing, obtain employment, or access needed treatment and services, criminalization creates a costly revolving door that circulates individuals experiencing homelessness from the street to the criminal justice system and back. Sweeps can also result in the destruction of the personal property of people experiencing homelessness, including identification documents and medication. It can be much more difficult to secure employment, benefits, and housing with a criminal record. Many of these measures include criminal penalties for their violation; therefore, they actually exacerbate the problem by adding additional obstacles to overcoming homelessness. In addition, these measures are costly, using critical public resources for law enforcement activities.”

2. U.N. Human Rights Committee Calls U.S. Criminalization of Homelessness “Cruel, Inhuman, and Degrading”

from a blog by Jeremy Rosen, National Law Center on Homelessness and Poverty

“In Geneva, I pressed the Human Rights Committee to find that criminalization of homelessness in the U.S. violates Article VII of the Covenant, which prohibits cruel, inhuman, and degrading treatment….The Concluding Observations [of the Committee] recognized criminalization as cruel, inhuman and degrading, and noted concern that the practice is still routine. It also called on the U.S. to ‘engage with state and local authorities to: (a) abolish criminalization of homelessness laws and policies at state and local levels; (b) ensure close cooperation between all relevant stakeholders including social, health, law enforcement and justice professionals at all levels to intensify efforts to find solutions for the homeless in accordance with human rights standards; and (c) offer incentives for decriminalization and implementation of such solutions, including providing continued financial support to local authorities implementing alternatives to criminalization, and withdrawing funding for local authorities criminalizing the homeless.’….Well, I’ll tell you just why this matters. First, the language is strong. In international law, “cruel, inhuman and degrading” is language typically used to describe torture. By using that language to describe homelessness, the U.N. has made a bold statement about just how poorly homeless people are treated in this country.”

This language will also help us seek policy change. While criminalization measures are implemented at the local level, HUD has significant influence on cities across the country – thanks to all the money it doles out. We’re currently working with HUD to find ways to ensure that communities making the morally right and cost effective choice to provide housing are rewarded, while communities adopting criminalization ordinances risk the loss of certain federal funds. We’re also working with the Department of Justice, which can investigate systematic criminalization as discrimination based on race or disability….That U.N. language will backstop legal arguments opposing criminalization.”

3. National Coalition on Homelessness


“As successful litigation has shown, many of the practices and policies that punish the public performance of life-sustaining activities by homeless persons violate the constitutional rights of homeless persons.

I. Anti-Panhandling Ordinances

One way that cities have targeted poor and homeless individuals is by passing laws that prohibit panhandling, solicitation, or begging. Depending on the scope of the ordinance, these types of laws can infringe on the right to free speech under the First Amendment. Courts have found begging to be protected speech. Laws that restrict speech too much, target speech based on its content, and do not allow for alternative channels of communication can violate the First Amendment…

II. Anti-Camping or Anti-Sleeping Measures

As many cities do not have adequate shelter space, homeless persons are often left with no alternative but to sleep and live in public spaces, such as sidewalks and parks. Even while cities are not dedicating enough resources to give homeless persons access to housing or shelters, some cities have enacted laws that impose criminal penalties upon people for sleeping outside. For example, in Atlanta, the law prohibits what is called “Urban Camping.”

These punishments for sleeping outside have been challenged in courts for violating homeless persons’ civil rights. Some courts have found that arresting homeless people for sleeping outside when no shelter space exists violates their Eighth Amendment right to be free from cruel and unusual punishment.

Advocates also have contended that arresting people for sleeping outside violates the fundamental right to travel. If people are arrested for sleeping in public in a city or certain areas of a city, those arrests have the effect of preventing homeless people from moving within a city or coming to a city, thereby interfering with their right to travel.

III. Loitering Measures

Another tool that cities have used to target people who live outside and on the streets are laws that prohibit loitering. Due to the broad scope of prohibited behavior under loitering laws, cities have used these to target homeless people in public spaces. Fortunately, cities have found these laws less useful, as the Supreme Court has overturned several loitering laws for being unconstitutionally vague.

In several cases, the Supreme Court has found vagrancy and loitering ordinances unconstitutional due to vagueness, in violation of the Due Process Clause of the Fourteenth Amendment of the Constitution. A statute is unconstitutionally vague if it does not give a person notice of prohibited conduct and encourages arbitrary police enforcement. Since many loitering laws have similarly broad and vague language, homeless persons and advocates have a strong argument that such laws violate the Due Process Clause of the Fourteenth Amendment.

IV. Sweeps

Cities also target people experiencing homelessness by conducting sweeps of areas where a person or several persons are living outside. Sometimes, police or local government employees will go through an area where people are living and confiscate and destroy people’s belongings in an attempt to “clean up” an area. While city workers may have the right to clean public areas, they must take certain measures to avoid violating people’s right to be free from unreasonable searches and seizures guaranteed by the Fourth Amendment.

A seizure of property violates the Fourth Amendment when a governmental action unreasonably interferes with a person or his/her property. Courts have found that police practices of seizing and destroying personal property of homeless people violate these constitutional rights under the Fourth Amendment. In addition, some courts have also affirmed homeless persons’ right to be free from unreasonable searches even if their belongings are stored in public spaces.

V. Curfew Laws

Some cities have passed laws that impose curfews on minors. These laws can pose problems for unaccompanied youth experiencing homelessness. Courts have overturned some of these laws for violating minors’ right to free expression, right to freely move, and equal protection rights. In still other cities, many parks impose curfews.

VI. Restrictions on Feedings

Cities also have indirectly targeted homeless people by restricting service providers’ feeding programs. Historically, cities have attempted to restrict feedings on providers’ property through zoning laws. More recently, some cities have passed laws to restrict feedings in public spaces, such as parks. For faith-based or religious groups conducting feedings as an expression of their religious beliefs, courts have found city restrictions on feedings an unconstitutional burden on religious expression.

Litigation can protect the rights of homeless persons and pave the way for better city approaches to homelessness. Homeless persons bringing a civil action can receive damages or obtain injunctive or declaratory relief. In addition, many cases settle and result in policies or protocols that ensure homeless persons’ rights will be protected.

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