man on bench
© www.fluid-radio.co.ukHomeless, hungry and cold
For the last several years, cities across the United States have responded to the problem of homelessness in the way governments tend to tackle dilemmas: by criminalizing the undesired behavior. In addition to banning feeding those without shelter (in some cases criminalizing the elderly for doing so), local governments have outright banned the homeless from sleeping or panhandling in public. Now, however, the Department of Justice is arguing that it is unconstitutional to bar the homeless from sleeping outside.

In a statement of interest filed this week in a little-known Idaho case on the subject, the DOJ explained its position:
"When adequate shelter space exists, individuals have a choice about whether or not to sleep in public. However, when adequate shelter space does not exist, there is no meaningful distinction between the status of being homeless and the conduct of sleeping in public. Sleeping is a life-sustaining activity—i.e., it must occur at some time in some place. If a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless," it reads.
The DOJ views this as a violation of the 8th amendment, which protects against cruel and unusual punishment. This is arguably ironic considering the many constitutional violations the DOJ regularly commits, but the agency's assessment of criminalizing people for being impoverished and desperate is apt, nonetheless.


Comment: Amendment VIII: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The "Cruel and Unusual Punishments" Clause imposes substantive limits on what can be made criminal and punished as such. Pursuant to that clause, the Supreme Court has held that laws that criminalize an individual's status, rather than specific conduct, are unconstitutional. Others have considered the voluntariness of the conduct, and whether the conduct is inextricably linked to one's status, such that punishing the conduct is indistinguishable from punishing the status. In this case, sleeping is not a "choice," it is a human requirement.


According to a National Law Center on Homelessness & Poverty study published in 2014, 34% of 187 cities surveyed had provisions banning sleeping in public. 43% banned sleeping in vehicles and 53% had regulations that barred sitting or lying down in certain public spaces. In the same year, 153,000 people in the United States faced homelessness without shelter.

The federal government has previously reprimanded cities for enacting "anti-camping" laws. In 2006, the 9th U.S. Court of Appeals struck down a Los Angeles provision that banned sleeping in public, arguing, like the DOJ this week, that doing so constituted a cruel and unusual punishment for people who have nowhere else to go.

Eric Tars, a senior attorney for the NLCHP — which aims to end homelessness, not merely protect the rights of those on the streets — commented on the current difficulty of dealing with the problem:
"Homelessness is just becoming more visible in communities, and when homelessness becomes more visible, there's more pressure on community leaders to do something about it," he said. "And rather than actually examining what's the best thing to do about homelessness, the knee-jerk response — as with so many other things in society — is 'we'll address this social issue with the criminal justice system.'" This approach often further disenfranchises the homeless.

"You have to check those [criminal] boxes on the application forms," Tars noted. "And they don't say 'were you arrested because you were trying to simply survive on the streets?' They say 'if you have an arrest record, we're not going to rent to you.'"
In spite of the cold treatment many homeless people receive—just this week, the NYPD announced it would be photographing homeless people and "vagrants" to discourage them from inhabiting the streets— some cities are taking a more compassionate approach. Rates of homelessness in Utah, for example, dropped drastically when the government adopted a revolutionary policy: giving them homes, which reduced the rate of homelessness by 72%.

The DOJ's filing this week highlights a growing backlash against local governments' merciless, punitive approaches to dealing with the homeless. While this may be the same DOJ that has perpetuated the Drug War, asserted the right to indefinitely detain American citizens, and targeted and attacked journalists and whistleblowers, any modicum of compassion extended to marginalized individuals amid deeply corrupted society and institutions is worth commending.