Guilty of Homelessness: The Criminalization of Homelessness in the United States

Each year, the Urban Law Journal holds the Jason Libou Online Writing Competition, which considers student-written work on topics in urban planning, education, urban criminal justice, and energy and sustainability. Samantha Frankel‘s piece on the growing problem of homelessness in U.S. cities, this year’s winning submission, explores the ways in which urban governments, rather than addressing the causes of homelessness, have enacted anti-homeless laws that serve to exacerbate the problem.

By Samantha Frankel

The prevalence of homelessness across cities in the United States is a national crisis. Today, there is a shortage of over seven million affordable rental units across the United States. There are fewer shelter beds than homeless people in many communities nationwide. Yet, instead of focusing on ways to end homelessness, cities across the country have responded with punitive measures that criminalize the behavior of homeless persons. Many cities have enacted laws that make it a crime to engage in life-sustaining activities in public places. With no safe place to sit, sleep or even stand around, homeless persons are inevitably positioned to violate laws and ultimately are criminalized for their status of being homeless.

According to a 2016 report published by the National Law Center on Homelessness and Poverty (NLCHP) analyzing data from 187 cities nationwide, “laws punishing the life-sustaining conduct of homeless people has increased in every measured category since 2006.” Despite the deficit in shelters, the report indicates that bans on camping in public have increased by 69% and bans on sleeping in public have increased by 31%. Bans on living in vehicles have increased by 143%.

Even if homeless individuals are able to find shelter at night, they are often left without shelter during the day. Loitering and vagrancy bans have increased by 88% and bans on sitting and lying down in public have increased by 53%. Further, many people experiencing homelessness rely on panhandling or the generosity of strangers to survive, but laws prohibiting panhandling have increased by 43%. In the face of such laws, it is nearly impossible for people experiencing homelessness to find a safe and lawful place to engage in life-sustaining activities.

In 2015, the U.S. Department of Justice filed a statement of interest in a District of Idaho case, Bell v. Boise, warning that laws criminalizing sleeping in public, in light of the fact there is insufficient space in shelters, violates the Eighth Amendment prohibition against cruel and unusual punishment. The Justice Department stated: “Sleeping is a life-sustaining activity—i.e., it must occur at some time in some place.” Therefore, “[i]f a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless.”

Despite the DOJ statement, cities continue to crackdown on essential life-sustaining activities, while also passing legislation effectively criminalizing good Samaritans who help the homeless. Some anti-camping ordinances have been written in a way to prohibit camping on all public and private property, thereby sanctioning private property owners and organizations that allow homeless people to camp on their property. Some local governments have restricted food sharing and have even targeted individuals giving money to panhandlers, leaving the homeless with virtually no recourse.

The nationwide criminalization of homelessness reflects the societal perception of homelessness as toxic to the public sphere. In 2015, a homeless man made headlines for bathing in the fountain at Columbus Circle. CBS New York pronounced the fountain as “the bathtub of a bum” and described the occurrence as “the latest public insult of Mayor Bill de Blasio’s New York City.” Ken Frydman, who worked for former mayor Rudy Giuliani, stated the man’s use of the fountain to engage in a life-sustaining activity indicated “a progressive backsliding of civility and quality of life in the city.”

The public’s reaction to the event at Columbus Circle highlights that while the abstract notion of helping those in need tends to draw support from the public, an actual encounter with a homeless person in need of help to survive can be repellent to many. This response reinforces the public’s general lack of empathy, and bolsters support for anti-homeless legislation.

Proponents of policies criminalizing homelessness argue that these laws are necessary to protect the public interest. These arguments tend to flow from a premise that the homeless are dangerous and should be responded to with tactics that make them less visible but do nothing to eliminate the causes of homelessness or to improve the quality of life of those on the street.

For example, supporters argue that criminalization is necessary to improve economic activity in cities where homeless people are visible. Anti-homeless policies protect communities by ensuring that public spaces are clean and safe and that community members can go to the park with their children or have customers enter their store without being confronted by panhandlers. Further, advocates of such criminalizing policies contend that food sharing programs do more harm than good because they encourage homeless people to spend time pursuing food, rather than pursuing recovery programs intended to help them get back on their feet.

In order to address the issue of homelessness, legislation must focus on providing affordable housing options to the communities they serve. This is especially critical with a new administration that has yet to take a strong stance on the issue. The president of the National Low Income Housing Coalition warns: “At a time when we have reached new heights of an affordable housing crisis, and lowest-income people are being impacted most severely, cutting resources is the wrong approach to ending homelessness.”

The criminalization of homelessness is not a viable solution for homelessness. Evidence reveals that the criminalization of homelessness is ultimately ineffective, expensive, and possibly unconstitutional. The best solution to ending homelessness is increased investment in affordable housing. At its core, the housing gap is a major driver of the issue. Therefore, the most cost effective and sustainable solution is to push legislation that would allow for more access to affordable housing.