U.S. Government Rules Against Bans of Homeless People Sleeping Outside

Boise, Idaho is one of a multitude of cities across the United States that prohibits homeless people from sleeping or camping in public spaces. Following a lawsuit against the city brought by the National Law Center on Homelessness & Poverty (NLCHP), the U.S. Department of Justice weighed in with a statement of interest that could greatly impact local policy towards homeless people well beyond Boise.

The crux of the DOJ argument is that these bans violate the Eighth Amendment’s protections against cruel and unusual punishment. The reasoning is as follows:

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.

According to the New York Timesthis is the first time in twenty years that the Justice Department has gotten involved in this “still-unsettled” area of law. In doing so, the federal government is basically warning cities across the nation to treat homelessness more humanely. Either lift the bans, or ensure that there is adequate shelter space and housing so that homeless people do not have to sleep outside in the first place.

As of 2014, the government estimates that on any given night, there are as many as 153,000 homeless people on city streets throughout the U.S. That same year, a report by the NLCHP surveyed 187 cities and found that 34 percent had citywide laws banning camping in public. Another 43 percent prohibited sleeping in vehicles, and 53 percent banned sitting or lying down in certain public places. In short, a majority of cities had some sort of law criminalizing activities fundamental to human existence: resting, sleeping, and seeking makeshift shelter.

As a senior attorney from the NLCHP told the Times:

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,” Tars says. “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.'”

It’s also easier, he adds, for elected officials to argue for criminal penalties when the public costs of that policy are much harder to see than the costs of investing in shelters or services for the poor. Ultimately, though, advocates and the federal government have argued, it’s much more expensive to ticket the homeless — with the court, prison and health costs associated with it — than to invest in “housing-first” solutions that have worked in many parts of the country.

Criminal citations also compound the problem of homelessness, making it harder for people to qualify for jobs or housing in the future.

“You have to check those [criminal] boxes on the application forms,” Tars says. “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.'”

Given all this, the DOJ’s recent finding (which cited a Ninth Circuit Court ruling) is a step in the right direction. Granted, it remains to be seen whether any additional legal battles will ensure, perhaps leading to the involvement of the Supreme Court itself. But for now, the tide seems to be turning against bans that inhumanely and ineffectively apply a sledgehammer to the problem. Homeless people do not just cease to exist when booted out or given a citation. Something more substantive and sensibile needs to be done, at all levels of government.

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