Public lives, private anguish

It is time to recognise that punishing the homeless for performing necessary, life-sustaining activities in public, where no alternatives exist, amounts to cruel and unusual punishment, says Karen Cunningham
Karen Cunningham
24 October 2011

The housing and homelessness crisis in the United States, steadily worsening in past years, has been further aggravated by the economic and foreclosure crises. The lack of available shelter space leaves many homeless people with no choice but to struggle to survive on the streets. Rather than providing much-needed additional housing, shelter, and food, around the country municipalities like New Orleans, Oakland (California) and St. Petersburg (Florida) have responded by using the criminal justice system to punish people living on the street for engaging in necessary, life-sustaining activities such as sleeping, sitting, eating, or begging in public places.

The criminalisation of homelessness takes many forms, from explicit criminal sanctions to administrative controls that prevent groups from providing services to the homeless. Such measures include: laws that make it illegal to sleep, sit, or store personal belongings in the public spaces in which homeless people are often forced to live; laws that punish people for begging or panhandling in certain areas; laws that restrict or punish individuals or religious and charitable groups for sharing food with homeless persons in public spaces; so-called “quality of life” ordinances related to public activities and hygiene (i.e. public urination), even when no appropriate public facilities are available; and the selective enforcement of ostensibly neutral laws, such as loitering, jaywalking, or open container laws. In addition, many cities conduct sweeps of areas in which homeless persons are living to drive them away – frequently resulting in the destruction of individuals’ personal property including important personal documents and medication.

In many cities in America, city ordinances serve as a prominent tool for criminalising homelessness. In a survey conducted by the the National Law Center on Homelessness and Poverty, over half of the 234 US cities surveyed prohibit loitering in particular areas and 51 cities, including Detroit, prohibit loitering citywide. A significant number of these cities also criminalise sleeping or resting in public: 77 cities, including Atlanta, prohibit sitting or lying down in certain public areas and 37 cities, including Orlando, have citywide bans on “camping.” Further, over half of these cities prohibit begging in particular places, a similar number prohibit “aggressive” panhandling, and New York is one of 56 cities with citywide prohibitions on begging. 

Between 2009 and 2011, in 188 cities surveyed by the Law Center there was a 7% increase in prohibitions on begging or panhandling, while prohibitions on loitering increased by 10%. In St. Petersburg, Florida, eight new ordinances that target homeless people have been passed since 2007.     

Criminalising homelessness does nothing to address its underlying causes. Instead, they drastically exacerbate the problem by frequently moving people away from services. When homeless people are arrested and charged under these ordinances, they develop criminal records, making it more difficult to obtain employment and/or housing that could help them become self-sufficient. One homeless shelter service provider in Washington recalled the story of a family of two parents and three children, homeless for a year and a half, applying for a 2-bedroom apartment. During the final stages of acquiring the lease, the father of the family was arrested for public urination, at an hour when no public restrooms were available for use. Due to the arrest, the father was unable to attend a scheduled meeting with the apartment manager and the property was rented out to another person. As of March 2011, the family was still homeless and searching for housing. A formerly homeless individual interviewed by the Law Center illustrated the vicious circle many are trapped in when he recounted losing his home and benefits after being arrested for an outstanding warrant for a failure to appear in court. He spent 90 days in jail, during which time, he lost his subsized housing and other benefits.   “Because I was gone from my apartment for 30 days, the manager labeled it abandonment, which stayed on my record. It took 4 years to get my housing back – I was homeless for 4 years.”

Criminalisation is not only ineffective but also costly and wasteful.  For example, a  2007 study by the University of California showed that Los Angeles was spending $6 million a year to pay for fifty extra police officers to crack down on crime in Skid Row (an area with one of the largest populations of homeless people in the United States) as part of its “Safer Cities” initiative. At the same time, the city’s budget for services to assist homeless people was only $5.7 million. During an 11-month period, 24 people were arrested 201 times, at an estimated cost of a further $3.6 million for use of police, the jail system, prosecutors, public defenders and the courts. This money could have instead provided supportive housing for 225 people, especially given the fact that many of the citations issued to homeless persons in Skid Row were for jaywalking and loitering – “crimes” that rarely produce written citations in other parts of Los Angeles.

Courts have found some criminalisation measures being applied to homeless people to be unconstitutional. Restrictions on begging raise free speech concerns: courts have found begging to be protected speech under the First Amendment. The practice of destroying homeless persons’ belongings has been found to violate the Fourth Amendment right to be free from unreasonable searches and seizures. Some courts have found that subjecting a homeless person to criminal penalties for engaging in necessary life activities such as sleeping in public violate that person’s Eighth Amendment right to be free from cruel and unusual punishment if the person has nowhere else to perform the activity.

The economic downturn has worsened the obstacles homeless rights advocacy workers face as the number of homeless continues to rise along with increased political pressure to cut essential social services from federal, state and local budgets. Some activists have been targeted by the police and cited or arrested on fabricated or trumped up charges. 

However, there are some encouraging signs amongst the gloom. After significant advocacy by concerned groups, the U.S. Congress passed the Helping Families Save Their Homes Act  in 2009, requiring the federal Interagency Council on Homelessness (ICH) to devise constructive alternatives to criminalisation measures. In Broward County, Florida, The Taskforce for Ending Homelessness, Inc. ( a not-for-profit agency) has partnered with the Ft. Lauderdale police department to create an outreach team made up of police officers and a (formerly homeless) civilian outreach worker. In five years, the Homeless Outreach Team has has placed 11,384 people in shelters, and estimates are that there are at least 2,400 fewer arrests each year as a result of the initiative. Portland, Oregon, began the “A Key Not a Card” program in 2005, where outreach workers from five different service providers are able to immediately offer people living on the street permanent housing. Through spring 2009, nearly a thousand people had successfully been housed, including 216 placed directly from the street.  

When cities, business groups and law enforcement officials work with homeless people and their advocates to find meaningful solutions, rather than punishing those who are homeless or poor, everyone benefits. Resources should be dedicated to addressing the root causes of homelessness: creating more affordable housing, permanent supportive housing, emergency shelters, outreach programs, and homeless services in general. Ultimately, it should be recognised that punishing individuals for performing necessary, life-sustaining activities in public where no alternatives exist amounts to cruel and unusual punishment and should not be permitted.


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