Criminalization of Homelessness: Your Basic But Comprehensive Guide

Criminalization of Homelessness: Your Basic But Comprehensive Guide

Criminalization of homelessness: Measures that prohibit life-sustaining activities such as sleeping, eating, sitting, and/or asking for money or resources in public spaces. (National Coalition for the Homeless)

Criminalization of the homeless is all over the news these days. It seems that more and more communities are struggling with this issue. It may even appear that anti-homeless laws are increasing… Well, that’s because they are.

Recent research has demonstrated clear upticks in anti-homeless bans over the past few years. As criminalization increases, so does awareness of the problem. New research shows that criminalization doesn’t work—it’s the most expensive and least effective way to address homelessness.

And as more and more research like this pours in, communities nationwide have had enough. America is starting to come together to understand and effectively respond to this important issue.

Communities need resources, however. Although criminalizing the homeless is a prominent news topic, we found that most online resources are either too basic, or too lengthy. Most people don’t have a lot of time—they need a quick but comprehensive understanding of this critical issue. And they have questions:

Where does it stem from? How and why does it happen?

More importantly, how can we address it?

We’ve written this guide for you. We’ll discuss the following topics:

  • The roots of criminalization,
  • The state of criminalization today,
  • Different types of anti-homeless laws,
  • Why it still exists today (prevalent arguments for criminalization),
  • Why it doesn’t work (powerful arguments against criminalization),
  • Steps the federal government has taken, and
  • Constructive solutions local communities can pursue.

 

How Did We Get Here? 3 Root Causes of Criminalizing the Homeless.

In order to effectively address criminalization, it’s important to understand where it came from, and the mindsets that shaped the legislation we have today.

 

1. Economic Instability in Colonial America

According to a 2015 report by the Seattle University School of Law Homeless Rights Advocacy Project, laws punishing conduct existed in the U.S. as far back as the original colonies.

Influenced by England’s 14th century Statute of Labourers, Colonial America’s vagrancy laws (or “warning-out laws”) were designed to protect towns from economic instability. These laws empowered local authorities to push new people out because they believed newcomers could potentially cause economic burden on the town.

Even after the American Revolution, vagrancy laws were seen in a positive light, as a way to take “precautionary measures against the moral pestilence of paupers, vagabonds, and possibly convicts.”

Criminalization of homelessness in 1877.
New York Public Library

2. Vagrancy Law Before the Civil Rights Movement

Eventually, these vagrancy laws—along with various other historical exclusion laws—were struck down by the courts as unconstitutional, showing that they violated the Eighth and Fourteenth Amendments.

Cities looked for new ways to remove unwanted groups of people while still avoiding constitutionality challenges, according to the Homeless Rights Advocacy Project report. Before the civil rights movement, vagrancy laws still included terms such as “healthy beggars,” “lewd and dissolute persons,” and “common drunkards.”

These laws were eventually struck down as well; ambiguous wording allowed officers too much room for personal discretion—especially in regards to classifying a person based on his or her visible status.

 

3. Focus on Conduct After the Civil Rights Movement

After the civil rights movement, cities began enacting civil ordinances that avoided the issue of unconstitutionality. Rather than describing the appearance of such persons who would typically perform these behaviors, the ordinances would more specifically describe the “conduct” or “behavior” to be prohibited.

For example, words such as “lewd,” “wanton,” and “unemployed” were omitted from new ordinances, and behaviors such as “sitting,” “camping,” and “panhandling” were banned instead.

 

The State of Homeless Criminalization Today

The Broken Windows Theory—introduced in a 1982 article by social scientists James Q. Wilson and George L. Kelling—plays a large role in the formation and enforcement of criminalization ordinances today.

This theory holds that “one poor person in a neighborhood is like a first unrepaired broken window and if such a ‘window’ is not immediately fixed or removed, it is a signal that no one cares, disorder will flourish and the community will go to hell in a handbasket.”

As a result of this ruthless prejudice, we are still seeing an increase in criminalization measures today. In 2014, the National Law Center on Homelessness & Poverty (NLCHP) published an extensive report that found anti-homeless bans have increased since their 2011 report.

Chart that shows increase in anti-homeless bans that criminalize homelessness. National Law Center on Homelessness & Poverty

While there is an increase for nearly every surveyed category of criminalization law, the most significant increase is seen for city-wide bans. About this, the NLCHP report notes:

This increase in city-wide bans shows that the nature of criminalization is changing and that cities are moving toward prohibiting unavoidable, life-sustaining activities throughout entire communities rather than in specific areas, effectively criminalizing a homeless person’s very existence.

What do these prohibited life-sustaining activities look like exactly? Let’s take a look.

 

What Are the Types of Anti-Homeless Laws?

Below is a list of legislature criminalizing the homeless:

  • Camping in public
  • Sleeping in public
  • Begging
  • Loitering, loafing and vagrancy laws
  • Sitting or lying down
  • Living in vehicles
  • Food sharing
  • Storing personal belongings in public

For a more in-depth look at each of the laws, read pages 18-26 of the NLCHP report.

Using data from the NLCHP report, PBS NewsHour put together the interactive map below to show the U.S. cities that have instituted bans on sleeping outdoors, sitting and loitering in public places and living in vehicles.

Below is a screenshot of the map. You can see the full interactive map here.

Screenshot of interactive map that shows the U.S. cities that have different types of anti-homeless laws.

 

Why Does Criminalization of Homelessness Still Exist?

There are many layers to the persistent presence of criminalization measures today. Some reasons are rooted in the same mindsets discussed in the history of criminalization. Other reasons are more contemporary.

Below are some of the issues that allow for the criminalization of homeless populations today.

 

Protecting Public Interest

Anti-homeless legislation is often justified by the alleged intent to protect the public interest. For example, laws prohibiting sitting down on public sidewalks are said to be warranted by the public’s interest in unobstructed walkways, the NLCHP report states.

This allegation coincides with the aforementioned Broken Windows Theory.

 

Ingrained Prejudices

Criminalization endures because “it would require dismantling years of ingrained prejudices against the homeless population, which have long manifested themselves in law,” Terrence McCoy writes in the Washington Post.

McCoy asserts that the primary, and prejudicial, goal of criminalization laws is “to cleanse the street of ‘undesirables.’”

 

Assumption of Laziness

Along the same lines of ingrained prejudices, Eric Tars—an attorney with NLCHP—says laws against homelessness have prevailed in the U.S. because of the “puritanical work ethic woven into its social fabric.”

“This is the assumption: that people are homeless because they aren’t trying hard enough,” Tars says. “There’s the sense that something must be wrong with them, rather than something is wrong with society.”

 

“Manhattanization”

The New Yorker writes that the new meaning of “Manhattanization” is “turning a city into a playground for the wealthiest inhabitants, even as [the city] forgets about the poorest.”

This statement is reinforced by another report from the Homeless Rights Advocacy Project, comparing income disparities with criminalization in Washington. They found that the greater the income gap between the rich and the poor, the higher the rates of enforcement of these laws.

Chart that shows the greater the income gap, the higher the rates of anti-homeless enforcement and homeless criminalization. SU Homeless Rights Advocacy Project

To Incentivize the Homeless to Get Off the Streets

Often, the argument for these measures is that they’re a necessary solution to homelessness since criminalization would incentivize them to get off the streets. This rationale asserts that if law enforcement punishes the homeless for certain behaviors, the homeless will be less likely to “choose” to live on the streets.

 

Criminalizing the Homeless Doesn’t Work. Period. Here’s Why.

Numerous case studies and research have shown that criminalizing the homeless is ineffective. There are four main reasons for this.

 

Reason #1: No Alternatives Provided

Anti-homeless legislation was originally intended to eliminate homelessness by addressing some of the underlying causes of poverty. However, local governments have failed to provide alternatives to banned behaviors, causing criminalization strategies to be ineffective.

For example, there is a severe shortage of affordable housing nationwide, and in many cities there are fewer emergency shelter beds than homeless people. As the NLCHP report notes, when there is no option for permanent or emergency housing, criminalization laws only leave hundreds—sometimes thousands—of people with no choice but to struggle for survival in outdoor public places.

 

Reason #2: Violation of Rights

Many criminalization measures are in clear violation of several constitutional rights, including the First Amendment protection of free speech and the Fourth Amendment protection from unreasonable search and seizure.

Furthermore, making homelessness “illegal”—which is essentially what criminalization strategies do—is a violation of international human rights. In 2014, the U.N. Human Rights Committee criticized the U.S. for criminalizing homelessness, stating that such “cruel, inhuman and degrading treatment” is in violation of international human rights treaty obligations.

U.N. Special Rapporteur on the Right to Housing Leilani Farha writes:

Homelessness is not just one of the most extreme forms of physical deprivation; it also defines a group that is subject to extreme forms of discrimination and violence. For homeless people, it’s double jeopardy: Laws and policies create homelessness and then penalize homeless people for being homeless.

 

Reason #3: Not Cost-Efficient

Research has shown that criminalization measures actually waste limited state and local resources. According to the NLCHP report, cities spend—on average—$87 per day to jail a person, compared with $28 per day to provide them with shelter.

In a comprehensive report from USICH and the U.S. Department of Justice (DOJ), criminalizing the homeless “creates a costly revolving door that circulates individuals experiencing homelessness from the street to the criminal justice system and back.”

 

Reason #4: Not Effective

Ultimately, criminalization strategies fail to address the root causes of homelessness. According to the NLCHP report, arrests, incarceration, fines, and convictions only “prolong homelessness by creating new, sometimes nearly insurmountable barriers to obtaining employment and stable housing.”

NLCHP Senior Attorney Tristia Bauman says: “Instead of wasting limited public resources on strategies that do nothing to address the underlying causes of homelessness, and are often illegal, cities would be much better served by pursuing sensible, cost-effective, and humane constructive alternatives to criminalization.”

Let’s take a look at what these constructive alternatives are.

 

What Steps Has the Federal Government Already Taken?

As recommended by the NLCHP report, the federal government has an obligation to actively combat the criminalization of homelessness and promote constructive alternatives. Several important first steps have been taken, including the following legislation and publications:

  • 2009 HEARTH Act. The reauthorization of the McKinney-Vento Homeless Assistance Act charged USICH with developing alternatives to specific criminalization laws and policies.
  • Opening Doors: Federal Strategic Plan to Prevent and End Homelessness. This plan (originally published by USICH in 2010) included the key strategy of defining constructive approaches to unsheltered homelessness, including ways to incentivize cities to adopt these practices.
  • Searching Out Solutions: Constructive Alternatives to the Criminalization of Homelessness. In 2012, USICH and DOJ—with support from HUD—published a major joint report that identified themes and solutions to the criminalization of homelessness. The report included the finding that criminalization violates basic human rights laws.

 

What Constructive Solutions to Criminalization Can Local Communities Pursue?

The Searching Out Solutions report identifies and explores in detail three main solutions, with community engagement being a common thread among them:

  1. Creation of comprehensive and seamless systems of care
  2. Collaboration among law enforcement and behavioral health and social service providers
  3. Alternative justice system strategies

Local communities are responsible to work toward the implementation of these solutions. In 2015, HUD announced that in order for Continuums of Care (CoCs) to receive federal funding for local homeless programs, they will have to demonstrate community efforts to ensure homelessness is not criminalized.

There are a variety of ways local governments and communities can pursue these solutions—below are a few.

 

Affordable Housing

In a 2005 Utah study—referenced by the NLCHP report—the Utah Housing and Community Development Division found that the annual cost of emergency room visits and jail stays for an average homeless person was $16,670. At the same time, providing an apartment and a social worker cost only $11,000.

Chart that shows it costs more to criminalize and jail a homeless person than to provide them with housing. National Law Center on Homelessness & Poverty

That same year, Utah followed through on this study by adopting a 10-year plan to end homelessness, providing housing to its homeless population. Since then, Utah has been able to reduce its rate of chronic homelessness by 74 percent.

 

Dedicating Local Resources

In order to help prevent and end homelessness, local governments need to commit financial resources. One example used in the NLCHP report is Miami-Dade County’s Homeless and Domestic Violence Tax, used as a dedicated revenue stream to fund homelessness services.

 

Housing First

The Housing First model is an approach that focuses on placing homeless people in permanent housing as quickly as possible, accompanied by any supportive services necessary to help them maintain housing stability.

For example, instead of requiring sobriety for a homeless individual to obtain housing (an approach that often fails and sustains chronic homelessness), the individual would be paired with immediate access to his or her own apartment. After that individual has secured housing, substance abuse services could be supplemented.

 

Local Police Training and Practices

There is huge potential for properly trained police officers to be key contributors to connecting the homeless with the services they need.

The Searching for Solutions report recognizes that in many cities, police don’t have the tools they need to offer solutions. They are only able to disperse or arrest homeless persons. The report suggests a few different practical solutions, such as cross-training police officers and service providers to facilitate information sharing and promote ongoing coordination.

 

Public Libraries

Public libraries are commonly frequented by homeless people because of free access to computers and to the Internet, often to look for social services and search for jobs.

Recognizing the opportunity to meet the homeless where they already gather, the San Francisco Public Library hired a full-time social worker to serve the library’s homeless patrons.

These are just a few ways communities can come together to combat criminalization of the homeless and pursue constructive alternatives.

For further detailed solutions (such as enacting a Homeless Bill of Rights, Coordinated Assessment, and transitional planning for prison and hospital reentries—as well as successful international examples—read pages 35-42 of the NLCHP report. For an even more comprehensive look at these solutions, the Searching for Solutions document is a great resource.

 

In Sum…

Terrence McCoy said it well when he wrote in the Washington Post:

The clearest sign of an oppressed population is when the law criminalizes its actions or defining characteristics.

Our nation’s criminalization of the homeless is a tragedy. Not only is it a deep-seated issue of morality, but we have also learned it is largely ineffective and costly.

The good news is that there is an ever-increasing understanding and sense of responsibility to combat criminalization. Governments, local organizations, human services professionals, and community advocates are rising to take action, and their efforts are already having an impact.

By reading this guide, you have also joined these efforts in becoming better informed and better equipped to pursue constructive solutions to criminalization. Thank you.