Is Banning Homelessness Cruel and Unusual Punishment?

Carey Wedler
August 13, 2015

(ANTIMEDIABoise, Idaho — 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.

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 Warasserted the government’s 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.

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Carey Wedler joined Anti-Media as an independent journalist in September of 2014. As a senior editor, her topics of interest include the police and warfare states, the Drug War, the relevance of history to current problems and solutions, and positive developments that drive humanity forward. She currently resides in Los Angeles, California, where she was born and raised. Learn more about Wedler here!