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As the COVID-19 pandemic continues to infect the nation’s homeless population and threatens to trigger a new wave of housing insecurity and displacement, a new report published on Friday finds that cities and jurisdictions across the U.S. are failing to address the problem and are instead enforcing ordinances that unconstitutionally criminalize homelessness.
The white paper, authored by Peter B. Edelman, the Carmack Waterhouse Professor of Law and Public Policy at the Georgetown University Law Center, and Charles R. Lawrence III, a Professor of Law Emeritus at the University of Hawaii’s William S. Richardson School of Law, outlines a number of constitutional concerns raised by anti-homelessness measures that ban activities like sleeping in public or in cars, or subject unhoused people to routine “sweeps” of encampments. The authors warn that continued enforcement of these ordinances will expose jurisdictions to costly litigation, and argue that the issue of homelessness could be dealt with more effectively by providing housing and services to unhoused people.
“We’ve already seen a disturbing trend of cities punishing people who experience homelessness, and that could get worse as the current economic crisis pushes even more people, especially lower income workers, into housing insecurity and homelessness,” said Edelman. “These tactics are not just bad policy – exacerbating the causes of poverty and homelessness rather than addressing them – they often violate fundamental constitutional protections.”
The report follows a recent string of homeless sweeps in places like Honolulu, Seattle, Portland, and New York City, all of which conflict with guidance issued by the Centers for Disease Control (CDC) calling for a suspension of this sort of enforcement activity during the pandemic. These sweeps can aid the spread of COVID-19 by forcing people to disperse throughout the community. And nearly three-fourths of all voters support a temporary ban on law enforcement clearing out homeless encampments amid the pandemic, according to recent polling.
Anti-homelessness measures can also run afoul of the Constitution by denying unhoused people the right to due process before property is taken, subjecting them to unreasonable searches and seizures, and violating their right to speak, protest, and assemble, according to the report.
Edelman and Lawrence cover a rich history of case law, noting that numerous federal courts and the U.S. Department of Justice have also recognized that criminal bans on sleeping, lying, or sitting in public are “cruel and unusual,” and therefore unconstitutional, when enforced against people who have no access to shelter or alternative housing.
Read the entire report here.