Criminalizing Homelessness Violates the Constitution

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Executive Summary

Even before the pandemic, the United States was in the midst of a homelessness crisis that ensnares more than a million people every year. This year, with a coronavirus-induced economic crisis, that number will likely grow as unemployment hits record levels and people living paycheck-to-paycheck, already in a state of housing insecurity, can no longer afford their rent and mortgages. The current crisis is both exposing and accelerating a deeply systemic problem that requires systemic policy solutions—policies to increase affordable housing, raise wages, provide healthcare, and create a social safety net that provides stability against the disruption of emergencies like job loss, illness, or a pandemic that shuts down the economy.

Yet, instead of investing in resources to help unhoused people, most jurisdictions criminalize them. Local governments have increasingly targeted unhoused populations with laws that ban activities like sleeping in public or in cars and with routine “sweeps” of encampments where people are not only subject to citations, arrest, and fines; they also lose their personal belongings when law enforcement destroy or confiscate them—things like food, medication, and even identification. In effect, homelessness itself becomes a crime.

In addition to the collateral consequences, treating homelessness like a crime is, under many circumstances, unconstitutional. In recent years, lower federal courts have made clear that unhoused people retain fundamental constitutional protections. Local officials are not necessarily free to displace people or destroy their property without due process, and they cannot selectively enforce broadly-written ordinances against unhoused people. Indeed, courts have held that punishing the condition of being homeless, as well as the necessary associated activities like sleeping in public, is cruel and unusual and violates the Eighth Amendment.

The Ninth Circuit Court of Appeals, which has jurisdiction over most of the western United States, has been a leader on this jurisprudence, in part because of the high rates of homelessness in California and Hawaii and the punitive laws passed in those jurisdictions. But other federal courts around the country have followed suit. Local leaders and law enforcement that persist in criminalizing unhoused people risk litigation that will add to the cost of enforcement.