Wednesday, September 16, 2009

Outlawing Homelessness ~ By Kristen Brown

Outlawing Homelessness ~ By Kristen Brown

In the past decade, cities have increasingly moved toward enacting and enforcing laws that specifically criminalize homelessness in response to their concern about the use of public space. Cities enact and enforce these criminal laws as "quick-fix" solutions to remove homeless people from sight, rather than addressing the underlying causes of homelessness. This criminalization trend has been documented in reports by the National Law Center on Homelessness & Poverty since 1991.

The most recent report, Out of Sight – Out of Mind?, which surveyed advocates and service providers in 50 of the largest U.S. cities, found that 86 percent of the cities surveyed had laws that prohibited or restricted begging, while 73 percent prohibited or restricted sleeping and/or camping. Over one-third of the cities surveyed have initiated crackdowns on homeless people, according to the survey respondents, and almost half of the cities have engaged in police "sweeps" in the past two years.

Driving Homeless People from Sight

Anti-homeless ordinances and policies come in several varieties. First are laws that prohibit certain behavior common among homeless people. In response to the rise of such ordinances, homeless people and advocates have brought lawsuits challenging the constitutionality of the laws. While the results of the lawsuits are varied, in general, broad bans on panhandling and sleeping in public, when challenged by those who have no alternative place to sleep, are vulnerable to legal challenge. However, more narrowly drawn ordinances, such as those restricting begging in certain areas of the city, are not as vulnerable. The following are just a few examples of ordinances that have been enacted and the legal challenges that have been brought in response.

A Massachusetts state law prohibiting "wandering abroad and begging" or "go[ing] about in public or private ways for the purpose of begging or to receive alms" was invalidated as a violation of a person's right to freedom of speech. The Massachusetts Supreme Judicial Court stated that peaceful begging involves communication protected by the First Amendment and rejected the state's argument that the statute supports the compelling government interest in preventing crime and maintaining safe streets.

In Pottinger v. Miami, a federal court held that punishing people for sleeping in public when they had no alternative place to sleep violated their right to be free from cruel and unusual punishment under the Eighth Amendment and violated their right to travel. As a result, homeless people in Miami cannot be arrested for sleeping in public places if they have no alternative. Conversely, in Santa Ana, California, an ordinance that prohibits sleeping and camping in designated public places was found to be constitutional. However, the California State Court of Appeals reversed the conviction of a homeless man, James Eichorn, because he was not allowed to present a necessity defense at trial. Now Eichorn will have the opportunity to show that he was involuntarily homeless and that there were no available shelter beds on the night of his arrest.

In 1993, Seattle, Washington, enacted an ordinance that forbids lying or sitting down on a public sidewalk, or upon a blanket, chair, stool, or other object between 7 a.m. and 9 p.m. in certain areas of the city. Homeless residents of Seattle alleged due process and First Amendment violations, but the Ninth Circuit upheld the sidewalk ordinance, finding that sitting and lying are not integral to, or commonly associated with, expression. Today, any person lying or sitting on the sidewalk in violation of this ordinance can be fined $50 or be instructed to perform community service. In Cincinnati, Ohio, however, an ordinance that prohibited sitting was found to infringe on a person's freedom of speech and thus was held unconstitutional by the District Court.

Some cities also aggressively enforce certain generally applicable laws – often called "quality of life" ordinances – in conjunction with strict enforcement of anti-homeless laws. In 1998, the San Francisco Police Department issued 17,511 "quality of life" citations, the majority to homeless people. According to advocates, the police also started a program of taking pictures of homeless people and distributing them to liquor stores with instruction not to sell alcohol to these people or they would be in violation of an old law prohibiting the sale of alcohol to "habitual drinkers." Due to a strong response from homeless people and advocates, the practice has been abandoned.

Other cities have recently begun anti-homeless campaigns that do not directly criminalize homeless people but have the effect of driving them out of particular areas of the cities. In Chicago, the city erected fences to close off a public area on Lower Wacker Drive. This area was a common place for homeless people to congregate and live. The city now issues permits that allow entrance into the fenced area to the businesses located there. The effect of this city policy is to exclude homeless people from the area and to allow the businesses to control entry into this public space.

In Tucson, the city recently considered looking at a plan to privatize the downtown city streets and lease them to businesses. This would have allowed the businesses to keep homeless people off the sidewalks. In another effort to keep homeless people off the downtown streets, the city and police department "zoned" homeless people charged with misdemeanors. One homeless individual's release from jail was conditioned on his agreement to stay out of a two-mile square area covering most of downtown Tucson. In his lawsuit challenging this restriction, the plaintiff argued that it violated his constitutional right to travel. The court issued a preliminary injunction prohibiting such restrictions and the parties entered into settlement negotiations.

In Cleveland, four homeless individuals and an advocacy organization challenged the police practice of removing homeless people from the city by transporting them to remote locations outside of the city and abandoning them. As part of the settlement, the city issued a directive to the police forbidding them from picking up and transporting homeless people against their will.

Criminalization is Poor Public Policy

What all the above approaches share is the intent of removing homeless people from public spaces and from sight. Although some city officials' concerns about public space are valid, the criminalization of homeless individuals is poor public policy for several reasons.

Adoption of laws and policies that punish homeless people rather than addressing the problems that cause homelessness is an ineffective approach. Penalizing people for engaging in innocent behavior – such as sleeping in public, sitting on the sidewalk, or begging – will not reduce the occurrence of these activities or keep homeless people out of public spaces when they have no alternative place to sleep or sit or no other means of subsistence. With insufficient resources for shelter and services for homeless people, imposing punishment for unavoidable activities is not only futile, it is inhumane.

Criminalization of homeless people imposes unnecessary burdens on the criminal justice system. Relying on law enforcement officials and jails to address homelessness and related issues, such as mental illness and substance abuse, that are more appropriately handled by service providers, causes problems and widespread frustrations within the criminal justice system. Police officers are not adequately trained to respond to the situations that arise, the criminal justice system does not provide the necessary treatment and rehabilitation opportunities, and members of jail staff cannot provide the extra supervision that people with mental illness or substance abuse may require. Further, jails are already overcrowded without detaining individuals who have not committed serious crimes.

Criminalization provides no long-term benefit for homeless individuals nor does it provide a lasting solution to the conflicts over public space. Moreover, it is likely to cost significantly more money. The costs of police time and resources and jailing individuals is substantially higher than the cost of providing them with shelter combined with necessary services. In 1993, the estimated cost, determined by the Bureau of Justice Statistics, to incarcerate a person for one day was approximately $40. Based on HUD data adjusted for inflation, the approximate cost to provide housing, food, transportation, and counseling services for one day was $30.90 in 1993. Thus, not only is it much less expensive to provide supportive housing to homeless people than to incarcerate them, but the services associated with supportive housing can potentially move people out of homelessness.

Alternatives To Criminalization

While the national trend toward criminalizing homelessness continues, several cities are pursuing constructive, alternative approaches to dealing with concerns about homeless people. Through these approaches – which often involve collaboration between city officials, police departments, and business people on one hand and homeless people and their advocates on the other – cities attempt to proactively address the problem of homelessness and provide services for homeless people.

Until recently in Portland, Oregon, police officers regularly swept encampments of homeless people. Homeless people occupying an area received 24-hour notice before a sweep. At the designated time, police removed all people and threw away all property left at the site. Now, however, through a collaboration with JOIN: A Center for Involvement and the Oregon Department of Transportation, the police department is utilizing a new approach. Two JOIN outreach workers and two Portland police officers work together weekly to identify high and low profile homeless encampments. High profile encampments are still removed by the police department and Department of Transportation. Low profile encampments are allowed to remain while the JOIN outreach workers work with the homeless campers to move them into shelter and services. JOIN's outreach workers are transitioning about three people a week into housing. According to Rob Justus, the executive director of JOIN, the collaboration has also improved relations between the city's police officers and its homeless residents, with homeless people commenting that the police are more helpful and are not harassing them as in the past. Due to its success, the project is to receive more funding from the city in future years.

In Seattle, Washington, in response to the lack of public toilets for its residents in the downtown area, city officials agreed to fund a public hygiene center proposed by the Low-Income Housing Institute. The center will be free and open to all members of the public and will include toilets, showers, and laundry facilities. Slated to open in November 1999, it is anticipated that the center will serve 200 people daily. Also, several years ago in Seattle, city residents voted for a ballot proposition to pay increased property taxes for a special housing levy. The money raised through this tax is used to create housing for special populations, including homeless people. The fund is administered by the city's Department of Housing and Human Services under the oversight of a committee of advocates and service providers, which provides policy direction concerning how the money is spent.

In Broward County, Florida, the Broward Coalition for the Homeless began a police sensitivity training project about 18 months ago. "Homelessness 101" is a program intended to educate police officers about homeless people and decrease the number of trespassing arrests of homeless people (for sleeping in parks) in the county. To date, the coalition has worked with several police departments in Broward County and trained approximately 400 police officers. While no police department has made the training mandatory, the coalition has worked with the Fort Lauderdale Police Department to train all officers in the Second District. The coalition provides each police department in the county with a directory of services for homeless people. As part of the training, officers also receive a single page list of service agencies with phone numbers. The Fort Lauderdale Police Department is planning to purchase more of these flyers from the coalition for greater distribution.

Since the program started, the total number of trespassing arrests in Fort Lauderdale has dropped by 26 percent. According to police records reviewed by the coalition, no homeless people were arrested in March 1999 for sleeping in the parks. Homeless people have also noticed the improvement, with several commenting about a change in the police officers' attitudes, according to coalition Executive Director Laura Carey.

In 1993, Dade County, Florida, implemented a one percent meal tax on restaurants that gross over $400,000 per year in an effort to provide additional funding for facilities and services for homeless people. The funds are administered by the Dade County Homeless Trust, a coalition of government representatives and private institutions. The meal tax currently raises approximately $6 million annually with 75-80% of the funds going to the Community Partnership for the Homeless, an organization that operates two emergency shelters.

Toward Long-Term Solutions

While these constructive alternatives represent a step in the right direction, they are by no means ideal or perfect. They are offered as examples of what cities can do when addressing the problem of homelessness and public space issues. However, in most cities where constructive approaches are implemented, punitive approaches still exist. Further, constructive alternatives often provide solutions to the visible ramifications of homelessness while still failing to address the underlying causes – the lack of affordable housing and the inadequacy of services.

Local policymakers must recognize the distinction between intolerance of homeless people and intolerance of the manifestations of the problem of homelessness. Ultimately, the cycle of homelessness will only be broken when policies address the causes and effectively move people into housing.

Copyright 1999

Kristen Brown is a legal advocate at The National Law Center on Homelessness and Poverty, 918 F. St, NW, Suite 412, Washington, DC 20004; 202-638-2535;;



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