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Writer's pictureThe University of Wisconsin Pre-Law Journal
Dec 23, 20235 min read

The Criminalization of Homelessness


Source: Adobe Stock - Inam


Writer: Katherine Mastorides

Editor: Grace Cayouette

November 2023


Homelessness is an epidemic. In 2022, the United States Department of Housing and Urban Development estimates a staggering 582,000 Americans were experiencing homelessness, a number projected to rise. High homeless rates, influenced by factors ranging from a lack of affordable housing to limited resources for populations experiencing domestic violence, mental health challenges, or substance abuse, force hundreds of thousands of people onto the streets. The demographic of Americans experiencing homelessness is disproportionately characterized by Black Americans and Indigenous peoples living in big cities, the largest being Los Angeles, New York City, Seattle, Las Vegas, and San Francisco (de Sousa & Andrichik, 2022). These cities are known for implementing hostile architecture to discourage people without homes from sleeping or sheltering on them. This includes benches and other elevated surfaces with barriers such as spikes and bumps that limit movement and seek to prevent people from sleeping or sheltering on them. Other initiatives cities have taken to hinder loitering include noise machines, timed sprinklers, and the implementation of extensive bicycle racks (Jock, 2019).


Anti-homeless policies merely seek to cover up the issue rather than address and eliminate it. This enforces a fallacy that people experiencing homelessness are separate from the community and not welcome. To address and challenge these policies, cases such as Martin v. Boise have ruled in favor of protecting the rights of people without homes to sleep outdoors in a public space without facing legal penalties.


The government has utilized several tools to regulate and criminalize homelessness, many of which have been taken to court. Sit-lie laws—laws often with specifications regarding the time of day and geographic location to which they are applied—are one way in which the government acts against unsheltered people. In the state of Washington, there are several of these laws, which give local governments the ability to regulate or prohibit sitting, lying, or camping in public places. The Leavenworth Municipal Code Sec. 9.36.020 outlines a sit-lie law that is in effect from eight in the morning to five in the afternoon in commercial districts. Similarly, the Marysville Municipal Code Ch. 12.22 prohibits people from sitting or lying down on a public sidewalk from six in the morning to midnight. Such laws give the government power to regulate, but occasionally limit law force agencies from enforcing the regulations. This is significant because it affirms the power of the government to monitor how these regulations are practiced by enforcing agencies and highlights the responsibility of the government to act when necessary. Other anti-homeless policies include laws against vehicles for habitation. In 2021 the Washington Supreme Court ruled through City of Seattle v. Long that municipalities may cite vehicles for habitation for violating parking regulations. As a result, these vehicles can be impounded. Often vehicles are the only type of shelter available and accessible to people experiencing the vulnerability of homelessness, and impounding vehicles only worsens the issue of homelessness by keeping people entrapped in a vicious cycle of poverty and criminalization (Regulation of Unauthorized Camping, Loitering, and Solicitation of Aid, 2023).  


Several pieces of legislation have been passed to challenge the criminalization of homelessness, and their specifications pose more implications about the future of addressing and criminalizing this issue. Amidst laws against homelessness comes a beacon of light: Martin v. Boise. In this crucial case from 2018, the Ninth Circuit in Idaho ruled that it is unconstitutional to criminalize individuals for sleeping outdoors in a public space under the Eighth Amendment’s Cruel and Unusual Punishment Clause. Past cases, such as Kohr v. the City of Houston, have made progress against anti-camping and anti-panhandling laws prior to this case (Court Cases, n.d.). However, Martin v. Boise stands out because it was the first time the courts found that it was unconstitutional to punish those sleeping outside when shelters were not practically available. In certain cases, there are beds available, yet the shelter is deemed practically unavailable. This is because certain shelters require participation in religious activities, thus inducing religious coercion and factors out of the control of the person experiencing homelessness. Thus, this law prevents the government from persecuting people whose unstable housing causes them to be deprived of a meaningful choice (Kim, 2020).


Martin v. Boise poses a more abstract question about the determination of a meaningful choice. How can courts consistently determine when the rights of those experiencing homelessness are violated through their lack of choice? Many scholars call for the government to take cases on the individual level to determine the constitutionality of punishment for actions like sleeping in a public space. However, such proceedings are impractical and would hinder the productivity of the courts given the sheer size of America’s homeless population. Therefore, the questions posed in the Martin v. Boise ruling underscore the need to stop criminalizing homelessness and instead focus on implementing efficient, long-term solutions for this pressing issue. Only when homelessness is addressed at its root causes before it takes effect, will society be able to truly overcome the issue. Alternatively, some scholars see Martin v. Boise as a fork in the road between effectively addressing homelessness and finding new ways to hide it. Ideally, condemning the punishment of people experiencing homelessness will prompt state and local governments to cease anti-homeless policies and instead address the underlying socioeconomic causes of homelessness. However, the more likely outcome would be new tactics by the states of pushing unsheltered people out of the public eye. A transition from overt methods of preventing homeless people from occupying public property to a more furtive effort will only exacerbate the problem rather than solve it. In some cases, homeless people are being disproportionately sent to psychiatric facilities or zones of compulsory segregation called authorized zones. These efforts involuntarily segregate people experiencing homelessness to the physical and social outskirts of society (Rankin, 2021).


Anti-homeless policies that utilize hostile architecture or legal statutes, greatly harm those experiencing homelessness and make no concrete advancements toward solving the issue. Certain cases, such as Martin v. Boise have deemed the criminalization of homelessness unconstitutional and raised questions regarding the practical availability of shelters. The practical applications, feasibility, and mixed reactions to this case show both the progress that has been made and the urgency with which the country needs more legislation that protects those with housing insecurity from being unnecessarily exposed to the corrupt justice system in the United States. Only through addressing the root causes of homelessness—systemic racism, economic inequality, mental health issues, drug culture, and more—may American society see true progress toward long-term housing stability.


 

References


Court Cases. (n.d.). National Homelessness Law Center. Retrieved October 20, 2023, from


de Sousa, T., & Andrichik, A. (2022). The 2022 Annual Homelessness Assessment Report

(AHAR to Congress) Part 1: Point-In-Time Estimates of Homelessness, December 2022. HUD User. Retrieved October 20, 2023, from https://www.huduser.gov/portal/sites/default/files/pdf/2022-AHAR-Part-1.pdf


Jock, K. (2019). You are not welcome here: Anti-homeless architecture crops up nationwide.


Kim, J. H. (2020). The Case Against Criminalizing Homelessness: Functional Barriers to


Rankin, S. (2021). Hiding Homelessness: The Transcarceration of Homelessness. California

Law Review, 109(2), 559-613. https://doi.org/10.15779/Z38VT1GQ76


Regulation of Unauthorized Camping, Loitering, and Solicitation of Aid. (2023, January 24).

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