Americans have a powerful and unique urge to blame homeless people for their own circumstances. This common misperception — that people choose to be homeless — is too often reflected in our laws, and seems to absolve us of the urgent need to act.
According to a recent survey by the U.S. Conference of Mayors, the top five causes of homelessness are: 1) lack of affordable housing, 2) lack of a living wage, 3) domestic violence, 4) medical expenses and 5) untreated mental illness. Trauma also plays a large role. When coping with mental illness or addiction, maintaining independent housing may not be feasible.
These are not problems that anyone “chooses,” and they can happen to anyone.
The 9th Circuit’s revelatory Martin v. Boise decision pushes us to confront the myth of choice, and resolves the thorny question of whether cities can punish homeless people for surviving in public space.
The plaintiffs, a group of people experiencing homelessness in my hometown of Boise, Idaho, alleged that the city violated their Eighth Amendment rights by outlawing sleeping or camping in public, while the city failed to offer sufficient shelter. The court agreed, and clarified that the Eighth Amendment prohibits states from punishing “an involuntary act or condition if it is the unavoidable consequence of one’s status or being.”
By extension, the court concluded that governments “may not criminalize conduct that is an unavoidable consequence of being homeless — namely sitting, lying, or sleeping on the streets.” Accordingly, the court held that Boise could not “criminalize indigent, homeless people for sleeping outdoors, on public property, on the false pretense they had a choice in the matter.”
The plaintiffs did not have a meaningful choice to be sheltered in Boise. The court reviewed the number of shelter beds, but also observed that many shelters imposed significant requirements or other barriers that made these beds functionally inaccessible to many unsheltered people.
Thus, Martin stands for the proposition that laws criminalizing homelessness are unconstitutional when 1) a city punishes a homeless person for engaging in necessary, life-sustaining activity in public; 2) that person has no reasonable alternative but to survive in public space; and 3) existing shelters are inadequate in number or impose barriers to entry that render them functionally inaccessible.
In other words, it is unconstitutionally cruel to punish unsheltered people for surviving in public space when they have no meaningful choice otherwise.
The decision has far-reaching impacts on local law and practices. But Washington cities are not only vulnerable to legal liability through Martin. Far from it.
A wide range of cases show criminalization is commonly and successfully challenged as unconstitutional under various provisions of the federal and state constitutions, including the First, Fourth, Sixth, Eighth and 14th Amendments. Recently, 75 percent of cases challenging encampment sweeps or seizure and destruction of homeless people’s belongings have been successful. So have 57 percent of cases challenging anti-camping or sleeping laws, and 100 percent of challenges to anti-begging laws.
Criminalization also violates international human rights standards. Cities that punish homelessness can become ineligible to receive precious federal funds to address homelessness. Moreover, decades of studies prove that it is far more expensive to criminalize homelessness than it is to pursue non-punitive solutions.
So, whether you look to Martin or numerous other challenges to criminalization, it is clear our current approach is an often illegal and always expensive rotating door. It costs far less for us to invest in alternatives that actually solve homelessness, like permanent supportive housing, than it does to leave people on the streets and to try to address them through the criminal justice system. While criminalization is at best an expensive form of managing homelessness, at worst it is counterproductive, exacerbating homelessness.
Martin is indeed a lesson in choice. But it is not about some mythical choice ignored by unsheltered people. It is about the real choice — between punishing and ending homelessness — that we continue to avoid.
Sara Rankin is a professor at Seattle University School of Law. She founded the Homeless Rights Advocacy Project (HRAP), a research, education and advocacy program to advance the civil, constitutional and human rights of homeless people.
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