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Is it a crime to be homeless?

A city tried to ban homeless people from sleeping on the street. The court ruled the law was “cruel and unusual punishment.”

In the Sept. 21, 2017, file photo, tucked in a sleeping bag, Danny, a 60-year-old homeless man who only gave his first name, lies on an overpass above the 101 Freeway, one of the nation’s busiest freeways, in Los Angeles.
Jae C. Hong, Associated Press

SALT LAKE CITY — With homelessness on the rise throughout the nation, the Supreme Court’s decision not to take a closely-watched case could have widespread implications for states across the nation grappling with this complex problem, including Utah.

The case involved a Boise, Idaho, law which prohibited people from camping or sleeping on sidewalks, which was struck down by the 9th U.S. Court of Appeals. By not taking on the case, the Supreme Court let stand a ruling that will curb the police’s power to penalize the homeless for sleeping on the street in nine Western states and may influence other jurisdictions as well.

The decision comes at a time when two simultaneously and seemingly incongruent phenomena are taking place in America. On the one hand, the U.S. economy is strong and unemployment is low. And yet, cities across the country are experiencing unprecedented rates of homelessness. In Los Angeles County alone, as many as 60,000 people are homeless on any given night, according to the Los Angeles Homeless Services Authority.

The root causes of the problem are deep and intractable — a crisis in affordable housing, a rising income divide between rich and poor, a federal minimum wage so low no family in America can live on it — and cities across the country are struggling to find solutions.

“We’re doing a terrible job on homelessness in our country,” said Peter Edelman, professor of law and public policy at Georgetown University. “There are so many people around the country who have jobs, but they don’t have a place to live, and they literally have to find a way to get up in the morning and go somewhere and take a shower so they can go to work. That’s how bad it’s gotten.”

But the Supreme Court’s potential case was closely-watched because it took on an important, precedent-setting question: if people experiencing homeless have nowhere else to go, can they be prosecuted for sleeping outside?

In other words, is it a crime to be homeless?

The ‘criminalization of poverty’

The ruling that the Supreme Court let stand is actually fairly narrow. It would only cover cases which occur within the the nine states in the 9th Circuit’s jurisdiction, in which individuals experiencing homeless are prosecuted by law enforcement, and no shelter is available for them, as the 9th Circuit ruled that this constituted “cruel and unusual punishment,” said Jason Groth, the Smart Justice Coordinator for the American Civil Liberties Union of Utah.

In Utah, which is not in the 9th Circuit, the ruling wouldn’t be the law of the land, but it could provide “persuasive influence,” meaning that it could be used as legal precedent in similar cases, according to Groth.

“The 9th Circuit ruling really recognizes the practical problem with experiencing homelessness, and it affords those individuals the dignity of not being prosecuted for simply living their lives,” said Groth.

It is this preservation of dignity that makes the ruling so significant, said Edelman. He says it’s an important step in drawing attention to and preventing a larger problem he describes as “the criminalization of poverty.” In other words, the ban on homeless sleeping in public places essentially made it a crime to be homeless, he said.

The ruling was clear: “just as the state may not criminalize the state of being homeless in public places, the state may not criminalize conduct that is an unavoidable consequence of being homeless — namely sitting, lying, or sleeping on the streets.”

But the problem extends far beyond just this specific ruling: public policy and law enforcement practices that “criminalize” the poor are pervasive throughout the American criminal justice system, said Edelman.

Low-income people are often saddled with cripplingly high fines for minor traffic tickets and civil offenses, and when the debt accumulates and they are unable to pay, they can be incarcerated, he said. Similarly, when low-income people are charged with a crime and cannot afford bail, they sit in jail — for months or years — awaiting trial for a crime of which they have not been convicted. And all the while, they often lose their jobs, are unable to paying their rent or default on their mortgage, and spiral into debt, said Edelman.

And this can lead to a vicious, compounding cycle of poverty, incarceration, and debt — all driving factors that actually cause people to experience homelessness, he added.

“These are issues that are very connected to poverty,” said Edelman. “If we don’t have as many people who are in poverty, we won’t have as many people who are experiencing homelessness.”

No silver bullet solution

Boise, joined by other cities that will be affected by the decision, argued that allowing people experiencing homelessness to sleep in public spaces is a threat to public health and safety.

“The creation of a de facto constitutional right to live on sidewalks and in parks will cripple the ability of more than 1,600 municipalities in the 9th Circuit to maintain the health and safety of their communities,” the city argued, stating that public encampments foster the spread of disease and crime.

With the 9th Circuit’s decision upheld, a key question remains unanswered: how will cities find solutions that address Boise’s concern about health and public safety, while also respecting the dignity and constitutional rights of people experiencing homelessness?

There’s no silver bullet solution, said Groth. But he believes the ruling will help reduce law enforcement’s role in shouldering the primary responsibility in responding to complex, multi-faceted social problems like homelessness, which require multi-faceted solutions, including the expansion of Medicaid, mental health services, and domestic violence resources. (In fairness, some law enforcement operations have seen tremendous success in this approach, such as Seattle’s LEAD program, which diverts offenders into treatment, mental health services and other programs.)

“It’s become so common that when policymakers are sitting down and deciding how do we solve these issues to look to law enforcement to spearhead those operations,” he said. “I think law enforcement has unfairly been asked to provide resources or to be the starting point for getting resources for people experiencing homelessness.”

But for Edelman, fixing the nation’s homelessness crisis must start with one thing: building more affordable housing.

“The price of housing has just skyrocketed,” he said. “It has gotten out of hand.”