The Criminalization of Homelessness (ep. 26)

December 13, 2018
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As homelessness steadily rises in America, so too does the willingness of state and local governments to use criminal laws against their homeless residents. Earlier this year, a federal appeals court found that laws making it illegal to sleep in public violate the Eighth Amendment's prohibition on cruel and unusual punishment when they're used against individuals without access to shelter. Maria Foscarinis, the founder and executive director of the National Law Center on Homelessness and Poverty, discusses the decision, criminalization broadly, and other systemic obstacles to addressing the needs of homeless people. 

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LEE ROWLAND
[00:04] I'm Lee Rowland. From the ACLU, this is At Liberty: The podcast where we talk about today's most pressing civil rights and civil liberties questions. On today's show, the criminalization of homelessness.

December: the month of holiday celebration, conspicuous consumption, year end reflection and charitable giving. It also marks the beginning of winter, a season that can make living without reliable shelter a profound and dangerous challenge. Homelessness is steadily increasing in America. In New York City, for example, the number of people in the city's shelter system has risen 75 percent in the last 10 years. And as homelessness continues to rise, so too does the willingness of state and local governments to use criminal laws against their homeless residents. Here to discuss the criminalization of homelessness is Maria Foscarinis, the founder and executive director of the National Law Center on Homelessness and Poverty. Maria has been a vocal advocate for decades. She drafted the first major federal law addressing homelessness and she's fought in court to protect the legal rights of homeless people. And she's led the Law Center since founding it in 1989. Maria thank you so much for being here.

MARIA FOSCARINIS
Thank you, Lee. I am very happy to be with you.

LEE
So let's start with your recent victory. Your organization, the Law Center, recently represented clients and won a big case in a federal appeals court holding that laws making it illegal to sleep in public violate the Eighth Amendment's prohibition on cruel and unusual punishment, at least when they're used against individuals without access to shelter. Can you tell us about that case?

MARIA
[01:50] Yes, that's exactly right. So this is a case that we brought against the city of Boise, Idaho years ago — actually nine years ago — challenging that city's anti-camping ban. That is a ban that essentially makes it illegal to sleep in public even though there is insufficient affordable housing, but also insufficient emergency shelter. So, this case has been through a number of twists and turns, but in the end held that it's unconstitutional to make it a crime to sleep in public when there's no alternative. And it violates the Eighth Amendment: It is cruel and unusual punishment. And this is a really significant victory from a federal appeals court. It's not the first time a court has held this, but this is a particularly strong ruling and it's a ruling that immediately affects nine states — primarily in the western United States — but also sets precedent that will make an impact nationally. It's already having an impact as cities have begun to revise their laws, and we and other advocates are urging them to do that.

LEE
Is this kind of anti-camping or anti-sleeping law common?

MARIA
Yes. It's very common. And these types of laws, which we refer to as criminalizing homelessness, have really multiplied over the past decade. There are laws that make it a crime to sleep in vehicles, for example. And this is a huge issue. More and more people are being pushed out of affordable housing and sleeping in their cars. There are laws that prohibit begging in public places — anti-panhandling laws. There are laws that prohibit simply being in public spaces, like anti-vagrancy laws. So they take many different forms and, but the goal, typically, is to drive people who are visibly poor out of public spaces — sometimes out of downtowns as they become gentrified, but sometimes out of cities overall.

LEE
[04:15] Maria, you used the phrase “visibly poor,” which stuck out to me. I've done a little homeless advocacy work in the past, I did it in the city of Las Vegas, where I was convinced the cruelty against the homeless population stemmed in part from a neurosis of hiding evidence of poverty.

MARIA
Right.

LEE
And I'd love to hear from you why are these laws passed? Are these old relics of the, you know, 18th, 19th century? Or are some of them modern laws that you feel have been explicitly targeted towards people who, you know, again, have the temerity to be visibly poor in public?

MARIA
So, of course I can't speak for the cities that are passing these laws, but I can speculate based on having seen this trend now over a long time. I think that there is a lot of pressure on cities to do something about visible poverty. And I think that is a good phrase, because people who are homeless are extremely poor and they're very visible. This calls into question the narrative, in many cities, of prosperity. And it's not consistent with how cities want to present themselves or view themselves. It's not consistent with how businesses want to present themselves. And so, cities often face a lot of pressure from the business community or from other city residents. And some of this may be lack of understanding. There's a lot of misperception about the causes of homelessness, and often people think that help is available and people are simply choosing to be outside when that's simply not the case.

In fact, there is insufficient emergency shelter across the country. It's also very clear that there is a crisis in the availability of affordable housing. So I think people don't understand this. So I think this is what's driving these laws. And it's also a failure to understand that these laws really don't work. They don't solve the problem. They, in fact, make the problem worse because people end up with criminal records. That makes it even harder to find a job or to find housing or even to apply for public benefits. And these types of approaches are also expensive. It costs more to pass and enforce these kinds of laws than to house people, which actually solves the problem.

LEE
[06:45] Maria can we go back to the mechanics of this decision? You spoke about it in the context of the Eighth Amendment, which prohibits cruel and unusual punishment, which obviously makes sense when someone is being punished for not having the option of somewhere to sleep. But what does that look like in practice? That is, how does a police officer know if someone is homeless or, you know, Jeff Bezos deciding to spend the night in the park? Is there any burden on that person to demonstrate that they are living in poverty or that they have tried to access the shelter system?

MARIA
Well that is a good question. How is this decision operationalized? And there are different ways to think about this and I don't think we know all the answers as yet. But I know that in some places cities have created hotlines where the police officer can call around to shelters and see, is there space available. And if not then that means that the person cannot be in any way punished for being in public. So that's one way to put this into practice. I don't think that's a good way.

LEE
Right.

MARIA
[07:59] And that's not what we are planning to recommend or are recommending. What we would like to see happen is for cities to say, well look, this court, which is an influential court with a wide reach, has spoken — and we need to find a better approach. And this is what we are advocating.

We agree with cities and businesses and everybody — people should not be living in public. Nobody should be punished for being so poor that they have no place to live — so that's basic. But that's not where we stop. We can't stop there. We have to consider, well what do we do. It's intolerable that in a country that has the wealth that the United States has that people are living outside because they have no other option. So the option that we're promoting is housing, and we've developed a campaign, in fact, called “housing not handcuffs” — because that's really what this is about. So it's not just a matter of stopping this horrible trend of punishing people for their poverty, but it's to use this as an opportunity to say, well we can't do that now. We've been told by a court that we can't do that, it's unconstitutional. So what should we do instead? And we think the answer should be to invest in housing and housing-based solutions.

LEE
Looking just at the current systems we do have. What do the shelter systems look like in many major cities, at least? Are they adequate?

MARIA
So I would not say the shelter systems are adequate by a long stretch. Number one, they’re insufficient. So right now, about 35 percent of the homeless population is unsheltered because of lack of capacity. But even where a shelter is available, it is often not truly available. And that was actually the case in Boise, where our case — the Martin case — arose. And it was part of what makes this such a great decision, that the court actually looked behind the city's contention that there was sufficient shelter space, and that shelter was actually available and said, well look, there are three shelters in the city. Two of them are religiously based, and in order to stay for more than a certain number of days, you have to participate in a religious program. And a lot of people don't want to do that or it violates their own religious beliefs. And in none of the shelters can you stay during the day or store your belongings. So in addition to the fact that there is not sufficient shelter in terms of numbers, this shelter is not truly available.

[10:52] And that's the case generally across the country, that shelters have restrictions, like you have to be there by a certain time of day and if you have a job that might be impossible. You have to leave early in the morning, typically, so you have no place to store your belongings. And that's just the beginning. Many of them also have religious requirements. And often you can't be there with your partner or with your child. In most all of them, you can't be there with a pet. So there are lots of limitations on shelter that can make it not truly available even where in theory it exists.

LEE
And did this court victory accept and acknowledge that homeless individuals, too, have some degree of choice and freedom? That it isn't just an on-off switch if there is a room available, but that, if it's a religious shelter or a no-pet shelter, that that's not meaningful shelter for them given their lifestyle?

MARIA
Yes. And I would say given any human being's lifestyle.

LEE
Right.

MARIA
The Constitution also guarantees freedom of religion, and the court acknowledged this and that was something that the court looked at in evaluating the availability of shelter. So yeah, that's a very important point.

LEE
So when you started speaking about how we change this continuing trajectory you went straight to housing. Is it clear from your experience that that is the singular way that cities should begin to tackle homelessness issues?

MARIA
Well, it's not the singular but it is the primary way. It is a critical need and it's a critical missing piece right now — not just for people who are homeless but for many people. And, you know, we do have a crisis in affordable housing in this country right now. Homelessness is the extreme impact of that crisis and it's the first step to addressing it. It's hard to address any other problems that people have without a place to live. So some people just need a place to live. Other people who are homeless need more. Some people have mental health issues. They need mental health care. Other people have physical health problems and need those to be treated. Both of these things are very hard to do without a stable place to live. Some people work who are homeless, and don't earn enough to make to pay for housing. So that's another piece of this, it's kind of the flip side of affordable housing: Nothing is affordable if you are making minimum wage in many parts of the country. So there are lots of different pieces, but it's essential to have housing in order for the other pieces to work.

LEE
[13:54] Are there cities that can serve as positive models for addressing homelessness and a lack of affordable housing? Is there anybody doing the right thing?

MARIA
The short answer is not really. There are cities that are doing pieces of the right thing and there are some positive examples. For example, the city of Philadelphia recently started a program where it's using vacant underground space as a day center. And this is... It’s near downtown and it's part of an old subway station that was not being used. And it gave this property for free to a nonprofit entity and it's used as a day center so that people have someplace to go during the day and where resources are offered that can help them eventually exit homelessness like showers, job connections and so forth. So, that's a small example. It's not going to solve homelessness in Philadelphia, but it is an example of a city moving away from a punitive response to something proactive and positive. And, you know, those are the types of examples that we can build on.

LEE
Right. Are there any visible attempts to kind of integrate, you know, homeless populations into public policy?

MARIA
Oh yeah, absolutely. There is a growing movement for what is often called Homeless Bills of Rights. So Rhode Island was the first state to pass a Homeless Bill of Rights. One reason this is important is because often what happens is there is a kind of race to the bottom in states. So, you know, a city will say, well unless we make life really intolerable for homeless people, they're all going to move to our city,

LEE
Right.

MARIA
...and so we better have the most draconian measures on our books here, and these state level laws interrupt that race to the bottom and provide a sort of baseline of protection for everybody. And you know again the goal is to — having that baseline in place — to then promote positive responses to people who are living in public places.

LEE
[16:20] What kind of provisions are included in the Bill of Rights movement?

MARIA
The Homeless Bill of Rights says to — and these are typically state laws — they say to cities within that state, you can't make it a crime to be homeless. And that specifically means you can't make it a crime to sleep in public, or to beg in public places, or to lie down or to eat in public. The whole range of types of ways that cities criminalize homelessness.

LEE
And is that movement simply a ban on the use of criminal laws? Or is there any more aspirational language, you know, like how we think of our own constitutional bill of rights?

MARIA
There is an effort to have more aspirational language. I mean we think that housing should be a right, for example. It certainly is a human right. And so that's the kind of ultimate aspirational language.

LEE
What about at the federal level? Is there an important role for the federal government to play in addressing homelessness nationally?

MARIA
Absolutely. The federal government got involved in addressing homelessness in the mid 80s, basically. The law I worked on, the McKinney Act — now the McKinney Vento Act — was the first federal law enacted, in 1987. And this has been expanded over time. There have been other initiatives. It has a big role to play for a couple of reasons: one, this is a national crisis, so it makes sense for the federal government to be involved

[17:57] A lot of the current, the present-day crisis in affordable housing was initiated in the Reagan era by really dramatic cuts to federal low income housing programs in the early 1980s, and also cuts to other social safety net programs that came at, during the Reagan era. Homelessness did not always exist in this country at the level that it exists today. Large scale homelessness really began in the early-to-mid 1980s. And these cuts had much to do with that. To give you a sense of the extent of the cuts: in the late 1970s —1978 — the federal government was funding over 300,000 new units of affordable housing each year. And just a few years later in 1983, the number had dropped to just under 3,000. So this is a really, really extreme cut and you know housing, I think, bore the brunt of it but other social safety net programs were also cut. So the federal government had played a major role in driving the crisis. I think it needs to play a major role in ending it.

LEE
Has the Trump administration addressed homelessness at all? And if so, how?

MARIA
It has not addressed homelessness. It has taken some steps that are not helpful.

LEE
And what are those?

MARIA
The Trump administration has proposed cuts to funding for housing programs in its budgets. It’s proposed cuts to other social safety net programs and it’s proposed eliminating the US Interagency Council on Homelessness. It's also taken steps at the executive agency level that have been unhelpful. Right now, for example, we're fighting a rule that will make it harder for immigrants to apply for and receive public benefits including housing and food stamps. And this threatens to make more people homeless. We're already hearing reports of people who are afraid to apply for these benefits because they don't want to jeopardize their immigration status. And so that's a whole population of people who are now at risk of homelessness.

LEE
[20:28] It sounds like a lot of the policy moves you just described coming out of the Trump administration are of a piece with what you talked about in the Reagan administration — continuing to dismantle whatever social safety net we may still have in this country. Are you afraid, Maria, that that the current actions of the Trump administration are going to cause another massive increase in national homelessness?

MARIA
I am afraid, yes, not just because of what I just described but also because of the potential unleashing of more criminalization and more violence. I didn't mention the impact or the role of racism in criminalization but I think that that is a real part of the issue. And people who are homeless are disproportionately people of color, even more so than the poverty population. And I think that that is part of what is driving the effort to make people invisible or less visible, to move people out of town, out of downtown, out of areas being gentrified. It's not just the visibility of poverty, it's also who is actually being affected. And so the increase in racist attacks I think does not bode well for trends in homelessness. And I am afraid of both increasing numbers, and loss of support and increasing harmful actions against people.

LEE
[22:10] For those of us who share your fear: do you have any suggestions about what we should be paying attention to, how we can get engaged, how we can help homeless people be more visible?

MARIA
So speaking out, I think, is the most important thing that anybody can do. And being engaged politically at any level of government. So, you know, if a city council — if your city council — is considering legislation or policy to address homelessness, be there. Be a voice that says let's look at why people are out there, let's look at people as human beings. Let's address their actual needs. Let's not go with criminalization as our response. Often policy is made at the city council level based on who is most vocal. But at any level of government it's important to be engaged. At the state level, if your state has a homeless bill of rights you can support that. Write to your representatives. And at the federal level, write to federal agencies, or to the president or to members of Congress and say this is an issue that matters to us.

One piece of good news is that there is some increased attention to this issue in Congress — and the Senate in particular — to housing issues and along with them issues of homelessness. We have lots of resources on our website and you know we're often being called upon to submit letters. We have templates.

LEE
And Maria do you want to tell people just how they can find you online.

MARIA
They can find us at www.nlchp.org. That's our website. We're also on Twitter and our Twitter handle is @NLCHPHomeless. We also have a Facebook page. And we have lots of resources on these issues.

LEE
[24:11] We're in December, and I think a lot of people think about charitable giving towards the end of the year. Do you have any tips for people who want to make a donation that addresses poverty or homelessness for how they can give to reliable organizations that are actually addressing real issues in their communities, as a complement to your own legal work?

MARIA
Sure absolutely. Well for one thing, feel free to give to the Law Center. We are the only national organization focused specifically on using the law to end and prevent homelessness. We have a small budget. We leverage a lot of resources. Last year we had over 6 million dollars in donated legal services. So any donation to us will be multiplied many times over.

There are many organizations that work on the issue, as well, at the local level. There are groups that provide services, direct services — that's important, meeting the day to day survival needs of people who are homeless. But advocacy is also really critical, and it's hard to get resources for advocacy. So, organizations that are advocating for systemic reform at the local level or the state level I think should also be considered.

LEE
Maria, thank you so much for joining us to talk about this today.

MARIA
Thank you, Lee. I have appreciated it and enjoyed it.

LEE
Thanks for listening to At Liberty. Good luck with those end of year charitable decisions. If you'd like to consider the Law Center, you can find them online at NLCHP.org.

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