A dream denied: The criminalization of homelessness in U.S. cities

Executive Summary

The housing and homelessness crisis in the United States has worsened in 2005, with many cities reporting an increase in demands for emergency shelter.  In 2005, 71 percent of the 24 cities surveyed by the U.S. Conference of Mayors reported a 6 percent increase in requests for emergency shelter.   Even while the requests for emergency shelter have increased, cities do not have adequate shelter space to meet the need.  In the 24 cities surveyed in the U.S. Conference of Mayors Hunger and Homelessness Homelessness Survey for 2005, an average of 14 percent of overall
emergency shelter requests went unmet, with 32 percent of shelter requests by homeless families unmet.  The lack of available shelter space – a situation made worse by the Gulf Coast hurricanes - leaves many homeless persons with no choice but to struggle to survive on the streets of our cities.

Over the course of the year, 3.5 million Americans experience homelessness.   The number of people living on the streets threatens to grow as thousands of people are now homeless as a result of Hurricane Katrina.  According to the Federal Emergency Management Agency, as of late November, approximately 50,000 hurricane evacuees remained in hotels and motels awaiting alternative housing options.

An unfortunate trend in cities around the country over the past 25 years has been to turn to the criminal justice system to respond to people living in public spaces.  This trend includes measures that target homeless persons by making it illegal to perform life-sustaining activities in public.  These measures prohibit activities such as sleeping/camping, eating, sitting, and begging in public spaces, usually including criminal penalties for violation of these laws. 

This report is the National Coalition for the Homeless' (NCH) fourth report on the criminalization of homelessness and the National Law Center on Homelessness & Poverty's (NLCHP) eighth report on the topic.   The report documents the top 20 worst offenders of 2005, as well as initiatives in some cities that are more constructive approaches to the issue of people living in public spaces.  The report includes the results of a survey of laws and practices in 224 cities around the country, as well as a survey of lawsuits from various jurisdictions in which those measures have been challenged.

Types of Criminalization Measures

The criminalization of homelessness takes many forms, including:

• Legislation that makes it illegal to sleep, sit, or store personal belongings in public spaces in cities where people are forced to live in public spaces;
• Selective enforcement of more neutral laws, such as loitering or open container laws, against homeless persons;
• Sweeps of city areas where homeless persons are living to drive them out of the area, frequently resulting in the destruction of those persons' personal property, including important personal documents and medication; and
• Laws that punish people for begging or panhandling to move poor or homeless persons out of a city or downtown area.

Criminalization Measures Have Increased

City ordinances frequently serve as a prominent tool to criminalize homelessness.  Of the 224 cities surveyed for our report:

• 28% prohibit "camping" in particular public places in the city and 16% had city-wide prohibitions on "camping."
• 27% prohibit sitting/lying in certain public places.
• 39% prohibit loitering in particular public areas and 16% prohibit loitering city-wide.
• 43% prohibit begging in particular public places; 45% prohibit aggressive panhandling and 21% have city-wide prohibitions on begging.

The trend of criminalizing homelessness appears to be growing.  Of the 67 cities surveyed in both NCH and NLCHP's last joint report in 2002 and in this report:

• There is a 12% increase laws prohibiting begging in certain public places and an 18% increase in laws that prohibit aggressive panhandling.
• There is a 14% increase in laws prohibiting sitting or lying in certain public spaces.
• There is a 3% increase in laws prohibiting loitering, loafing, or vagrancy laws.

Another trend documented in the report is increased city efforts to target homeless persons indirectly by placing restrictions on providers serving food to poor and homeless persons in public spaces.

While cities are cracking down on homeless persons living in public spaces, according to the latest U.S. Conference of Mayors Hunger and Homelessness report, cities do not have adequate shelter to meet the need:

• 71% of the 24 cities surveyed by the U.S. Conference of Mayors reported a 6% increase in requests for emergency shelter.
• 16% of overall emergency shelter requests went unmet and 32% of emergency shelter requests by homeless families went unmet in cities surveyed.

The Meanest Cities

Although some of the report's top 20 meanest cities have made some efforts to address homelessness in their communities, the punitive practices highlighted in the report impede progress in solving the problem.  The top 20 meanest cities were chosen based on the number of anti-homeless laws in the city, the enforcement of those laws and severities of penalties, the general political climate toward homeless people in the city, local advocate support for the meanest designation, the city's history of criminalization measures, and the existence of pending or recently enacted criminalization legislation in the city.  Over the past year, the practices in the following top 5 meanest cities stand out as some of the worst examples of inhumane city treatment of homeless and poor people:

#1 Sarasota, FL.  After two successive Sarasota anti-lodging laws were overturned as unconstitutional by state courts, Sarasota passed a third law banning lodging outdoors.  This latest version appears to be explicitly aimed at homeless persons.  One of the elements necessary for arrest under the law is that the person "has no other place to live."

#2 Lawrence, KS.  After a group of downtown Lawrence business leaders urged the city to cut social services and pass ordinances to target homeless persons, the city passed three "civility" ordinances, including an aggressive panhandling law, a law prohibiting trespass on rooftops, and a law limiting sleeping or sitting on city sidewalks.

#3 Little Rock, AR.   Homeless persons have reported being kicked out of bus stations in Little Rock, even when they had valid bus tickets.  Two homeless men reported that officers of the Little Rock Police Department, in separate incidents, had kicked them out of the Little Rock Bus Station, even after showing the police their tickets.  In other instances, homeless persons have been told that they could not wait at the bus station "because you are homeless."

#4  Atlanta, GA.  Amid waves of public protest and testimony opposing the Mayor's proposed comprehensive ban on panhandling, the City Council passed the anti-panhandling ordinance in August 2005.  In the devastating aftermath of Hurricane Katrina, Atlanta stood firm in its resolve to criminalize panhandlers.  A Katrina evacuee who was sleeping in his car with his family after seeking refuge in Atlanta was arrested for panhandling at a mall in the affluent Buckhead neighborhood, even after he showed the police his Louisiana driver's license, car tag, and registration as proof that he was a Katrina evacuee.  In addition, during the first week in December, the Atlanta Zoning Review Board approved a ban on supportive housing inside the city limits.

#5  Las Vegas, NV.  Even as the city shelters are overcrowded and the city's Crisis Intervention Center recently closed due to lack of funding, the city continues to target homeless persons living outside.  The police conduct habitual sweeps of encampments which lead to extended jail time for repeat misdemeanor offenders. In order to keep homeless individuals out of future parks, the city considered privatizing the parks, enabling owners to kick out unwanted people.  Mayor Oscar Goodman fervently supported the idea, saying, "I don't want them there.  They're not going to be there.  I'm not going to let it happen.  They think I'm mean now; wait until the homeless try to go over there."

Criminalization Measures Are Bad Policy and Violate Constitutional Rights

These practices that criminalize homelessness do nothing to address the underlying causes of homelessness.  Instead, they exacerbate the problem.  They frequently move people away from services.  When homeless persons are arrested and charged under these measures, they develop a criminal record, making it more difficult to obtain employment or housing.  Further, criminalization measures are not cost efficient.  In a nine-city survey of supportive housing and jail costs, jail costs were on average two to three times the cost of supportive housing.  

Criminalization measures also raise constitutional questions and many of them violate the civil rights of homeless persons.  Courts have found certain criminalization measures unconstitutional:

• For example, when a city passes a law that places too many restrictions on begging, free speech concerns are raised as courts have found begging to be protected speech under the First Amendment.

• When a city destroys homeless persons' belongings or conducts unreasonable searches or seizures of homeless persons, courts have found such actions violate the Fourth Amendment right to be free from unreasonable searches and seizures.

• Courts have found that a law that is applied to criminally punish a homeless person for necessary life activities in public, like sleeping, violates that person's Eighth Amendment right to be free from cruel and unusual punishment if the person has nowhere else to perform the activity.

• Laws that do not give people sufficient notice of prohibited conduct or allow for arbitrary enforcement by law enforcement officials can be unconstitutionally vague.  Courts have found loitering and vagrancy laws unconstitutionally vague.

In addition to violating U.S. law, criminalization measures can violate international human rights law.  The United States has signed international human rights agreements, many of which prohibit actions that target homeless people living in public spaces.

Constructive Alternatives to Criminalization

While many cities engage in practices that exacerbate the problem of homelessness by pursuing criminalization measures, more constructive approaches do exist in some cities around the country.  The following examples can serve as more constructive approaches to homelessness:

• Broward County, FL.  The Taskforce for Ending Homelessness, Inc., a not-for-profit agency that provides outreach, education, and advocacy services for the homeless population in Broward County, has partnered with the Ft. Lauderdale police department to create an outreach team made up of police officers and a civilian outreach worker who is formerly homeless.  In its five years of operation, the Homeless Outreach Team has had over 23,000 contacts with homeless individuals and has placed 11,384 people in shelters.  Estimates suggest that there are at least 2,400 fewer arrests each year as a result of the Homeless Outreach Team.

• Pasadena, CA.  The Pasadena Police Department and the Los Angeles Department of Health have partnered to form the Homeless Outreach Psychiatric Evaluation (HOPE) Team.  The program created three teams of mental health and law enforcement officials to provide compassionate assistance to persons in need of mental health assessment and services.

• Ohio.  In Ohio, the three largest cities, Columbus, Cleveland, and Cincinnati, fund teams of trained workers to go out under the bridges and visit the encampments near the rivers to assist those outside the service system.  The critical component to the success of these programs is that they do not put a lot of restrictions on the assistance that they are offering and offer help at non-traditional hours when other services are closed, providing a vital link between mainstream services and a population that resists congregate living.

• Washington, DC.  The downtown business community in Washington, D.C., created a day center for homeless people who may not have anywhere to go during the day when shelters are closed.  Through the Downtown D.C. Business Improvement District, business owners fund this day center that can serve up to 260 people per day, with indoor seating, laundry, showers, and a morning meal. 

• San Diego, CA.  In 1989, a public defender from San Diego created the nation's first Homeless Court Program, which is a special monthly Superior Court session held at local shelters for homeless defendants to resolve outstanding misdemeanor criminal cases.  Homeless courts expand access to the judicial system and assist homeless defendants by addressing outstanding warrants and criminal offenses to remove barriers to benefits, treatment, housing, and employment.

Recommendations

Instead of criminalizing homelessness, city governments, business groups, and law enforcement officials should work with homeless people, providers, and advocates for solutions to prevent and end homelessness.

Cities should dedicate more resources to more affordable housing, shelters, and homeless services.  To address street homelessness, cities should adopt or dedicate more resources to outreach programs, such as the ones highlighted in this report.  Further, cities and states can set up programs to help homeless individuals apply for federal benefits to which they are entitled but may not be receiving, such as Supplemental Security Income benefits for disabled individuals, food stamps, or the earned income tax credit.

Business groups can play a positive role in helping to address the issue of homelessness.  Instead of advocating for criminalization measures, business groups can put resources to solutions to homelessness, such as the Downtown D.C. Business Improvement District's day center. 

The federal government can also play a role in encouraging cities to pursue more constructive approaches to homelessness.  Federal funding for homeless and poverty programs should be conditioned on local government agreement not to punish homeless persons for conduct related to their status.

As criminalization measures move people away from services, make it more difficult for people to move out of homelessness, and cost more due to incarceration and law enforcement costs than more constructive approaches, cities would be wise to seek constructive alternatives to criminalization.  When cities work with homeless persons and advocates toward solutions to homelessness, instead of punishing those who are homeless or poor, everyone can benefit.

~ full report ~