LITIGATION MANUAL SUPPLEMENT: Criminalization of Homelessness Case Summaries 2022

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Summary

Despite a lack of affordable housing and shelter space, governments have chosen to threaten, arrest, and ticket homeless persons for performing life-sustaining activities – such as sleeping or sitting down – in outdoor public space. In addition to an increasing number of laws that civilly and criminally punish homelessness, governments also regularly displace people experiencing homelessness from public space – a practice commonly called “sweeps” – and seize their personal property. We refer to these punitive policies collectively as the criminalization of homelessness.

Because people experiencing homelessness are not on the street by choice but because they lack choices, criminal and civil punishment serves no constructive purpose. Instead, criminalizing homelessness creates acute harm and wastes precious public resources on policies that do not work to reduce homelessness.  Indeed, arrests, unaffordable tickets, and displacement from public space for doing what any human being must do to survive can make homelessness more difficult to escape.

Key Findings

  • Litigation is an effective tool in fighting the criminalization of homelessness.
  • 100% of lawsuits challenging panhandling bans have been successful since the U.S. Supreme Court decided Reed v. Town of Gilbert in 2015.
  • The majority of successful litigation challenging criminalization policies are against camping bans and/or sweeps of encampments.
  • Loitering, loafing, and vagrancy laws are often unconstitutionally vague.
  • Food sharing bans often violate free religious exercise and/or free speech.

Conclusion

The Law Center has reported since 2006 on ineffective, harmful, and expensive policies that criminalize homelessness. Along with being cruel and wasteful public policy, laws punishing homelessness often violate the legal rights of people without housing and make homelessness harder to escape. These policies also invite litigation which, more often than not, results in positive outcomes for unhoused plaintiffs, but wastes tax dollars, time, and energy that is better focused on solving the crisis of homelessness.

Yet, punitive policy approaches to homelessness are growing around the country. Political pressure to “do something” about visible homelessness has led communities to punish people for living outside, forcibly commit people to mental institutions, and/or concentrate unhoused people into segregated spaces, like congregate shelters or sanctioned encampments, so that they are hidden from public view. But, temporarily hiding homelessness helps no one. Rather, this
strategy produces acute harm by wasting precious public resources on systems of punishment and segregation that will inevitably fail to reduce homelessness, and its visibility, while the crisis worsens.

We are living in an era when housing is unaffordable to people living at the lowest income brackets, a disproportionate number of whom are people of color. To solve the crisis of homelessness, we must address its root causes – a lack of affordable housing and systemic racism – rather than its visible symptoms. We can end homelessness through sensible, cost-effective policies that implement the human right to housing. We all wish to end homelessness in our communities—and the best, most cost-effective, and permanent way to achieve that is to ensure that all who are unsheltered can access adequate, alternative housing. We need housing, not handcuffs.

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