Criminalization of the Homeless

Overview

The term "criminalization of the homeless" refers to measures taken to stop life-sustaining activities in public places such as sleeping, camping, eating, and sitting. Also included in these measures are city and state efforts such as anti-camping laws, which make it illegal to sleep or rest in a public place. Other examples are encroachment laws that prohibit placing belongings on walkways such as sidewalks. In some cities, it is illegal to panhandle, or ask for food or money. The result of these actions is that, simply by the nature of their desperate existence, the homeless become criminals.

The goal of criminalizing the homeless is to keep the unsheltered out of sight by making them leave public places. City officials believe that an area benefits economically if homeless individuals are driven away. This does not consider that the homeless live in public places because they have nowhere to go. Most cities in the United States lack adequate shelter space and affordable housing for the homeless.

Criminalizing the homeless perpetuates a cycle in which homeless people are in and out of jail. Most are unable to pay the fines issued when they violate laws, which in time leads to incarceration. Once homeless individuals have a criminal record, it is difficult, if not impossible, to find employment and housing and receive public assistance.

Those fighting against criminalizing homeless people point out the exorbitant cost of policing, court processing, and incarceration. They contend that taxpayer dollars are better spent in efforts to solve the problem of homelessness, such as providing the unsheltered with affordable housing.

State of Homelessness in the United States

According to the National Alliance to End Homelessness, in 2022, there were 582,000 homeless people in the United States. About 70 percent of those who were homeless were individuals. Of those individuals, 6 percent were veterans. The remaining 30 percent was comprised of families with children or people under the age of twenty-five.

Chronic homelessness is the term used to describe those who have been continuously homeless for at least a year or those who have experienced homelessness at least four times in the last three years for a combined length of one year or longer.

Trends emerge when biological sex and race are considered. Males are much more likely to be homeless than females. For every 10,000 men and boys, 22 are homeless. For every 10,000 women and girls, only 13 are homeless. While White people constitute nearly half of those who are homeless, minority groups are more likely to become homeless. In the United States, 18 of every 10,000 people overall are homeless. For Native Americans, the rate is 109 per 10,000, and for Black Americans, it is 45 per 10,000.

Experts believe that the recession caused by the COVID-19 pandemic in 2020 and 2021 has significantly increased the number of homeless people. Prior to the pandemic, the number of homeless people was rising, increasing by 2 percent from 2019 to 2020.

The United States does not have enough temporary shelters to accommodate the homeless. Only about 61 percent of this populaton in the country have access to a shelter. Even if a shelter exists in an area, those seeking access are not admitted on a first-come, first-served basis. Priority is often given to certain groups such as families with children or to veterans. This leaves most individuals without a place to stay. It is also important to note that those with access to a temporary shelter can only stay for the night. During the day, they are on the streets again and at risk of criminalization.

Anti-Homeless Laws

The United States has a long history of creating anti-homeless laws, once called vagrancy laws, to keep homeless people out of sight. In the eighteenth and nineteenth centuries, laws were passed against vagrants, or people who were homeless and poor. Vagrancy laws criminalized many of the activities that homeless people needed to carry out in public. An untold number of US citizens were arrested for living outdoors and wandering from place to place because of these laws. In 1972, federal vagrancy laws were declared unconstitutional by the US Supreme Court. However, cities and states could still pass their own anti-homeless laws criminalizing behaviors such as sleeping in public places and loitering. In 2018, in the case of Martin v. Boise, the Ninth Circuit Court of Appeals issued a federal ruling declaring laws that criminalize sleeping outdoors as cruel and unusual punishment. However, the ruling only covered nine states and did not address the criminalization of other behaviors such as loitering and panhandling.

Anti-homeless laws are most often created during periods of high unemployment like the Great Depression and the Great Recession when the number of homeless individuals increases. It is thought that the 2020 COVID-19 pandemic increased the number of homeless people because of job and home losses.

Types of Criminalization

City officials and law enforcement employ various tactics to criminalize the homeless. Many make it illegal to camp, sleep, or lie down in public. In some cities, the homeless are not allowed to sleep in a box, tent, or makeshift shelter on public property. In 2021, Los Angeles, California, passed anti-camping laws. These were stricter ordinances dictating where the homeless could legally sleep. Among other restrictions, the homeless could not sit, sleep, lie down, or store personal property anywhere on a street, including a bike bath. The penalties for breaking the new laws include fines and possibly misdemeanor convictions.

Many cities prohibit begging in public, a practice called panhandling. Under these laws, the homeless can be arrested even if they do not approach anyone and simply hold a sign. In 2014, three hundred people in Denver, Colorado, were arrested for panhandling. Nonetheless, many of these laws have been overturned. In 2021, Oklahoma City was required to pay $1 million to five attorneys who successfully challenged the city’s anti-panhandling ordinance. During the same year, a federal judge ruled that Alabama’s anti-panhandling laws violated the right to free speech because the First Amendment guarantees the right to “charitable appeals to funds.”

Laws against encroachment also criminalize the homeless. These laws make it illegal to place property in public walkways such as sidewalks. The homeless cannot place a tarp, bedding, clothing, or even medication in a public place. They are subject to being charged with breaking the law and in some cases their belongings may be seized.

In many large cities, homeless people and others are prohibited from sleeping or living in vehicles. Trespassing laws also come into play. While it is legal in some cities to live in a car, the car cannot be parked on private or public property. In the state of Hawaii, it is illegal to sleep in a car from 6 p.m. to 6 a.m. In some cities, it is against the law to live in vehicles parked within one block of schools, daycare centers, and parks.

Some cities consider it a public health and safety risk to feed people in public. Those who distribute food to the homeless have been arrested. In 2018, in El Cajon, California, twelve people were charged with misdemeanor offenses for feeding homeless people. The previous year, seven people in Tampa, Florida, were arrested for feeding the homeless without a permit. City officials supporting such actions claim that sharing food with the homeless can result in outbreaks of Hepatitis A, a contagious liver infection caused by poor sanitation and hygiene or drinking polluted water. While there have been outbreaks of Hepatitis A among the homeless, the National Coalition for the Homeless reports no documentation of poor sanitation or any type of food poisoning resulting from food being shared with homeless people in public places.

Effects of Criminalization

Criminalizing the homeless is dangerous, ineffective, expensive, and potentially unconstitutional. Criminalization policies unnecessarily subject homeless people to violence by bringing them into frequent contact with law enforcement. According to one study, a homeless person comes into contact with police about fifty times in a six-month period. This makes the homeless much more likely to become victims of police violence. According to the Los Angeles Times, during the third quarter of 2019, police officers used force on homeless people 217 times.

In most US cities, the homeless may be ticketed and fined for sleeping in public, panhandling, and placing their belongings on sidewalks or streets. Fines can be expensive. For example, in Dallas, Texas, fines for sleeping in public range from $150 to $300. Because most homeless individuals cannot afford to pay these fines, they skip court dates. They may also miss court dates because they do not have an address to mail or transportation. This leads to arrest warrants and jail time. Once homeless people are in the criminal system and have a criminal record, they are much less likely to find employment and housing or to receive public assistance. Criminalization can turn the periodic homeless into the chronically homeless.

Stay-away-orders are often accompanied with tickets and fines. These orders prevent the homeless from returning to an area where they were charged with a crime, such as an inner city. This often means they can no longer access necessary social services such as mental health facilities.

While some perceive homelessness as an unwillingness to work, this is largely untrue. Many homeless people cannot seek employment because they lack identification and an address. The National Coalition for the Homeless estimates that 44 percent of all homeless people have either full- or part-time jobs. However, they may not earn enough to afford housing. As of early 2022, the federal minimum wage was $7.25 per hour. According to the National Low Income Housing Coalition, at this rate, a person would have to work 103 hours a week to rent a one-bedroom home at the national average. Criminalizing the homeless jeopardizes their employment because it forces them to miss work. Should they be incarcerated, this absence becomes long-term, leading to a loss of employment.

Criminalization of the homeless is also expensive and wastes millions of dollars that could be better spent providing the homeless with affordable housing. According to the International Human Rights Clinic, it costs more to jail someone for a day than to provide the person with shelter. On average, one day in jail costs $87 while one bed in a shelter costs $28.

Because of criminalization laws, taxpayer money is spent on policing, court processing, and incarceration. Studies show that reducing the number of homeless people reduces the costs of policing, jailing, and visiting emergency rooms. Local governments are also often sued for violating the rights of homeless persons. Such litigation is expensive.

Many contend that the criminalization of the homeless is unconstitutional because it violates mainly the First, Eighth, and Fourteenth Amendments. In Reed v. Gilbert (2015), the US Supreme Court ruled that banning the public display of signs for religious services was unconstitutional based on the First Amendment’s guarantee of freedom of expression. Along the same lines, some courts have struck down anti-panhandling laws and allow the homeless to carry signs asking for food or money. In 2006, the Ninth Circuit Court of Appeals struck down Los Angeles’s city ordinance making it illegal to sleep, sit, or lie down on a street because the Eighth Amendment bans cruel and unusual punishment. Many lawsuits have been pursued against law enforcement for raiding homeless camps and seizing their belongings because it violates homeless individuals’ First, Eighth, and Fourteenth Amendment rights.

Further Insights

Curbing homelessness and ending criminalization is within reach for most communities. Prosecutors can combat the criminalization of the homeless by refusing to charge for violations of laws targeting the homeless. They can instead support diversion programs that allow homeless people to avoid criminal charges by taking life-skills classes. Prosecutors can dismiss warrants for arrests for unpaid fines, especially for individuals who are willing to undergo treatment for substance abuse problems, job training, and other necessary social services.

Local governments are also key. They should abolish laws and policies criminalizing the homeless and stop using law enforcement and criminalization to address homelessness. Some US states have taken steps to eliminate the criminalization of the homeless. For example, in Connecticut service providers are working with prosecutors to ensure that chronically homeless individuals are not prosecuted for minor offenses. In Denver, Colorado, funding for police forces has been reduced and replace with response teams of mental health experts to help the homeless. Oakland, California, approved a plan to fund community-based alternatives for the homeless instead of policing.

While taking measures to end the criminalization of the homeless is important, the most effective way to combat homelessness is to providing housing. Having an address makes it possible for a person to get employment, health insurance, and even an education. Governments must reduce or eliminate discrimination from landlords refusing to rent to homeless people because they have a criminal record associated with anti-homeless laws or a lack of a credit history.

Local governments must allot financial resources to help homeless people. For example, Miami-Dade County in Florida instituted the Homeless and Domestic Violence Tax, which is a 1 percent tax on all food and beverage sales for restaurants and hotels. The tax raises nearly twenty-million dollar per year, which is used to provide services to victims of homelessness and domestic violence.

Many cities and countries have had success by initiating a Housing First program. Such programs differ from those of the past, which required homeless people to get help for mental illnesses and substance abuse problems before being offered housing. Proponents of Housing First believe that having success with social services is unrealistic without first having housing. Once homeless people have permanent housing, they can better focus on seeking necessary treatments. Utah’s Housing First program was extremely successful. In 2015, state officials announced that they had reduced the number of chronically homeless individuals in the state by 91 percent.

In April 2024, the United States Supreme Court heard oral arguments on a case involving criminal penalties issued to the homeless. At issue are a series of ordinances in Grant Pass, Oregon which prohibit homeless persons from using blankets, pillows, or cardboard boxes to protect themselves from adverse weather. Opponents of the law argue that the ordinance amounts to cruel an unusual punishment. Proponents claim the ordinances only codify a ban on outdoor camping on public property.

About the Author

Adrienne Kennedy holds bachelor’s degrees in communications and secondary education from King’s College and a master’s degree in English from the University of Scranton. She is a former college instructor and has worked in educational publishing for more than twenty years. She is also a published author of both nonfiction and fiction.

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