Justice Department Weighs In on Homeless Policies

Bell v. City of Boise

Everywhere across the country homelessness, an often involuntary act, is criminalized. Cities all over are making it illegal to be homeless and even to aid homeless people. Being homeless is a difficult ordeal, and for many it can seem, and is, never-ending, yet these cities are doing all they can to make it even more difficult for those that are homeless. In response, many people and organizations are fighting against these ordinances and laws that seek to criminalize homelessness.

Boise, Idaho is one of these many places that criminalizes homelessness. Continuously, the police are citing and fining people for sleeping on the streets, despite the fact that the shelters are full and there is nowhere for them to go. However, here, homeless people have decided to fight back against the city of Boise and sue them in federal court. Along with homeless people, the Department of Justice on August 6th argued on behalf of the homeless population in Boise.  Here is the Justice Department press release on the issue.

Sharon Bett, a trial attorney for the Civil Rights Division of the DOJ, argued that fining/criminalizing a homeless person for sleeping on the street, when the shelters are full, violates the 8th amendment’s clause on “Cruel and Unusual Punishments.” Bett notes that legal precedent, with regards to the 8th amendment, has stated that acts of conduct can be criminalized, but not an individual’s status. For example, someone can be fined for drinking alcohol in public, but not fined for being an alcoholic. In other court cases, dating back to the past decade, the courts have continuously maintained that being homeless is a status, not a conduct.

It has also been established that criminalizing people who are sleeping in public when shelters are full is a violation of the 8th amendment’s “Cruel and Unusual Punishment” clause. In reference to Boise, Bett uses precedent, set in Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006), claims that, if there is no place for a person to go (this would mean not being able to access a shelter), then that person’s sleeping outside becomes an “involuntary and inseparable from” an individual’s status of homelessness. So, the homeless individual should also be entitled to sleep in public, when there is no shelter that they can access.

Here is the heart of the Justice Department filing, "[i]t should be uncontroversial that punishing conduct that is a universal and unavoidable consequence of being human violates the Eighth Amendment. . .  Sleeping is a life-sustaining activity—i.e., it must occur at some time in some place.  If a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless."

The essence of the argument put forth against criminalizing sleeping outside and Boise specifically, is that the status of homelessness, like being mentally ill or a victim of natural disaster, is a status, and a person’s status cannot be criminalized. However, conduct can be criminalized, such as an addict drinking in public, because, in this scenario, an addict could reasonably and voluntarily find a private place. Nevertheless, sleeping outside in public spaces is different, in that it is “involuntary and inseparable from” the status of being homeless. The Justice Department contends that the City of Boise should not be criminalizing the acting of sleeping in a public space, because these individuals have no where else to exist.  The National Law Center on Homelessness and Poverty has been assisting with this case for the past three years.  Activists hope that they can use this briefing to change the law in Boise and use it in other cities in the United States.

The Case in the News

From National Law Center of Homelessness and Poverty

by Dan the Intern

PS:  We have set up a web page with the actual text of the brief submitted by the Justice Department here.

Two Related Stories on the Criminal Justice System

There were a strange group of articles in the paper that point to the two different approaches to the criminal justice system in America.  The Justice Department announced a change in the sentencing recommendations for drug offenses then on the other end the Plain Dealer had a story that the Governor was asking for additional criminal justice money because they are running out of space in the jails.  Attorney General Eric Holder is asking for a reduction in the range of sentences for federal drug crimes.  At the same time, he is requesting that Federal Prosecutors not object to requests for sentencing reductions.  This will affect nearly 70% of the drug trafficking cases in the federal courts. Here is the NPR report on the issue.  This is not only because of the injustice of our sentencing rules, but the economics of incarcerating thousands of people every year.

Going the other direction is the State of Ohio which is asking for $53 million increase to reduce overcrowded prisons and hire additional staff.  They will also add funding for rehabilitation programs, but the bulk of the money is for additional incarceration funding.  There was some rumblings by the Ohio Republicans in the legislature about sentencing reform to save the state money in 2013, but it never went anywhere for fear of being viewed as weak on crime.  The Ohio Inmate population is approaching record numbers. We are now over 50,000 people incarcerated which is double the population in 1988. 

How does this have anything to do with homelessness?  We know that a sizable number of the homeless population have a history with the criminal justice system that keeps them homeless or extends their stay on the taxpayer's dime.   We know that the criminal has destroyed the lives of their victims through violence or financial crimes, and we have to keep that in mind whenever we talk about the criminal justice system.  The victims need to be considered whenever discussing sentencing reductions.  We also need to recognize that these individuals paid their debt to society.  They were convicted of a crime and served their time, and we need to not keep punishing them.

Often the shelters are just an extended stay in a prison without the ability to make your own decisions.  There is a lights out time (11 p.m.).   They tell you when to get up and when to eat.  They tell you when the bathroom is available and you have to consolidate all your worldly possessions into the size of one locker or a foot locker.  For some, it is a life sentence because they are tagged with a community notification label that will prevent them from employment and housing for the rest of their natural life.   The taxpayers are then responsible for their food, clothing, housing and medical care for the rest of their life.  Shelters have no possibly of finding housing for some people in our society, because of their criminal background.  The Sentencing Project has a good website about the societal impact of our harsh incarceration policy on the financial health and moral health of the United States as well as the civil rights implications of incarcerating so many minority populations

We do the resident council meeting at 2100 Lakeside Shelter to hear about the concerns of the residents and take those problems to the management of the shelter for some resolution.  The February meeting, we had a gentleman who was a Tier 3 sexually based offender, and was very angry that no one was being honest with him that he would never qualify for any housing program.  He had spent a year in the shelter and was just realizing that he would never get into housing, and would live out the rest of his life not being able to rent or buy his own housing.   He wanted to know why no one had told him this up front and was honest with him that he would not qualify for any program in the community. 

Brian Davis