Abstract

Excerpted From: Laurie Hauber, Criminalization of the Unhoused: A Case Study of Alternatives to a Punitive System, 31 Georgetown Journal on Poverty Law and Policy 199 (Winter, 2024) (228 Footnotes) (Full Document)

For one of the first times since the number of people who are unhoused has been counted and recorded, the majority of individuals who are unhoused live without any shelter at all. Anti-homelessness laws, by their nature, disproportionately impact the unhoused, particularly people who are unsheltered and chronically homeless. People receive citations because they are unhoused and have no place to which they can safely go. These laws criminalize people for unavoidable, life-sustaining activities, such as prohibited camping, which forbids people from resting or sleeping in public places; park violations for resting on any land designated as park land; and criminal trespass, which prohibits resting on any private property. Cities also punish the unhoused by prohibiting public behaviors that are legal on private property, such as drinking alcohol from an open container, marijuana use, or leaving a dog off leash. Even without legal penalties, disbanding encampments and constantly forcing people to move to new locations poses a significant health and safety risk. In addition, using the enforcement of anti-homelessness laws as the primary tool to address homelessness is far more costly than it is to provide housing.

Punitive laws against people who are unhoused have expanded in both number and scope in recent years, and some version of these and a myriad of other statutorily defined offenses can be found in most cities around the country. Multiple studies have shown that citations for violations of anti-homelessness laws and other quality of life violations are disproportionately issued to the unhoused and that the majority of the unhoused receive citations and move along orders. In fact, being unsheltered is the primary factor in determining whether a person is cited for an anti-homelessness or other quality of life violation. Moreover, people of color and people from other marginalized groups who lack shelter are even more likely to be targets of laws that criminalize homelessness.

These violations result in fines that cannot be paid and often arrests and possible jail time, all of which are severe consequences for simply being unhoused. Unpaid fines are highly detrimental to a person's credit score, often preventing people from securing housing. Serving time in jail, a criminal record, or even an arrest with no conviction, are significant obstacles in gaining employment and securing housing. Even without a legal sanction, forcing people to move from a group setting, whether through move-along orders or enforced sweeps, takes a toll on an individual's well-being. Camp disbandments create more instability in people's lives, increase the risk of assault or other forms of violence, and can contribute to a mistrust of institutions, including ones that provide critical services to the unsheltered. Forcibly dispersing encampments can make it more difficult for people to transition to housing and access services. These move-along orders may seem inconsequential in isolation. However, these interactions with law enforcement often cause psychological harm and build mistrust that can then extend to outreach workers and other service providers.

Maintaining a punitive system is costly for the community as well. The financial costs to a city to impose citations, arrest and jail people, and process people through the court system are tremendous. Policing the homeless for their mere status of being unhoused overcrowds our court system and our jails, and diverts much needed resources away from addressing crime that is a real threat to public safety. As a community, it is costly and ineffective to rely on police officers to be the first responders in dealing with homelessness. The core responsibility of law enforcement agents is public safety, which is what they are trained to do. Enforcing anti-homelessness laws against people who have nowhere else to go fosters mistrust of the police, making it less likely that people will seek protection from police when needed.

Finally, to the extent laws are intended to deter “illegal behavior,” anti-homelessness laws enforced against people for trying to survive do not serve as motivation to avoid or modify behavior. People have no other choice but to commit these violations given the lack of accessible options. Even the medical field has taken a position against the criminalization of homelessness, recognizing the harm to the individual and high costs to the system. In 2019 the American Medical Association passed a resolution, which in part stated that it, “opposes laws and policies that criminalize individuals experiencing homelessness for carrying out life-sustaining activities conducted in public spaces that would otherwise be considered non-criminal activity.” In 2017 the American Public Health Association issued a statement similar to the AMA resolution, stating that laws that target activities associated with homelessness are both ineffective and costly to enforce, and “serve as a barrier to income and housing stability.”

This Article is based on an extensive report the author wrote in early 2020 as a tool to pressure local decisionmakers in Eugene, Oregon to make changes to laws and practices that criminalize the unhoused. Eugene, Oregon has one of the highest per capita rates of homelessness in the United States. While Eugene has multiple sheltering options and innovative programs to support the unhoused, including its nationally recognized CAHOOTS program, only a small fraction of its more than 3,000 unhoused residents have access to any kind of shelter. As a case study, Eugene's situation is relevant for so many cities around the country that maintain a punitive system as its predominant approach to addressing unsheltered homelessness.

This Article provides a roadmap for affordable housing and community economic development (CED) practitioners, law school clinicians and other law faculty, as well as other community based legal advocates to compel changes to laws and practices that criminalize a person's status for being unhoused. Lawyers can and should play a critical role in helping to empower community stakeholders to move local governments away from punitive approaches and reorient toward more humane, community-based solutions. As one of the most pressing issues facing cities around the country, the homelessness crisis has become inextricably linked to the work that lawyers and law school clinical faculty do around housing and community development. As such, there is an important role for housing and CED lawyers and academics to help galvanize and advance the goals of a grass roots effort.

Part II situates this case study on Eugene in a broader national context and provides an historic overview of the web of oppressive laws that have contributed to this current national crisis. Part III discusses the local context in Eugene and offers guidance on the development of a community-focused advocacy strategy. Part IV discusses components of a data driven approach to empower community activists to compel change at the local level. Part V highlights the community centered strategies and solutions that have widespread applicability and can be tailored to local jurisdictions.

While the focus of this Article is on unsheltered homelessness and the importance of allowing people to shelter without being subjected to legal sanctions or move along orders, the real solution is housing. Shelter is merely an interim solution until cities, counties and states create more housing that is accessible for the unhoused. Effective solutions exist--Housing First and permanent supportive housing are proven cost-effective solutions for the chronically homeless. The city of Houston, for instance, had one of the highest per capita rate of homelessness in the country as of 2011. Since that time it reoriented its approach to housing first, reducing its numbers of unhoused by more than one-half by providing housing to over 25,000 unhoused individuals. As a result, Houston has one of the lowest rates of unhoused among large cities in the country. At the Federal level, the Biden-Harris administration launched a comprehensive strategic plan in 2022 with the goal of reducing homelessness by 25 percent by 2025. With funding through the American Rescue Plan and other sources and with the participation of 105 cities in 31 states around the U.S., at the end of 2022 100,000 households experiencing homelessness were housed and 40,000 new units of affordable supportive housing had been created. This plan is centered around advancing equity and addressing systemic racism, recognizing that homelessness disproportionately impacts people of color.

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It is important to reiterate that the most important solution, and one that cannot be forgotten, is investment in housing. As already discussed in this Article, studies have demonstrated the sizeable cost savings that cities realize by redirecting money spent on enforcement to the expansion of affordable housing.

Despite the severe shortage of housing available for people who are unhoused, and the lack of shelter options in so most jurisdictions, cities around the country continue to use these punitive measures as their primary means of dealing with the unhoused. Once unsheltered, people face a cascade of other problems such as mental and physical health issues, increased risk of drug and alcohol abuse, and a greater likelihood of being a victim of a crime. These harms are severely exacerbated through the punitive system in place in so many cities throughout the country. As the discussion of Eugene demonstrates, cities that have established innovative sheltering models and other seemingly more humane practices continue to harm people who are unhoused and create a heavier burden on tax payers.

There are glimpses of hope. Successful legal challenges as well as the efforts some local jurisdictions proactively have taken to decriminalize their laws that disproportionately target the unhoused and reorient toward a more humane, community centered approach to addressing homelessness offers models for other cities. These efforts suggest that there is growing recognition of the futility and harm of punishing people for having nowhere to go. The Biden-Harris Administration's commitment to addressing the homeless crisis through levels of funding to local communities that have not been seen in the past several decades also is encouraging. With sustained Federal resources and focus, achieving the Administration's interim goal of reducing homelessness by 25% by January 2025 is possible and, if successful, could provide a foundation for continued reductions in homelessness and ultimately, the elimination of homelessness. There is a role each of us can play to help community stakeholders achieve broader systemic reforms and compel cities to redirect policing resources to more effective community-based solutions.

Assistant Clinical Professor of Law; Director of Experiential Education, University of Oregon School of Law. J.D., Boston College Law School; B.A., Harvard College.