Illegal to Be Homeless
The Criminalization of Homelessness in the United States
Executive Summary
I. Introduction
The following report will document that people experiencing homelessness are subject to basic violations of their civil rights through the unconstitutional application of laws, arbitrary police practices and discriminatory public regulations. Local governments, police departments, and local business improvement districts, from our largest cities to our most rural communities, are diverting precious public resources and funding to penalize people for being homeless. Lacking private spaces in which to carry out life-sustaining activities such as sleeping, resting, storing personal belongings, or activities associated with personal hygiene, people experiencing homelessness face the further indignity of arrest. They will still be homeless when released but leave with a criminal record and another barrier to obtaining housing. These shortsighted laws and practices may make good sound bites but only serve to invest more tax dollars in jails than in housing, health care and services.
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This report documents that criminalization is not only a local issue but is also national in scope and demands a federal response. We will make the case that there is a pattern and practice of civil rights violations and unconstitutional behaviors by local government authorities including the police and other city agencies. These practices extract enormous economic, social, and individual costs and do nothing to alleviate the root causes of homelessness. The National Coalition for the Homeless, National Law Center on Homelessness & Poverty, and local member organizations share the concern of local business, police departments and government that there are people sleeping on our nation’s sidewalks. We believe that working toward ending the causes of homelessness and not simply removing homeless people from view is cost effective, as well as just, and if presented to the general public in moral and economic terms would be widely supported.
This report will highlight both patterns of criminalization and examples of positive work being done by local governments and police departments in partnership with advocates. While we are heartened by the examples of some compassionate local government and police responses, we call on local governments to take the next step and educate communities about the root causes of homelessness, taking action to address them. We are hopeful that the following report will be a tool for local organizing and public education around the issues of criminalization and the need to create partnerships toward achieving our common goal of ending homelessness.
The findings and recommendations cited in this report are more critical than ever. The recent events of September 11, 2001, have already impacted people experiencing homelessness in several fundamental ways. Access to public space has been severely restricted in many communities. For people experiencing homelessness who live in public spaces without access to shelter, without an ID showing an address, access to public restrooms, and places to store their belongings, the implications are disastrous. The economic recession has resulted in the lay off of tens of thousands of people, and hiring in many sectors is at a standstill. The newly hired who have benefited from the economic expansion of the past several years will be among the first to lose their jobs. The resultant decrease in tax revenues means less public funding for housing and services for the very poor, and many foundations and charities report a sharp decline in donations to programs, which traditionally served the poor.
II. Background
The National Coalition for the Homeless (NCH), established in 1984, is the oldest national organization founded to advocate on behalf of people who are homeless. NCH is comprised of local and statewide homeless coalitions, service providers, faith-based organizations, grassroots activists and people experiencing homelessness. The National Law Center on Homelessness & Poverty (NLCHP), established in 1989, works toward solutions that address the causes of homelessness, placing homelessness in the larger context of poverty. To this end, the NLCHP employs litigation, legislation, and education of the public as critical strategies. NCH and the NLCHP, nearly 20 years ago, began to hear reports from communities throughout the United States that local responses to increasing homelessness were the arrest and police harassment of individuals experiencing homelessness through the selective enforcement of existing laws and the passage of laws targeting people experiencing homelessness. This report is the latest effort to document unconstitutional local practices that, when analyzed in the aggregate, reveal a national trend of criminalization of people experiencing homelessness. The NLCHP has previously published four such reports. Extensive case law is provided in Appendix II.
Local governments often attempt to regulate visible homelessness as a result of pressure by downtown business interests who are unaware of alternative responses that address root causes of poverty and homelessness. Local police and city parks and sanitation workers are dispatched to "clean up" downtown areas with little or no training on what local resources exist or how to work effectively with people who may be experiencing mental health, chemical addiction or chronic medical issues.
This report is the latest in the effort to document local practices which have, when challenged, often been modified or stopped and when litigated, have often been determined in both local and federal courts of law to be unconstitutional. This report also highlights organizing victories and puts forth recommendations based on successes in communities throughout the country, during the past 20 years of our collective experience.
III. Purpose of the Report
The purpose of the report is to document the pattern and practice of civil rights violations of people experiencing homelessness nationwide as well as to document effective strategies to organize and litigate for basic constitutional protections. NCH has been working to move the U.S, Department of Justice to investigate hate crimes and/or violence against people experiencing homelessness, and NCH is working toward moving the federal government to establish homelessness as a protected class. The NLCHP has filed briefs in courts across the country supporting homeless people’s challenges to ordinances that render criminal activities homeless people often must perform in public, and works with groups to implement constructive alternatives to criminalization.
We recognize that data collection is key to documenting the problem and to showing that local wins are possible and worth fighting for, and to demonstrate that there do exist positive models. We intend for this report to contribute to the development of linkages among communities, to be a resource for activists as they work toward bringing local public officials to the realization that proposed or existing laws and practices criminalizing homelessness are unconstitutional and counterproductive, and to move them to developing solutions that address the root causes of homelessness. We are hopeful that the following report will serve as a tool for both local governments and grassroots advocates to develop strategies that do not penalize community residents for their lack of housing.
IV. Methodology
Fifty seven (57) communities in twenty nine (29) states, the District of Columbia and Puerto Rico were surveyed, using a standard survey instrument developed by NCH’s Civil Rights Work Group and the NLCHP (Appendix V). The survey was conducted by the staff and volunteers of the National Homeless Civil Rights Organizing Project which works with local grassroots advocates, organizers and service providers to ensure the basic constitutional rights of people experiencing homelessness by building power for homeless people and their allies. Many of those interviewed are engaged at the local level in monitoring arrest and policing patterns as they impact people experiencing homelessness. All of those interviewed for this report have daily contact with people experiencing homelessness, and some interviewed are currently homeless. This report represents the most substantive attempt to date to document how criminalization impacts people experiencing homelessness in local communities throughout the United States. Taken in the aggregate, these reports point to an unacceptable pattern and practice of unconstitutional police practices with national scope.
V. Problem Statement
The passage of laws that target behaviors associated with the state of being homeless, such as sleeping, bathing, sitting, cooking, lying down, urinating, or storing personal belongings in public spaces are unconstitutional because collectively, they target people based on their housing status, not for behaviors that, in and of themselves are criminal. These laws and practices are designed to criminalize homelessness without mentioning the words "homeless" or "housing" because they target behaviors most likely to be conducted by people experiencing homelessness. The following report will demonstrate that people experiencing homelessness are targeted in a discriminatory manner for conducting what is generally considered private behavior in public spaces because they lack the privacy, housing or even shelter in which to conduct them.
VI. Overall Findings
A. The systematic abuse of the civil rights of homeless people is used as a strategy to remove homeless people from sight by local governments and private business districts
· Community revitalization efforts have led to increased incidences of policing to remove homeless people from gentrified areas and areas frequented by tourists;
· Business Improvement Districts often hire private security guards to restrict access to areas of the community based on economic profiling;
· Existing laws are selectively enforced, and new laws created with the goal of moving people experiencing homelessness out of certain areas;
· Access to public space for people experiencing homelessness is being restricted: public parks are being designated as "family parks" disallowing individuals without children; communities invest public money to insert bars in the middle of park benches to prohibit people from lying down on them, and people are being banned from designated neighborhoods altogether in some cities, from Athens (GA) to Cincinnati to Portland (OR);
· Sweeps before sporting or political events are cited in dozens of communities interviewed;
· People experiencing homelessness report incidences of police brutality in communities from Jacksonville (FL), to Sioux Falls, (SD);
· Fines from $50 to $2,000 are being imposed on the poorest of our communities because they lack housing, and without the ability to pay, fines result in jail time;
· Police resort to waking up people who are sleeping outside with nowhere to go, ordering them to "move along" in communities, from Valdosta (GA), to New York City.
B. 100% of communities surveyed lack enough shelter beds to meet demand and housing costs are out of reach for many, including the working poor
· The number of people experiencing homelessness has increased due to a shortfall in housing units available for the very poor on the private market and in the public sector;
· More than 37% of those people seeking shelter are unable to access it, according to the U.S. Conference of Mayors in 2001.
· Mental health and drug courts further restrict access to shelter and programs for the general population because beds are set aside for sentencing;
· There is no state or local jurisdiction in the country where minimum wage income can afford HUD’s fair market rents for housing;
· Declining availability of income supports like TANF and SSI contribute to increased homelessness;
· Families that transition from welfare to work still do not make enough to afford housing in their communities.
C. The lack of access to health care, including mental health and substance abuse treatment, exacerbates homelessness, and people living with mental health issues are disproportionately impacted by criminalization in many communities
· People needing or receiving treatment or medication are reportedly unlikely to continue to receive it in jail;
· Nationally 16% of inmates in jails and prisons have a diagnosed mental illness. That number is four times the number of Americans in state mental hospitals;
· The Los Angeles County jail is the largest mental health facility in the United States;
· Police are using deadly force to subdue mentally ill homeless persons.
D. Communities are diverting scarce resources from solutions for homelessness to criminalization
o The cost of arresting, processing and jailing homeless people is higher than the cost of creating housing;
o Although few communities have committed resources to tracking arrests by housing status, in Atlanta alone, 18,000 to 19,000 people were cited for "quality of life" violations annually, and 43,000 were cited in one year in San Francisco;
o People experiencing homelessness in Baltimore spend an average of 35 days per year in jail;
· Criminalization of homelessness leads to increased barriers to accessing shelter and housing due to a criminal record;
· People experiencing homelessness often plead "no contest" instead of "not guilty" to get off with time served, due to lack of legal representation and a lack of knowledge of their rights.
E. Replicable models are being developed in communities nationwide as a result of partnerships between people who are homeless, their allies and local government
· Police departments have teamed up with outreach workers and service providers to create innovative models in communities from Sacramento to Memphis;
· Legal victories in communities from Portland (OR), to Austin to Cleveland to Miami set important national precedent, which can inform local advocacy.
· Although no precedent is set, settlements in class action lawsuits brought by homeless people are often more flexible than judicial decisions, such as in Richardson v. Atlanta.
· Litigation combined with grassroots organizing is more effective than relying on the court system;
· Grassroots organizing has effectively changed anti-homeless city policies from Baltimore to Portland (OR) to San Francisco.
Recommendations
I. Educate people experiencing homelessness, and their allies, about their constitutional rights
· People experiencing homelessness must be educated about their civil rights and have access to legal representation when those rights are violated on an individual and collective basis;
· People experiencing homelessness must be involved in public policy decision making at the local level;
· Efforts to ensure that the civil rights of people experiencing homelessness are respected must link with mainstream civil rights organizations;
II. Immediate support for local monitoring projects and data collection activities to challenge local abuses, support local best practices, and building a national resource data bank
· Police should be required to document the housing status of each person they arrest or to whom they issue citations;
· A central tracking system that is independent of the local police force should be established to track patterns of abuse and harassment;
· Citizen review boards should be established and include representation of people experiencing homelessness, and be charged with reviewing all arrests and citations of people experiencing homelessness;
· Local data should be forwarded to a statewide and national entity charged with monitoring police practices in relation to people experiencing homelessness;
· Training should be required of all police officers on homelessness and civil rights as relevant to people experiencing homelessness;
· Police should contact outreach workers to assist with interventions with people experiencing homelessness.
· Best practices should be documented and distributed to police departments, local governments, grassroots, and advocacy organizations.
III. Federal action is required to investigate patterns and practices of the civil rights violations of people experiencing homelessness
· Adequate federal funding to create housing affordable for the very poor will address the primary root cause of homelessness, thereby eliminating unconstitutional laws and practices.
· Pass federal protected class resolution based on socio-economic status;
· Voting is a right. Voter registration should not be based on housing status;
· Hate crimes legislation must be passed at the federal level and fully enforced;
· Ensure the rights of homeless children to mainstream education and other public services;
· Litigation around selective enforcement, zoning regulations and housing exclusion practices must be aggressively pursued;
· Federal funding to local communities that criminalize homelessness should be suspended.
IV. Combine litigation with grassroots organizing and public education efforts
· All people experiencing homelessness who are arrested must be advised of their right to counsel and given the phone number of an advocacy organization to track and independently document the arrest;
· Local police-watch projects should be fully funded so that people experiencing homelessness and their allies can independently document police intervention;
· Develop, document, disseminate and replicate successful organizing models;
V. Public Education
· Public education activities around cost of incarceration vs. housing is critical;
· Public support for long-term solutions revolves around public education. Investment in adequate local community resources depends upon public support