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The Criminal Law and the Chronically Homeless in the United States

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The Criminal Law and the Chronically Homeless in the United States Getting kicked when you are down: The criminal law and the chronically homeless in the United States. Conor Califf1 “To be shelterless and alone in the open country, hearing the wind moan and watching for day through the whole long weary night; to listen to the falling rain, and crouch for warmth beneath the lee of some old barn or rick, or in the hollow of a tree; are dismal things—but not so dismal as the wandering up and down where shelter is, and beds and sleepers are by thousands; a houseless rejected creature.”2 Introduction: The issue of the criminalization of homelessness in the United States was thrown into the national spotlight in November of 2014 when a 90-year-old preacher and World War Two veteran, Arnold Abbot was charged by the Fort Lauderdale, Florida police for feeding homeless people in public in breach of a recently enacted law that banned food sharing in the city.3 It wasn’t the first time the pastor was cited by the local government for breaking this city ordinance and it highlights a problem, which needs to be tackled now in the United States. A disturbing trend has surfaced 1 Undergraduate in Law (LLB) at Trinity College Dublin. This research paper was written as part of Washington and Lee University’s Poverty Research Seminar with the invaluable help of Professors Howard Pickett and Erik Luna and classmates Caroline Hamp and Joseph Ciborowski. As far as possible the Oscola Oxford citation method has been used in this paper. All errors and omissions are the author’s own. 2 Charles Dickens (1812–1870), British novelist. Barnaby Rudge, ch. 18 (1841). 3 Kevin Conlon and Catherine E. Shoichet, CNN, '90-year-old Florida man charged for feeding homeless people' (http://www.cnn.com 2014) <http://www.cnn.com/2014/11/04/justice/florida-feeding- homeless-charges/index.html> accessed 5 February 2015 1 across American cities of criminal and administrative laws being used in a manner which arbitrarily persecutes and criminalizes the homeless population. The vast majority of the United States’ estimated homeless (85 percent) are of the temporary variety, mainly men but also women and whole families who spend relatively short periods of time sleeping in shelters or cars, then get their lives back together and find a place to live. However, the remaining 15 percent, the chronically homeless, fill up the shelters night after night and spend a lot of time in emergency rooms and jails. This costs between $30,000 and $50,000 per chronically homeless person per year according to the Interagency Council on Homelessness.4 In recent years, both local and federal efforts to solve the homelessness epidemic have concentrated on criminalizing the chronic population, currently about 84,000 nationwide. In this paper I intend to examine how this process has developed in the United States. I intend to highlight what the problem is factually by showing what these laws are, arguments for their existence and counters to these arguments. I will analyze certain ways which homeless litigants could challenge these modern laws and ordinances constitutionally by examining previous precedents which could back their respective cases. I will then conclude by suggesting an alternative approach to criminalization which has proved effective in the United States. 4 http://usich.gov/population/chronic 2 What are these laws? Large urban cities have increasingly been passing laws that as stated above, effectively make it illegal to be homeless in the United States. In 2014 the National Law Center on Homelessness and Poverty released a comprehensive report surveying 187 American cities on types of laws, which these cities have been passing, which criminalize the homeless. 5 These laws restrict necessary human activities and include the following: • Laws prohibiting “camping” in public (34% city-wide, 57% in particular public places) • Laws prohibiting sleeping in public (18 % city-wide, 27 % in particular places such as parks) • Laws prohibiting begging in public (24 %) • Laws prohibiting loitering, loafing and vagrancy (33% in the entire city, 66% in particular public places) • Laws prohibiting sitting or lying down in public (53 % in particular public spaces) • Laws prohibiting sleeping in vehicles (43%) • Laws prohibiting food sharing (9%) The NLCH concludes in its report that the rates of anti-homeless laws have increased since it conducted its last similar report in 2011. There has been a 35% 5 The full report can be found here: http://www.nlchp.org/documents/No_Safe_Place 3 increase in anti-loitering laws, a 25 % increase in anti-begging laws and a 60 % increase in anti-camping ordinances.6 Theoretically, these laws are available to be used against any citizen. In effect, they are arbitrarily enforced against homeless population by law enforcement. These laws have brought back what the Supreme Court ruled as unconstitutional forty years ago. They are punishing people for their status as a homeless person, rather than their individual actions. Why should we protect the homeless from these laws? Homelessness has been a problem in society since its beginning, but measuring the extent of the problem is difficult, since many people may be made temporarily homeless (particularly after the worldwide economic crash in 2008). To use a rough estimate, on an average January night in 2013, the US department of Housing and Urban Development found that 610,000 people were experiencing homelessness.7 People who are homeless are already highly vulnerable individuals, the great majority of whom often suffer from a combination of one or more of the problems of substance addiction, mental illness and/or a traumatic childhood. An attitude that has facilitated the implementation of these anti-homeless laws recently across the United States is the idea that being homeless is simply down to the individual’s 6 National Law Center on Homelessness and Poverty , 'No Safe Place: The Criminalization of homelessness in US cities' [2014] 1, 18 7 National Alliance to end Homelessness, 'The State of Homelessness in America 2014 ' (http://www.endhomelessness.org 2014) <http://www.endhomelessness.org/library/entry/the-state-of- homelessness-2014> accessed 2/21/15 4 choice.8 As Lynch and Cole note, it is nearly always much more complicated than that: “The pathways into homelessness are complex and varied. They include structural causes, government fiscal and social policy causes, individual causes and in some instances include cultural causes. In many cases of homelessness, the causes are intersectional and interrelated.”9 It is undoubted that in some cases individual choice may be the overwhelming factor as to why one is homeless. The caveat with this however is that even in these cases; the individuals are often mentally ill10 or in many cases, veterans of the recent wars in Iraq and Afghanistan.11 Society has accepted that we have a positive obligation to care for the mentally ill while some veterans may have struggled to readjust to the normality of civilian life after being in war situations. One must question the fairness of using the law to persecute a section of the population who sacrificed so much for their country and its ideals. Behind all the facts and figures are the human stories of the effects of these laws. Franklin, a homeless veteran who was shot twice in combat has been cited four times for breaking a Florida State law which made it illegal to stand on the 8 See S Keyes, 'Mayor: People are homeless 'By choice,' won't use city funds to help them.' (http://thinkprogress.org/ 2014) <http://thinkprogress.org/economy/2014/05/02/3432472/temecula- homeless/> accessed 2/21/2015 and S.V. Roberts, 'Reagan on Homelessness: Many Choose to Live in the Streets' (http://www.nytimes.com/ 1988) <http://www.nytimes.com/1988/12/23/us/reagan-on- homelessness-many-choose-to-live-in-the-streets.html> accessed 2/21/105 9 M Elliot, 'Homelessness and human rights: Regarding and responding to homelessness as a human rights violation” [2003 ] Melb. J. Intl. 139, 142 10 See http://www2.nami.org/factsheets/mentalillness_factsheet.pdf 11 http://nchv.org/index.php/news/media/background_and_statistics/#faq 5 highway and ask for money. “Every time I try to do anything… I just get kicked in my ass man…maybe I’m stupid… but I got to eat.” 12 Proving that the problem spans age and gender divides is the story of Dasani covered in the New York Times recently. The homeless 11 year old girl acts as a minder for her younger siblings due to her parents battling drug addiction. Her tale highlights the fact that the United States now has the highest child poverty rate of any developed nation except for Romania. Due to Ordinances passed by Mayor Bloomberg’s government, she is stuck in in a never-ending system of shelters, no place for an 11 year old girl who has hopes and dreams like any other normal child.13 There are a number of other compelling legal reasons as to why should we afford protection to this group in society and seek to find alternative approaches to criminalizing them: Firstly, criminalization measures are expensive to tax payers. An example can be found in the state of Utah. The Utah State Housing and Community Development Division found that the annual cost of emergency room visits and jail incarcerations for a homeless person was $16,670, while providing that same person with an apartment and year round social worker cost the State $11,000. Similarly, Creative Housing Solution’s in Florida recently conducted an economic-impact report which found that providing chronically homeless people with a house and a year round 12 Scott Keyes, 'The Problem With Criminalizing Homelessness' (http://thinkprogress.org/ 2013) <http://thinkprogress.org/justice/2013/09/19/2629581/criminalizing-homelessness/> 13 http://www.nytimes.com/projects/2013/invisible-child/#/?chapt=1 6 case worker would cost the state $10,000.
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