As temperatures plunged to feel like almost zero degrees, pedestrians walk past two homeless men sleeping at a bus stop in Washington. (Jahi Chikwendiu/The Washington Post)

The clearest sign of an oppressed population is when the law criminalizes its actions or defining characteristics. History is full of examples of Jim Crow justice and laws banning intermarriage.

But even though those pillars of oppression have been dissolved — and as a new age of growing gender equality and same-sex marriage dawns — the law has settled its gaze on another enemy. The homeless.

The criminalization of homeless behaviors, however, came under assault last week. In a statement of interest filed by the Justice Department in a case out of Boise, Idaho, the federal government said it was unconstitutional to ban people from sleeping or camping in public places. The argument also provided a thorough summation of the modern homeless crisis and what cities have done — or not done — about it.

Housing and shelter accommodations across the country haven’t kept pace with the homeless population’s surging numbers since the recession. In Santa Cruz, Calif., more than 80 percent of the homeless have no safe shelter options, according to a report by the National Law Center on Homelessness & Poverty. In Orlando, it’s a third of the homeless population. In total, more than 40 percent of the homeless population sought shelter in places not intended for human habitation last year, Justice’s filing said. They bedded down under bridges. On park benches. Huddled inside vacant buildings. Crammed inside vehicles.

To criminalize that behavior, the filing said, is to criminalize homelessness. “No inquiry is required to determine whether a person is compelled to sleep; we know that no one can stay awake indefinitely,” the document said. It later said, “Enforcing the anti-camping ordinances and criminalizing sleeping in public violates the Eighth Amendment, because it is no different from criminalizing homelessness itself.”

The Justice filing could ultimately help undermine ordinances criminalizing homelessness — but it won’t be easy for two reasons.
One, cities are actively expanding laws that target the homeless population. The National Law Center on Homeless & Poverty surveyed 187 cities and found that other activities by the homeless had suddenly become illegal in an increasing number of cities. Since 2011, bans on begging increased by 25 percent. Prohibitions on loitering, loafing and “vagrancy” ballooned by 35 percent. The number of bans prohibiting sleeping in cars increased by 119 percent.

“This increase in citywide bans shows that the nature of criminalization is changing and that cities are moving toward prohibiting unavoidable, life sustaining activities throughout entire communities rather than in specific areas, effectively criminalizing a homeless person’s very existence,” the report said.

The other reason is that it would require dismantling years of ingrained prejudices against the homeless population, which have long manifested themselves in law. There’s a current fiction that the criminalization of homelessness is somehow a nascent phenomenon, sparked by the recent rise in the homeless population. But such laws have long defined Western society. Throughout Europe, from the United Kingdom to Germany, the act of “idleness” — or unemployment — has been reason enough to commit someone to a labor house or prison. The goal of these laws weren’t dissimilar to what they are today: to cleanse the street of “undesirables.”

This disdain for homelessness isn’t bound by national borders or cultural identities. To some degree, its originsare in human nature, wrote Randall Amster in the academic journal Social Justice.

“What is it about the homeless that inspires such overt antipathy from mainstream society?” he asked. “What is so special about their particular variety of deviance that elicits such a vehement and violent response to their presence? After all, ‘the homeless’ as a class lack . . . power, posing no viable political, economic, or military threat to the dominant class.”

Still, throughout modern history, the laws have continued, seizing Miami around the turn of the 20th century. It wrote “vagrants” and “penalty for vagrants” into its 1917 city code. Its definition of vagrants: “rogues and vagabonds, idle or dissolute persons who go about begging.” The city charter vested the police to “arrest any vagrant . . . without a warrant in case the delay in procuring one would probably enable such alleged vagrant to escape.”

Eric Tars, an attorney with the National Law Center on Homelessness & Poverty, said laws against homelessness have such resonance in the United States because of the puritanical work ethic woven into its social fabric.

“This is the assumption: that people are homeless because they aren’t trying hard enough,” he said. “There’s the sense that something must be wrong with them, rather than something is wrong with society.”

The knee-jerk reaction many local governments have when the number of homeless residents swells is to criminalize the population’s behavior. But that, Tars said, targets the symptoms of a societal problem, rather than its causes.

“People want to find ways to exclude anyone less than desirable and push them out of public view,” he said. He said the recent federal filing is an encouraging sign that the government is mobilizing to decriminalize homelessness. But such an endeavor wouldn’t be easy, he conceded.

It wouldn’t just mean undoing decades’ worth of ordinances — but a precedent left by hundreds of years of history.