When adequate shelter space exists, individuals have a choice about whether or not to sleep in public. However, when adequate shelter space does not exist, there is no meaningful distinction between the status of being homeless and the conduct of sleeping in public. 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.
Such laws, the DOJ argues, violate the Eighth Amendment protections against cruel and unusual punishment, making them unconstitutional. By weighing in on this case, the DOJ's first foray in two decades into this still-unsettled area of law, the federal government is warning cities far beyond Boise and backing up federal goals to treat homelessness more humanely.
"It's huge," says Eric Tars, a senior attorney for the National Law Center on Homelessness & Poverty, which originally filed the lawsuit against Boise, alongside Idaho Legal Aid Services.
According to a NLCHP report last year that surveyed 187 cities between 2011 and 2014, 34 percent had citywide laws banning camping in public. Another 43 percent prohibited sleeping in vehicles, and 53 percent banned sitting or lying down in certain public places. All of these laws criminalize the kind of activities — sitting, resting, sleeping — that are arguably fundamental to human existence.
And they've criminalized that behavior in an environment where most cities have far more homeless than shelter beds. In 2014, the federal government estimates, there were about 153,000 unsheltered homeless on the street in the U.S. on any given night.
Laws like these have grown more common as that math has actually grown worse since the recession.
"Homelessness is just becoming more visible in communities, and when homelessness becomes more visible, there’s more pressure on community leaders to do something about it," Tars says. "And rather than actually examining what’s the best thing to do about homelessness, the knee-jerk response — as with so many other things in society — is 'we’ll address this social issue with the criminal justice system.'"
It's also easier, he adds, for elected officials to argue for criminal penalties when the public costs of that policy are much harder to see than the costs of investing in shelters or services for the poor. Ultimately, though, advocates and the federal government have argued, it's much more expensive to ticket the homeless — with the court, prison and health costs associated with it — than to invest in "housing first" solutions that have worked in many parts of the country.
Criminal citations also compound the problem of homelessness, making it harder for people to qualify for jobs or housing in the future.
"You have to check those [criminal] boxes on the application forms," Tars says. "And they don’t say 'were you arrested because you were trying to simply survive on the streets?' They say 'if you have an arrest record, we’re not going to rent to you.'"
NLCHP's goal, Tars says, isn't to protect the rights of people to live on the street, but to prevent and end homelessness. That means adding a lot more shelter beds and housing options in places like Boise — which has three shelters run by two nonprofits — so people have options other than the street.
The DOJ's argument is based on the logic in an earlier Ninth Circuit decision, striking down a vagrancy law in Los Angeles, that was ultimately vacated in a settlement. That logic specifically says it's unconstitutional to punish people for sleeping outside if there aren't enough beds for them to sleep indoors. If there are, the constitutional question would be different, although the moral and policy implications may remain the same.
"Homelessness never left town because somebody gave it a ticket," Tars says. "The only way to end homelessness is to make sure everybody has access to affordable, decent housing."