The crowd was right to condemn the heavy-handed policing. But why do such encampments exist in the first place? After all, the city had tolerated the Echo Park tents for more than a year. Officials provided no substantive services, but they also largely left people alone. Indeed, L.A. and other cities throughout California have been selectively tolerating encampments for more than a decade, after a series of civil liberties suits ended with federal courts finding that it was cruel and unusual punishment to arrest people for simply sleeping outside if housing wasn’t available.
This kind of “tolerant containment” has become my state’s default approach to all kinds of social problems, extending well beyond homelessness. Once a national leader in punitive social control, such as three-strikes sentencing laws, California has begun admirable attempts to shift away from such harsh tactics. But the state and its municipalities have neither generated the revenue nor built the public infrastructure to ameliorate the conditions exacerbating homelessness, mental health crises or addiction. What they offer instead is selective decriminalization and acceptance — so long as visible manifestations of social problems can be temporarily corralled and prevented from interfering with most citizens’ daily lives. This tolerance may look like progress, but absent proper investment in community services and “root cause” solutions, it can descend into abandonment.
Without interventions to remedy the housing crisis, California’s neglected homeless population keeps growing: 151,000 people were unhoused in 2019, 16 percent more than in 2018, according to a state legislative report. The coronavirus pandemic has delayed more recent counts, but evidence suggests that the situation has worsened. People with mental illness share a similar fate under the tolerant-containment regime, since they have the legal right to refuse treatment — but no guarantee that they can get voluntary care if they want it. Their needs are often ignored until an outburst marks them a danger to themselves or others, when they may be involuntarily hospitalized and then rapidly kicked back to the street. (Roughly 30 percent of the state’s unhoused residents suffer from severe mental illness.) Drug use presents another example: In 2014, Proposition 47 reclassified personal possession of hard drugs from a felony to a misdemeanor, leading authorities to deprioritize drug arrests and release more than 13,500 prisoners. But the state didn’t invest in addiction treatment — so there is now a de facto civil right to possession but not a right to rehab.
Conservatives blame California’s homelessness problem and related woes on permissive liberal governance, but the truth is that neither left nor right would intentionally design a system this dysfunctional. It’s a Frankenstein’s monster created by mating civil libertarianism with austerity. Some factors make California distinctive, including notorious caps on property taxes and unusually high housing prices. But as the country begins to ease hard-line views on issues like homelessness and addiction, there is nothing preventing this sort of tolerant containment from becoming the national default for social policies. As California demonstrates, it’s a situation that’s all too easy to fall into when looser restrictions aren’t accompanied by any serious attempt to address the underlying social problems.
Historically, the roots of tolerant containment can be traced to the 1960s and ’70s, when California served as the national model for both psychiatric deinstitutionalization and the “great tax revolt.” Following critiques of asylum abuses and costs, the 1967 Lanterman-Petris-Short Act established new rights to refuse treatment and a dramatic reduction in hospitalization. Combined with Gov. Ronald Reagan’s slashing of state services — driven partly by budget concerns, partly by ideological hostility to government — such reforms led to patients being released en masse without anywhere to go (as in June 1972, when Agnews State Hospital dumped nearly 4,000 patients into San Jose, creating a mental health ghetto).
In 1978, the passage of state referendum Proposition 13 destabilized municipal budgets by rolling back property taxes to 1 percent of assessed value in 1976, with increases in the assessments limited to 2 percent annually. The state’s income taxes, though relatively high, could not make up for the shortfall. Still, upon seeing the political popularity of Prop 13, even Democratic Gov. Jerry Brown declared himself a “born-again tax cutter” and proponent of restrained spending.
That period in California’s history set the precedent of (limited) respect for civil liberties accompanied by (extreme) deference to the market, private property and fiscal constraint. The exception was prison expansion. As Reagan moved from California to the White House, and for decades to come, the state and the nation invested in mass incarceration. Punishment could serve as the temporary “fix” for crises of economic dislocation and racial strife. Putting more and more people behind bars “managed,” in the most superficial sense, the social problems stemming from deindustrialization-related job losses and Reagan’s welfare state cuts.
But the tide is turning against that tool of social control. California’s prison population peaked in 2006 and had decreased by nearly 30 percent by 2019. Yet even as many people finally leave incarceration, they struggle to access jobs, supportive services or housing; former prisoners are almost 10 times more likely to become homeless than the general population, according to the Prison Policy Initiative.
Sadly, negligent tolerance is very easily normalized. Liberal San Franciscans learn to step over people sleeping in the street and occasionally call 311 to complain. Conservatives discover that the “broken windows” theory of policing — the notion that failing to punish minor crimes leads to major crimes — is overstated. (University of California at Irvine criminologists and a nonpartisan think tank both concluded that the decline in drug arrests and increase in prisoner releases caused by Prop 47 had no effect on violent crime rates. There may have been a contribution to theft, but the effect was small and hotly debated.) No one likes the social policy compromise, but they can learn to live with it.
As some cities experiment with reducing police budgets and curbing the enforcement of misdemeanor crimes, they should look to California for lessons in half-victories. Too many centrist Democrats across the nation still buy into the right-wing vision of austerity, as Brown did. Potentially productive reforms — such as Oregon’s decriminalization of drug possession and Baltimore’s decision to stop prosecuting many low-level crimes — will work only if paired with substantial investment in social programs. There is already evidence that the tolerant containment model is spreading well beyond California: Last year, New Jersey’s pandemic-related early prison release initiative freed thousands of inmates but stranded them without crucial reentry resources like housing, job assistance and continuity of medical care. Seattle’s city-sanctioned homeless villages resemble those in Los Angeles, and New York’s transfer of psychiatric patients from restrictive group settings to their own apartments was not accompanied by the support services that could make independence possible. As ProPublica concluded, people in that program were granted a right of sorts — the “right to fail."
To be sure, many conservatives remain inclined to baldly punish the poor, unhoused, addicted and psychiatrically unwell. But even many supposed reformers are trapped in the mind-set of offering bare-bones solutions. In Los Angeles, District Judge David Carter last month ordered the city to provide shelter to everyone in the Skid Row neighborhood within 180 days, after which police may resume limited enforcement against nearby encampments. The judge indicted the city’s policy failures and history of racism, but activists fear that his call for shelter will simply perpetuate the cycle of half-measures, followed by more raids like those that took place three miles north in Echo Park.
Perhaps Democratic politicians, newly emboldened and prodded by their left wing, can do better. Last year, I wrote that rising crime rates driven by the pandemic economy might lead to a backlash, justifying in voters’ minds Trumpian law-and-order politics. Yet that didn’t bear out, and now I am cautiously optimistic. President Biden, who claims to regret his past role in promoting mass incarceration, seems to be choosing social investment over punishment. His $1.9 trillion American Rescue Plan — followed by the proposed American Jobs Plan — certainly shows commitment to the idea that smart, big government can effect real change.
In L.A., Democratic Mayor Eric Garcetti has proposed a new budget, bolstered by money from the federal coronavirus rescue plan, that includes close to $1 billion to combat homelessness. Justly criticized for inadequate management of the homelessness crisis, Garcetti now aims to go big on affordable-housing development and protections against eviction; he’s also proposed spending $24 million on a pilot program for a universal basic income. Gov. Gavin Newsom (D) subsequently proposed a historic $12 billion anti-homelessness budget. If the federal government joined this commitment, that could signal a break from both criminalization and tolerant containment.
Americans are finally questioning police and prisons as a cure-all for social problems. It’s also time to question policies that implement civil liberties and decriminalization without social investments backing them up. The right to sleep outside, to use drugs or to refuse psychiatric treatment can become a cruel joke if not matched with the rights to permanent housing and health care.
Progressives have been taking what they can get in the courts, but that amounts to freedom on the cheap. Conservatives, meanwhile, should recognize that remedies for social disorder require investing in public goods. Overall, until we get out of the austerity trap, victories on civil liberties and decriminalization will provide the veneer of rights, but not substantive freedom.