By Amaury A. Reyes-Torres
According to the National Alliance to End Homelessness, around 578,400 people in the United States experienced homelessness in a single night in January 2014. Over the past year and a half, this number may have increased due to job insecurity, extreme poverty and inadequate access to mental health services, among other reasons.
Many states are currently experiencing a real deficit of available space to house homeless individuals, resulting in numerous people not being able to stay at shelters. These individuals have no other choice but to sleep on sidewalks, in parks or under highways. Laws passed to criminalize this conduct and homelessness itself has serious human rights implications and raises inequality concerns.
HOMELESSNESS AND CITY ORDINANCES: CRIMINALIZED WITHOUT A CHOICE
According to the National Law Center on Homelessness and Poverty, a growing number of local governments across the country have passed ordinances that criminalize sleeping on the streets, camping, panhandling and other public conduct that many homeless individuals engage in to survive. There are two fundamental problems with these types of ordinances. First, many cities lack sufficient space to otherwise provide adequate accommodations for the homeless. Second, cities that pass ordinances like these fail to consider that the presence of the homeless in public places is not a matter of choice. Many homeless individuals are forced to live on the streets due to circumstances beyond their control, such as a lack of shelter space. They have no place to go, and because of this, they are punished.
A recent case in Idaho is challenging these types of ordinances, with vast implications for ensuring human rights protections under domestic U.S. law. The case, Bell v. City of Boise, was brought by homeless individuals convicted for camping and sleeping in public places. They claim the ordinances passed by the city of Boise that criminalize certain public activities violate their constitutional rights because these laws impose a punishment when there is not adequate and available space to shelter.
In a recent statement of interest for the case, the Obama Administration argued that the court should consider the enforcement of these ordinances as Eighth Amendment violations when there is no available shelter space. According the administration, these ordinances are doing nothing but criminalizing the homeless who have no other choice but to sleep in the streets. Under these circumstances, the mere fact of being homeless, rather than any conduct, is being punished.
The Supreme Court has ruled that laws that punish status instead of conduct are unconstitutional. In the view of the Obama Administration, this is exactly what is happening with the homeless because “…the conduct of sleeping in a public place is indistinguishable from the status of homelessness” when there is no space available to perform a fundamental human activity like sleeping. When there are shelters available to accommodate the homeless, sleep is possible. But when no accommodation is possible due to the lack of shelter space, the homeless resort to public places to secure a place where an unavoidable need can be satisfied. Criminalizing this action is a punishment not for the conduct of sleeping in public places, but for homelessness itself. Therefore, such ordinances violate the Eighth Amendment right to be free from cruel and unusual punishment .
There is nothing new about this proposition. In Jones v. City of Los Angeles, the Ninth Circuit Court of Appeals ruled that the enforcement of ordinances prohibiting sleeping, sitting or sleeping in public as unconstitutional under the Eighth Amendment. Following this persuasive precedent, the current administration is asking the court to hold that punishing homeless people for sleeping in the streets when they have no other place to go is a cruel and usual punishment. Although Jones was vacated as result of a settlement, its reasoning is still important, and the court should use this legal framework when considering the constitutionality of the law in question.
The Obama Administration is also concerned with the consequences of these measures. It can be reasonably inferred from the submitted brief that there is a relationship between the cycle of poverty and criminalization. In fact, criminalization of homelessness neither increases society’s well-being nor attacks the causes of homelessness. As a result of this bad policy, the government fails to both reduce homelessness and to meaningfully include the homeless in civil and political life due to the stigma created by a criminal record for sleeping in the streets.
HOMELESSNES AND HUMAN RIGHTS
The criminalization of homeless is not just illegal under the Eighth Amendment, but also under Article 7 of the International Convent of Civil and Political Rights (ICCPR), to which the United States is a party. The United States understands Article 7’s prohibition of cruel and degrading punishment as cruel and unusual punishment under the Eighth Amendment. And if by criminalizing the homeless for not having a place to go to sleep violates the Eighth Amendment, then it also violates Article 7 of the ICCPR.
In 2014, the U.N. Human Rights Committee expressed its concerns regarding the criminalization of the homelessness in certain areas, despite efforts made by the U.S. Moreover, the committee not only said this situation raises concerns about cruel, inhuman or degrading treatment, but also of discrimination. Raquel Rolnik, the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living and on the right to non-discrimination in this context, also noted in his 2010 country visit report that the rise of local ordinances in the U.S. prohibiting various activities in public simply serve to punish homeless individuals, rather than addressing the lack of affordable housing, a root cause of homelessness. When adequate shelter space is unavailable, “homeless persons should be allowed to shelter themselves in public areas,” the Special Rapporteur said. After his visit, the U.S. Interagency Council on Homelessness and Department of Justice released a report in 2012 stating that these criminalization policies are not only illegal under domestic U.S. law, but may also violate the ICCPR and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), of which the U.S. is a state party.
The criminalization of homelessness also raises important economic, social and cultural rights concerns. The United States Constitution does not protect economic, social and cultural rights explicitly, nor is it a state party to the International Covenant on Economic, Social and Cultural Rights (ICESCR). The U.S. is a signatory to the ICESCR, and as such it has the obligation not to violate the object and purpose of that treaty. It is also important to remember that all rights are interconnected and each right has economic, social, cultural, civil or political rights implications. A violation of a civil right like that protected under the Eighth Amendment may have social and economic consequences. In fact, the principle of interdependence is one of the core principles of human rights, meaning that civil and political rights are inextricably tied to social, economic, cultural rights. According to the 1993 Vienna Declaration and Programme of Action, “[a]ll human rights are universal, indivisible and interdependent and interrelated,” and states must work to ensure all fundamental freedoms. The Inter-American Human Rights Court has further interpreted this concept to mean that there is an “…interdependence that exists between civil and political rights and economic, social and cultural rights, since they should be fully understood as human rights, without any rank and enforceable in all the cases before competent authorities.” The European Court of Human Rights reached a similar conclusion in its landmark judgment in Airy v. Ireland.
Under the U.S. Bill of Rights, the state does not have legal duty to provide shelter. However, the New York Constitution protects the “right to shelter” in article XVII. Moreover, cities, states and the federal government have a duty to refrain from violating federal constitutional rights, which mirror basic human rights. Fulfilling this obligation may even lead to the protection of social and economic rights through the provision of adequate shelters or other social welfare measures. As the Special Rapporteur on the Right to Adequate Housing noted in his 2010 report, the government should create constructive alternatives to the criminalization of homelessness, and may even need to increase housing stocks or assistance to ensure that rights are not violated.
INTERSECTIONALITY AND EQUAL PROTECTION
Not only do these ordinances violate the Eighth Amendment and the ICCPR, but they are also discriminatory in nature. According to the Substance Abuse and Mental Health Services Administration, a large number of the homeless population is composed of ethnic, sexual and other minorities. A report by the Office of Community Planning and Development reveals that almost 60 percent of the people who are currently homeless are non-white. And, a study led by researchers at Seattle University School of Law, found that of the homeless population, almost 42 percent are African Americans; 20 percent are Hispanics, 4 percent are Native American; and 2 percent are Asian. Also, 20 to 40 percent of homeless youth identify themselves as LGBTQ. This alarming data shows that certain groups are disproportionately affected by laws that criminalize homelessness, potentially in violation of protections under the ICCPR and the International Convention on the Elimination of All Forms of Discrimination (ICERD).
Indeed, a report by the U.N. Committee on the Elimination of All Forms of Racial Discrimination against Racial Discrimination on the U.S. said the Committee was “concerned at the high number of homeless persons, who are disproportionately from racial and ethnic minorities, Particularly African Americans, Hispanic/Latino Americans and Native Americans, and at the criminalization of homelessness through laws that prohibit activities such as loitering, camping, begging and lying down in public spaces (arts. 2 and 5 (e) [of ICERD])”.
The problem is not only how homelessness affects these minority groups, but also how historically marginalized and vulnerable groups are far from being equal under the law. The social discrimination suffered by homeless individuals is the product of multiple, intersecting factors, such as race, gender, sexual orientation and socioeconomic class. The homeless thus not only have to put up with the burden of living in the streets and having no place to go, but also face a particular form of intersectional discrimination. The aggregated effect of this discrimination does nothing more than perpetuate the exclusion of the homeless from civil, social and political life.
As cities across the nation are enforcing ordinances that punish camping or sleeping in public places, it is important to remember that criminalization is a last resort in democratic societies. When laws begin to punish victims instead of fighting the causes of homelessness, they perpetuate the cycle of poverty, injustice and inequality. It is never too late for the United States to live up to its human rights obligations under the ICCPR and the ICERD, as it works to fulfill its domestic constitutional rights and guarantees.
Amaury A. Reyes-Torres is a Staff Writer for Rights Wire
The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.
Photo credit: Tomas Castelazo/Creative Commons