Homelessness— A Cruel Punishment: Rethinking Homelessness as a Status Crime

More than 550,000 people in the United States experience homelessness on a daily basis. [1] In January 2021 in one night alone, the Housing and Urban Development reported that more than 326,000 people were experiencing homelessness. [2] The crisis of homelessness has long been perpetuated by a flawed legal system that criminalizes survival behaviors such as sleeping, eating or sitting in public.[3] In many ways, cities across the U.S. have made it a crime to be homeless.

Individuals who are homeless are 11 times more likely to be arrested than individuals who are housed. [4] This is because laws that criminalize homelessness punish individuals for a condition, they are helpless to avoid. [5] People experiencing homelessness, lack the safety of a private place and are forced to survive in public, a lifestyle fraught with risk. [6] The criminalization of homelessness refers to laws that prohibit or restrict one's ability to engage in necessary life-sustaining activities in public where no reasonable alternative exists.[7] Instead of offering a solution to the growing crisis of homelessness, the continued criminalization of homelessness perpetuates the cycle of homelessness. The National Law Center on Homelessness and Poverty conducted a survey of 187 cities in 2019, finding 37% of cities surveyed ban camping, 21% ban sleeping in public, 55% ban sitting and lying down in public, 35% ban loitering, loafing, and vagrancy, and 38% ban begging citywide.[8] Such laws are unpopular among advocates. Challenges to anti-homeless laws are often brought under a claim for violating the Eighth Amendment.

The Eighth Amendment prohibits cruel and unusual punishments, affording protection against barbaric punishments.[9] The Supreme Court stated in Ingraham v. White, that the cruel and unusual punishment clause "limits the kind of punishment that can be imposed on those convicted of crimes, ... proscribes punishment grossly disproportionate to the severity of the crime, ... [and] imposes substantive limits on what can be made criminal and punished as such."[10] 

In  Robinson v. California, the Supreme Court held that “the law may not punish a mere condition; only acts may be made the subject of criminal legislation."[11] Similarly, in Powell v. Texas, where an individual challenged a statue criminalizing alcoholism as conduct that was harmful to the public, Justice Fortas, writing in the dissent, argued that criminal penalties should not be imposed on a person for being in a condition he is powerless to change.[12]  Since the Powell decision, lower courts began to strike down laws that criminalized homelessness.[13] Advocates for homelessness have brought cases asserting that homelessness cannot be treated as a status crime. [14] 

In 2019, the Ninth Circuit addressed the constitutionality of ordinances that prohibit sleeping or camping outdoors in public space.[15] The court ruled that such ordinances violated the Eighth Amendment by prosecuting individuals for "involuntarily sitting, lying and sleeping in public" when no sleeping space was "practically available in any shelter" at the time of the plaintiffs' arrests. In effect the Ninth Circuit made it impermissible to punish individuals for being homeless as a status.[16] Courts are split on the decision to treat homelessness as a status crime.[17] Some courts will not treat homelessness as a status because statutes criminalizing homelessness target specific types of conduct. Other courts assert homelessness is not a status because it is a condition that depends on the discretionary acts. [18] Those that do view homelessness as a status, focus on its involuntary nature. [19] In Johnson v. City of Dallas,  the court found "being [homeless] does not exist without sleeping," and thus criminalizing sleeping punishes homeless individuals for a status that "forces them to be in public.”[20] As such, criminal liabilities placed on those who are homeless is an act of cruelty in itself.[21] Despite several lower court decisions that have deemed the criminalization of homelessness based on status as a cruel punishment, the Supreme Court has yet to explain the scope of the status crimes doctrine.[22]

The criminalization of homelessness leaves people with no place to carry out the most basic of life’s functions and penalizes them for their existence in public spaces.[23] The focus going forward should be on ending the criminalization of homelessness and redirecting efforts to change one’s status, instead of penalizing a group of people for being. Individuals who are charged with violating anti-homeless laws, such as loitering, are often burdened with excessive fines or even face jail time.[24] As a result, the consequence of the criminalization of homelessness perpetuates the cycle of poverty instead of offering a solution.

Until the Supreme Court affirms the Martin interpretation of status crimes[25] the implications of homelessness as a status crime threaten the social and economic mobility of individuals who are homeless.[26] By affirming the Ninth Circuit’s Martin ruling, the Supreme Court can protect the dignity of homeless people and break the cycle of homelessness.[27] Until then, people who are homeless will continue to face criminal charges as a result their status being denied their constitutional protections from cruel punishments for punishing some one based on their status is just that— a cruel punishment.

[1] National Alliance to end Homelessness, State of Homelessness:2021 Edition, https://endhomelessness.org/homelessness-in-america/homelessness-statistics/state-of-homelessness-2021/, (last accessed Feb. 22, 2022).

[2] Meghan Henry et al., U.S. Dep’t of Housing and Urban Development, Office of Community Planning and Development, The 2021 Annual Homeless Assessment Report to Congress, 4(February 2022), https://www.huduser.gov/portal/sites/default/files/pdf/2021-AHAR-Part-1.pdf [hereinafter AHAR].

[3] Madeline Baliey et al., No Access to Justice: Breaking the Cycle of Homelessness and Jail, The Vera Institute

(Aug. 2020), https://philanthropynewsdigest.org/features/research-briefs/no-access-to-justice-breaking-the-cycle-of-homelessness-and-jail [hereinafter ‘No Access to Justice].

[4] Baliey supra note 3.

[5] Harry Simon, Towns Without Pity: A Constitutional and Historical Analysis Of Official Efforts To Drive Homeless Persons From American Cities., 66 Tul. L. Rev. 631(1992).

[6] Id.

[7] Sara K. Ratkin, Punishing Homelessness, 22 New Crim. L. R. 99,102(2019).

[8] Joy Kim, The Case Against Criminalizing Homelessness: Functional Barriers To Shelters And Homeless Individuals' Lack Of Choice, 95 N.Y.U.L. Rev. 1150,1153(2020).

[9] Ryan P. Isola, Homelessness: The Status of the Status Doctrine, 54 U.C. Davis L. Rev. 1725(2021).

[10] Ingraham v. Wright, 430 U.S. 651, 667 (1977).

[11] Note,The Cruel and Unusual Punishment Clause and the Substantive Criminal Law, 79 Harv. L. Rev. 635, 650-55 (1966).

[12] Powell v. Texas, 392 U.S. 514, 554 (1968)( Fortas, J., dissenting).

[13] Isola supra note 10.

[14] Kim supra note 9 at 1161.

[15] Id.

[16] Id.

[17] Id. 

[18] Id.

[19] See Kim supra note 9 at 1163.

[20] Johnson v. City of Dallas, 860 F. Supp. 344, 350 (N.D. Tex. 1994).

[21] See Simon, supra note 5.

[22] See Isola, supra note 10.

[23] Id.

[24] Id.

[25] Id.

[26] Farida Ali, Limiting the Poor's Right to Public Space: Criminalizing Homelessness in California, 21 Geo. J. Poverty Law & Pol'y 197, 230 (Spring 2014).

[27] See Isola, supra note 10.