Anti-homelessness legislation

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Man sleeps on the street, something anti-homelessness legislation seeks to regulate.

Anti-homelessness legislation can take two forms; legislation that aims to help and re-house homeless people, and legislation that is intended to criminalize homelessness and/or send the homeless to homeless shelters compulsively.

International law

Since the publication of the Universal Declaration of Human Rights (Charter of the United Nations — UN) in 1948, the public perception has been increasingly changing to a focus on the human right of housing, travel and migration as a part of individual self-determination rather than the human condition. The Declaration, an international law reinforcement of the Nuremberg Trial Judgements, upholds the rights of one nation to intervene in the affairs of another if said nation is abusing its citizens, and rose out of a 1939–1945 World War II Atlantic environment of extreme split between "haves" and "have nots." The modern study of homeless phenomena is most frequently seen in this historical context.

Laws supporting the homeless

Laws supporting homeless people generally place obligations on the state to support or house homeless people.

Scotland

The Scottish parliament passed the Homelessness Etc (Scotland) Act 2003 which has an aim of ensuring that by 2012 everyone assessed as being unintentionally homeless will be entitled to permanent accommodation. In addition, the Homeless Persons (Unsuitable Accommodation) (Scotland) Order came into force in December 2004 and requires councils to ensure that pregnant women and households with children are not placed in unsuitable temporary accommodation, unless there are exceptional circumstances.^[1]

United States

The charter of the McKinney-Vento Homeless Assistance Act of 1986 (Stewart B. McKinney Homeless Assistance Act) is to "coordinate the Federal response to homelessness and to create partnerships between the Federal agencies addressing homelessness and every level of government and every element of the private sector".^[2]

Laws criminalizing the homeless

Use of the law to discriminate against the homeless generally takes on one of four forms: restricting the public areas in which sitting or sleeping are allowed, prohibiting begging, removing the homeless from particular areas, or enforcing laws on the homeless and not on those who are not homeless.^[3] The French novelist Anatole France noted this phenomenon as long ago as 1894, famously observing that "the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges".^[4]

England and Wales

The Vagrancy Act 1824 makes it an offence to sleep on the streets or to beg. In essence, therefore, it is a crime in England and Wales to be homeless or to cadge subsistence money. When the Act was passed, criticism of it centred on the fact that it created a catch-all offence. To sleep on the streets or to beg subsistence became a crime, whatever reason an individual might have had for being in such a predicament. That provision still pertains today in England and Wales. So far as it extended to Scotland, it was repealed by the Civic Government (Scotland) Act 1982.

United States

It is alleged there is a growing trend in the United States towards criminalizing the state of being homeless.^[5] Proponents of this approach believe that punitive measures will deter people from "choosing" to be homeless. To this end, cities across the country increasingly outlaw life-sustaining activities—such as sleeping, eating, sitting, and begging—in public spaces, and selectively enforce more neutral laws—such as those prohibiting open containers or loitering—against homeless populations.^[6] Violators of such laws typically incur criminal penalties, which result in fines and/or incarceration. Homeless people with new "criminal charges" have very restrictive housing and employment options, if either, for years.

In April, 2006 the United States Court of Appeals for the Ninth Circuit ruled that "making it a crime to be homeless by charging them with a crime is in violation of the 8th and 14th Amendments." [1]

The following are pertinent excerpts of that transcript vs corresponding illegal laws:

L.A., Cal., Mun. Code ss 41.18(d) (2005). A violation of section 41.18(d) is punishable by a fine of up to $1000 and/or imprisonment of up to six months. — Id. ss 11.00(m).

The City could not expressly criminalize the status of homelessness by making it a crime to be homeless without violating the Eighth Amendment, nor can it criminalize acts that are an integral aspect of that status. Because there is substantial and undisputed evidence that the number of homeless persons in Los Angeles far exceeds the number of available shelter beds at all times, including on the nights of their arrest or citation, Los Angeles has encroached upon Appellants' Eighth Amendment protections by criminalizing the unavoidable act of sitting, lying or sleeping at night while being involuntarily homeless. The defense encompasses the very difficulties that Jones posits here: sleeping on the streets because alternatives were inadequate and economic forces were primarily to blame for his predicament. Id. at 390. Jones argues that he and other homeless people are not willing or able to pursue such a defense because the costs of pleading guilty are so low and the risks and challenges of pleading innocent are substantial.

— id. at 568 n.31 (Fortas, J., dissenting); the Eighth Amendment prohibits the City from punishing involuntary sitting, lying, or sleeping on public sidewalks that is an unavoidable consequence of being human and homeless without shelter in the City of Los Angeles.

By our decision, we in no way dictate to the City that it must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets of Los Angeles at any time and at any place within the City. All we hold is that, so long as there is a greater number of homeless individuals in Los Angeles than the number of available beds, the City may not enforce section 41.18(d) at all times and places throughout the City against homeless individuals for involuntarily sitting, lying, and sleeping in public.

Critics of homeless criminalization claim that such measures do nothing to actually solve homelessness and in fact make matters worse. Homeless people find it harder to secure employment, housing, or federal benefits with a criminal record, and therefore penalizing the act of being homeless makes exiting such a situation much more difficult. In fact, a recent federal appeals court ruled an anti-homeless policy in Los Angeles as unconstitutional.^[7] Similarly, in response to growing reports of hate crimes, some state governments have proposed the addition of "people experiencing homelessness" to their hate-crimes statutes. Many credit the advocacy work of organizations such as the National Coalition for the Homeless—which publishes annual reports documenting both hate crimes^[8] and criminalization^[9] trends—for shedding light on these largely neglected issues.

References