Constitutional Right to Sleep

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“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.”

It’s unconstitutional to ban the homeless from sleeping outside, the federal government says, Washington Post, August 13 2015, By Emily Badger

In this case, Plaintiffs are homeless individuals who were convicted of violating certain city ordinances that prohibit camping and sleeping in public outdoor places.7 They claim that the City of Boise and the Boise Police Department’s (“BPD”) enforcement of these ordinances against homeless individuals violates their constitutional rights because there is inadequate shelter space available in Boise to accommodate the city’s homeless population. Plaintiffs argue that criminalizing public sleeping in a city without adequate shelter space constitutes criminalizing homelessness itself, in violation of the Eighth Amendment.

But these concerns are not at issue when, as here, they are applied to conduct that is essential to human life and wholly innocent, such as sleeping. No inquiry is required to determine whether a person is compelled to sleep; we know that no one can stay awake indefinitely. Thus, the Court need not constitutionalize a general compulsion defense to resolve this case; it need only hold that the Eighth Amendment outlaws the punishment of  unavoidable conduct that we know to be universal. Moreover, unlike the hypothetical hard cases that concerned the Powell plurality, the conduct at issue in the instant case is entirely innocent. Its punishment would serve no retributive purpose, or any other legitimate purpose. As the plurality in Powell itself noted, “the entire thrust of Robinson’s interpretation of the Cruel and Unusual Punishment Clause is that criminal penalties may be inflicted only if the accused has committed some act [or] has engaged in some behavior which society has an interest in preventing.” Powell, 392 U.S. at 533 (emphasis added)

-JANET F. BELL, et al. V. CITY OF BOISE, et al., STATEMENT OF INTEREST OF THE UNITED STATES, Case 1:09-cv-00540-REB Document 276, United States Department of Justice, Office of Public Affairs, Filed 08/06/15

Criminalizing Violates Human Rights

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Page 27: Criminalizing homelessness violates basic human rights as well as treaties that our country has signed and ratified. In 2012, the U.S. Interagency Council on Homelessness (USICH) and the U.S. Department of Justice (DOJ) agreed, in a major joint report, Searching out Solutions: Constructive Alternatives to the Criminalization of Homelessness. The agencies noted that, in addition to raising constitutional issues, criminalization of homelessness may “violate international human rights law, specifically the Convention Against Torture and the International Covenant on Civil and Political Rights.” Since then, the USICH has repeatedly addressed criminalization as not only a domestic civil rights violation, but as a human rights violation.

Page 30: Criminalization measures waste limited state and local resources.70 Rather than addressing the causes of homelessness and helping people escape life on the streets, criminalization “creates a costly revolving door that circulates individuals experiencing homelessness from the street to the criminal justice system and back.”71 A growing body of research comparing the cost of homelessness to the cost of providing housing to homeless people consistently shows that housing, rather than jailing, homeless people is the much more successful and cost-effective option.

No Safe Place: The Criminalization of Homelessness in US Cities (PDF), July 2014, The National Law Center on Homelessness & Poverty (NLCHP)

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Exacerbating the Problem

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Violations do result in arrest in many cities, however. And the NLCHP points to a number of reports finding that the cost of enforcing these laws greatly exceeds the amount it would cost to provide people with options like affordable housing or shelter.

“Arrested homeless people return to their communities, still with nowhere to live,” the report states. “Moreover, criminal convictions — even for minor crimes — can create barriers to obtaining critical public benefits, employment, or housing, thus making homelessness more difficult to escape.”

‘Illegal to be homeless’ in growing number of cities, CNN Money, July 16 2014, by Blake Ellis @blakeellis3

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University of Chicago sociologist Forrest Stuart spent five years hanging out on Los Angeles’s grittiest streets for his new book, Down, Out and Under Arrest: Policing and Everyday Life in Skid Row. “I figured this was ground zero for trying to start over, for testing the American bootstraps story, and I wanted to see if and how it could work,” Stuart explains

Right away I started seeing how the police, in part just because of their numbers in Skid Row, were creating a situation I’d never seen before. Just as a guy was starting to get on his feet—for example, he had finally secured a bed at a shelter—some small infraction would cut him back.

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It could be as little as getting a single ticket for loitering. For people living on dollars at day, to suddenly have to pay $150 for a sidewalk ticket is huge! If they don’t pay, they can be arrested. Not only do they have to spend time in jail, they usually lose their bed at the shelter or their room in low-rent apartments. In a lot of shelters or apartments, if someone doesn’t show up at the end of the day, the managers give away all their things. So now they’d be right back to square one. Broke, homeless, just trying to get a roof over their head. The bootstraps were cut.

This Sociologist Spent Five Years on LA’s Hyper-Policed Skid Row. Here’s What He Learned, Mother Jones, by Maria Streshinsky, Aug. 1, 2016