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)

This report was covered in:

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

Australian Criminal Code Against Slavery

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Quotes From: The Commonwealth Criminal Code – Criminal Code Act 1995 (‘the Criminal Code’)

Division 270 — Slavery and slavery-like conditions
Subdivision A–Preliminary
Subdivision B–Slavery

270.1 Definition of slavery
For the purposes of this Division, slavery is the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person.

270.2 Slavery is unlawful
Slavery remains unlawful and its abolition is maintained, despite the repeal by the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 of Imperial Acts relating to slavery.

270.3 Slavery offences
(1) A person who, whether within or outside Australia, intentionally:
(aa) reduces a person to slavery; or
(a) possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership; or
(b) engages in slave trading; or
(c) enters into any commercial transaction involving a slave; or
(d) exercises control or direction over, or provides finance for:
(i) any act of slave trading; or
(ii) any commercial transaction involving a slave;

Commonwealth Consolidated Acts, CRIMINAL CODE ACT 1995 – SCHEDULE The Criminal Code

Australian Legal Framework, Anti-Slavery Australia

Victims of Trafficking and Violence Protection Act of 2000

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A complete list of laws can be found here: U.S. Laws on Trafficking in Persons

Quotes From: Victims of Trafficking and Violence Protection Act of 2000

SEC. 102. PURPOSES AND FINDINGS.

    a) PURPOSES- The purposes of this division are to combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims.
    (b) FINDINGS- Congress finds that:
      (13) Involuntary servitude statutes are intended to reach cases in which persons are held in a condition of servitude through nonviolent coercion. In United States v. Kozminski, 487 U.S. 931 (1988), the Supreme Court found that section 1584 of title 18, United States Code, should be narrowly interpreted, absent a definition of involuntary servitude by Congress. As a result, that section was interpreted to criminalize only servitude that is brought about through use or threatened use of physical or legal coercion, and to exclude other conduct that can have the same purpose and effect.
      (14) Existing legislation and law enforcement in the United States and other countries are inadequate to deter trafficking and bring traffickers to justice, failing to reflect the gravity of the offenses involved. No comprehensive law exists in the United States that penalizes the range of offenses involved in the trafficking scheme. Instead, even the most brutal instances of trafficking in the sex industry are often punished under laws that also apply to lesser offenses, so that traffickers typically escape deserved punishment.
      (15) In the United States, the seriousness of this crime and its components is not reflected in current sentencing guidelines, resulting in weak penalties for convicted traffickers.
      (16) In some countries, enforcement against traffickers is also hindered by official indifference, by corruption, and sometimes even by official participation in trafficking.

SEC. 103. DEFINITIONS.

      (2) COERCION- The term `coercion’ means–
        (A) threats of serious harm to or physical restraint against any person;
        (B) any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; or
        (C) the abuse or threatened abuse of the legal process.
      (3) COMMERCIAL SEX ACT- The term `commercial sex act’ means any sex act on account of which anything of value is given to or received by any person.
      (4) DEBT BONDAGE- The term `debt bondage’ means the status or condition of a debtor arising from a pledge by the debtor of his or her personal services or of those of a person under his or her control as a security for debt, if the value of those services as reasonably assessed is not applied toward the liquidation of the debt or the length and nature of those services are not respectively limited and defined.
      (5) INVOLUNTARY SERVITUDE- The term `involuntary servitude’ includes a condition of servitude induced by means of–
        (A) any scheme, plan, or pattern intended to cause a person to believe that, if the person did not enter into or continue in such condition, that person or another person would suffer serious harm or physical restraint; or
        (B) the abuse or threatened abuse of the legal process.

SEC. 108. MINIMUM STANDARDS FOR THE ELIMINATION OF TRAFFICKING.

        (a) MINIMUM STANDARDS- For purposes of this division, the minimum standards for the elimination of trafficking applicable to the government of a country of origin, transit, or destination for a significant number of victims of severe forms of trafficking are the following:
          (1) The government of the country should prohibit severe forms of trafficking in persons and punish acts of such trafficking.
          (2) For the knowing commission of any act of sex trafficking involving force, fraud, coercion, or in which the victim of sex trafficking is a child incapable of giving meaningful consent, or of trafficking which includes rape or kidnapping or which causes a death, the government of the country should prescribe punishment commensurate with that for grave crimes, such as forcible sexual assault.
          (3) For the knowing commission of any act of a severe form of trafficking in persons, the government of the country should prescribe punishment that is sufficiently stringent to deter and that adequately reflects the heinous nature of the offense.
          (4) The government of the country should make serious and sustained efforts to eliminate severe forms of trafficking in persons.

Victims of Trafficking and Violence Protection Act of 2000

UK Modern Slavery Act of 2015

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Slavery, servitude and forced or compulsory labour

(1)A person commits an offence if—
(a)the person holds another person in slavery or servitude and the circumstances are such that the person knows or ought to know that the other person is held in slavery or servitude, or
(b)the person requires another person to perform forced or compulsory labour and the circumstances are such that the person knows or ought to know that the other person is being required to perform forced or compulsory labour.

(2)In subsection (1) the references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with Article 4 of the Human Rights Convention.

(3)In determining whether a person is being held in slavery or servitude or required to perform forced or compulsory labour, regard may be had to all the circumstances.

(4)For example, regard may be had—
(a)to any of the person’s personal circumstances (such as the person being a child, the person’s family relationships, and any mental or physical illness) which may make the person more vulnerable than other persons;
(b)to any work or services provided by the person, including work or services provided in circumstances which constitute exploitation within section 3(3) to (6).

(5)The consent of a person (whether an adult or a child) to any of the acts alleged to constitute holding the person in slavery or servitude, or requiring the person to perform forced or compulsory labour, does not preclude a determination that the person is being held in slavery or servitude, or required to perform forced or compulsory labour.

Human trafficking

(1)A person commits an offence if the person arranges or facilitates the travel of another person (“V”) with a view to V being exploited.

(2)It is irrelevant whether V consents to the travel (whether V is an adult or a child).

UK Modern Slavery Act of 2015

The issue of protection for overseas domestic workers was a frustrating one. The draft Bill was silent on the plight of hundreds of workers enslaved in households in the UK. But, following sustained pressure and hands-on advocacy in which Anti-Slavery supported Kalayaan and others, a historic vote was taken in the House of Lords which brought back domestic workers’ right to leave an abusive employer. Unfortunately, the government remained deaf to our arguments and passed its own amendment requiring domestic workers to receive a positive decision from the National Referral Mechanism confirming they have been trafficked before allowing them to change employers. It is a bad decision that will deter domestic workers who face abuse and exploitation from coming forward to the authorities. On the other hand, it is a major achievement in itself that the Act now contains a specific provision on overseas domestic workers which is a gateway to getting better protection for this vulnerable group of workers in future. The fight on that issue continues.

Another momentous shift in the Government’s position was the introduction of the requirement for large companies to annually report on efforts to identify and address modern slavery in their supply chains. We worked with a coalition of NGOs, business and investors to persuade the Government that mandatory, rather than voluntary, disclosure in relation to company supply chains is the way forward.

It is a shame then that a loophole has been identified which allows companies hide their supply chains overseas as long as the goods they produce don’t end up in Britain. This, for example, means letting off the hook companies building sites for the FIFA World Cup in Qatar.

Finally, a major shortcoming in the Act is the lack of an extraterritoriality of slavery offence. This means that a British citizen could abuse someone overseas and not be held to account back in UK.

Big step in the right direction but deficiencies leave us – and victims of modern slavery – wholly unsatisfied“, AntiSlavery.org, by Klara Skrivankova

Admiration List: Bryan Stevenson

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Bryan Stevenson is known for defending people on death row. He specializes in helping people who have nowhere else to go. He built the Equal Justice Initiative and has earned international respect for the work he does. All of this more than earns my admiration.

However, the reason I would like to either meet him or attend one of his speeches is because of the following quote:

My work with the poor and the incarcerated has persuaded me that the opposite of poverty is not wealth; the opposite of poverty is justice.

I heard him say this during his TED talk and found it in his book. The first time I heard it, my reaction was this: “FINALLY! Someone came right out and SAID that!”

This is definitely someone I would like to meet.

Link

The Protocol on Forced Labour

It’s a legally-binding treaty that requires governments to take new measures to tackle modern slavery in all its forms. It works on three main levels: protection, prevention and compensation. As an international treaty, countries must first ratify the Protocol before it enters into force.

50 For Freedom: The Protocol

50 For Freedom: Modern Slavery

Guideline 3 – Possession is Foundational to Slavery

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Possession is foundational to an understanding of the legal definition of slavery, even when the State does not support a property right in respect of persons. To determine, in law, a case of slavery, one must look for possession.

While the exact form of possession might vary, in essence it supposes control over a person by another such as a person might control a thing. Such control may be physical, but physical constraints will not always be necessary to the maintenance of effective control over a person. More abstract manifestations of control of a person may be evident in attempts to withhold identity documents; or to otherwise restrict free movement or access to state authorities or legal processes; or equally in attempts to forge a new identity through compelling a new religion, language, place of residence, or forcing marriage.

Fundamentally, where such control operates, it will significantly deprive that person of his or her individual liberty for a period of time which is, for that person, indeterminate.

Bellagio-Harvard Guidelines on the Legal Parameters of Slavery by the Members of the Research Network on the Legal Parameters of Slavery, March 2012

Super-Predator Mythology

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The predictions of “super-predators” proved wildly inaccurate. The juvenile population in America increased from 1994 to 2000, but the juvenile crime rate declined, leading academics who had originally supported the “super-predator” theory to disclaim it. In 2001, the surgeon general of the United States released a report labeling the “super-predator” theory a myth and stated that “[t]here is no evidence that young people involved in violence during the peak years of the early 1990s were more frequent or more vicious offenders than youths in earlier years.” This admission came too late for kids like Trina, Ian, and Antonio. Their death-in-prison sentences were insulated from legal challenges or appeals by a maze of procedural rules, statutes of limitations, and legal barricades designed to make successful postconviction challenges almost impossible.

Just Mercy: A Story of Justice and Redemption by Bryan Stevenson