A Dream Denied:
The Criminalization of Homelessness in U.S. Cities
Criminalization Measures Violate Constitutional Rights
Measures that criminalize homelessness are legally problematic and do not make sense from a policy standpoint. Laws that make it difficult for homeless persons to stay in downtown areas of cities force homeless persons away from crucial services and outreach. When a homeless person is arrested under one of these laws, he or she develops a criminal record, making it more difficult to obtain employment or housing. Further, criminalizing homelessness is an inefficient allocation of resources. It costs more to incarcerate someone than it does to provide supportive housing.
Homeless persons and advocates throughout the country have worked to prevent the passage of laws and to halt policies and practices that criminalize homelessness. Unfortunately, cities and police departments sometimes do not respond to such advocacy in any productive way. When local governments fail to respond to policy advocacy, homeless persons and their advocates have turned to litigation to end these laws and practices.
As successful litigation has shown, many of the practices and policies that punish the public performance of life-sustaining activities by homeless persons violate the constitutional rights of homeless persons.
I. Anti-Panhandling Ordinances
One way that cities have targeted poor and homeless individuals is by passing laws that prohibit panhandling, solicitation, or begging. Depending on the scope of the ordinance, these types of laws can infringe on the right to free speech under the First Amendment. Courts have found begging to be protected speech. Laws that restrict speech too much, target speech based on its content, and do not allow for alternative channels of communication can violate the First Amendment.
Some courts have found laws that prohibit begging or panhandling unconstitutionally vague. A law is unconstitutionally vague if its language is not definite enough to give people notice of what is prohibited or if police could enforce the law in an arbitrary manner.
II. Anti-Camping or Anti-Sleeping Measures
As many cities do not have adequate shelter space, homeless persons are often left with no alternative but to sleep and live in public spaces, such as sidewalks and parks. Even while cities are not dedicating enough resources to give homeless persons access to housing or shelters, some cities have enacted laws that impose criminal penalties upon people for sleeping outside. For example, in Atlanta, the law prohibits what is called “Urban Camping.”
These punishments for sleeping outside have been challenged in courts for violating homeless persons’ civil rights. Some courts have found that arresting homeless people for sleeping outside when no shelter space exists violates their Eighth Amendment right to be free from cruel and unusual punishment.
Advocates also have contended that arresting people for sleeping outside violates the fundamental right to travel. If people are arrested for sleeping in public in a city or certain areas of a city, those arrests have the effect of preventing homeless people from moving within a city or coming to a city, thereby interfering with their right to travel.
III. Loitering Measures
Another tool that cities have used to target people who live outside and on the streets are laws that prohibit loitering. Due to the broad scope of prohibited behavior under loitering laws, cities have used these to target homeless people in public spaces. Fortunately, cities have found these laws less useful, as the Supreme Court has overturned several loitering laws for being unconstitutionally vague.
In several cases, the Supreme Court has found vagrancy and loitering ordinances unconstitutional due to vagueness, in violation of the Due Process Clause of the Fourteenth Amendment of the Constitution. A statute is unconstitutionally vague if it does not give a person notice of prohibited conduct and encourages arbitrary police enforcement. Since many loitering laws have similarly broad and vague language, homeless persons and advocates have a strong argument that such laws violate the Due Process Clause of the Fourteenth Amendment.
Cities also target people experiencing homelessness by conducting sweeps of areas where a person or several persons are living outside. Sometimes, police or local government employees will go through an area where people are living and confiscate and destroy people’s belongings in an attempt to “clean up” an area. While city workers may have the right to clean public areas, they must take certain measures to avoid violating people’s right to be free from unreasonable searches and seizures guaranteed by the Fourth Amendment.
A seizure of property violates the Fourth Amendment when a governmental action unreasonably interferes with a person or his/her property. Courts have found that police practices of seizing and destroying personal property of homeless people violate these constitutional rights under the Fourth Amendment. In addition, some courts have also affirmed homeless persons’ right to be free from unreasonable searches even if their belongings are stored in public spaces.
V. Curfew Laws
Some cities have passed laws that impose curfews on minors. These laws can pose problems for unaccompanied youth experiencing homelessness. Courts have overturned some of these laws for violating minors’ right to free expression, right to freely move, and equal protection rights. In still other cities, many parks impose curfews.
VI. Restrictions on Feedings
Cities also have indirectly targeted homeless people by restricting service providers’ feeding programs. Historically, cities have attempted to restrict feedings on providers’ property through zoning laws. More recently, some cities have passed laws to restrict feedings in public spaces, such as parks. For faith-based or religious groups conducting feedings as an expression of their religious beliefs, courts have found city restrictions on feedings an unconstitutional burden on religious expression.
Litigation can protect the rights of homeless persons and pave the way for better city approaches to homelessness. Homeless persons bringing a civil action can receive damages or obtain injunctive or declaratory relief. In addition, many cases settle and result in policies or protocols that ensure homeless persons’ rights will be protected.
HOME | FULL REPORT (pdf) | Acknowledgements | Executive Summary | I. Trends in the Criminalization of Homelessness | II. Criminalization Measures Violate Constitutional Rights | III. Criminalization Measures Violate Human Rights Norms | IV. Constructive Alternatives to Criminalization | V. T op 20 Meanest Cities | VI. Meanest Cities’ Narratives | VII. Other Cities’ Narratives | VIII. CASES: Challenges to Restrictions on Sleeping, Camping, Sitting or Storing Property in Public Place [FEDERAL] [STATE] | Challenges to Anti-Begging, Anti-Soliciting and Anti-Peddling Laws | Challenges to Vagrancy, Loitering and Curfew Laws | Challenges to Restrictions on Feedings | Miscellaneous | IX. Prohibited Conduct Chart | X. APPENDIX:Survey Questions | Sample Know Your Rights Card | Sources for City Narratives |