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C. William Michaels: The homeless and the Eighth Amendment

In an obscure federal district court case in Idaho, the United States Department of Justice recently filed a statement of interest. The case involves the City of Boise and a challenge by several homeless people to a city ordinance prohibiting camping and sleeping in any public outdoor spaces. The “statement of interest” filed by the DOJ seeks to have the court employ the reasoning of a 9th U.S. Circuit Court of Appeals decision, Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006) (vacated after settlement, 505 F.3d 1006) (9th Cir. 2007).

That case extended the “cruel and unusual” language of the Eighth Amendment to city anti-camping ordinances and the enforcement of them against the homeless in Los Angeles. The plaintiffs in the Boise case argue similarly that criminalizing public sleeping in a city without adequate shelter space constitutes criminalizing homelessness itself – that is, criminalizing “status” in violation of the Eighth Amendment. However, the effect of the DOJ statement of interest goes far beyond Boise and may affect many other cities — including Baltimore.

At least 3,000 people will experience homelessness on any given night in Baltimore and more than 30,000 over the course of a year. Statewide, more than 50,000 people face homelessness annually, according to figures released by Health Care for the Homeless, a nonprofit entity involved in the problems of chronic homelessness, and the actual numbers most likely are much higher.

Nationally, the National Law Center on Homelessness and Poverty estimates that at least 3.5 million people, 1.35 million of them children, will experience homelessness in any given year. There are approximately 45,000 unaccompanied homeless children in the United States, “unaccompanied” defined as someone under the age of 25 who is not a member of any family or a multi-child household.

The causes of homelessness vary. Some people who were affected by the Great Recession and foreclosure crisis wound up without a home and no one who can take them in. Some have serious and persistent physical or behavioral health conditions that the communities or cities they live in have insufficient services to address. Others are addicted to alcohol or other drugs. Still others are homeless because of circumstances beyond their control, they are victims of domestic violence, or human trafficking, or youth separated from their families.

“For many homeless persons, finding a safe and legal place to sleep can be difficult or even impossible,” according to the DOJ statement of interest.

The government sides with the homeless in Boise, arguing that criminalizing sleeping in public when no shelter is available violates the Eighth Amendment by criminalizing the status of being a homeless person.

‘Instructive and persuasive’

This reasoning follows the opinion of Jones, which the government calls “instructive and persuasive.” The Jones court found enforcement of Los Angeles’ anti-camping ordinance to be unconstitutional as applied to homeless persons who are left unsheltered because of inadequate shelter beds.

“Whether sitting, lying, and sleeping are defined as acts or conditions, they are universal and unavoidable consequences of being human,” the court concluded.

Because sleeping is unavoidable, the court then considered whether the plaintiffs had a choice to sleep somewhere other than in public, and concluded that they did not.

“For homeless individuals in Skid Row who have no access to private spaces, these acts can only be done in public,” the court wrote.

As a result, the 9th Circuit found that sleeping in public is “involuntary and inseparable from” an individual’s status or condition of being homeless when no shelter space is available. No person “can avoid sitting, lying, and sleeping for days, weeks, or months at a time to comply with [Los Angeles’s] ordinance, as if human being could remain in perpetual motion,” the court wrote. “That being impossibility, by criminalizing sitting, lying, and sleeping, the City is in fact criminalizing [plaintiffs’] status as homeless individuals.”

In Baltimore and other cities, criminalizing public sleeping with inadequate shelter beds does not improve public safety nor reduce the factors that contribute to homelessness. Rather, it creates a revolving door that circulates individuals experiencing homelessness from the street to the criminal justice system and back.

Issuing citations for public sleeping creates a host of other problems: criminal records can create barriers to employment and participation in permanent, supportive housing programs; convictions under these municipal ordinances can lead to lengthy jail sentences; and incarceration has a profound effect on an individual lives, in some cases prohibiting participation in transitional housing.

“Finally, pursuing charges against individuals for sleeping in public imposes further burdens on scarce public defender, judicial, and incarceration resources,” the statement of interest concludes. “Thus, criminalizing homelessness is both unconstitutional and misguided public policy, leading to worse outcomes for people who are homeless and for their communities.”

In Baltimore, and elsewhere in Maryland, there recently has been an increase in arrest for “public nuisance” offenses. When these citations become part of any person’s criminal record, it can block access to housing, employment and public benefit programs on either the state or federal level. In various parks in Baltimore, police have been known to oust homeless people for at least an hour every night, preventing them from sleeping.

The Jones analysis has not been applied in federal or state court in Baltimore or Maryland, but the city’s government should take another look at our homeless problem along the lines of the DOJ statement of interest. Only when affordable housing, employment, and health care are made available will we get in front of our homeless problem.

C. William Michaels is editor and general manager of Maryland Decisions, an online legal research service, as well as a member of The Daily Record’s Editorial Advisory Board. The opinions expressed above are his own.