Sam Ross
I. Introduction
The “criminalization” of homelessness refers to “measures that prohibit life-sustaining activities … in public spaces.” Legislation includes laws “that make it illegal to sleep, sit, or store personal belongings in public spaces in cities where people are forced to live in public spaces.” The criminalization of homelessness in America dates back to the colonial era; anti-vagrancy laws in the eighteenth and nineteenth centuries prohibited the very existence of “wanderers.” Colonial governments wanted to limit the amount of people traveling long distances to find work to keep them from taking advantage of the taxpayer-funded social safety net 2 . Anti-homeless legislation aims to hide the visual ramifications of homelessness while exacerbating the root causes; criminalization measures work against efforts to end homelessness by inflicting fines and criminal records on people attempting to gain employment, access services, and be re-housed, which are already grueling processes. Criminalization of life-sustaining activities stands in clear juxtaposition to the rehabilitation of individuals experiencing homelessness, and is a contributor to the increasing, not decreasing, rates of homelessness in the U.S.. Homelessness has experienced an exponential rise in the United States over the past ten years with large cities like New York City seeing as much as a 75% increase in shelter system residents. 3 This rise primarily affects marginalized racial groups; although Black people make up 13% of the U.S. population, they make up over 40% of the homeless population. Mixed race, Indigenous peoples, and Pacific Islanders are similarly overrepresented, while White and Asian Americans are severely underrepresented in the homeless population.4 Although the Ninth Circuit of Appeals’ 2018 Martin v. Boise decision ruled that municipalities criminalizing outdoor sleeping violates the Eighth Amendment, Circuit Judge Berzon emphasizes that “only . . . municipal ordinances that criminalize sleeping, sitting, or lying in all public spaces, when no alternative sleeping space is available, violate the Eighth Amendment” of the U.S. Constitution (emphasis added).5 Therefore, even after the Martin decision, municipalities are still left with ample discretionary power to punish homlessness by “clearing homeless camps, arresting those who refuse to leave, and force those arrested to show that shelters are full.” The ruling also provides no protections for homeless persons against panhandling or loitering laws. Today, over 51% of U.S. cities have at least one law against sleeping in public, according to a National Homelessness Law Center study in 2019, with anti-homeless legislation generally on the rise since 2006.6
II. International Legal Framework
Article 1 of the ICERD Convention7 is egregiously violated by the United States’ criminalization of its homeless population. By the same logic that informed the Ninth Circuit Court’s Martin v. Boise ruling, criminalizing activities of sustenance in public areas is directly in opposition to “restriction[s] … impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms.” The criminalization of panhandling is a violation of a person’s right to exercise their economic freedoms. Since many people experiencing are unable to find and hold employment or fill out the arduous paperwork required to access benefits, panhandling is truly their only livelihood. Further, outlawing panhandling is a violation of free speech, which is guaranteed under the fundamental social freedoms expressed in Article 1.1. The United States’ legal abuse of its unhoused population violates Article 5 of the ICERD Convention, specifically Subsection 5.3. In Article 5.3.1, “the right to freedom of movement …” within a state is guaranteed, a freedom infringed upon by the U.S.’s anti-homeless laws regarding loitering and vagrancy specifically. In prior CERD decision making, in the Koptova v. Slovakia case brought before the CERD in 2000, Slovakian municipalities outlawed Roma families experiencing homlessness settling in their jurisdiction. The CERD judged that this kind of discriminatory practice violates the freedom of movement/residence within a country’s borders guaranteed in the ICERD (specifically Article 5.3.1). Therefore, the U.S.’s neglect of its unhoused residents engaging in life-sustaining activities in public is a discriminatory practice violating Article 5.3.1, especially considering the racial makeup of America’s homeless population. Furthermore, penalizing a population for vague “crimes” with large leeway for interpretation has left room for municipalities to arbitrarily enforce these laws restricting movement at the expense of those exhibiting “visible homelessness,” judgements that often carry racist stereotypes, a system of events that violates Article 2 of the Convention. In a 2009 mission to the U.S., UN Special Rapporteur Doudou Diene observed that “the enforcement of minor law enforcement violations . . . take a disproportionately high number of African American homeless persons to the criminal justice system” (Diene, 2009). Particularly, in Article 2.3, the American 94 government has a duty to repeal policies “perpetuating racial discrimination,” which clearly includes laws that encourage (or, at least, do not aim to prevent) racist enforcement. The CERD’s General Recommendation No. 348 Section 2.6 recognizes that structural discrimination against people of African descent are “rooted in … slavery” and have “a disproportionate presence in prison populations.” Criminalizing activities that people in the 40% Black homeless population need to partake in to survive keep more people of African descent in cycles of slavery by not only stripping them of their livelihood, but pillaging them further by giving out fines. This extension of chattel-slavery era practices undermines the economic freedom of Black Americans and violates economic rights guaranteed by General Recommendation No. 34 Section 2.3, as well as contradicts the recommendation in Section 3.17, which states that governments should acknowledge in action that people of African descent have collectively experienced horrors in the past “which continue to disadvantage people of African descent today.” In Section 2.3, “conditions of equality … without any discrimination” are guaranteed to Americans of African descent. Being that a grossly disproportionate percentage of America’s unhoused population is Black, exacerbating already dire living conditions surely does not guarantee conditions of equality for marginalized groups.
III. U.S. Government Response
In Section 45 of the United States’s 2021 Periodic Report to the CERD9 , the U.S. claims that the U.S. Interagency Council on Homelessness (USICH) and its partner agencies published the nation’s “first comprehensive federal strategic plan to prevent and end homelessness” in 2010. Following its release, more alternatives to criminalization were proposed in publications such as Reducing Criminal Justice System Involvement among People Experiencing Homelessness (2016) and Strengthening Partnerships Between Law Enforcement and Homelessness Services Systems (2019). Additionally, HUD has outlawed blanket bans on renting to individuals with criminal records, an effort that will open doors for previously convicted Americans, which make up a large percentage of the unhoused population. In Section 15, the U.S. stated that the DOJ’s Civil Rights Division (CRD) has been investigating instances of racial profiling, with 70 civil investigations into police departments being made between 1994 and January 2021. Following the 2016 murder of Michael Brown, Ferguson police underwent “significant reform.” Following the 2020 murder of George Floyd, however, the George Floyd Justice in Policing Act’s passage was blocked in the Senate. These reforms attempt to address racial profiling in policing that oftentimes are exacerbated by situations when law enforcement encounter BIPOC experiencing homlessness.
IV. Recommendations by Human Rights Bodies
In the 2018 Special Rapporteur on Extreme Poverty and Human Rights’s visit to the United States, they remarked that the federal government’s newest policies afforded protections to the wealthy elite while further disenfranchising the country’s middle-classes and poor. These policies ``make no effort to tackle the structural racism that keeps a large percentage of non-Whites in poverty and near poverty.” Section 71 of the report specifically pleads with the U.S. government to “Decriminalize Being Poor.” The Special Rapporteur points to the link between mass incarceration and keeping the impoverished in poverty, arguing that building better social protections will help guide citizens trying to return to the workforce (if they are able). 96 V. Suggested Recommendations 1. Create more affordable housing in areas that unhoused people currently live and lower barriers to entry. Include both short-term and long-term options, with transition housing used to keep Americans sheltered with little/no barrier to entry in the period they are waiting for long-term housing applications to be reviewed. 2. Invite third-party investigators to review the actions and records of local police forces, and create a comprehensive reform framework, specifically regarding homelessness criminalization law enforcement, to be implemented nation-wide. Pass revised budgets (at all levels of government) divesting funds away from the defense, law enforcement, and the carceral system, and instead investing significantly in social safety net programs and social workers. Include extensive training for social workers to connect individuals experiencing homelessness with resources. 3. Abolish all laws criminalizing the life-sustaining activities of individuals experiencing homlessness, including those outlawing vagrancy, panhandling, loitering