Justice Department Weighs In on Homeless Policies

Bell v. City of Boise

Everywhere across the country homelessness, an often involuntary act, is criminalized. Cities all over are making it illegal to be homeless and even to aid homeless people. Being homeless is a difficult ordeal, and for many it can seem, and is, never-ending, yet these cities are doing all they can to make it even more difficult for those that are homeless. In response, many people and organizations are fighting against these ordinances and laws that seek to criminalize homelessness.

Boise, Idaho is one of these many places that criminalizes homelessness. Continuously, the police are citing and fining people for sleeping on the streets, despite the fact that the shelters are full and there is nowhere for them to go. However, here, homeless people have decided to fight back against the city of Boise and sue them in federal court. Along with homeless people, the Department of Justice on August 6th argued on behalf of the homeless population in Boise.  Here is the Justice Department press release on the issue.

Sharon Bett, a trial attorney for the Civil Rights Division of the DOJ, argued that fining/criminalizing a homeless person for sleeping on the street, when the shelters are full, violates the 8th amendment’s clause on “Cruel and Unusual Punishments.” Bett notes that legal precedent, with regards to the 8th amendment, has stated that acts of conduct can be criminalized, but not an individual’s status. For example, someone can be fined for drinking alcohol in public, but not fined for being an alcoholic. In other court cases, dating back to the past decade, the courts have continuously maintained that being homeless is a status, not a conduct.

It has also been established that criminalizing people who are sleeping in public when shelters are full is a violation of the 8th amendment’s “Cruel and Unusual Punishment” clause. In reference to Boise, Bett uses precedent, set in Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006), claims that, if there is no place for a person to go (this would mean not being able to access a shelter), then that person’s sleeping outside becomes an “involuntary and inseparable from” an individual’s status of homelessness. So, the homeless individual should also be entitled to sleep in public, when there is no shelter that they can access.

Here is the heart of the Justice Department filing, "[i]t should be uncontroversial that punishing conduct that is a universal and unavoidable consequence of being human violates the Eighth Amendment. . .  Sleeping is a life-sustaining activity—i.e., it must occur at some time in some place.  If a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless."

The essence of the argument put forth against criminalizing sleeping outside and Boise specifically, is that the status of homelessness, like being mentally ill or a victim of natural disaster, is a status, and a person’s status cannot be criminalized. However, conduct can be criminalized, such as an addict drinking in public, because, in this scenario, an addict could reasonably and voluntarily find a private place. Nevertheless, sleeping outside in public spaces is different, in that it is “involuntary and inseparable from” the status of being homeless. The Justice Department contends that the City of Boise should not be criminalizing the acting of sleeping in a public space, because these individuals have no where else to exist.  The National Law Center on Homelessness and Poverty has been assisting with this case for the past three years.  Activists hope that they can use this briefing to change the law in Boise and use it in other cities in the United States.

The Case in the News

From National Law Center of Homelessness and Poverty

by Dan the Intern

PS:  We have set up a web page with the actual text of the brief submitted by the Justice Department here.