Is Banning Homelessness Cruel and Unusual Punishment?

Homeless By Carey Wedler

For the last several years, cities across the United States have responded to the problem of homelessness in the way governments tend to tackle dilemmas: by criminalizing the undesired behavior. In addition to banning feeding those without shelter (in some cases criminalizing the elderly for doing so), local governments have outright banned the homeless from sleeping or panhandling in public. Now, however, the Department of Justice is arguing that it is unconstitutional to bar the homeless from sleeping outside.

In a statement of interest filed this week in a little-known Idaho case on the subject, the DOJ explained its position:

“When adequate shelter space exists, individuals have a choice about whether or not to sleep in public. However, when adequate shelter space does not exist, there is no meaningful distinction between the status of being homeless and the conduct of sleeping in public. 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,” it reads.


The DOJ views this as a violation of the 8th amendment, which protects against cruel and unusual punishment. This is arguably ironic considering the many constitutional violations the DOJ regularly commits, but the agency’s assessment of criminalizing people for being impoverished and desperate is apt, nonetheless.

According to a National Law Center on Homelessness & Poverty study published in 2014, 34% of 187 cities surveyed had provisions banning sleeping in public. 43% banned sleeping in vehicles and 53% had regulations that barred sitting or lying down in certain public spaces. In the same year, 153,000 people in the United States faced homelessness without shelter.

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The federal government has previously reprimanded cities for enacting “anti-camping” laws. In 2006, the 9th U.S. Court of Appeals struck down a Los Angeles provision that banned sleeping in public, arguing, like the DOJ this week, that doing so constituted a cruel and unusual punishment for people who have nowhere else to go.

Eric Tars, a senior attorney for the NLCHP — which aims to end homelessness, not merely protect the rights of those on the streets — commented on the current difficulty of dealing with the problem:

“Homelessness is just becoming more visible in communities, and when homelessness becomes more visible, there’s more pressure on community leaders to do something about it,” he said. “And rather than actually examining what’s the best thing to do about homelessness, the knee-jerk response — as with so many other things in society — is ‘we’ll address this social issue with the criminal justice system.’”

This approach often further disenfranchises the homeless.

“You have to check those [criminal] boxes on the application forms,” Tars noted. “And they don’t say ‘were you arrested because you were trying to simply survive on the streets?’ They say ‘if you have an arrest record, we’re not going to rent to you.’”

In spite of the cold treatment many homeless people receive—just this week, the NYPD announced it would be photographing homeless people and “vagrants” to discourage them from inhabiting the streets— some cities are taking a more compassionate approach. Rates of homelessness in Utah, for example, dropped drastically when the government adopted a revolutionary policy: giving them homes, which reduced the rate of homelessness by 72%.

The DOJ’s filing this week highlights a growing backlash against local governments’ merciless, punitive approaches to dealing with the homeless. While this may be the same DOJ that has perpetuated the Drug War, asserted the government’s right to indefinitely detain American citizens, and targeted and attacked journalists and whistleblowers, any modicum of compassion extended to marginalized individuals amid deeply corrupted society and institutions is worth commending.

Carey Wedler writes for theAntiMedia.org. Anti-Media Radio airs weeknights at 11pm Eastern/8pm Pacific. If you spot a typo, email [email protected].

Carey Wedler joined Anti-Media as an independent journalist in September of 2014. As a senior editor, her topics of interest include the police and warfare states, the Drug War, the relevance of history to current problems and solutions, and positive developments that drive humanity forward. She currently resides in Los Angeles, California, where she was born and raised. Learn more about Wedler here!


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12 Comments on "Is Banning Homelessness Cruel and Unusual Punishment?"

  1. “A measure of true greatness any given civilization…is by how they treat their most vulnerable.”

  2. TARDISOFGALLIFREY | August 16, 2015 at 1:42 pm | Reply

    After the collapse, everybody will be homeless.

  3. Not any longer. Not in this spawn of demons nation. You must admit, intentionally throwing over 10,000,000 jobs out of country then ATTACKING the victims of their evil takes… dare I say it? Chutzpah!

  4. Frances Morris | August 16, 2015 at 3:02 pm | Reply

    I heard the homeless are now being put in FEMA camps. What happens to them after that is anybody’s guess…

  5. William Burke | August 16, 2015 at 7:32 pm | Reply

    Banning the homeless is almost certainly a violation of human rights laws, but I don’t see on what basis it could be “unconstitutional”.

    On any humanitarian basis, it’s certainly disturbing and wrong; after all, these people, largely, did not create their own crisis. They are a product of corporate capitalism, AKA Fascism.

    If anyone is under the delusion that we live under a “capitalist” system, they are sadly mistaken. People in dire need of assistance are not criminals because of it. Treating them as such is wrong and criminal.

  6. Javier Torres | August 17, 2015 at 3:58 am | Reply

    Since when does being poor or mentally ill or just temporarily down on your luck become such an offense that police have to kick them out? I thought this was America guys…or is it America ONLY after it’s passed your test of what it is to be American and was isn’t?

  7. margaret Bartley | August 17, 2015 at 11:02 am | Reply

    Another “ain’t it awful” story, with the usual replies.

    What no one wants to deal with is the harsh reality that this is the New Normal, and we are going to have to make some mental adjustments. No politician will bring up the bad news. The public will have to figure it out on their own.

    That brief period of time when ordinary blue-collar workers, factory workers, retail workes, truck drivers, etc could live like kings is over.

    I remember the 70s when the business, trade, and academic journals were filled with academics and policy wonks talking about workers making too much money. It was unheard of in the history of the planet that ordinary working-class people could own their own cars, send their kids to college, own real estate, take vacations and stay in hotels, etc. That whole concept of The Ugly American was aimed at the uneducated, rich American – the blue collar workers, the Archie Bunkers of the world, who could afford to travel.

    It was a temporary glitch that was soon corrected.

    I remember those days, when the CIA dirty deeds were coming out. The universal response, both by the media editorialists and by the average American citizen was “American has the highest standard of living in the world. If you don’t like it here, leave.”

    The average American really thought they were blessed with Divine Provinence and were better than the rest of the planet, and were deaf to the cries of people like Stokely Carmicheal that the chickens were coming home to roost – in other words, ‘what does around comes around” – America fostered these criminals, and would soon be subject to them, itself.

    Americans still don’t get it, that they are not special, and that we should look to Mexico, Italy, Singapore, at how people live there – the skillled workers like nurses and pharmacists and accountants live in tiny concrete apartments with plastic furniture, Vespas if they are lucky. The unskilled factory workers live in the slums.

    I can’t count the number of homeless and nearly homeless people I have talked to that disdain the idea of sharing an apartment, much less a bedroom, with another person. That used to be normal. Since when did we get so hoity-toity?

    Since when does everyone need their own private toilet, two sinks, their own stove and refrigerator?

    The problem is that we have outlawed poor peoples’ housing.

    Some cities are experimenting with putting in small apodments, but they put them in the parts of the city where the neighbors don’t want them, instead of the parts of the city that could use the density.

    They put in a handful of subsidized middle-class housing, maybe enough to house 2 or 3 percent of the problem, on the most expensive real estate, instead of putting in barracks-style or micro-housing style structures that can house thousands on property that is more affordable.

    Yeah, it’s not as nice to live, but if the point is to get people off the sidewalks, it hardly seems fair to complain that they have to take a bus to go to the grocery store or use the toilet down the hall.

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