Tuesday, June 8, 2021
By: Tamar Ezer, Acting Director & Lily Fontenot, Legal Intern
Human Rights Clinic, University of Miami School of Law
The COVID-19 pandemic has sharply emphasized the importance of a right to adequate housing. The U.N. Special Rapporteur on the right to adequate housing said it well: “Housing has become the frontline defense against the coronavirus. Home has rarely been more of a life-or-death situation.”
However, in the United States, instead of working to address the problem of homelessness, many of our municipalities have sought to make it invisible by criminalizing and fining activities people experiencing homelessness must engage in stay alive, such as sleeping, eating, or lying down. According to a 2019 survey of 187 cities, 55% have laws prohibiting sitting and or lying down in public; 72% have laws prohibiting camping in public places; and 60% laws prohibiting loitering, loafing, and vagrancy.
Thus, all too often we turn to law enforcement to handle social issues, further exacerbating them. Punishing homelessness is both ineffective and costly, as it merely shuffles people to different parts of the city and results in fines people cannot pay, jail time, and criminal records, perpetuating homelessness. Diverting resources to law enforcement can also cost two to three times more than it would to provide affordable housing. Moreover, criminalization has a disparate impact by race.
Punishing homelessness is also a human rights violation. Recently, the Human Rights Clinic at the University of Miami School of Law, National Homelessness Law Center (NHLC), and The Shift just filed an amicus brief in the Ninth Circuit in the case of Blake v. City of Grants Pass, arguing that punishing homelessness through the imposition of fines and fees for life-sustaining activities violates international human rights, including the right to be free from cruel, inhuman, and degrading treatment. In the case, the plaintiffs, who were all people experiencing street homelessness, received 615 tickets for either sleeping or camping in public, despite the city not having any homeless shelters or emergency beds.
The brief further argues that a human rights analysis should inform interpretation of the 8th Amendment’s prohibition of cruel and unusual punishment, which hinges on “evolving standards of decency.” The brief concludes by noting that the U.S.’s failure to recognize the right to adequate housing is at the root of punishment for homelessness. It is thus within the Court’s authority to order measures enabling access to housing, addressing the underlying cause of a violation that has persisted for years.
For additional information on the criminalization of poverty and fines and fees in the justice system, including a virtual interactive simulation, please see the Poor Not Guilty website developed by DePaul University and Nerd Lab, in collaboration with the Miami Law Human Rights Clinic, NHLC, and the Fines & Fees Justice Center.