Housing, Not Punishment to Address Homelessness

By: Tamar Ezer, Acting Director, Human Rights Clinic, University of Miami School of Law

Can you be punished for sleeping? The U.S. Supreme Court is considering this very question in Grants Pass v. Johnson, a seminal case with critical implications for homelessness. The Court is deciding whether the 8^th Amendment’s prohibition on cruel and unusual punishment protects against laws punishing people for sleeping outside when there is no alternative shelter.

An increasing number of U.S. cities have sought to make homelessness 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.

However, punishing homelessness is counterproductive. At best, it merely shuffles people to different parts of the city, disrupting social networks. More often, it results in fines people cannot pay, jail time, and criminal records, further impeding access to employment and housing. As the U.N. Special Rapporteur on Extreme Poverty and Human Rights highlighted in his visit to the U.S., “[U]npayable fines and the stigma of a criminal conviction . . . virtually prevents subsequent employment and access to most housing.”

Moreover, criminalization is costly. Diverting resources to law enforcement can cost two to three times more than it would to provide affordable housing. As David Peery, the Executive Director of the Miami Coalition to Advance Racial Equity (MCARE) states, “Criminalization is an expensive way to make homelessness worse.” Additionally, criminalization has a disparate impact by race.

Punishing homelessness is also a human rights violation. Our Human Rights Clinic at the University of Miami School of Law, working with the National Homelessness Law Center, had the privilege of supporting the U.N. Special Rapporteur on the Right to Adequate Housing and the U.N. Special Rapporteur on Extreme Poverty and Human Rights in submitting an amicus brief to the Supreme Court on the relevant international human rights law.

The brief asserts that punishing homelessness through the imposition of fines and fees for life-sustaining activities violates international human rights law. Moreover, it argues that a human rights analysis, centered on the international human right to freedom from cruel, inhuman, and degrading treatment, should inform interpretation of “cruel and usual punishment,” which has historically taken “evolving standards of decency” into account.

The Supreme Court heard oral arguments in April. Justice Kagan highlighted, “[F[or  a homeless person who has no place to go, sleeping in public is kind of like breathing in public.” And Justice Sotomayor underscored the poignancy of the plight facing people who are unhoused, “Where do we put them if every city, every village, every town lacks compassion-- and passes a law identical to this? Where are they supposed to sleep?”

A decision is expected this month. Please see additional information and opportunities to support on social media at https://johnsonvgrantspass.com/.