Thursday, October 10, 2024
In Punishing Homelessness, the U.S. Abandons Human Rights
By: Tamar Ezer, Associate Director & Abigail Wettstein, Fellow, Human Rights Clinic, University of Miami School of Law
Everyone needs a safe place to sleep. Yet, as of June 28, 2024, you can face sanctions simply for sleeping in public.
This summer, the Supreme Court overruled Ninth Circuit precedent and took a giant step backwards from human rights norms. In Grants Pass v. Johnson, the Supreme Court held that laws punishing sleeping in public do not violate the Constitution’s prohibition against cruel and unusual punishment, even when no safe and accessible shelters are available.
Justice Gorsuch, delivering the majority opinion, argued that laws prohibiting sleeping outdoors punished conduct, not status and were thus constitutional. But what do you do if you are unhoused and have nowhere to go?
As Justice Sotomayor recognized in the dissent, “Sleep is a biological necessity, not a crime. For some people, sleeping outside is their only option.” Arresting and fining “people with no access to shelter,” in fact, “punishes them for being homeless.” The majority’s decision thus “leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.” According to Justice Sotomayor, “That is unconscionable and unconstitutional.”
It is also contrary to international human rights law. Human rights bodies have consistently found that punishing homelessness and involuntary acts of survival constitutes cruel, inhuman, and degrading treatment, as set out in the amicus brief by the U.N. Special Rapporteur on the Right to Adequate Housing and the U.N. Special Rapporteur on Extreme Poverty and Human Rights, which our Human Rights Clinic had the privilege of supporting. Criminalizing life-sustaining activities further violates the rights to liberty and security of person, life, freedom of movement, and equality and non-discrimination.
In its recent review, the U.N. Human Rights Committee specifically called upon the United States to:
(a) Abolish laws and policies criminalizing homelessness at all levels, and adopt legislative and other measures that protect the human rights of homeless people;
(b) Offer financial and legal incentives to decriminalize homelessness, including by conditioning or withdrawing funding from state and local authorities that criminalize homelessness;
(c) Intensify efforts to find solutions for the homeless, in accordance with human rights standards, including by redirecting funding from criminal justice responses towards adequate housing and shelter programmes.
As highlighted in an amicus brief by social science researchers, punishing homelessness serves no penological purpose and is counterproductive. It disrupts access to services, harms people’s health, and results in fines people cannot pay, jail time, and criminal records, further impeding employment and housing. As the U.N. Special Rapporteur on Extreme Poverty and Human Rights noted during a visit to the U.S., “[U]npayable fines and the stigma of a criminal conviction . . . virtually prevents subsequent employment and access to most housing.”
Ordinances criminalizing homelessness thus effectively criminalize the status of being unhoused, along with the many factors that contribute to homelessness, such as racial disparities, mental health conditions, gender-based violence, and discrimination based on gender identity or sexual orientation.
Moreover, criminalization is expensive. Diverting resources to law enforcement can cost two to three times more than it would to provide affordable housing. When homelessness intersects with mental health conditions, effective responses include supportive housing, community treatment, mobile crisis services, supported employment, and peer support services.
Sadly, here in Florida, the state recently passed HB 1365, modeled on template legislation from the Cicero Institute, which prohibits cities and counties from allowing people to sleep or camp in public spaces or risk legal liability, while not providing any new funding for effective responses. As David Peery, Executive Director of the Miami Coalition to Advance Racial Equity (MCARE) and our partner in this work, stated, “It’s simply making it illegal now to be homeless. And you’re not homeless because of anything you did, you’re homeless because we live in the most expensive housing market in the nation and because the minimum wage is nowhere near enough to afford a living space.”
In her dissent, Justice Sotomayor expresses the hope that “someday in the near future, this Court will play its role in safeguarding constitutional liberties for the most vulnerable among us” and “prohibit punishing the very existence of those without shelter.”
On this World Homelessness Day, we echo this hope and call for a human rights approach to homelessness. This September, the City of Philadelphia introduced a resolution condemning the Grants Pass decision and reaffirming a commitment to housing on a human right. We urge other cities to follow suit and all of us to stand up against this backsliding on critical rights.
Please see additional information and resources at https://johnsonvgrantspass.com/.
https://lawprofessors.typepad.com/human_rights/2024/10/in-punishing-homelessness-the-us-abandons-human-rights.html