Human Rights at Home Blog

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/.

New Article: Weathering the Storm: Establishing Internally Displaced People’s Right to Affordable Housing in the Wake of Natural Disasters

Raina Hasan, Weathering the Storm: Establishing Internally Displaced People’s Right to Affordable Housing in the Wake of Natural Disasters, 31 J. L. & Pol'y 177 (February 2023). Abstract below.

In 2020, natural disasters caused more internal displacement than war; floods, storms, and wildfires caused thirty million new displacements globally, and 1.7 million in the U.S. alone. The data and history suggest that masses of people will be displaced every year and will face housing insecurity without any formal acknowledgement of their unique plight or a guarantee that internally displaced persons (“IDPs”) will have protected rights. This Note proposes that, considering the worsening climate crisis leading to more frequent and severe natural disasters, the U.S. should codify the rights of internally displaced people as laid out in the United Nations’ Guiding Principles on Internal Displacement.

In order to actualize IDPs’ right to return and resettle, the U.S. should also establish IDPs’ right to affordable housing when natural disasters force people to leave behind their homes and communities. To effectively enforce such rights, the federal government should provide more affordable housing, invest in making the existing affordable housing stock and new affordable housing developments climate resilient, and collect accurate data on IDPs to provide adequate disaster relief, taking special care not to exacerbate gentrification and surveillance concerns. Codifying the rights of IDPs would go a long way in remedying larger systemic issues such as the racial wealth gap and rampant housing insecurity, ultimately furthering environmental justice.

Addressing Homelessness through Housing not Handcuffs

    

By: Tamar Ezer, Acting Director, & Taylor Moore, Student Fellow, Human Rights Clinic, University of Miami School of Law 

As we mark the beginning of National Hunger and Homelessness Awareness Week, we urge a focus on real solutions to end hunger and homelessness.

In the United States, instead of addressing homelessness, many of our municipalities have sought to make it invisible by criminalizing activities people experiencing homelessness must engage in to stay alive, such as sleeping, sitting, or eating. 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.

Moreover, criminalization is on the rise, and laws that prohibit sleeping in public have increased by 50% since 2006! In the past two years, the City of Miami, where we live, has passed ordinances criminalizing encampments on public property and food sharing without a permit and at non-designated locations. Amidst the devastation of COVID, the City has thus resorted to "hunger as a weapon against the poor."

Criminalization is counterproductive and costly. It results in fines people cannot pay, jail time, and criminal records, trapping people in a cycle of poverty and perpetuating homelessness. In fact, diverting resources to law enforcement can cost two to three times more than it would to provide affordable housing. As one of our partners, David Peery, the Executive Director of the Miami Coalition to Advance Racial Equity (MCARE) describes, “Criminalization is an expensive way to make homelessness worse.”

Moreover, criminalization of homelessness has a disparate impact by race. Black Americans make up 40% of the U.S. homeless population, while only 13% of the overall population. Additionally, laws criminalizing life sustaining activities are predominantly enforced against people of color. As the U.N. Special Rapporteur on Racism has noted, “The enforcement of minor law enforcement violations . . . take a disproportionately high number of African American homeless persons to the criminal justice system.”

Current disparities in housing and homelessness stem from a long history of discrimination, including redlining when the U.S. Federal Housing Administration refused to insure mortgages in or near Black neighborhoods. Today, while almost 75% of white families own their homes, less than half of Black families own their homes. As renters, Black families are at greater risk of housing instability and homelessness. Additionally, Black and Hispanic renters are twice as likely to be evicted as white renters. Barriers to housing based on arrest records further have a disparate impact by race.

Our Human Rights Clinic had the opportunity to support a coalition, including MCARE, the National Homelessness Law Center (NHLC), the National Indigenous Women’s Resource Center (NIWRC), Partners for Dignity and Rights, and the South Florida Community Development Coalition, in advocacy before the U.N. Committee for the Elimination of Racial Discrimination (CERD), as it reviewed the U.S. for compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). This included submission of a shadow report on Racial Injustice in Housing and Homelessness, development of a factsheet, and discussions with CERD and U.S. delegation members.

This summer, CERD released its Concluding Observations and noted with concern “the increasing number of state and local laws that criminalize homelessness and . . . the disproportionately high number of persons belonging to racial and ethnic minorities affected by homelessness.” The Committee then called on the U.S. government to “abolish laws and policies that criminalize homelessness,” redirect “funding from criminal justice responses to adequate housing and shelter programs, in particular for persons belonging to racial and ethnic minorities most affected by homelessness,” and “affirmatively further fair housing and protection against discriminatory effects.”

Moreover, CERD addressed the right to food in a recommendation to the U.S. for the first time and called for the adoption of a “rights-based national plan to end hunger in consultation with members of the communities most affected by hunger.”

Now is the time to focus on domestic implementation of these recommendations. Take the opportunity this week to get involved in your community and help address hunger and homelessness. Our Human Rights Clinic will be participating in NHLC’s Right to Housing Forum and sharing preliminary findings from a Report Card, assessing U.S. performance on the right to housing. Let’s make the U.S a place where everyone can access adequate housing and feed themselves with dignity.

Event: 12/16 First Ever IACHR Thematic Hearing on the right to housing in the United States

On Thursday, December 16^th at 14:00-15:30 ET, the Inter-American Commission on Human Rights will hold a hearing on the right to housing in the United States. Participants include the Center for Human for Human Rights & Humanitarian Law at American University Washington College of Law has convened a delegation of experts working to combat the criminalization of homelessness in the United States, including advocates from the National Homelessness Law Center, the ACLU of Northern California, the ACLU of Southern California, and California-based NGO Reach for the Top.   Directly impacted people from across the country will also testify to the Commission, calling attention to human rights violations and offering emerging better practices.

The hearing is virtual and open to the public; click here to register.  Further information on the IACHR’s hearings, schedule, and registration is available here. 

Event: 12/1 Housing Not Handcuffs 2021: State Law Supplement Report Webinar

On Wednesday December 1, 2021, from 2-3 ET/1-2 CT/12-1 MT/11-12 PT,  the National Homelessness Law Center will host a webinar to present its soon-to-be released report, Housing Not Handcuffs 2021: State Law Supplement.  The 2021 report supplements the Housing Not handcuffs 2019 report, which tracked close to 200 cities for their laws criminalizing homelessness and found increases in the number of local laws criminalizing homelessness.  This Supplement tracks state laws and finds 48 out of 50 states & DC with some form of law criminalizing homelessness at the state level. The webinar will focus on the experience of people with criminalization, the findings of the report, concerning trends, and exciting efforts to repeal state laws. Confirmed speakers for the webinar include:

• Rajan Bal - report lead author, formerly with the National Homelessness Law Center, now at Children’s Law Center
• Joe Abraham - pro bono counsel Law Office of Joseph M. Abraham, PLLC
• Delaware State Rep. Eric Morrison, (RD-27)
• Oregon State Rep. WInsvey Campos  (RD-28)
• To be moderated by Tristia Bauman, Senior Attorney at the Law Center.

To register for the webinar, visit https://us02web.zoom.us/webinar/register/WN_OQWAMtwtSHGGrTpsVti1bQ. 

 

 

 

Housing, Not Fines to Address Homelessness

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 8^th 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.

Protecting People Experiencing Homelessness

By declining to hear the 9th Circuit case of  Martin v. Boise, the Supreme Court permitted to stand that circuit's ruling that people who experience homelessness cannot be criminally charged for sleeping in public outdoor spaces without offering the individuals alternative shelter. This case arose in the criminal context where the City of Boise sought to arrest those sleeping in public who were homeless.  This case is part of a broader trend across the US to criminalize homelessness and poverty.  The case recognizes the lack of choice that leads to homelessness and emphasizes that the governmental unit must provide a reasonable alternative.  Arrest addresses a municipality's immediate concern while contributing to worsening the problem as those who then have criminal records will have even a lesser chance of obtaining adequate shelter.

The case both on the Supreme Court and Circuit levels is an  advancement in legal recognition of a fundamental human right to shelter. In particular, this decision recognizes the state's obligation to provide adequate shelter to those who do not have adequate housing or other shelter.  Perhaps results in Martin v. Boise will prompt cities and states to consider sustainable solutions to homeless such as affordable housing construction, education and skills training.

 

Human Right To Adequate Housing

In October the UN Rapporteur on Adequate Housing visted New York to discuss her thematic report on Informal Settlements.  Leilani Farha is the UN Rapporteur and her report covers  a wide range of human rights approaches in addressing the many problems faced by those who live in informal settlements, which is the preferred term for what many refer to as slums.

The problems are complex and require not only thoughtful intervention but sensitivity to the needs and preferences of those living in informal settlements.  For example, forced relocation is not endorsed but for those who wish to relocate, finding improved and adequate housing is essential.  

The right to adequate housing is "increasingly viewed as a commodity.  Housing is most importantly a human right.  Under international law, to be adequately housed means having secure tenure - not having to worry about eviction or having your home or lands taken away.  It means living somewhere that is in keeping with your culture, and having access to appropriate services, schools, and employment."

A right to tenancy and lack of formal eviction processes are concepts that can be difficult ones for many living in America.  Our focus is on landlord property rights.  Given the economic and human costs of eviction, the less formal route of discussion and negotiation may at some point become a preferable alternative.

In the meantime, the report comments on Farah's visiting housing in appalling conditions, while other parts of the municipality provides luxury housing.  The gap between rich and poor is universal.   As the report states, we must begin by refusing to accept the unacceptable. 

 

Lawyers For Tenants

 

 Recently Professor Brian Gilmore, of Michigan State University College of Law wrote on the need for lawyers for low and moderate income tenants facing eviction.  The piece was published in the New York Times.
Prof. Gilmore notes the frightening statistics in a report  by Princeton University’s Eviction Lab. Prof Gilmore confirmed what "housing advocates and public-interest housing law scholars have always known: Evictions from rental housing are a national epidemic."

Prof. Gilmore further noted that "Over two million United States families were forced from their homes in 2017, in big and small cities alike. In some states, like Virginia, which has five of the top 10 cities on the list of cities with most evictions, the number of renters who have faced eviction is jarring."

Calling eviction is the civil equivalent of capital punishment, Prof. Gilmore cites eviction as a major cause of homelessness.  Taking a human rights perspective, Prof. Gilmore describes those evicted as "suffering civil death in society.  They lose not only their housing but also their independence and dignity, often becoming isolated and hopeless."  

In a powerful advocacy piece, Prof. Gilmore calls for appointment of lawyers for those being evicted in an attempt to balance advocacy in a court process where 90% of landlords have lawyers while 10% of tenants have counsel.  

To read the entire opinion piece, click here. 

A Call for Homelessness To Be A Protected Class for Human Rights Cities

Historically, Cambridge, MA has been a proactive Human Rights community.  The city has declared many protected classes in the city.  Among them are Race, Color, Sex, Gender Identity and Disability.  A call has been made to add homelessness/homeless to the city's protected classes.  Those who are homeless experience discrimination in nearly every aspect of their lives.  Without a home address, those who are homeless face discrimination in employment, public benefits, and a multitude of other advantages that those with residences more easily attain.  Obtaining a photo ID can be insurmountable in some locations due to cost and lack of accessibility to state authorities who issue identification documents.  

We know that those who are homeless are more vulnerable to violence.  Over half of women who are homeless report already having been in abusive relationships.   Once living on the streets, those women join others who are homeless in being vulnerable to random, vicious attacks.  The proposed addition to the Cambridge laws would elevate attacks on the homeless to hate crimes.  

Other human rights cities might consider the same or similar protections for the homeless.  Given the proposed changes to nation's tax code and the resulting reduction in funding for services, we can expect more of our residents to experience homelessness.  Municipalities need to protect this particularly vulnerable class and prepare for  the rise in the homeless class in coming months and years.

 

Housing and The Human Right to Life

When UN Rapporteur for Housing Leilani Farha speaks this week at Columbia Human Rights Institute on the Right to Life, she will be speaking in one of the cities across the country that is looking seriously at providing a lawyer to tenants who appear in housing court as part of an eviction process.  As reported earlier, New York City instituted a pilot program where tenants were appointed a lawyer for the process.  While only 20% of the tenants were assigned lawyers, the outcomes for tenants with lawyers were significantly better than those without.  Now the city is looking at the possibility of appointing counsel for all housing court involved tenants. Hearings were held in late September and speakers were overwhelmingly in favor. The movement toward appointed counsel for those who cannot afford counsel is spreading.  Last week the District of Columbia held hearings on a bill that looks to enhance the availability of counsel in civil cases that involve fundamental human rights.  The bill looks to fund pilot projects for  access to counsel, through expanding existing legal services organizations. Among the cases that would be prioritized are housing, family integrity (custody), health care and safety (domestic violence).  The bill reads "A right to counsel should attach in civil cases whenever fundamental human needs are at risk." 

In specifically addressing the need for counsel in housing cases, the bill states: "Safe, secure, and accessible housing  is essential to achieving equal access to all other fundamental needs. Without housing, individuals and families cannot preserve family integrity, gain employment or other income, or enjoy access to healthcare, proper nutrition and education."  While the bill is largely aspirational, it has ignited serious human rights discussion. 

Major cities are assessing the need, if not the right, to counsel in housing matters.  Civil Gideon implementation is edging toward reality.

For a national perspective on the Civil Gideon movement, click here.

 

Effective Prevention of Homelessness Despite No Right to Counsel

In the face of overwhelming evidence that having a lawyer when a tenant is facing eviction evens the playing field for tenants, Mayor DeBlasio is not ready to endorse a human right to counsel in these circumstances.

In January, the Mayor announced a program to supply lawyers to those being evicted.  At the time, Mayor DeBlasio said:   "Providing legal assistance through the Office of Civil Justice is not just effective and efficient, it's the right thing to do to ensure equal justice for all New Yorkers."  Several boroughs' community boards have supported the right to counsel in eviction proceedings but the Mayor is not ready to take that leap, despite the overwhelming success of his program to provide counsel.  The tenant representation rate is now 27% compared with 1% in 2013.  The Mayor acknowledged huge savings by city in not having to provide shelter to the homeless families who can avoid eviction through the help of legal counsel.

Hope is in the air, however.  One headline reported that "More New Yorkers Facing Eviction Have Lawyers, But No Right To Counsel Yet."  The "yet" is hopeful.  Whether or not the right to counsel is formally endorsed, NYC is stepping forward to provide counsel in housing court evictions.  Given widespread support for the program, the right to counsel might quietly be endorsed without fanfare.  Time will take care of the formal acknowledgement of the right. 

 

 

 

 

 

 

 

 

 

The Right to Housing for the Formerly Incarcerated: Offering a Fair Chance and a Fresh Start

 

by By JoAnn Kamuf Ward, Lecturer-in-Law, Columbia Law School & Associate
Director of the Human Rights in the U.S. Project at the Law School's Human Rights Institute
    

Approximately one in every three U.S. adults has a criminal record – roughly the same number of people that hold a four year college degree. The impacts are staggering.  The ongoing punitive effects of a criminal record permeate almost every aspect of life, and severely hinder the efforts of individuals who have “served their time” to make a fresh start.

Upwards of 600,000 individuals will be released from prison this year, only to face a complex web of restrictions on their ability to access housing.  Under federal law registered sex offenders and individuals convicted of manufacturing methamphetamine are prohibited from living in federally funded housing.  In addition to these two categorical bans, federal law leaves broad discretion to property owners and managers to screen potential tenants.  An array of state and local laws and policies also govern access to municipal housing, and can include both vague and broad standards for reviewing applicants.  The net result is that individuals with criminal records are often excluded from consideration for reasons untethered to legitimate safety concerns or their ability to pay the rent.  Depending on where you live, there may be categorical bans related to misdemeanors, bans on accepting tenants until they have been out of incarceration for over a year, and prohibitions on accepting tenants who engaged in “immoral conduct.”  Additionally, in many jurisdictions, arrest records have served as the basis for denying housing to individuals and as grounds for evictions, despite the fact that an arrest is not a reliable indicator of criminal conduct.  The practice was so widespread that HUD released guidance last year to underscore that reliance on arrest records is out of step with the Fair Housing Act.   

A criminal record, and even an arrest record, can serve as a kind of scarlet letter, and has consequences well beyond housing.  Felon disenfranchisement is one example from the political sphere.  Criminal records can also impede access to education.  Barriers to employment, too, are well-documented.  Taken together existing obstacles make re-entry and reintegration an uphill battle.

Yet, there are signs that change is on the horizon as Michelle Alexander, the author of The New Jim Crow, stated in a great interview this weekend.  This hope emanates from the work of the communities who have faced barriers to achievement and inclusion for decades and are fighting to remove them.  As Alexander reported: 

Formerly incarcerated people are organizing for their basic human rights — the right to work, the right to shelter, the right to health care and drug treatment — basic human rights that we should be able to take for granted in a nation as wealthy as ours, and a nation that advertises ourselves to the rest of the world as the land of the free and a place of opportunity, equality, and inclusion.

This organizing has had tangible results.  Just last week, Virginia Governor Terry McAuliffe took executive action to restore voting rights for convicted felons in the state, reflecting a broader trend to ease restrictions on political participation for people with criminal records.  The national movement to “ban the box” has led public and private sector employers to limit the use of criminal records in hiring, as detailed in a past blog.  As a result of the momentum around these efforts, “ban the box” has become synonymous with the employment context, but the housing arena has seen progress as well.

A number of cities are on the forefront of banning the box in housing.  Newark, New Jersey was a first mover.  The city’s 2012 ordinance places limits on when a landlord can inquire about criminal record, and lays out the factors that should govern the individualized assessment of potential tenants, including evidence of rehabilitation.  In 2014, San Francisco followed suit, with a law that applies to city-subsidized affordable housing.  Legislation has been introduced in Los Angeles, and Washington, D.C.

The federal government has also taken intentional steps to improve access to housing for formerly incarcerated individuals and their families. In November of last year, the President announced a series of measures to ease the burden of re-entry.  Key components on the housing front are new funding to support permanent housing, and the guidance on arrest records noted above.

This month, HUD went a step further and issued new guidance on the ways that the Fair Housing Act (FHA) protects individuals with criminal records from discrimination:

While having a criminal record is not a protected characteristic under the Fair Housing Act, criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters or other housing market participants of one race or national origin over another (i.e., discriminatory effects liability.  Additionally, intentional discrimination in violation of the Act occurs if a housing provider treats individuals with comparable criminal history differently because of their race, national origin or other protected characteristic (i.e., disparate treatment liability).

The guidance makes clear that blanket bans on tenants with a criminal background violates the FHA, and reiterates that arrest records alone are not proper basis for rejecting a housing applicant.  This 2016 guidance also lays out the type of balancing test that landlords should apply to assess whether an applicant with a criminal record can be justifiably excluded from tenancy.  It calls on landlords to evaluate a range of factors on a case-by-case basis:  the nature and severity of the underlying crime, the time lapsed since the crime, and what the applicant has done since the conviction.  It also places the onus on landlords to prove that a decision to exclude an applicant is justified under the circumstances (i.e. “necessary to achieve its substantial, legitimate, nondiscriminatory interest”) if the decision is challenged. 

It is well documented that adequate and affordable housing is integral to economic viability for individuals and communities.  It is time to remove legal impediments to basic economic, social and political rights.  Developing policies that foster inclusion for those that have already “done their time” is a step in the right direction.  Impacted communities are leading the charge for reform.  Policymakers need to take action.

Down the Wrong Path: How Society Has Failed the Homeless

Editors' note: Prof. Sara Rankin submits this post written by students Justin Olson, Kaya Lurie, and Javier Ortiz. This piece is cross posted with the Legislative Law Profs Blog.

 

Imagine a life where almost everything you did was prohibited.  You could not sit, lie down, obtain food, use the restroom, or sleep with any protection from the elements.  In effect, your very existence would be a crime.  The idea seems reprehensible; yet for a subsection of our community, this is their reality to varying degrees.  Throughout Washington State and our nation as a whole, people experiencing homelessness are criminalized for performing the sort of basic, necessary, live-sustaining functions described above.  While a vocal segment has actively supported the policy of criminalization, the majority of society has simply been content to look the other way.

 In the Fall of 2014, Professor Sara Rankin established the Homeless Rights Advocacy Project (HRAP) at the Seattle University School of Law.  Under Professor Rankin’s guidance, the founding cohort of HRAP students undertook the most comprehensive assessment of criminalization in any state in the country.  (The four resulting policy briefs may be downloaded from the HRAP webpage.)  What the students ultimately found was disturbing and should encourage society to reexamine the impact of these criminalization laws.

 The impetus to remove people experiencing homelessness from public view mirrors the same reasoning that led to the enactment of historical discriminatory laws, including vagrancy laws, Jim Crow segregation, and Anti-Okie laws.  Many of these historical laws were enacted to prevent members of society from utilizing public space because they exhibited traits that society deemed to be undesirable.  This undesirable label criminalized people who were deemed vagrants, ugly, or nuisance.  This similar type of criminalization appears in ordinances targeting people experiencing homelessness and how they are enforced.

 Not surprisingly, present-day homeless criminalization laws have a discriminatory impact on groups who already suffer systemic marginalization.  Certain marginalized groups, including racial minorities, women, LGBTQ youth, individuals with a mental disability, formerly incarcerated individuals, and veterans, are disproportionately represented in homeless populations compared to general populations.  This disproportionate impact of homelessness on marginalized groups is caused in large part by systemic discrimination.  Society has repeatedly rejected laws that directly discriminated against many of these same marginalized groups, and therefore should be compelled to reexamine the impact of these homeless criminalization laws.

If the moral arguments do not persuade you to think that homeless criminalization laws are bad policy, there is also a compelling financial argument.  Criminalizing individuals experiencing homelessness is expensive and ineffective.  Many studies around the country, including that of HRAP, have demonstrated significant savings on enforcement, adjudication, and incarceration when funds are directed toward the creation of affordable housing instead of criminalization.  For example, Seattle and Spokane could save taxpayers over $2 million annually if funding was directed from criminalizing homelessness to providing housing.  While this number is substantial—and quite compelling—it is just the tip of the iceberg of the total cost that cities could save if the funding spent on homeless criminalization laws was directed toward housing.

 Notwithstanding the ineffective and unjust nature of these laws, homeless criminalization has been increasingly embraced by local jurisdictions in Washington State.  Criminalization efforts have been on a steep rise since the turn of the 21^st century and do not appear to be slowing down.  This creates big problems for cities because of the wastefulness of enforcement.  Individual cities like Seattle and Spokane spent millions of dollars over a five-year span just to enforce these ordinances, and yet homeless numbers continue to rise and the cities are no better off than they were.

 Unfortunately, changing course is an uphill battle.  Visible poverty makes everyone uncomfortable; it is a reminder of what doesn’t work in our society.  Housing is too expensive, there are not enough jobs that pay a living wage, and social and health services are grossly underfunded.  People are afraid of what would happen if these laws were repealed, afraid of the discomfort they are sure to feel as the scope of homelessness can no longer be ignored. 

However, avoidance of a problem is never a sustainable solution, and fear is never a valid reason to deny people of their civil liberties.  The persistent prevalence of people experiencing homelessness in public spaces, sitting on sidewalks and camping in parks, should alert cities that they have a problem and criminalization is not the solution.  Addressing the root of homelessness is a necessary discomfort, one we should all endure in order to reach the same epiphany: homeless people are people, they are mothers and fathers, brothers and sisters, sons and daughters.  And we as a society are failing them.

Human Rights Cities Movement Continues to Expand

The international Human Rights Cities movement continues to take hold in the United States.  Boston, Washington, D.C., and Pittsburgh are among the large cities that have formally endorsed a human rights perspective as a matter of city policy, along with smaller localities such as Carrboro, North Carolina and Eugene, Oregon.

According to the Mountain View Voice, Mountain View, California may be the next to join the movement.   Local advocates on the City Council and the Human Relations Commission are raising the issue before the Mountain View City Council, which will consider a human rights city proposal sometime this year.  As part of the resolution, the city's Human Relations Commission will change its name to the Human Rights Commission. 

For more information, and to learn how Eugene, Oregon is inspiring Mountain View's policymakers, read the article here.

Shut Her Up!

In May, Leigh Goodmark wrote on the heightened dangers and barriers faced by women who are abused by  intimate partners who are police officers.   Expanding on Leigh's post, I bring to the discussion the powerful tool that abusers who are police have in diminishing the credibility of their victims.   Have her arrested!

The matter of Boston Police officer Michael Doherty is a case in point.   The case also illustrates how acts of domestic violence can be minimized by police commanders until another violent act or other crime is committed by the abusive partner against someone other than the partner.  The Doherty case was nationally reported with the following facts: 

Earlier this month , Doherty ordered an Uber car to drive him to his house.  This occurred at 3 a.m.  While enroute, Doherty  accused the driver of taking the wrong route and began assaulting the man, physically and also verbally, with racial epithets.  The driver was able to escape the car, whereupon Doherty got out and chased the driver around the car.  Doherty then jumped behind the wheel and took off.  A passerby stopped to help the driver and the two chased after Doherty.  At some point Doherty got out of the Uber car and began assaulting the driver and the other individual.  Doherty fled but turned himself in the following morning. 

Reported locally was the fact that Doherty was subject to a domestic violence protection order.  Two months earlier, his former girlfriend reported that Doherty had dragged her down a flight of stairs and hit her in the face and head.  She reported that this was not the first time that Doherty had attacked her.  But who was arrested in that incident?  The girlfriend. 

Doherty claimed that he was the victim. (A defense he repeated when charged with crimes against the Uber driver.)  But Doherty's fellow officers arrested the victim on Doherty's claim that she was unlawfully in his residence. The arrest was made despite the fact that at the time of arrest the girlfriend had visible injuries on her face including bleeding and a swollen forehead. Kudos to the courageous judge who entered the protection order  after the girlfriend was arrested. 

I wish I could report that this is the first time I have experienced a case where the victim of intimate partner abuse was arrested after being abused by a police officer spouse or partner;  or by a family member or friend of a police officer. The blue loyalty apparently includes shutting victims up by striking first in the arrest process.  This is not a new tactic.  Claiming that the vulnerable are criminals, thereby reducing their credibility, is an age old method of quieting critical voices. 

According to reports, at the time of his arrest resulting from the Uber attack, Doherty was the subject of two open internal affairs investigations and was restrained by a valid protection order.  Were those facts not sufficient to result in Doherty's suspension?  The failure of the police chain of command to act until the now-suspended Doherty was involved in a very public crime raises questions of how much police inflicted abuse will be tolerated until commanders respond. 

The Doherty case has so much that is rich with lessons:  how police frequently arrest victims and routinely use their power to protect colleagues who are abusive toward their partners;  the power of courageous witnesses and public reporting to invoke right action. The interconnectedness of racism, misogyny and abuse. But mostly I am sad.  If the arrest of victims was limited to rare occurrences this post would not have been written.  But arrest of victims is not unusual.  It is a powerful and effective tool in silencing the abused.