Tuesday, December 17, 2019
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.
Sunday, November 25, 2018
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.
Monday, October 22, 2018
Sunday, October 29, 2017
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.
Monday, October 24, 2016
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.
Thursday, September 8, 2016
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.
Tuesday, April 26, 2016
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.
Thursday, May 28, 2015
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 21st 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.
Thursday, March 26, 2015
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.
Friday, January 16, 2015
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.