Sumit Chatterjee
In Soapy’s opinion, the Law was more benign than Philanthropy. There was an endless round of institutions, municipal and eleemosynary, on which he might set out and receive lodging and food accordant with the simple life. [..] If not in coin you must pay in humiliation of spirit for every benefit received at the hands of philanthropy.[1]
Introduction
In O Henry’s cherished short story, ‘The Cop and the Anthem’, his endearing protagonist, Soapy, is mired by the anathema of poverty and destitution. But while Soapy’s plight is located in the realm of literary fiction, its existence in the modern society is more than evident. However, there has been a significant change in the way in which the rights of those suffering from poverty and homelessness is conceptualised, as was recently illustrated by the U.S. Supreme Court (‘The Supreme Court’) in the case of Martin v City of Boise.[2]
The Supreme Court here refused to hear an appeal which challenged the decision to declare laws that criminalised rough sleeping by the homeless in public spaces as unconstitutional. Advocates of such laws have been provoked to decry the decision of the court to refuse the appeal on two grounds. The first being that it perpetuates the problem of rough sleeping on streets by the homeless, and the second that it acts as a public hazard to both health and security. However, this paper illustrates that the contentions of the critics of the Court’s decision in Martin v City of Boise[3] suffer from a false causality fallacy, as they seek to attribute criminal intention on the homeless for actions which are a result of their social status and position. It is also argued that the Supreme Court has adopted a rights-based approach by declaring laws criminalising rough sleeping and homelessness to be in violation of the Eighth Amendment to the U.S. Constitution.[4] Finally, it shows that the approach followed by the U.S. Supreme Court should be followed as a precedent by countries across the world in their formulation of any policy which seeks to check homelessness.
1. Martin v City of Boise: Legal Background and Key Contentions
Martin v City of Boise[5] originated as a result of a lawsuit filed by six homeless individuals who had been penalised under an ordinance in Boise, Idaho, that criminalised camping in public spaces and rough sleeping on streets and sidewalks in the city. The case was decided by the 9th Circuit U.S. Court of Appeal (‘The Circuit Court’), which held that laws that seek to criminalise homeless persons for sleeping and lodging in the streets, and other conduct that is a consequence of their financial and social condition in the society, are unconstitutional. It stated that such laws subject the homeless to ‘cruel and unusual’ punishment,[6] and therefore were in violation of the Eighth Amendment.
The Court of Appeal relied on the 2007 settlement of the Jones v City of Los Angeles[7] case, which had devised a stopgap arrangement on the enforcement of laws against sleeping on the streets by the police in the state. The Jones Settlement Agreement,[8] as it is popularly known, laid down that the police cannot penalise the homeless for sleeping on the streets and camping in public spaces until there is adequate shelter made available for them.[9]
After the Federal Appeals Court upheld the decision of the bench in the Circuit Court, the City of Boise preferred an appeal to the Supreme Court. The advocates for the City of Boise argued that the proliferation of encampments housed by the homeless are both a concern to public safety and a health hazard.[10] They contended that the conversion of a stopgap arrangement, as envisaged by the Jones Settlement Agreement, into a concrete right for the homeless to be protected from penal sanctions is not legally sustainable, as it prevents the State from regulating and governing their territory in a way where they can prioritise public welfare and security.[11]
The critics argued that by recognising that such a right belongs to the homeless, the Supreme Court has made it impossible for the State to regulate homelessness, which would have several adverse consequences. First, the growth in the number of homeless encampments in public spaces was a health and safety hazard,[12] as the unsanitary conditions of such establishments were a carrier of disease and ill-health. Second, such encampments were associated with increased instances of crime and violence,[13] something which would affect the law and order in the State and impact the general safety and welfare of the citizens.
2. Critiquing the Critics: A Case of False Causality
There is a fundamental flaw in the argument of the critics. It tries to illustrate that the increase in homeless establishments and encampments are the cause behind the heightened disorder, crime and disease in the society. However, such an argument suffers from a false causality fallacy, as it seeks to draw a cause-effect relationship between the increased instances of rough sleeping and homeless lodgings on the streets with the rising crime rate, depleting health standards and other negative consequences often linked to homelessness. What it fails to take into account is the fact that the increase in homelessness only emphasises the problems of rising unemployment, burgeoning real estate prices and lack of basic amenities for everyone, rather than demonstrate it as a cause for these problems.[14]
The reason for imputing the prevalence of an escalating crime rate in society which suffers from the problem of homelessness is commonly referred to as the ‘Broken Window Thesis’.[15] According to this thesis, there are two reasons which justify criminalising homelessness as a separate and distinct offence. The first reason is that homelessness and vagrancy are a precursor to the occurrence of more serious crimes, and a society which lets such conduct remain unregulated is prone to suffer adverse consequences such as an increase in instances of serious criminal activity like murder, robberies, rape etc.[16] The second is rooted in the perception of the homeless as a threat to social consonance and peace by being a source of intimidation and nuisance.[17]
The first limb of the Broken Windows thesis is, however, founded on unsubstantiated grounds. The link between disorder in society, stemming from various social factors, and increasing crime rates does not find any backing in empirical evidence.[18] Laws criminalising homelessness thus fail to address the root of the predicament, as social conditions which drive the homeless to commit petty crimes for their survival are not cured by incarcerating the victims of the situation. All it does is provide a temporary solution, which only applies a band-aid on the broken window, where the State’s approach seems to adhere to an ‘out of sight, out of mind’[19] justification for the problem.
Moreover, the Broken Windows thesis goes one step further, and seeks to draw a relation between the likelihood of serious criminal activity in a particular neighbourhood and the prevalence of homelessness in that area.[20] Such a correlation works on the assumption that leaving problems such as homelessness or rough sleeping on the streets unaddressed only increases the propensity of serious criminal activity, like murder and robberies, in these areas.[21]However, not only is such a correlation bereft of any foundation on empirical evidence, it also makes the mistaken correlation between the effects of increased law enforcement in such areas to curbing homelessness and disorder.[22] The reduction in crime will invariably follow from higher scrutiny and vigilance from the law enforcement, independently of factors such as the locality in question, impoverished, homeless and underprivileged residents in such areas and so on.
The second limb argues that the presence of the homeless causes public annoyance and intimidates members of the civil society. This, in turn, justifies the action of the State to criminalise them for general public order.[23] This argument is problematic for two fundamental reasons: first, it targets a section of society for their social condition and status. Laws criminalising rough sleeping, public encampments and the like thus seek to criminalise conduct which is peculiar to a particular social group or community.[24] In this case, it is the homeless and the economically deprived who resort to such measures and are sought to be punished for the same by the State.[25] Second, the justification itself is based on a speculative standard that there is indeed intimidation, fear or annoyance amongst the members of civil society towards the homeless. On the contrary, there is evidence to suggest that the attitude towards the homeless is one characterised by sympathy and helplessness for their condition, which would clearly defeat the basis on which the public intimidation reasoning was based.[26]
Through laws which penalise homelessness, the homeless are scapegoated by the State. It uses them to shirk its responsibilities of providing adequate housing facilities, ensuring equal opportunity, and building shelters for the homeless. The State is thus praised in the political sphere by portraying such laws as a cure for the ills that exist in the society, while condemning the homeless to irreparable stigma and destitution.[27]
Any State that criminalises homelessness thus places the homeless in a perilous situation. The homeless belong to a section of the society that suffers from a severe economic disadvantage due to a number of factors like the lack of affordable housing, lack of employment opportunities, and the rising prices of basic amenities. By criminalising the homeless for conduct which is directly linked to their social condition (and is therefore unavoidable), the State places an extremely onerous burden on their shoulders.[28] In a society in which they were already handicapped and disadvantaged, the State places an additional shackle on the ability of the homeless to gain meaningful employment by labelling them as criminals.[29] By cracking down on homeless establishments in the society, the State contrives a solution which is merely a smokescreen to a problem that is both systemic and deeply entrenched and places the victims of such a problem in a most deplorable condition.
- Adopting a Rights-Based Approach: A Step in the Right Direction
The gravity and measure of the problem faced by the homeless was given due recognition and importance by the Supreme Court in Martin v City of Boise.[30] The rationale behind legislation criminalising homelessness is based on a misleading understanding of their situation, as is aptly recognised by both the Federal and the Supreme Court. The former engages with this rationale in the context of the Eighth Amendment. It sources the unconstitutionality of laws criminalising homelessness by interpreting the effect of such laws on the homeless as ‘cruel and unusual’ punishment.[31] The salience of this interpretation cannot be understated, as it is this development which recognises that these laws are essentially a reprimand on a particular class of the society for their social condition and their state of being.
Thus, the police powers of the State cannot be used to justify the arrests of the homeless under the U.S. Constitution. In a situation where the homeless have no refuge, or even a place to sleep, such arrests are in gross violation of the Eighth Amendment. Such a sentiment was also echoed by Judge Marsha Berzon, ‘As long as there is no option of sleeping indoors, the government cannot criminalise indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter’.[32]
In looking at the implications of the legislation on the homeless, the Supreme Court has adopted a rights-based approach in coming to its conclusion of unconstitutionality. The rights-based approach, followed by the Supreme Court in this case, is characterised by according a higher value to the rights of the individual over the prerogative of the State to exercise its police powers. This approach, which traces its jurisprudential foundation in Ronald Dworkin’s Taking Rights Seriously,[33] upholds the salience of protecting individual rights over and above any utilitarian gains which the State might use as a justification (such as security and reasonable restrictions on fundamental freedoms) for infringing upon the same. In doing so, the Supreme Court successfully reminds the State of its obligation to protect the fundamental rights of its citizens, especially those apprehended in the throes of abject poverty and financial destitution. The State thus has to ensure that its police powers, inter alia, do not derogate and infringe upon the domain of the individual rights of citizens.
The decision of the Supreme Court exemplifies the need to adopt a rights-based approach in such cases, as the aberration of the false causality linking homelessness with increased concerns of crime, public disorder, and health hazards is not only discovered but also dismantled in such a paradigm.
4. Martin v City of Boise: An International Standard?
In recent years, numerous countries have grappled with the question of the legality and rationale of criminalising homelessness. Countries like Hungary,[34] England,[35] and Australia[36] were in the eye of the storm as the laws in these countries specifically targeted the homeless by forcing them into prisons for rough sleeping, begging and camping in public spaces.
These laws have been severely criticised for being completely antithetical to the idea of social mobility of those less privileged and endowed than the rest of the society.[37] They perpetuate the squalor and deprivation in the lives of the homeless, as it traps them in a vicious cycle of social stigma and high economic costs and burdens, with the added handicap of having a criminal record.[38]
Conclusion
Martin v City of Boise[39] provides an optimal starting point for any State to cull out a uniform standard by which to gauge the balance between the extent of its police powers, and its duty towards the protection of individual rights. By giving greater weight and credence to the latter, Martin v City of Boise[40] lays down the course States should take when the question of addressing the homelessness question is on the agenda. For, as has been previously established, any benefit that the State showcases to justify legislation which penalises rough sleeping and encampments in public spaces is non-existent. This is so because the accrual of any such benefit is based on a false causality assumption of the consequences of criminalising homelessness on public safety, order, occurrence of crime, and welfare.
A rights-based approach, which the U.S. Supreme Court adopts in the case of Martin v City of Boise [41] is a step in the right direction for tackling the problems faced by the homeless. It recognises them as victims of the predicament, rather than as perpetrators of the menace. This is vitally important as it ensures avoidance of an oft-repeated false causality fallacy by the State. In a paradigm where laws criminalising homelessness are being enacted manifold across multiple jurisdictions around the globe, the decision of the Court in Martin v City of Boise[42] should be utilised as an international standard to declare such laws as unconstitutional and against the fundamental human rights against arbitrary criminalisation and wrongful arrest, as well as an assault on the right to equality, dignity and liberty.
This article was published in April 2020.
[1] Oliver Henry, ‘The Cop and the Anthem’ in The Four Million (11th edn, Project Gutenberg 2011) 38.
[2] Martin v City of Boise, 920 F.3d 584 (9th Cir. 2019).
[3] ibid.
[4] The Constitution of the United States, Amendment VIII – ‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted’ (emphasis added).
[5] Martin v City of Boise (n 2).
[6] The Constitution of the United States, Amendment VIII (n 4).
[7] Jones v City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006).
[8] See ‘The Jones Settlement Agreement Factsheet’ (Los Angeles Housing Community Investment Department, 10 July 2015) <https://cdn.theatlantic.com/assets/media/files/jones_settlement_factsheet_6_10_15.pdf> accessed 24 March 2020.
[9] See Sarah Gerry, ‘Jones v. City of Los Angeles: A Moral Response to One City’s Attempt to Criminalize, Rather than Confront, Its Homelessness Crisis’ (2007) 42 Harv CR-CL L Rev 239, 245.
[10] Gale Holland, ‘He fought for same-sex marriage. Now he wants to restore the right to clear homeless camps’ (Los Angeles Times, 2 July 2019) <www.latimes.com/local/california/la-me-ln-homeless-encampment-sweep-boise-case-appeal-theodore-olson-supreme-court-20190702-story.html> accessed 26 December 2019.
[11] The Constitution of the United States, Amendment VIII (n 4).
[12] Adam Liptak, ‘Supreme Court Won’t Revive Law Barring Homeless People From Sleeping Outdoors’ (NY Times, 16 December 2019) <www.nytimes.com/2019/12/16/us/supreme-court-idaho-homeless sleeping.html> accessed 26 December 2019.
[13] ibid.
[14] Richard Berk and John MacDonald, ‘Policing the Homeless: An Evaluation of Efforts to Reduce Homeless-Related Crime’ (2010) 9 Criminology & Pub Pol’y 813, 818.
[15] Dennis J Baker, ‘A Critical Evaluation of the Historical and Contemporary Justifications for Criminalising Begging’ (2009) 73 J Crim L 212, 221.
[16] ibid.
[17] Baker (n 15) 222.
[18] Randall Amster, ‘Patterns of Exclusion: Sanitizing Space, Criminalizing Homelessness’ (2003) 30(1) Soc Just 195, 197.
[19] ibid.
[20] ibid 200.
[21] ibid.
[22] Baker (n 15) 224.
[23] Philip Lynch and Jacqueline Cole, ‘Homelessness and Human Rights: Regarding and Responding to Homelessness as a Human Rights Violation’ (2003) 4 Melb J Int’l L 139, 147.
[24] ibid 149.
[25] ibid 151.
[26] ibid.
[27] Baker (n 15) 226.
[28] Don Mitchell, ‘The Annihilation of Space by Law: The roots and implications of anti-homeless laws in the United States’ (1997) 29(3) Antipode 303, 312.
[29] Maryanne Alderson and Dina Perrone, ‘Procedural Justice and Police Encounters with Homeless Injecting Drug Users’ (2019) 20 Criminology, Crim Just L & Soc’y 71, 77.
[30] Martin v City of Boise (n 2).
[31] The Constitution of the United States, Amendment VIII (n 4).
[32] Martin v City of Boise (n 2).
[33] Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 1st ed. 1977).
[34] Keno Verseck, ‘Hungary’s homeless ban: When poverty becomes a crime’ (DW, 15 October 2018) <www.dw.com/en/hungarys-homeless-ban-when-poverty-becomes-a-crime/a-45900111> accessed 25 December 2019.
[35] Victoria Cooper and Daniel McCulloch, ‘Britain’s dark history of criminalising homeless people in public spaces’ (The Conversation, 10 March 2017) <theconversation.com/britains-dark-history-of-criminalising-homeless-people-in-public-spaces-74097> accessed 29 December 2019.
[36] Maeve McClenaghen and Charlotte Maher, ‘This Is How A New Homeless Law Is Failing Destitute Families’ (Huffington Post Australia, 7 October 2019) <www.huffingtonpost.co.uk/entry/homelessness-reduction-act-2017-housing-crisis_uk_5d9653d3e4b02911e117eb20> accessed 30 December 2019.
[37] Thomas Maeseele et al, ‘From vagrancy to homelessness: The value of a welfare approach to homelessness’ (2014) 44(7) British Journal of Social Work 1717, 1728.
[38] Bálint Misetics, ‘The Significance of Exclusionary Discourse and Measures: The Example of Hungary’ (2010) 4 Eur J of Homelessness 231, 236.
[39] Martin v City of Boise (n 2).
[40] ibid.
[41] ibid.
[42] ibid.