Ben A. McJunkin, 17 August 2021
To be homeless in America is to be a criminal. Across the country, city ordinances increasingly prohibit broad swaths of conduct that make merely existing in public spaces difficult. This includes loitering in parks, resting at bus stops, obstructing sidewalks, pitching a tent, asking for money, asking for work, and sleeping just about anywhere. At the state level, criminal laws frequently prohibit loitering, littering, and public nuisances, the last of which is leveraged to sweep and dismantle homeless encampments.
As prohibitions on the homeless experience proliferate, so too does America’s homeless population. At any given moment, nearly half a million Americans are homeless. About 40% of them exist “unsheltered”—living on the streets, in desert washes, vehicles or other places not meant for human habitation. Even these numbers do not capture the enormity of the problem. Because many people transition into and out of homelessness episodically, anywhere from one to five million Americans may experience homelessness in a given year. More than 20 million—about one in sixteen people—will experience homelessness in their lifetime.
Legal academics have long understood the problems with criminalizing the behaviors that define the homeless experience. Treating homelessness as a crime traps individuals in cycles of poverty that make escaping homelessness even harder, and it pushes them toward further criminality to obtain life-sustaining resources. It is ultimately more expensive and less effective than non-carceral alternatives, such as housing-first solutions. And it violates a fundamental principle of criminal law by punishing those who have few, if any, alternative choices.
Over the past four decades, many homeless advocates have turned their attention from decriminalization efforts toward attaining a positive “right to shelter.” The goal of these efforts was to secure for homeless individuals a legal entitlement to adequate shelter provided, or at least funded, by the government. Importantly, however, the campaign to establish a right to shelter was neither concerted in its effort nor undertaken by the actual homeless population.
Despite decades of effort, only four American jurisdictions currently recognize an enforceable right to shelter. Yet homeless shelters continue to dominate the discourse about responding to homelessness, both legally and politically. When shelters are valorized as an end goal of litigation or legislation—as with the right-to-shelter movement—they are held up broadly as a solution, rather than what they are: a temporary offering designed to alleviate the circumstances of some people some of the time.
The prominence of homeless shelters in this discourse is misguided. Surveys estimate that as many as 77% of homeless individuals would rather take their chances on the street than subject themselves to a government-funded or government-provided shelter. This is a rational preference. Shelters can be dangerous. Many individuals experience physical or sexual violence in shelters. Property theft is also common. Shelter populations turn over regularly, meaning that such crimes are rarely remedied, offenders largely unaccountable. Further, most shelters are sex-segregated, which breaks up homeless families and separates individuals from their support networks.
As a practical matter, we also know that cities are not attempting to channel homeless individuals into shelters because they genuinely believe that shelters provide a uniformly better environment for the homeless. The preference for shelters is a preference for a reduction in homeless visibility. The work of law professor Sara Rankin has recently highlighted the role of shelters in a process of “transcarceration”—hiding the homeless through compulsory shelter use and involuntary commitment, much in the way homeless individuals are hidden through criminal incarceration.
It is beyond time for homeless advocates to return their attention to decriminalization. Respect for homeless individuals as persons ought to require us to defer to their intimate personal choices about how best to live life in the face of overwhelming constraints. This means learning to confront, rather than hide, the realities of visible poverty. It means protecting the decision of those homeless individuals who rationally prefer to undertake self-sheltering activities—from the simple use of blankets or bedding to the erection of temporary encampments in public spaces—free from the threat of criminalization. True decriminalization would ensure that homeless individuals have the freedom to choose where and how to find shelter, to protect themselves and their property, and to build meaningful connections to one another.
To be sure, decriminalization is not a solution to homelessness. More work must be done. But the primary causes of homelessness also cannot fairly be attributed to culpable individual choice. They include the lack of affordable housing, the failure to provide a living wage, domestic violence perpetrated by others, dizzying medical debt, and untreated mental illness. If anything, these causes point to the culpability of the state in both creating—and failing to remedy—the very conditions it punishes as criminal.
Ben A. McJunkin is the Associate Deputy Director of the Academy for Justice at the Sandra Day O’Connor College of Law at Arizona State University.