While homelessness is not a crime, homeless people tend to have extensive contact with police, especially adult men and people with mental illness (PMI). Police are regularly called upon to provide social services, maintain order, and enforce the law with this population, resulting in arrests, referrals, and orders to “move along”—little of which does anything to help.
Policing the poor and homeless is nothing new. While modern homelessness emerged in the 1980s, earlier waves of mass homelessness in the nineteenth and early twentieth centuries also posed significant challenges for police. As waves of immigrants arrived in the late 1800s, cities were at times overwhelmed with people who were not able to find work and afford housing. This was less of a problem in boom times, but during financial collapses many were left unemployed and homeless. Apart from a few private charities, there was no social safety net, leaving many in desperate circumstances.
Police were expected to provide some care for this population, but primarily to reduce their impact on the public. In cities like New York, Chicago, Washington, and Boston, the basements of police stations were turned into nightly lodging houses. While these were often little more than filthy floors and a weak stove, they provided shelter from the elements. But the decision to place people in police stations, rather than other government buildings, indicated the police’s role as general maintainers of public order and also the sense that this population represented a potentially dangerous social force.
Today, most cities provide some level of emergency shelter, especially for families, but the number of beds available is almost always inadequate. Some shelters hold a nightly lottery for available spaces; the losers are forced to bed down as best they can. Those that do bed down in public parks and other spaces run the constant risk of police harassment as local residents and business owners complain about their deteriorating “quality of life.” Police routinely break up encampments driving people into more remote and isolated conditions that leave them more vulnerable to robberies, assaults, and the elements.
Even those with a place to stay at night are often turned out during the day, with little to do besides chase social services and look for work as best they can. Many have mental illnesses or substance abuse problems, or a combination of the two, which make their public presence in parks, subways, and sidewalks seem more menacing. Some engage in black-market activities; others are uninterested in abiding by middle-class standards of conduct and decorum or are simply unable to do so. As a result, police are often called to regulate their behavior. In some cases, a stern warning or an order to go elsewhere suffices. In other cases, a ticket may be written for littering, public urination, or other minor infractions. These tickets are rarely paid and usually result in lots of cycling through courts and jails and additional arrests as a rap sheet of minor offenses and unpaid tickets builds up. These tickets do nothing to improve a person’s situation and are usually intended to drive people out of certain spaces more than change their behavior. Frequent incarceration disrupts their access to social services and undermines their employability, cutting off potential pathways out of homelessness.
When this strategy is unsuccessful, cities often turn to more intensive strategies and develop new laws to give officers “the tools they need” to take care of “problem populations.” The National Law Center on Homelessness and Poverty has been documenting the rise of new laws that criminalize behavior associated with homelessness.1 Their survey of 187 cities showed that 33 percent have citywide bans on camping in public, 57 percent ban camping in specific locations, 18 percent have total bans on sleeping in public, and 27 percent prohibit sleeping in specific locations. One-quarter have citywide begging restrictions, 33 percent have citywide loitering bans, 53 percent prohibit sitting or lying down in designated zones, 43 percent prohibit sleeping in cars, and 9 percent have laws prohibiting sharing free food. The number of these laws is increasing. From 2011 to 2014 bans on camping have increased 60 percent, targeted sleeping bans 34 percent, citywide begging prohibitions 25 percent, loitering and vagrancy laws 35 percent, sitting and lying laws 43 percent, and vehicle sleeping bans 119 percent. This is a resurgent problem across the country.
Seattle has taken the criminalization of homelessness to extremes. After experimenting with various new laws, they settled on a new “civil violation” approach. Whenever a homeless person was found to be committing any of a number of minor crimes that often go along with being homeless, they were not arrested but instead banned from a particular area, such as a park, a row of cheap motels, or even an entire neighborhood. In some cases the ban lasted a day, in others longer. For those caught violating the ban, the result was arrest and a longer and often more widespread ban. After several years, some people were banned from all city parks and a major portion of the city. Katherine Beckett and Steve Herbert argue that this is a return to the discredited medieval practice of banishment as a strategy for managing the poor and unwanted.2
Since these are civil rather than criminal orders, police are given almost total discretion in issuing and enforcing such bans. Beckett and Herbert document scores of cases in which police engaged in discriminatory treatment based on perceived social status rather than specific conduct. There is often no formal hearing, people have no right to a lawyer, and the burden of proof is very low. Generally police use these orders as they have other enforcement mechanisms: to move the problem off their beat and onto someone else’s, further isolating and immiserating the people they target.
Cities large and small are reporting increases in the homeless population. New York, Los Angeles, and Seattle have all seen major jumps in people sleeping outside and in shelters in recent years. As a result, these and other cities are experiencing an increase in public disorder. Even the best-behaved people become an eyesore when living outside. Their food, bedding, and belongings give the appearance of decline. Urinating and sleeping in public are both unavoidable and criminalized, creating a terrible dynamic. It is also true that not all homeless people are well behaved. Mental illness and substance abuse contribute to disorderly and illegal behaviors that disrupt communities in ways that can make public spaces inhospitable and, in rare cases, dangerous.
Some efforts to remove homeless people through criminalization are clearly linked to economic development initiatives. Los Angeles’s Safe Cities Initiative (SCI) was a bald-faced attempt to drive homeless people out of the historic Skid Row area to make way for gentrification.3 Ironically, Skid Row itself was originally created as a kind of ghetto of social services for the very poor in order to keep them out of other residential neighborhoods. But as LA’s downtown has become more developed and desirable, Skid Row has become a valuable area for real estate development.
The main stated goal of SCI was to reduce crime in a targeted fifty-block area through intensive broken-windows-oriented enforcement. Fifty additional police officers were assigned to the area, along with numerous specialized units. Homeless encampments were cleared away, thousands of arrests made, and many more citations issued. In addition, the police were used explicitly to drive people into social services through a variety of formal diversion programs and informal street practices. Forrest Stuart describes how police routinely treated people in programs more leniently than those they perceived to be “service resistant.” In general, however, these programs were based on a variety of self-help and twelve-step approaches that rarely succeeded in part because there were no permanent housing, jobs, or sustained health services available. This dynamic contributed to a revolving-door phenomenon and plenty of victim-blaming for what is really a failed social safety net.
In the end, proponents claim that SCI had reduced the number of robberies in the target area by about fifty a year, at a cost of more than $6 million a year in policing and another $118 million in court and jail costs. In contrast, spending by municipalities, the state, and federal government on homeless services for all of LA County was only about $600 million a year. Yes, intensive and invasive policing displaces homeless people and perhaps even some crime, but it does nothing to reduce the overall homeless population.
In some cases, aggressive removal of homeless people can have deadly outcomes. In March 2014, Albuquerque police killed James Boyd while attempting to remove him from his unpermitted camp on open land near a suburban neighborhood. 4 Responding to a complaint from a resident concerned about Boyd’s schizophrenic rantings, police encountered Boyd, who was holding a knife and threatening them. After a five-hour standoff that involved extensive negotiation from a trained crisis intervention team, Boyd was shot multiple times while he appeared to be gathering his things to go with officers, according to body-cam footage of the incident. The two officers who shot him were put on trial, the result of which was a hung jury and a decision by the DA not to seek a retrial. Boyd had a long history of involvement in the criminal justice system and treatment for severe mental illness.
In spring of 2015, the LAPD killed two homeless people. The first was Charly Leundeu Keunang, who was shot in the back during a struggle with officers who wanted to question him about a robbery.5 Keunang was mentally ill, had been in prison, was on methamphetamines, and was awaiting deportation to Cameroon. A cell-phone video shows officers chasing him around a makeshift encampment in LA’s Skid Row area and shouting commands at Keunang, who resisted them. At one point, an officer yells something about his partner’s gun and then shoots him. Body-camera footage of the incident has not been made public, but sources who have seen it, as well as bystanders at the scene, deny that Keunang had obtained or was attempting to obtain the officer’s weapon.
The second victim was Brendon Glenn, who had been homeless in the Venice Beach area for many years and was well known and liked by many residents, despite his alcoholism. 6 Police responded to a disturbance call and initially spoke to Glenn without incident. However, they later came upon him in a conflict with a bouncer and, during a struggle, shot him. A video from a nearby security camera shows that Glenn was unarmed and did not appear to pose a threat to officers or the public, prompting police officials to raise serious concerns about the incident and resulting in several protests and community meetings.
All three of the above-mentioned men posed regular threats to public order and in some cases public safety. The use of the police to manage those threats, however, was largely ineffective and ultimately deadly. These individuals were immune to threats of arrests and incarceration, which they had all experienced in the past. The criminal justice system, with its emphasis on punishment, could not address the underlying and intertwined problems of homelessness, mental illness, and substance abuse that drove their problematic behaviors, leaving police the unenviable task of “managing” them in a fruitless effort to reduce their impact on the rest of society.
The drive to criminalize homeless people remains strong. While many feel some compassion for those on the margins of society, there is also a high level of frustration at the declining conditions of some urban areas. These “quality of life” concerns play into the broader sense of insecurity felt by people who see their standards of living declining. Some are deeply concerned about having their social and economic status undermined by a growth in disorderly behavior. At the same time, many who are financially better off feel stressed as well because of ever-increasing housing costs. People in places like New York and San Francisco are paying up to 50 percent of their income on housing, and in some cases more. This creates a sense of social entitlement and financial insecurity that can drive even liberals to call on local governments to “get tough” on homeless people in their midst. My own research has documented the role of social activists with long histories of liberal activism calling for the removal of homeless encampments by police in New York and San Francisco.7
In addition, businesses feel tremendous pressure to displace panhandlers and those sleeping rough or acting strangely nearby. Managing this problem has been one of the drivers of the creation of “business improvement districts” that collect money from local businesses to enhance sanitation and security services and, in some cases, even create homeless services centers. In the worst cases, they have also been implicated in using force to illegally displace homeless people, panhandlers, and the mentally ill.8
The disorder associated with mass homelessness has played a role in the rise of more conservative urban politics, as well-meaning liberals—who call for social tolerance of disorder while long-term solutions are attempted but never realized—are replaced with neoconservatives who question the ability of government to solve economic problems and instead rely on aggressive policing to push homeless people out of public view. At the center of this dynamic is the deeply conservative “broken windows” theory. In general, broken-windows policing merely creates a revolving door in which homeless people are arrested, sent through the jail and court system and then released back into the community in the same condition they left it. This process rarely results in someone’s stabilization. These agencies almost never have access to permanent housing or even long-term mental health or substance abuse services. As a result, rearrests are common. A recent study in New York City found that of the 800 people who spent the most time cycling through the jail system, over half were homeless. The top charges in these cases were petit larceny, drug possession, and trespassing.9 Constantly rearresting homeless people for these offenses does little to alter their future behavior or reduce their impact on communities. And it certainly doesn’t help to end their homelessness.
The cost of this process is exorbitant. New York City spent $129 million over 5 years to jail those 800 people. That’s over $30,000 per person per year.10 Supportive housing costs less. And that amount doesn’t include the costs of emergency room visits, shelter stays, outreach efforts, etc. In 2013 the Utah Housing and Community Development Division reported that the cost of emergency room treatment and jail time averaged over $16,000 a year per homeless person, while the cost of providing a fully subsidized apartment was only $11,000.11 A study by the University of New Mexico documented that providing people with housing reduced jail costs by 64 percent.12 Researchers in Central Florida showed that providing chronically homeless people with permanent housing and support services would save local taxpayers $149 million in spending on jails and health care.13 An in-depth case study conducted by researchers at the University of Southern California found that the total cost per person of public services for two years living on the streets was $187,288, compared to $107,032 for two years in permanent housing with support services, a savings of $80,256, or almost 43 percent.14 Criminal justice costs went from an average of over $23,000 to zero.
Many of the laws used to criminalize homeless people run afoul of existing law. Numerous anti-panhandling ordinances have been found unconstitutional because they violate the First Amendment right to freedom of speech in that they are soliciting donations.15 Courts have thrown some cases out because they are unconstitutionally vague, leaving officers too much discretion in criminalizing innocuous as well as disorderly behavior. Cities often run into legal trouble when they sweep out encampments and in the process destroy people’s possessions. The courts have made it clear that any seized property must be treated with care and held for someone to claim.16
The DOJ issued a legal opinion in 2015 that many of the anti-sleeping and camping statutes being enforced across the country may be illegal if people have no other viable alternative but to sleep in those restricted places.17 Sleeping bans in particular are problematic when a city fails to provide adequate emergency shelter to those who seek it. Those left outside should not be criminalized for sleeping.
The criminalization of homeless people also violates the International Covenant Against Torture and the International Covenant on Civil and Political Rights,18 which states that all people have a right to housing, that governments have an obligation to put the wellbeing of people above concerns about disorder and aesthetics, and that homelessness exerts a tremendous cost on those subjected to it. Criminalization efforts exacerbate that cost without housing any more people.
International human rights law also gives people the right to freedom of movement. Statutes that attempt to restrict homeless people’s access to certain areas through loitering laws and probation conditions that restrict access to certain areas may violate this. Laws that have a discriminatory purpose and outcome in terms of race and property may also violate international treaties as well as the International Declaration of Human Rights. International law also provides some rights to squatters that may make sweeps of longstanding homeless encampments illegal if no alternative housing is provided.
In 2014 the UN Human Rights Committee raised significant concerns about the United States’ adherence to the International Covenant on Civil and Political Rights.
The Committee is concerned about reports of criminalization of people living on the streets for everyday activities such as eating, sleeping, sitting in particular areas, etc. The Committee notes that such criminalization raises concerns of discrimination and cruel, inhuman, and degrading treatment.19
This is an official finding about a treaty that the United States has signed and to which courts must thus adhere. It also lays out a framework for judging the criminalization of homeless people as cruel, inhuman, and degrading, which draws parallels with our constitutional ban on cruel and inhuman punishment as well as international restrictions on torture.
Even if criminalization was successful, legal, and cost effective, it would still be unethical. We live in an economic and social environment in which the market is unable to house people at the bottom of the economic order and government is unwilling to make up the difference. Given this reality, how can we justify treating homelessness as a criminal justice issue? The law appears to be applied universally, but this fails to take into account the fact that the poor are always under greater pressure to break it and at greater risk of being subjected to legal action. As Anatole France pointed out in 1894, “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread.”
There is an issue of substantive justice here. Even if the law is enforced equitably and without bias or malice, it still results in the incarceration of large numbers of people who are homeless, mentally ill, and poor, rather than hardened predators. Ultimately, the criminalization of homeless people should be understood as a way of managing growing inequality through increasingly punitive mechanisms of state control. The aggressive policing of homeless people may appear to be about improving the quality of life of middle-class residents, but to the extent that it does, it does so only by worsening the conditions of homeless people. In the process, it also relieves elected officials of the responsibility to embrace a transformative urban politics that focuses on the needs of poor people in terms of structural changes to housing and employment markets, as well as essential social services like health care.
Reforms
A number of police forces have created specialized outreach teams trained in dealing with this high need population. They are typically trained in conflict de-escalation, developing trust, and dealing with mental health and substance abuse issues, and are also informed about available services and referral procedures. Officers work in teams, often with civilian outreach workers, to contact and build relationships with homeless people in hopes of getting them into services and off the streets. One of the fundamental limitations of these programs is that they rarely have substantial services to offer and almost never have immediately available stable housing. This means that these teams, even when they include social workers, volunteers, or clinicians, still have a punitive quality. When a uniformed officer with a badge, gun, and handcuffs tells you not to camp here, it’s an implied threat of future arrest, and in fact arrest, destruction of property, and displacement often follow over time. Professional outreach workers consistently report that long-term stabilization requires both trust and appropriate services. Without those, outcomes are frustrating for all involved, which often leads to renewed calls for get-tough policies and arrests.
Homeless Courts
The last twenty years have seen a huge growth in specialized courts. Organizations like the Center for Court Innovation have spun off youth courts, drug courts, mental health courts, veterans’ courts, and homeless courts. At their best these courts are intended to connect people with services rather than cycling them through criminal courts and jails. To the extent that they accomplish these goals, they have some value.
The Homeless Court in Maricopa County, Arizona, “combines punishment with treatment and services in rigorous supervised rehabilitation programs which typically exceed the sentencing requirements of similarly convicted defendants adjudicated in the normal court process.”20 This approach makes clear that this is still a punitive process based on an assumption of individual culpability and irresponsibility. This particular court is only “for homeless individuals who demonstrate commitment to end their homelessness,” despite a pervasive lack of low-cost housing. Yet the services the court mandates almost never include stable housing, much less permanent housing with support services. Instead, they keep people involved in a series of social service and court appointments that rarely resolve their underlying problems. And even when that does happen, this does nothing to expand the available supply of housing for those with very low or no income. In essence, they are rearranging who gets a particular unit, rather than addressing the structural lack of affordable housing.
The growing popularity of these courts and diversion programs raises another important concern: increasingly, the only way to access much-needed services is through the criminal justice system. These programs want to show success, and their success depends on having appropriate services. Since such programs rarely create significant new services, they instead try to obtain set-asides from existing programs, taking slots away from those who might obtain them through shelter case workers or other social-service providers. In some cases, for instance, courts put a hold on a certain number of emergency shelter beds in order to have slots for those who show up in court and need them. That means, however, that those beds are no longer available to anyone else in need. Someone who loses out on a bed in a voluntary lottery might later get arrested for sleeping in the park and then get the same bed from the court. This puts more resources and power in the hands of police and the courts to decide who deserves help, rather than relying on trained case workers.
Alternatives
Extensive evidence now exists that the ultimate solution to homelessness involves increasing pay for low-wage work and creating more affordable housing, with support services for those who need it. Emergency shelters, transitional housing, life-skills training, and forced savings programs do nothing to reduce the overall amount of homelessness. The housing market on its own cannot house the growing number of people who are left out of the formal economy or have a tenuous relationship to it. In such a situation, the state has no choice but to intervene directly.
Income Supports
As much as anything else, homelessness is about a mismatch between incomes and housing costs. Over the last forty years, wages have become increasingly polarized, a process that has only gotten worse since the 2008 fiscal meltdown. This process has driven more people into poverty and, perversely, has also significantly driven up the cost of housing in many parts of the country. There are more than 10 million extremely-low-income renter households in the United States but only 3.2 million rental homes that are available and affordable to them. As a consequence, 75 percent of extremely-low-income renter households spend more than half of their income on housing.21 Over the last two decades, rent inflation has outpaced overall inflation and housing prices. This is especially true at the bottom end of the market, where supply is dwindling.
In addition, income supports from government in the form of welfare payments and the earned income tax credit have also failed to keep pace with housing costs. In many parts of the country, welfare benefits are well below the cost of housing even at the bottom of the market. A significant increase in such payments, or equivalent vouchers, could allow people to access the low-cost rental market. That influx of renters, however, would further drive up prices if no new housing is created. Governments, therefore, must either dramatically raise the value of transfers to stimulate new low-cost housing construction or provide the housing themselves.
Housing First
One of the lessons learned in the last twenty years is that the best way to get people off the streets and out of the shelters is to make immediate permanent housing available to them at very low or no cost, and to provide a range of optional support services to help them stay there. This is known as the housing-first approach, and it is growing in prominence. In the past, homeless programs focused on proving emergency and transitional shelter, in the belief that if you stabilized someone and got them a job or necessary benefits, they could then enter the housing market and obtain stable long-term housing. This is not the case. This mismatch between low-wage work or government benefits and increasingly expensive housing makes the process untenable. Governments are going to have to intervene in housing markets by building large numbers of heavily subsidized units. The federal government could help by bringing back Section 8 subsidies on a large scale that could be pooled together to provide financing. But local and state governments have to want to build the housing, and right now many do not. Even New York’s liberal mayor Bill de Blasio is insisting on using zoning bonuses and other incentives to get developers to include more affordable units in new construction projects. These units are never affordable to those currently living in shelters and on the streets, however, and such housing does not come with the necessary support service to help people maintain stable housing.
Virginia has been a major proponent of a housing-first approach, including rapid rehousing and permanent supportive housing. From 2010 to mid-2016, the state experienced a 31 percent drop in overall homelessness, including a 37.6 percent decrease in family homelessness. In 2015, it became the first state to end veteran homelessness.22 The state of Utah was also an early adopter of a housing-first approach. Overall, officials are very happy with the results, which have significantly reduced overall homelessness and the number of chronically homeless people, who tend to have the most interactions with the police, courts, emergency rooms, and jails. While the state’s claim of a 91 percent reduction in chronic homelessness appears overstated, the results are still impressive.23 According to the director of Utah’s Homeless Task Force, Lloyd Pendleton, “For the chronically homeless population, which represents about 10 percent of the homeless population … when these individuals have a place of their own where they can be safe, the drinking and drug use decreases. Also, with effective case management support, we have found a positive supportive community is created.”24
Too often, shelters and other programs for homeless people come with significant restrictions such as requiring that they be clean, sober, and nonthreatening. These seem reasonable, but they leave lots of people out on the streets. In some cases the restrictions exceed practicality and veer into moralizing as well. Some religious-based service providers and even secular nonprofits continue to rely on a personal-responsibility model that blames homeless people, directly or indirectly, for their condition and demands that they demonstrate a willingness to abide by certain moral codes before receiving services. These codes can be especially restrictive and even discriminatory toward LGBTQ people.
Even if we began moving immediately toward a housing-first model, there would still be people waiting for a place to live for some time. And even when a full housing model is in place, there will always be people who fall through the cracks, so we need to give people a place to be that helps them stabilize their situation and reduce their impact on surrounding communities. The best way to do this is through a system of drop-in centers and emergency shelters focused on getting people off the streets without relying on police, the criminal justice system, or other punitive mechanisms—even people with mental health, substance abuse, and other behavioral problems. Such centers can have caseworkers, mental health services, counseling, and practical amenities like mail drops, health checkups, food, and clothing. Such places do exist and they are often quite successful and relatively low cost. But too often government support is inadequate or nonexistent. Cambridge, Massachusetts, had a community-based service provider called Bread and Jams that offered all of these things, as well as help with housing and job searches, benefits advocacy, health care, and policy advocacy. Unfortunately, it closed in spring 2014 because of inadequate funding, despite its role in stabilizing homeless people, improving their quality of life, and reducing the impact of homelessness on the surrounding community.25
Ideally, these spaces should also address the needs of local communities. Too often shelters and other services are plopped down in neighborhoods with little effort to work with residents in developing plans to reduce their impact. For example, in some cases communities complain that the shelter throws everyone out early in the morning, forcing them to roam the streets. The Mission Neighborhood Resource Center in San Francisco tries to address these kinds of concerns.26 They offer a drop-in center with no restrictions, and act as a gateway to health care, social services, and shelters. They also do leadership development to help train homeless people to advocate for improved services and permanent housing. In addition, they work with the community to identify services that would reduce the impact of homeless people, such as access to showers and an outreach team that can respond to calls about people in distress on the streets, without having to involve the police.
We must move beyond the false choice of living with widespread disorder or relying on the police to be the enforcers of civility. In July 2015, a New York City police union called on its members and supporters to take pictures of homeless people creating a public nuisance as a way of pressuring city government to give the police a free hand in controlling their behavior through renewed criminalization.27 The union was implying that the newly inaugurated Mayor De Blasio was “tying their hands” and therefore contributing to a decline in public civility. For this union, the only appropriate response was an increase in invasive and aggressive policing. This cannot be the answer. We know how to solve homelessness for most people on the streets, and we know how to reduce the impact of homelessness on communities without relying on police. We just need the political will to do it. As long as we ask the police to be the lead agency in dealing with people living on the streets, the outcomes will not be good. While the police can force people to move along, drive people into the shadows, or involve them in the criminal justice system, they do nothing to reduce the number of homeless people; police actions merely serve to further isolate and immiserate them at huge expense.