Criminal
Apr. 20, 2006
Court Blasts Indecency of Criminalizing Homeless
Forum Column - By Erwin Chemerinsky - Anatole France remarked that the "[t]he law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
By Erwin Chemerinsky
Anatole France remarked that the "[t]he law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread." The 9th U.S Circuit Court of Appeals' recent decision in Jones v. City of Los Angeles, 04-55324 (April 14, 2006), is an important recognition that the government cannot punish a person for being poor. In an opinion by Judge Kim Wardlaw, the 9th Circuit held that it is unconstitutional for the city of Los Angeles to make being homeless a crime. This decision is clearly correct as a matter of constitutional law and a victory for elemental human decency.
The case involves a challenge to a Los Angeles ordinance that "criminalizes sitting, lying, or sleeping on public streets and sidewalks at all times and in all places within Los Angeles's city limits." The issue before the court was whether it violates the Eighth Amendment's prohibition of cruel and unusual punishment to apply the ordinance to homeless individuals who involuntarily must sit, lie or sleep on public sidewalks because of the unavailability of homeless shelters in Los Angeles.
The court noted that the Los Angeles ordinance, Municipal Code Section 41.18(d), "is one of the most restrictive municipal laws regulating public spaces in the United States. The [c]ity can secure a conviction under the ordinance against anyone who merely sits, lies, or sleeps in a public way at any time of day." Violation of the ordinance is a misdemeanor punishable by a fine of up to $1,000 and/or imprisonment of up to six months.
The plaintiffs challenging the ordinance were six homeless individuals who had been arrested for violating the law. Each explained that he was sleeping on the sidewalk because he "had nowhere else to sleep." For several of the plaintiffs, their arrest meant that all of their possessions were gone when they returned. Unfortunately, this often happens when there are homeless "sweeps" in Los Angeles. The police arrest individuals for violating the ordinance, leaving their possessions behind. By the time the person comes back, the possessions are gone, either taken by others or disposed of by the city.
The U.S. Supreme Court has been clear that it is cruel and unusual punishment if the government punishes "status" as opposed to conduct. In Robinson v. California, 370 U.S. 660 (1962), the Supreme Court held that the government could not punish a person for being a narcotics addict. The court explained that "a law which made a criminal offense ... of a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment."
Likewise, in Powell v. Texas, 392 U.S. 514 (1968), five justices reaffimed that the government cannot punish people for involuntary acts that result from a person's status. As the 9th Circuit explained, "[F]ive [j]ustices in Powell understood Robinson to stand for the proposition that the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one's status or being."
This, of course, makes sense as a matter of constitutional law and of common sense. The criminal law is directed to volitional acts. To punish a person for a status, especially for an involuntary condition, is fundamentally unfair. If a person cannot avoid criminal punishment through reasonably available conduct, it is cruel and unusual punishment for the government to impose sanctions. Otherwise, there is truly nothing to stop the government from making it a crime to be an addict or an alcoholic or even to be poor.
Justice Byron White explained exactly this in his concurring opinion in Powell when he stated that "[t]he proper subject of inquiry is whether volitional acts brought about the 'condition' and whether those acts are sufficiently proximate to the 'condition' for it to be permissible to impose penal sanctions on the condition.'"
From this perspective, it is clear that the Los Angeles ordinance is unconstitutional because it punishes people simply for being too poor to afford a place to sit, lie or sleep. The Los Angeles ordinance imposes criminal penalties on people because they must sit, lie and sleep in public because of their status of being homeless. As Wardlaw's majority opinion explains: "Whether sitting, lying, and sleeping are defined as acts or conditions, they are universal and unavoidable consequences of being human. It is undisputed that, for homeless individuals in Skid Row who have no access to private places, these acts can be done only in public."
The reality, of course, is that people do not sleep on the street because they want to; they do so because there are not alternatives. Los Angeles has a tragically large homeless population and not nearly enough beds in shelters to house them. The 9th Circuit noted that "Los Angeles's Skid Row has the highest concentration of homeless individuals in the United States." The court described Skid Row as "a place of desperate poverty, drug use, and crime, where Porta-Potties serve as sleeping quarters and houses of prostitution." Overall, in Los Angeles County there are 50,000 more homeless people than available beds. See L.A. Homeless Services Authority, Los Angeles Continuum of Care, (2001). On Skid Row it is estimated that each night there are 10,000 more homeless individuals than there are beds to house them.
The Los Angeles ordinance prohibiting sitting, lying and sleeping in public makes these individuals criminal solely because they are homeless. There is nothing they can do to avoid criminal punishment and suffer - arrest, conviction, loss of their possessions - simply because of their status and of being. All human beings, at some point of each day, must sit down, lie down and sleep. But when homeless individuals do this on the only places available to them - sidewalks and streets - they are violating the law.
A humane and decent society would ensure that every person has reasonable shelter. Unfortunately, our society has not done so and a large and growing number of individuals are left to live on the streets. For most of us, it is easy to ignore the problem of homelessness. We step over or around the homeless. Downtown businesses, though, regard the homeless as a nuisance and often an impediment to their activities. They pressure the police to do something. In response to this pressure, Los Angeles adopted an ordinance and the police enforce it, including through sweeps that arrest the homeless and cause them to lose their possessions.
The 9th Circuit's opinion does not mean that the city is constitutionally required to build more shelters for the homeless or even to act to deal with the plight of those who are too poor to afford shelter. Instead, the opinion merely means that the government cannot use its criminal laws to deal with the problem of homelessness.
Perhaps, in the ideal, the city and its businesses will respond to this decision by creating more shelters and confronting the serious problem of homelessness in southern California. But at the very least, the 9th Circuit's ruling means that no longer can people be arrested and prosecuted solely for the crime of being poor enough to live on the sidewalks and streets of the city.
Erwin Chemerinsky is Alston & Bird professor of law and political science at Duke University.
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