The Law That Criminalizes Homelessness

Local and federal laws often conflict, but many times, a compromise is found that respects federal law and state autonomy. However, recent developments from the Department of Justice suggest that the two sets of legal interests are about to clash over the tricky question of homeless sleepers.

Thomas Quine via Flickr

Some states have been trying to legislate against activities such as sleeping and eating in public places, effectively making being homeless a criminal offense. The Department of Justice has now made a statement of interest in a minor case that is likely to impact the ways that states can handle homelessness, at least in terms of criminalization.

The case from Boise, Idaho, is based on legislation that forbids sleeping in public. The DOJ’s statement makes it clear that, where a person has nowhere else to go, barring sleep, a “life-sustaining activity”, violates Eighth Amendment strictures against cruel and unusual punishment. Cities that wish to enact this type of law will therefore need to demonstrate that other options, including adequate affordable housing and emergency shelters, were available to those violating the laws.

Pascal Maramis via Flickr

This is the first time in two decades that the DOJ has stepped in to this type of case, and it is likely that the statement is meant as a warning to all cities and states that the federal government is taking its goals to treat homelessness more humanely, seriously. However, the law itself is still not settled. While the DOJ’s statement is indicative of the general feeling on the federal side of the fence, states and other legal bodies still have the right to attempt to make laws to curb acts of living in public such as sleeping or eating, effectively driving homeless people underground or condemning them to enter the criminal justice system due to a lack of other options.

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