Shriver Center. July August Volume 41, Numbers 3 4

Transcription

1 Shriver Center July August Volume 41, Numbers 3 4

2 Targeting the Homeless: Constructive Alternatives to Criminalization Measures in U.S. Cities By Tulin Ozdeger Tulin Ozdeger Civil Rights Staff Attorney National Law Center on Homelessness & Poverty 1411 K St. NW Suite 1400 Washington, D.C ext. 212 tozdeger@nlchp.org As homelessness has increased during the past three decades, many cities across the United States have implemented measures that criminalize homelessness. 1 These measures take many forms, but they have in common using police resources and the criminal justice system to punish homeless people for their status. 2 In this article I discuss measures that cities use to target homeless individuals, problems with criminalizing homelessness, and constructive alternatives to criminalization. I. Targeting the Homeless Measures that criminalize homelessness include laws that make it illegal to n sleep or camp outside, 3 n sit on the sidewalk, 4 or n ask for money. 5 Punishment for violating these laws can include steep fines or incarceration or both. For example, anyone who violates Los Angeles antisitting law, which prohibits sitting, lying, or sleeping on any street, sidewalk, or other public way, may be subject to 1 Martha Burt, Homelessness Definitions and Counts, in Homelessness in America 21 (Jim Baumohl ed., 1996); Martha Burt, Causes of the Growth of Homelessness in the 1980s, in Understanding Homelessness: New Policy and Research Perspectives 181 (Dennis P. Culhane & Steven P. Hornburg eds., 1997); Martha Burt et al., Helping America s Homeless (2001). 2 For more information about the National Law Center on Homelessness and Poverty s recent work on the criminalization of homelessness, see National Coalition for the Homeless & National Law Center on Homelessness and Poverty, A Dream Denied: The Criminalization of Homelessness in U.S. Cities (2006), available at ADreamDenied pdf [hereinafter Dream Denied]; National Law Center on Homelessness and Poverty, Punishing Poverty: The Criminalization of Homelessness, Litigation, and Recommendations for Solutions (2003), available at National Coalition for the Homeless & National Law Center on Homelessness and Poverty, Illegal to Be Homeless: The Criminalization of Homelessness in the United States (2002), available at www. nlchp.org/content/pubs/crimmaster.doc. 3 See, e.g., Santa Cruz, Cal., Mun. Code (2006) (prohibiting camping, including sleeping outdoors in public spaces with or without bedding between the hours of 11:00 p.m. and 8:30 a.m.); Orlando, Fla., Code (2006) (prohibiting camping on all public property without authorization and defining camping as sleeping or otherwise being in a temporary shelter out-of-doors, sleeping out-of-doors, or cooking over an open flame or fire out-of-doors). 4 See, e.g., Los Angeles, Cal., Mun. Code 41.18(d) (2005) (prohibiting sitting, lying, or sleeping on any street, sidewalk, or other public way); Seattle, Wash., Mun. Code (2006) (prohibiting sitting or lying down on the sidewalk from 7:00 a.m. to 9:00 p.m. in the downtown area and certain commercial zones of the city). Los Angeles ordinance provides an exception for people attending a parade or sitting on city benches. Los Angeles, Cal., Mun. Code 41.18(d) (2005). Seattle s ordinance provides exceptions for medical emergencies, people in wheelchairs, sidewalk cafes, parades, public benches, and bus stops. Seattle, Wash., Mun. Code (2006). 5 See, e.g., Atlanta, Ga., Code 43-1 (2006) (prohibiting actively begging in the tourist triangle in downtown Atlanta and within fifteen feet of public toilets, automated teller machines, parking meters, and payphones or on public transportation or in public parking lots and prohibiting verbal solicitation at night); Pittsburg, Pa., Code (2005) (imposing restrictions similar to Atlanta s). 202 Clearinghouse REVIEW Journal of Poverty Law and Policy n July August 2007

3 a fine of up to $1,000 or six months imprisonment or both. 6 Another way that cities target homeless individuals is by conducting sweeps of areas where homeless people live. For example, during the past three years, city officials in Fresno, California, swept areas where homeless people live and frequently destroyed their belongings while doing so. 7 In January 2007 the St. Petersburg, Florida, police department raided a homeless encampment and slashed and seized more than twenty tents in which homeless individuals were living. 8 Cities target homeless people indirectly through restrictions on groups sharing food with homeless individuals in public places. Since 2005, several cities have passed laws that restrict sharing food with homeless persons. In 2006 Las Vegas passed a law that prohibits sharing food with homeless or indigent persons in public parks. 9 Orlando s ordinance, also passed in 2006, requires groups wanting to share free food with twenty-five or more people in downtown parks to obtain a permit from the city s parks department and limits the number of times a group may do so in any one park to only two times a year. 10 In 2005 Dallas passed a law that severely restricts where groups may share food with homeless persons in public spaces. 11 Once again, the penalties for violating these ordinances may be steep fines or jail time or both. For example, violators of Orlando s ordinance face a fine of up to $500 or a term of imprisonment not to exceed 60 days or both Los Angeles, Cal., Mun. Code 11.00(m) (2005). Even as cities pursue measures to target unsheltered homeless people, they do not have adequate shelter space or affordable housing to house or shelter their entire homeless population. 13 In 2006, of the twenty-three cities that the U.S. Conference of Mayors surveyed, 68 percent reported an increase in requests for emergency shelter, with the average increase being 9 percent. 14 Despite this increase, an average of 23 percent of overall emergency shelter requests went unmet, with 29 percent of shelter requests by homeless families unmet. 15 II. Problems with Criminalizing Homelessness Criminalizing homelessness poses problems on many levels. Imposing criminal penalties on homeless persons who live outside due to lack of available shelter space or affordable housing not only presents moral and ethical problems but also is counterproductive from a policy standpoint and can violate homeless persons constitutional and human rights. A. Policy Problems Criminalization measures do not make sense from a policy standpoint because they are counterproductive to helping homeless people move out of homelessness. Many of the laws that target behavior, such as sleeping or sitting in public, associated with homelessness apply to downtown areas or are aimed at moving homeless people out of downtown areas. Services for homeless persons are frequently located in downtown areas of 7 Olivia Munoz, City Ordered to Stop Destroying Property: Temporary Ban Protects Homeless Fresno Says Camps Are Safety Hazards, Seattle Times, Nov. 24, 2006, at A16. 8 Abhi Raghunathan & Alisa Ulferts, Police Slash Open Tents to Roust the Homeless, St. Petersburg Times, Jan. 20, 2007, at 1B. 9 Las Vegas, Nev., Mun. Code (A)(6) (2006). 10 Orlando, Fla., Code 18A.09-2 (2006). 11 Dallas, Tex., Code (2006). 12 Orlando, Fla., Code 1.08 (2006). 13 Some homeless people temporarily stay in shelters or transitional housing or are doubled up; other homeless people are unsheltered. Criminalization measures most frequently target unsheltered homeless individuals. 14 U.S. Conference of Mayors, Hunger and Homelessness Survey: A Status Report on Hunger and Homelessness in America s Cities a 23-City Survey 7 (2006). 15 Clearinghouse REVIEW Journal of Poverty Law and Policy n July August

4 cities. By moving homeless individuals out of these areas, cities make it more difficult for homeless persons to access services and move out of homelessness. When homeless persons are cited or arrested under laws that make it illegal to sleep outside or sit on the sidewalk, they develop criminal records for behavior that is not criminal in nature but merely a result of their status of being homeless. Individuals with criminal records face additional obstacles in obtaining housing and employment, thereby making moving out of homelessness more difficult. Using the criminal justice system to deal with homelessness is a poor use of law enforcement resources and costs more than providing shelter or permanent supportive housing. In a nine-city survey of the costs of jail, shelter, and supportive housing, jail costs were on average two to three times the cost of supportive housing or shelter. 16 B. Violations of Constitutional Rights As court challenges from around the country have shown, criminalization measures may violate homeless persons constitutional rights. Homeless persons and their advocates have filed lawsuits challenging, among other laws, antipanhandling and anticamping laws as well as the destruction of homeless persons property and restrictions on food sharing in public. Antipanhandling laws vary from city to city, with some laws prohibiting begging or solicitation fairly broadly and others placing restrictions on begging or solicitation in only certain parts of the city or at certain times of the day. In a New York City case, the Second Circuit enjoined the New York City Police Department from enforcing a New York State statute that in effect banned begging citywide; the court found that such a ban violated the First Amendment right to free speech. 17 Begging, the Second Circuit found, constitutes expressive conduct for purposes of First Amendment analysis. 18 Begging usually conveys a need for food, shelter, clothing, and other needs and thus is similar to messages conveyed by organized charities, the court noted. 19 Prohibiting individuals who beg peacefully from communicating with their fellow citizens does not serve a compelling governmental interest. 20 Further, even if the state has a compelling interest, a citywide ban on begging is not narrowly tailored, is not content-neutral, and does not leave alternative channels of communication through which beggars can convey their messages of indigency. 21 Other courts also found some antipanhandling or antibegging laws unconstitutional on First Amendment grounds. 22 While broader antipanhandling laws have been found unconstitutional, others more narrowly tailored have withstood judicial scrutiny. The Seventh Circuit upheld an Indianapolis antipanhandling law that prohibited aggressive panhandling, verbal solicitations at night, and panhandling at bus stops, in public transportation, at a vehicle stopped in traffic, in a 16 See Lewin Group, Costs of Serving Homeless Individuals in Nine Cities: Chart Book 1 4 (2004), org/documents/ke/csh_lewin2004.pdf. 17 Loper v. New York City Police Department, 999 F.2d 699, 706 (2d Cir. 1993). The statute at issue prohibited loiter[ing], remain[ing], or wander[ing] about in a public place for the purpose of begging. N.Y. Penal Law (1) (McKinney 1989) (held unconstitutional by Loper, 999 F.2d at 706). 18 Loper, 999 F.2d at at 705. The city police argued that this law was an essential tool in addressing intimidating and coercive behavior associated with aggressive beggars. at 701. The court noted that a number of other laws, such as those that deal with first-degree harassment, disorderly conduct, or fraudulent accosting, could be used instead to deal with any problematic behavior. at at See, e.g., Blair v. Shanahan, 775 F. Supp. 1315, 1325 (N.D. Cal. 1991), vacated on other grounds, 919 F. Supp (N.D. Cal. 1996) (Clearinghouse No. 47,181) (a California begging statute, prohibiting begging in any public place or in any place open to the public, violated the First Amendment); Benefit v. City of Cambridge, 679 N.E.2d 184, 190 (Mass. 1997) (a Massachusetts law that prohibited persons wandering abroad and begging violated the First Amendment). For more information about cases challenging antipanhandling laws and other criminalization measures, see Dream Denied, supra note 2, at Clearinghouse REVIEW Journal of Poverty Law and Policy n July August 2007

5 sidewalk café, or within twenty feet of an automated teller machine. 23 The antipanhandling law did not regulate or prohibit passively panhandling with a sign. 24 The Seventh Circuit agreed that beggars communicate important political messages through an appeal for money and thus the First Amendment protects such speech. 25 The court indicated that one could argue that the ordinance was content-based because it prohibited solicitations for immediate cash donations but not solicitations for other things, such as signatures, time, or labor. 26 However, the plaintiffs in the case did not argue that the regulations were content-based. 27 Thus the court found that the regulations should be upheld if they were narrowly tailored to meet a significant governmental interest and left open alternative channels of communication. 28 The court found that the city had a legitimate interest in promoting safety and convenience of its residents on public streets and that the city had narrowly tailored the regulations to address those interests by applying the regulations to only those times and places where citizens naturally would feel most insecure in their surroundings. 29 Further, the court found that alternative channels of communication were available because panhandlers could convey their messages vocally during the day on all public streets, except for the small amount of territory covered in the restrictions, and passively at night. 30 Homeless plaintiffs and their advocates have successfully challenged laws or practices that punish homeless people for sleeping or conducting other lifesustaining activities in public. In a recent Ninth Circuit case, Jones v. City of Los Angeles, homeless plaintiffs successfully challenged the enforcement of a Los Angeles ordinance that criminalizes sitting, sleeping, or lying down in public spaces throughout the entire city. 31 The plaintiffs were sleeping or resting on the sidewalk when they were arrested or cited for violating Section of the Los Angeles Municipal Code. The plaintiffs were able to show that, with more than 80,000 homeless people in Los Angeles County, there were almost 50,000 more homeless people than available shelter beds. 32 Thousands of homeless people in Los Angeles thus had no choice but to sit, sleep, and lie down in public for lack of shelter space. The Ninth Circuit concluded that unlimited enforcement of Section against homeless persons in Los Angeles violat- 23 Gresham v. Peterson, 225 F.3d 899, (7th Cir. 2000) (Clearinghouse No. 53,284); Indianapolis, Ind., Rev. Code (2007). Aggressive panhandling is defined in Indianapolis as panhandling that includes the following actions: touching solicited persons without their consent, panhandling while the solicited persons are in line for a commercial establishment, blocking the path of the person being solicited, using profane language, making a statement or gesture that would cause a reasonable person to be fearful, or panhandling in a group of two or more people. The definition of aggressive panhandling is similar in other cities. 24 See Indianapolis, Ind., Rev. Code (2007). 25 Gresham, 225 F.3d at at at at Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006) (Clearinghouse No. 56,027); Los Angeles, Cal., Mun. Code (2005). The city, challenging the plaintiffs standing for the first time on appeal, contended that plaintiffs had to be convicted under the law to have standing for their Eighth Amendment claim. Jones, 444 F.3d at The Eighth Amendment, the Ninth Circuit found in rejecting the city s argument, limits not only the kind and severity of punishment imposed on those convicted but also what can be made criminal and punished as such. at The court reasoned that if plaintiffs had to be convicted to use the Eighth Amendment argument, the state could criminalize a protected behavior or condition and cite, arrest, jail and even prosecute individuals for violations, so long as no conviction resulted. at But see Johnson v. City of Dallas, 61 F.3d 442, 445 (5th Cir. 1995) (Clearinghouse No. 43,607) (the homeless plaintiffs did not have standing to use an Eighth Amendment claim to challenge Dallas public sleeping law because the plaintiffs had received tickets under the law but had not been convicted). 32 Jones, 444 F.3d at Clearinghouse REVIEW Journal of Poverty Law and Policy n July August

6 ed the Eighth Amendment. 33 The court found that involuntariness was a key factor when determining whether laws punishing acts integral to one s status violated the Eighth Amendment. 34 Because Los Angeles does not have sufficient shelter space, homeless persons must engage in basic human acts such as sitting, lying down, and sleeping in public. Thus punishment for such behavior violates the Eighth Amendment right to be free from cruel and unusual punishment. 35 A class of homeless plaintiffs in Miami won a similar victory by using the Eighth Amendment argument in the 1990s in Pottinger v. Miami. 36 In that case, homeless plaintiffs challenged Miami s practice of arresting homeless people for conduct such as sleeping, eating, and congregating in public. 37 As in Los Angeles, homeless people in Miami outnumbered the available shelter spaces. At the time of the trial, there were only 700 shelter beds for the 6,000 homeless persons in Miami. 38 The District Court for the Southern District of Florida found that Miami s practice of arresting homeless people for conducting necessary life-sustaining activities in public was cruel and unusual punishment in violation of the Eighth Amendment because homeless Miami residents had no choice but to conduct those activities in public for lack of shelter space. 39 The court also found that the practice of arresting homeless people for performing life-sustaining acts in public violated the plaintiffs right to due process and right to travel. 40 In another case from the Eleventh Circuit, however, a homeless man was not successful in using the Eighth Amendment argument to challenge his arrest under Orlando s anticamping law. 41 As in the Jones case from the Ninth Circuit, the Eleventh Circuit found that the success of the plaintiff s Eighth Amendment claim rested on whether the plaintiff had an opportunity to access shelter. 42 In this case the court found that at least one shelter in Orlando never reached its maximum capacity and people were never turned away; thus the plaintiff could have sought shelter there to comply with the anticamping law. 43 The plaintiff s equal protection and void-for-vagueness claims also failed in this case. 44 Other cases address the destruction of homeless persons personal property. In Pottinger, the court found that the practice of seizing and destroying homeless persons property or forcing homeless persons to abandon property at arrest sites violated the Fourth Amendment because such practices amounted to unreasonable searches and seizures. 45 Further, 33 at at Pottinger v. City of Miami, 76 F.3d 1154 (11th Cir. 1996) (Clearinghouse No. 48,663). The District Court for the Southern District of Florida ruled in favor of the plaintiffs on a variety of their claims, including the Eighth Amendment claim. Pottinger v. City of Miami, 810 F. Supp. 1551, 1584 (S.D. Fla. 1992). The city appealed, and the case settled after the Eleventh Circuit referred it to mediation. Pottinger, 76 F.3d Pottinger, 810 F. Supp. at at at at Joel v. City of Orlando, 232 F.3d 1353 (11th Cir. 2000). 42 at at 1359,1361. Homeless people are not considered a protected class and sleeping outdoors is not a fundamental right, the court stated in applying rational-basis review for the equal protection claim. at The court found that prohibiting sleeping outdoors furthered the legitimate governmental interest of promoting aesthetics, sanitation, public health, and safety. at at Clearinghouse REVIEW Journal of Poverty Law and Policy n July August 2007

7 the court found that the seizure of plaintiffs personal property violated the Fifth Amendment, which prohibits taking of private property for public use without just compensation. 46 In other court cases, homeless plaintiffs used Fourth Amendment arguments to stop encampment sweeps that result in the destruction of homeless persons property. 47 As cities have turned to ordinances to stop groups from sharing food with homeless people in public places, service providers have challenged those restrictions in court. Groups and individuals who regularly share food with homeless people in public parks in Las Vegas filed a lawsuit to challenge Las Vegas law prohibiting sharing food with indigent persons in public parks. 48 The plaintiffs challenged the Las Vegas ordinance on the grounds that it violated the right to free speech, the right to exercise religion freely, the right to assemble freely, and equal protection and due process rights. 49 The plaintiffs also argued that the ordinance was constitutionally vague and overbroad. 50 The court, finding that the ordinance was unconstitutionally vague and violated the equal protection clause of the Fourteenth Amendment, granted a preliminary injunction to enjoin the city from enforcing the ordinance. 51 Although the court granted the preliminary injunction, the court suggested that a more narrowly tailored ordinance could pass constitutional muster. 52 Groups that share food with homeless individuals in public in both Orlando and Dallas have sued those cities to challenge their foodsharing restrictions. 53 C. Violations of Human Rights Criminalization measures can violate not only homeless persons constitutional rights but also human rights norms as laid out in international law. 54 The United States has signed international human rights agreements prohibiting the types of measures that cities have used to target homeless people living in public spaces. Treaty law is constitutionally equivalent to statutory law and is binding on judges in every state. 55 After a country signs an international treaty, the country should not pass laws that would defeat the object and purpose of [the] treaty. 56 However, during the ratification process of human rights treaties, the U.S. Senate made reservations or modifications 46 at 1570 n See, e.g., Justin v. City of Los Angeles, No. CV LGB, 2000 WL 17881, at *37 38 (C.D. Cal. Dec. 5, 2000) (Clearinghouse No. 53,646) (granting a temporary restraining order on a number of the plaintiffs claims, including Fourth Amendment claims regarding destruction of property, and later imposing a permanent injunction; Henry v. City of Cincinnati, No. C (S.D. Ohio July 23, 2003) (granting a temporary restraining order to stop city from taking one homeless plaintiff s belongings from the encampment), 2005 WL (S.D. Ohio April 28, 2005) (denying city s motion to dismiss claims related to Cincinnati s antipanhandling ordinance). The Henry portion related to the sweeps of the encampment settled, while the other claims related to Cincinnati s antipanhandling ordinance continue. 48 Sacco v. City of Las Vegas, No. 2:06-CV-0714-RCJ-LRL (D. Nev. filed Aug. 2, 2006); Las Vegas, Nev., Mun. Code (A)(6) (2006). 49 Complaint at 7 9, Sacco, No. 2:06-CV-0714-RCJ-LRL. 50 at Sacco, No. 2:06-CV-0714-RCJ-LRL, at 23 (D. Nev. Jan. 26, 2007) (order granting preliminary injunction). 52 at First Vagabonds Church of God v. City of Orlando, No. 6:06-cv-1583-ORL-31RRS, at (M.D. Fla. Oct. 12, 2006) (challenging Orlando s food-sharing restrictions as a violation of the right to exercise religious beliefs freely under the First Amendment, the right of free assembly, the right to free speech, and the rights to due process and equal protection); Big Heart Ministries Association v. City of Dallas, No. 3:07-cv-00216, at (N.D. Tex. Jan. 31, 2007) (challenging Dallas food-sharing restrictions as a violation of the right to exercise religious beliefs freely under the First Amendment, the right to associate freely, and the right to travel as well as a violation of the Texas Constitution and Texas state statutes). 54 For more information about human rights infringed on by criminalization measures, see Dream Denied, supra note 2, at U.S. Const. art. VI, Vienna Convention on the Law of Treaties, May 23, 1969, art. 18(a), 1155 U.N.T.S 331. Clearinghouse REVIEW Journal of Poverty Law and Policy n July August

8 preventing those treaties from being used as a cause of action in U.S. courts. 57 Nonetheless, advocates can use international human rights treaties to support legal arguments based on domestic legal claims. 58 For example, if domestic law is ambiguous on a certain topic, as in the case of the interpretation of the words cruel and unusual in the Eighth Amendment, courts can look to international law for further guidance. 59 In reaching its decision to abolish the juvenile death penalty in Roper v. Simmons, the U.S. Supreme Court cited a number of international treaties and countries prohibiting the juvenile death penalty. 60 With many traditional civil rights remedies under attack, progressive lawyers are frequently turning to international law for guidance and for bolstering their arguments. 61 For example, the U.S. Supreme Court has not ruled explicitly on the right to intrastate travel. However, international human rights documents have established the right to movement. One such document is the International Covenant on Civil and Political Rights; a treaty that the United States signed and ratified (although the treaty is not selfexecuting), it contains provisions that protect the right to movement. 62 The Human Rights Committee, which oversees compliance with this treaty, affirmed that the right to movement is so important a right that it should be breached only by the least intrusive means necessary to keep public order. 63 Criminalization measures interfere with the right to freedom of movement because they have the effect of moving homeless persons involuntarily in and out of public spaces and cities. Advocates can point to provisions of the International Covenant on Civil and Political Rights to bolster arguments that the right to travel includes the broader concept of the right to freedom of movement and, thus, the right to intrastate travel. Many international human rights agreements have nondiscrimination clauses. For example, the International Covenant on Civil and Political Rights prohibits discrimination based on a variety of statuses. 64 The United States participated in the 1996 Second United Nations Con- 57 See U.S. Reservations, Declarations and Understandings, International Covenant on Civil and Political Rights, 138 Cong. Rec. S (daily ed. April 2, 1992). 58 For information on how state courts have considered and interpreted international human rights laws in their decision making, see Opportunity Agenda, Human Rights in State Courts (2007), available at (follow Human Rights in State Court Report hyperlink). 59 See, e.g., Roper v. Simmons, 543 U.S. 551, (2005) (Clearinghouse No. 55,786) (the Eighth Amendment right to be free from cruel and unusual punishment prohibits execution of individuals who were under 18 at time of their capital crimes). For an in-depth analysis of the Roper case, see Nina W. Chertoff & Marsha L. Levick, Beyond the Death Penalty: Implications of Adolescent Development Research for the Prosecution, Defense, and Sanctioning of Youthful Offenders, 39 Clearinghouse Review 209 (July Aug. 2005). 60 Roper, 543 U.S. at For more information about the status of the human right to housing in the United States, see National Law Center on Homelessness and Poverty & Centre on Housing Rights and Evictions, Housing Rights for All: Promoting and Defending Housing Rights in the U.S. (2006); Maria Foscarinis, Advocating the Human Right to Housing: Notes from the United States, 30 New York University Review of Law and Social Change 447 (2006); National Law Center on Homelessness and Poverty, Homelessness in the United States and the Human Right to Housing (2004), available at (follow Publications and Reports hyperlink; then follow Human Rights hyperlink); Maria Foscarinis et al., The Human Right to Housing: Making the Case in U.S. Advocacy, 38 Clearinghouse Review 97 (July Aug. 2004). 62 International Covenant on Civil and Political Rights, art. 12(1), G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16), U.N. Doc. A/6316 (Dec. 16, 1966), 999 U.N.T.S. 171 (entered into force March 23, 1976); see also Universal Declaration of Human Rights, G.A. Res. 217(III), U.N. GAOR, 3d Sess., pt. 1, art. 13(1), U.N. Doc. A/810 (Dec. 10, 1948) (providing for the right to freedom of movement). Self-executing treaties are those that come into force once a country becomes a party to those treaties. No implementing legislation is needed. Thus a self-executing treaty s obligations become immediately binding on the party and can be enforced in domestic courts. A treaty that is not self-executing requires implementing legislation to direct or enable the party to fulfill its obligations under the treaty. A treaty that is not self-executing needs implementing legislation to make it enforceable in courts. 63 Human Rights Committee, General Comment 27, Freedom of Movement, art.12, U.N. Doc. CCPR/C/21/Rev.1/Add.9 (Nov. 2, 1999). 64 International Covenant on Civil and Political Rights, art. 26, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16), U.N. Doc. A/6316 (Dec. 16, 1966), 999 U.N.T.S. 171 (entered into force March 23, 1976). 208 Clearinghouse REVIEW Journal of Poverty Law and Policy n July August 2007

9 ference on Human Settlements and is a signatory to the Habitat Agenda, which states that homeless people should not be penalized for their status. 65 Criminalization measures target homeless people based on their economic and housing status. Advocates can use the language of these international documents to support their claims that homeless persons should not be discriminated against due to their status. Moreover, international law protects against both intentional discrimination and policies with discriminatory effects. 66 Given that racial minorities are disproportionately represented in the homeless population, criminalization measures inherently have a disparate impact on this group. 67 Following advocacy by U.S. nongovernmental organizations, the Human Rights Committee noted its concern about racial disparities among the homeless and recommended that the United States take affirmative measures to address these disparities. 68 Arguing disparate impact although possibly difficult in U.S. courts, which have a strong line of cases requiring a demonstration of discriminatory intent can help support policy alternatives to and against the passage of criminalization measures. Forced evictions long have been contrary to international human rights agreements, and destruction or sweeps of homeless encampments could be considered a violation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, another treaty that the United States signed and ratified. 69 In a case before the Committee against Torture, the committee found that the forced eviction and destruction of a Romani settlement in Serbia and Montenegro violated the Convention against Torture s Article 16, which prohibits acts of cruel, inhuman, or degrading treatment or punishment. 70 Although private actors carried out the destruction and eviction, the committee found that the police s failure to take action to stop the destruction of the settlement violated the Convention. 71 In U.S. cities, public officials are frequently the actors conducting sweeps of homeless encampments. These city actions are a form of forced evictions and contrary to international human rights principles. Advocates can use this case to inform the interpretation of cruel and unusual standards in cases with Eighth Amendment claims. III. Constructive Alternatives to Criminalization While many cities around the country have implemented criminalization measures, some cities have pursued more constructive alternatives to criminaliza- 65 United Nations Conference on Human Settlements, Istanbul, June 3 4, 1996, Report of the United Nations Conference on Human Settlements (Habitat II), 61, U.N. Doc. A/CONF.165/14 (June 14, 1996). 66 See International Covenant on Civil and Political Rights, art. 2, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16), U.N. Doc. A/6316 (Dec. 16, 1966), 999 U.N.T.S. 171 (entered into force March 23, 1976); International Convention on Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, 660 U.N.T.S. 195 (entered into force Jan. 4, 1969). 67 The homeless population is approximately 40 percent white, 40 percent black, 11 percent Hispanic, 8 percent Native American, and 1 percent other. Martha R. Burt et al., Urban Institute, Homelessness: Programs and the People They Serve: Technical Report 3-3 (1999). 68 Human Rights Committee, Concluding Observations of the Human Rights Committee: United States of America, 22, U.N. Doc. CCPR/C/USA/CO/3/Rev.1 (Dec. 18, 2006). 69 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, at 197, G.A. Res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51), U.N. Doc. A/39/51 (Dec. 10, 1984) (entered into force June 26, 1987). When ratifying the Convention against Torture, the United States made a declaration that Articles 1 through 16 of the treaty were not self-executing. Resolution of Advice and Consent to Ratification, Sen. Exec. Rep. No (1990). In its reservations, the United States indicated that it considers itself bound by the obligation under article 16 to prevent cruel, inhuman or degrading treatment or punishment only insofar as the term cruel, inhuman or degrading treatment or punishment means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States. 70 Dzemajl v. Serbia and Montenegro, Complaint No. 161/2000, Decision on Complaint, CAT/C/29/D/161/2000, 9.2 (Committee Against Torture Dec. 2, 2002), available at Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 16, G.A. Res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51), U.N. Doc. A/39/51 (Dec. 10, 1984) (entered into force June 26, 1987). 71 Dzemajl, Complaint No. 161/2000, 9.2. Clearinghouse REVIEW Journal of Poverty Law and Policy n July August

10 tion. 72 For example, service providers and the Fort Lauderdale Police Department have become partners in reaching out to unsheltered homeless persons and educating the police department. The police department also has partnered with the Taskforce for Ending Homelessness, a not-for-profit agency that provides outreach, education, and advocacy services for the homeless population in Broward County. Two full-time Fort Lauderdale police officers, two part-time police officers, and a formerly homeless civilian partner staff the Homeless Outreach Team, which works to connect homeless persons with shelter and services. The team set up a system with the local shelters to ensure that beds and services are available if a homeless person agrees to seek shelter after contact with the team. Homeless persons who accept shelter assistance receive priority to enter shelters if a bed is open. The shelters provide dinner, breakfast, a hot shower, and laundry facilities in addition to shelter for the night. In its first five years of operation, the Homeless Outreach Team had more than 23,000 contacts with homeless individuals and placed 11,384 people in shelters. 73 The team estimates that there are at least 2,400 fewer arrests each year of homeless people due to this outreach partnership. 74 The Taskforce for Ending Homelessness and the Fort Lauderdale Police Department have developed a two-hour course entitled Homelessness 101. The course raises police officers awareness of the causes of and solutions to homelessness. The Fort Lauderdale model of the police department partnering with service providers for outreach and with shelter providers to get people into shelters has inspired other communities to implement similar initiatives. For example, in early 2007 the police department in Pinellas Park, Florida, began an outreach program. From late February 2007 to mid- May 2007, it placed ninety-five people in shelters For more information about these and other constructive alternatives to criminalizing homelessness, see Dream Denied, supra note 2, at Telephone Interview with Jamie Costas, Officer, Fort Lauderdale Police Department, Homeless Outreach Unit, in Fort Lauderdale, Fla. (May 15, 2007) Telephone Interview with Steven Vangeli, Officer, Pinellas Park Police Department, in Pinellas Park, Fla. (May 11, 2007). 210 Clearinghouse REVIEW Journal of Poverty Law and Policy n July August 2007

11 In Washington, D.C., the business community has stepped up to help address homelessness. The District of Columbia s downtown business community decided to help deal with the growing problem of unsheltered homeless individuals by creating a day center for homeless people. Through the Downtown D.C. Business Improvement District, business owners fund the day center through a one-cent tax on each square foot of property owned by a business. With indoor seating, laundry, showers, and a morning meal, the day center serves up to 260 people every day. Local service providers come on site once or twice a week to provide medical, psychiatric, legal, and employment services as well as housing counseling, substance abuse treatment, and case management. While homelessness continues to be a growing problem in the United States, cities should not and need not turn to measures that criminalize their communities most vulnerable residents. Criminalizing behavior necessary for homeless persons to survive does nothing to solve the homelessness problem and frequently makes it worse. Criminalization measures create not only barriers for individuals hoping to move out of homelessness but also legal problems for cities. Lawyers and other advocates can help combat criminalization measures in their communities. Advocates can prevent cities from enacting criminalization ordinances by organizing opposition in the community and testifying at city council hearings. Lawyers can challenge implemented criminalization measures in court. Advocates can work with cities, business associations, and police departments to educate them about solutions to homelessness and constructive alternatives to criminalization. Instead of spending time, money, and law enforcement resources on implementing and enforcing measures that criminalize homelessness, cities can and should work with local providers and advocates to find more constructive approaches that help solve the problem of homelessness. Clearinghouse REVIEW Journal of Poverty Law and Policy n July August

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