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SCOTUS Ruling Sets Stage for Battle Over Camping Bans Against Unhoused People

More people become unhoused every day, and criminalization makes the problem worse. But cities have a choice.

Police enforce a sweep of a homeless encampment, throwing tents and other possessions of the homeless in a trash truck, on May 4, 2022, in the East Village neighborhood of New York City.

The conservative majority on the Supreme Court ruled last week that cities can enforce bans on sleeping outside and essentially criminalize homelessness. City governments in western states now have the legal guidance they demanded from the courts, but the ruling does nothing to solve the dilemma posed by encampments that both frustrate housed residents and help vulnerable people to meet a basic human need.

Criminal laws have never been enforced equally in the United States, and plenty of legal questions remain despite the 6-3 ruling. Before being overturned by the Supreme Court, the Ninth Circuit Court of Appeals found that sleeping outside is involuntary when adequate shelter is not accessible, making fines or jails time an unconstitutional form of punishment. Disabled people are at disproportionate risk of becoming unhoused, and advocates say the ruling opens the door for the criminalization of disability, particularly where underfunded shelters lack proper facilities and enforce strict rules.

“Penalizing individuals, including many with mental health and other disabilities, for merely trying to live is not only cruel but also counterproductive,” said Marlene Sallo, executive director of the National Disability Rights Network, in a statement. “Cities are now further emboldened to ignore effective housing-based solutions, opting instead to punish those with no alternative but to sleep on the streets.”

Expect legal fights to continue, but the facts on the ground have not changed. The nation faces a severe affordable housing crisis, and more people become homeless every day. The number of people becoming homeless reached record heights in 2023. Roughly half the country reports living paycheck to paycheck, leaving millions of families one crisis away from falling behind on rent. Large tent encampments are a familiar sight across the country, including wealthy West Coast cities where housing costs have soared.

Experts and frontline advocates say it’s much more difficult and expensive to help unhoused people back into a home than it is to prevent homelessness in the first place. Research shows that criminalization only makes the problem worse. Police can sweep camps and issue fines to people who are unable to pay, but this only erects more barriers to housing and employment. Yet politicians face voters who are increasingly intolerant of their houseless neighbors, setting the stage for political fights over camping bans rather than long-term solutions.

Marcy Thompson, vice president of programs and policy for the National Alliance to End Homelessness, said housing advocates have been alarmed in recent years by the number of elected officials embracing enforcement of punitive bans on such activities as sleeping in public or taking up space on sidewalks. They are often targets for right-wing lobbyists who offer quick-fix policies designed to force people into overcrowded jails and shelters against their will.

“[Criminal enforcement] certainly increases the likelihood that people return to homelessness if they are arrested, because now they have another barrier and check mark against them,” Thompson said in an interview. “I anticipate it will not bode well for communities; they will spend more money at the state or the local level to enforce these sorts of rules than they would if they just invest in housing.”

Wesley Vaughan, a journalist and nonfiction writer in Portland, Oregon, has seen it all play out. Vaughan was homeless for two years as a direct result of getting sucked into the criminal legal system.

“Unfortunately, I have seen individuals on both sides of the political spectrum, including Portland’s Mayor Ted Wheeler, the California Governor Gavin Newsom, and House Republican leader Jeff Helfrich of Oregon describe this ruling as ‘common sense,’” Vaughan said in an email. “As in it is common sense, to impose fines and jail time, for individuals who are already on the very margin of society.”

Experts and frontline advocates say it’s much more difficult and expensive to help unhoused people back into a home than it is to prevent homelessness in the first place.

Vaughan was homeless in Benton County near Eugene, where state records show it cost $100 a day to keep people in jail way back in 2002. That’s compared to the $70 to $80 in today’s dollars that Vaughan spent on motel rooms to sleep inside for a night.

“And the research shows that even spending one day in jail, increases a person’s likelihood of spending further time in jail in the future,” Vaughan said. “The idea that jail or monetary punishments are going to suddenly ‘fix’ our housing discrimination and shortage issues is absurd and it is ridiculous to call this decision ‘common sense.’”

Angela Owczarek has worked for years as an advocate for the houseless in New Orleans, where encampments regularly spring up under bridges despite sweeps by police. Jeff Landry, Louisiana’s far right Republican governor, has made a show of sending state troopers to police the iconic French Quarter as part of an extreme “law and order” agenda that aims to cast blue cities as riddled with crime. With New Orleans hosting the Super Bowl next year, the political appetite for pushing unhoused people out of sight will only grow if policy makers choose to rely on police.

“Homelessness is not a quality-of-life issue, it’s like a death or life issue,” Owczarek said in an interview.

If politicians are looking for answers, Owczarek said they must listen to their houseless constituents, who are rarely in the room when big decisions are made about their lives. Instead, policy makers hear from frustrated residents and business owners who see the unhoused a nuisance rather than human beings with rights. Owczarek recalled one French Quarter restaurateur wondering aloud whether police could just pepper spray a group of people who were simply sitting on a bench but appeared unhoused.

“Cities and states now have the choice to do something that will either continue to kill and displace unhoused people for the sake of more privileged people’s more minor concerns, or take honestly a very marginal step for those who are among the fastest group to die in the U.S. — do not waste city and state time and money by incarcerating them,” Owczarek said.

Owczarek and Thompson said educating policy makers and combating viral misinformation remain a major task for housing advocates. Criminalization is often touted as a “deterrent,” but people by and large do not choose to be homeless in the first place.

“There are still people in these decision-making roles that believe homelessness is an individual choice or the result of individual choices as opposed to really recognizing that it really is more systemic than that,” Thompson said. “It’s all these other systems that are failing, it’s the lack of these resources in the community generally that are a totally insufficient safety net.”

Homelessness is not an impossible problem. Solutions include building more affordable housing and improving health care and other safety net services for people who do become unhoused. In New Orleans, for instance, city leaders can enforce hard-won regulations on short-term rentals in order to lower rent and expand the housing stock. Moreover, many unhoused people have complex mental health needs, and cities nationwide can invest in culturally appropriate behavioral health care services that can help people back on their feet.

“The solutions are not out of our grasp,” Owczarek said. “It’s something we have constructed and could deconstruct to build enough housing … it’s not like the laws of the universe make that difficult.”

However, cities bogged down by strict building codes and gentrification have struggled to embrace such solutions, leaving stopgap measures and policing as the only options when residents and tourists complain. The Supreme Court ruling does not change any of this. Instead, the ruling gives cities and states a choice about how to move forward. Thompson warned policy makers that the housing crisis runs deep, and they cannot rely on police to make it magically disappear.

“When lawmakers think, ‘I can just solve the problem for these 10 people that I see [on the street] today,’ that is overlooking the fact that there will be 20 more people that are coming into your system tomorrow,” Thompson said.

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