Stay Awake or Be Arrested: The Increasing Criminalization of Homelessness

by Jasmyn Hardin, Associate Member, University of Cincinnati Law Review Vol. 93

I. Introduction

“Sleep is a biological necessity, not a crime,” said Justice Sotomayor, dissenting in the Supreme Court’s recent ruling in City of Grant Pass v. Johnson.[1] Homelessness is a reality for as many as 700,000 people on any given night in the United States.[2] With a 12 percent increase in 2023 alone, the number of those experiencing housing instability continues to rise due to the nationwide affordable housing crisis, leaving many with the impossible choice to either stay awake or be arrested.[3] The Court’s ruling in Grant Pass upheld a ban that criminalizes sleeping in public places, rejecting it as a violation of the Eighth Amendment’s protections against cruel and unusual punishment.[4] This ruling effectively clears the way for municipalities to adopt more aggressive measures in removing homeless encampments.[5]

This article explores the increased criminalization of quality-of-life offenses associated with homelessness. Part II provides background on the Supreme Court’s recent ruling in City of Grant Pass v. Johnson and subsequent legislation that has followed. Part III discusses how the criminalization of homelessness does nothing to address the root cause of the issue: lack of affordable housing. Finally, Part IV concludes by suggesting policy recommendations that aim to end the negative cycle of homelessness and jail.

II. Background

The criminalization of homelessness is known as a “status crime.”[6] A status crime is solely based on a person’s social or economic status, classifying them as a member of a particular group rather than being tied to any specific illegal act.[7] Other examples include loitering, drug addiction, and prostitution.[8] Status crimes are highly controversial as they “criminalize people for who they are, rather than what they have done.”[9] Homelessness is not a choice and, therefore, should not be criminalized as though it is one.

A. Martin v. City of Boise

The Ninth Circuit, which includes states like California, Oregon, and Washington—home to some of the largest populations of unsheltered homeless individuals—recognized this issue in Martin v. City of Boise.[10] In 2018, the court held that when the number of homeless individuals is greater than the number of available beds, the government cannot “prosecute homeless individuals for involuntarily sitting, lying, and sleeping in public” so long as they “do not have a single place where they can lawfully be.”[11] Governments who criminalize life-sustaining conduct without providing an adequate solution to the problem, effectively lure homeless people under the “false premise [that] they [ever] had a choice in the matter.”[12]

B. City of Grant Pass v. Johnson

In a 6-3 decision, the Supreme Court in 2024 upheld the city of Grant Pass, Oregon’s ordinance that criminalizes sleeping or camping in public places, resulting in penalties up to and including criminal trespass, which is punishable by up to a maximum of 30 days in prison or a $1,250 fine.[13] The Court held that the Cruel and Unusual Punishment Clause of the Eighth Amendment solely focuses on what “‘method or kind of punishment’ a government may impose after a criminal conviction, not on the question of whether a government may criminalize particular behavior.”[14] The Court reasoned that criminal punishments imposed by the city ordinance were not cruel and unusual, as the initial offense only “trigger[ed] a civil fine,” with subsequent offenses resulting in a punishment of jail and a more significant fine.[15] While this case was specific to Grant Pass, it did not take long for other municipalities to establish or strengthen ordinances that criminalize homelessness.

C. The Fallout of the Grant Pass Ruling

The Supreme Court’s ruling in Grant Pass “emboldened local and state leaders who believe that criminalization is the answer” to solving the homelessness crisis.[16] In June 2021, Texas passed HB 1925, which standardized a statewide encampment ban and made public camping a state offense punishable by a fine of up to $500.[17] Despite the bill’s passage, the number of people experiencing homelessness has continued to rise year after year, proving that criminalization is not the answer.[18]

A new Florida law prohibits counties and municipalities from allowing camping or sleeping on public property.[19] Under this law, the state’s Department of Children and Families would be primarily responsible for “certify[ing] designated camping areas for people experiencing homelessness.”[20] Beginning January 2025, private citizens, business owners, or the state attorney general can sue if a county or municipality fails to comply with the law.[21]

In Kentucky, the Safer Kentucky Act “makes camping on certain private and public property a misdemeanor after multiple violations.”[22] Additionally, the law allows property owners to use deadly force against those who are illegally camping on their property.[23] The use of deadly force against an individual who is merely sleeping, a biological necessity, is cruel, heartless, and inhumane.

III. Discussion

The increased criminalization of homelessness diverts policymakers’ attention from developing solutions to solve the homelessness crisis.[24] Rather, the default becomes throwing more people into jail, contributing to the already overpopulated criminal justice system.[25] People experiencing homelessness are 11 times more likely to be arrested than those who are housed.[26] Given the current lack of resources, once involved in the criminal justice system, people experiencing homelessness are “disadvantaged at every stage of the legal process.”[27] These individuals face increased barriers with respect to court appearances, inability to pay bail, citations, and fines, elevating their risk of conviction.[28] The system is set up to criminalize a person’s status of homelessness rather than helping to address the root causes.

Criminal justice involvement in this issue perpetuates a negative cycle of homelessness and jail, further complicating an individual’s chance of breaking that cycle.[29] Once released from jail, individuals experiencing homelessness prior to jail often return to the streets, only this time facing increased difficulty in finding stable housing.[30] The presence of a criminal record greatly complicates an individual’s chance of securing gainful employment, as many employers may outright disqualify applicants or discourage application by requiring disclosure of criminal history.[31] Additionally, homeless individuals lack access to reliable transportation, suitable clothing, and identification documents to secure employment, making it increasingly difficult to successfully navigate the labor market and break the vicious cycle.[32] As Justice Gorsuch points out in Grant Pass, “homelessness is complex,” thus requiring a broad and complex public policy response to address all facets of the issue.[33] This part will discuss three possible solutions to reducing the homelessness crisis: (1) criminal legal system reform, (2) permanent supportive housing, and (3) homeless courts.

A. Criminal Legal System Reform

As is, the criminal legal system is not designed to accommodate individuals experiencing homelessness.[34] The lack of stable housing complicates an individual’s ability to adequately navigate the system, as they face increased barriers in appearing for court dates or paying fines and fees.[35] Failure to appear in court or pay low-level citations for quality-of-life offenses associated with homelessness, such as camping outside, public urination, or loitering, can often “indirectly result in arrest and jail time.”[36]

Increasingly criminalizing quality-of-life offenses “do[es] nothing to alleviate homelessness and instead perpetuate[s] the cycle of homelessness and incarceration.”[37] Making the criminal legal system more accessible and conscious of the needs of individuals experiencing homelessness will prevent initial involvement, allowing them to avoid the ramifications associated with a criminal record.[38] Courts should create processes that allow for the forgiveness of fines, fees, and legal debt due to offenses associated with homelessness that otherwise would result in the issuance of a warrant and potential subsequent arrest.[39] The supervisory conditions and costs associated with probation or parole often pose an additional burden for individuals experiencing homelessness.[40]

To accommodate, some jurisdictions, like San Bernardino, CA, have implemented a kiosk check-in system for low-risk probationers, which is a win-win solution for both parties.[41] This system allows individuals under community supervision to remain in contact with their probation or parole officer without requiring a major expense or disruption on behalf of the homeless individual.[42] Additionally, the kiosk system helps reduce caseloads for overwhelmed probation departments, saving taxpayer money.[43] Minor adjustments to the criminal legal system will adequately account for the increased barriers that homeless individuals face and will stop putting homeless people through a “revolving door” to jail.

B. Permanent Supportive Housing

Permanent Supportive Housing (“PSH”) is a “proven solution to end chronic homelessness.”[44] Chronic homelessness refers to individuals experiencing long-term homelessness with “chronic and complex health conditions including mental illnesses, substance use disorders, and medical conditions.”[45] These individuals are often found sleeping on the street or in shelters, funneling in and out of emergency departments, inpatient hospital stays, psychiatric centers, detoxification programs, and jails.[46] The impact of this never-ending cycle not only results in poor health outcomes for the individual but also results in higher public costs.[47] On average, a chronically homeless person costs the taxpayer roughly $35,000 per year.[48] With a minimal investment of $12,800 for supportive housing, taxpayer costs were reduced by nearly 50%, resulting in a net savings of $4,800 annually.[49]

The U.S. Department of Housing and Urban Development (“HUD”), funded by Congress, developed the DedicatedPLUS (“DP”) housing project.[50] This project provides PSH for individuals and families that meet specific criteria, one of which is chronic homelessness.[51] Given the proven success of PSH in reducing homelessness and taxpayer spending, Congress should increase HUD’s budget, enabling greater distribution of Homeless Assistance Grants to provide such housing.[52] California, for example, has seen great success with DP projects.[53] California saw an 18.5 percent increase in homelessness between 2016 and 2017.[54] However, the number of PSH beds increased on average by 28 percent between 2014 and 2017, effectively outpacing the number of individuals experiencing homelessness.[55] This data shows that when sufficient housing is provided, the number of homeless individuals sleeping on public property decreases. Congress should grant HUD a budget increase to expand its efforts across multiple cities, working to gain a handle on the homelessness crisis.

C. Homeless Courts

In 2013, the American Bar Association (“ABA”), through the Commission of Homelessness and Poverty, adopted a policy supporting the development and implementation of homeless courts.[56] Homeless courts are a “treatment-oriented diversionary” measure that aims to reduce the amount of justice system involvement for individuals experiencing homelessness, focusing on addressing the root cause(s).[57] Successful homeless courts involve collaboration between law enforcement, community service providers, and the justice system, including judges, prosecutors, and defense attorneys.[58] The ABA issued policy guidance on fundamental principles to include within the program but permits each county to independently design a program that adequately serves members of their communities experiencing homelessness.[59]

In 1989, San Diego implemented the nation’s first Homeless Court Program (“HCP”) with the goal of resolving misdemeanor criminal cases for homeless defendants.[60] HCP is a voluntary Superior Court held at local homeless service agencies, instead of a courthouse, to help alleviate the fear associated with attending a traditional court hearing.[61] Prior to their hearing, prospective participants design a plan to “move towards self-sufficiency.”[62] HCP combines a “progressive plea bargain system, alternative sentencing structure, assurance of ‘no custody,’ and proof of program activities, to address a full range of offenses.”[63] The alternative sentencing arrangement substitutes participation in treatment programs in lieu of fines and custody.[64]  The programs include life-skills training, substance abuse treatment, job search assistance, counseling, and education.[65] The assurance of “no custody” acknowledges the individual’s voluntary participation and completion of court requirements.[66] Since the San Diego HCP was implemented, 90% of cases have been dismissed.[67] Rather than criminalizing behavior beyond an individual’s control, HCP allows individuals to focus on treatment, reclaim their lives, and establish a strong foundation for reintegration into society.[68]

IV. Conclusion

With over 700,000 people experiencing homelessness on any given night in the United States, the Court’s ruling in Grant Pass allowing for more aggressive criminalization measures is frankly the wrong decision.[69] This decision diverts policymakers’ attention from developing solutions to solve the homelessness crisis, defaulting instead to throwing people in jail.[70] Criminal justice involvement does nothing to help solve the root cause; instead, it further perpetuates a negative cycle of homelessness and jail, complicating that individual’s chance of breaking the cycle.[71]

Homelessness is a complex problem, thus requiring a broad public policy response to address it.[72] As designed, the criminal legal system is not suitable to support people experiencing homelessness and criminalizes an individual simply for who they are rather than what they’ve done.[73] The lack of stable housing complicates an individual’s ability to navigate the system adequately.[74] These individuals have an inability to appear in court or pay fines and fees, which subsequently results in arrest and jail time.[75] Once released, these individuals are back on the streets, potentially lacking their personal belongings and in the same position that led them to prison in the first place, perpetuating the never-ending cycle of poverty.

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[1] City of Grants Pass v. Johnson, 144 S. Ct. 2202, 2228 (2024).

[2] Daniel Soucy et al., State of Homelessness: 2024 Edition, Nat’l All. to End Homelessness (2024), https://endhomelessness.org/homelessness-in-america/homelessness-statistics/state-of-homelessness [https://perma.cc/EU65-QN32].

[3] Id.; City of Grants Pass, 144 S. Ct. at 2244.

[4] City of Grants Pass, 144 S. Ct. 2202; Nicole Santa Cruz, U.S. Supreme Court Ruling will Allow More Aggressive Homeless Encampment Removals, ProPublica (June 29, 2024, 6:00 AM), https://www.propublica.org/article/us-supreme-court-grants-pass-homelessness [https://perma.cc/5VSY-CAQ4].

[5] Id.

[6] See status crime, Law School Data, https://www.lsd.law/define/status-crime [https://perma.cc/T47V-6N5W] (last visited Nov. 11, 2024).

[7] Id.

[8] Id.

[9] Id.

[10] Cruz, supra note 4.

[11] Martin v. City of Boise, 902 F.3d 1031, 1048 (9th Cir. 2018).

[12] Id.

[13] City of Grant Pass v. Johnson, 144 S. Ct. 2202, 2213 (2024).

[14] Id. at 2216.

[15] Id.

[16] Erika Pernis, Supreme Court Ruling Bans Homeless Encampments Nationwide, Daily Texan (Jul. 8. 2024), https://thedailytexan.com/2024/07/09/supreme-court-ruling-bans-homeless-encampments-nationwide [https://perma.cc/LHL8-H38X].

[17] Id.

[18] Id.

[19] Cruz, supra note 4.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Madeline Bailey et al., No Access to Justice: Breaking the Cycle of Homelessness and Jail, Vera Inst. Just. (Aug. 2020), https://safetyandjusticechallenge.org/wp-content/uploads/2021/06/homelessness-brief-web.pdf [https://perma.cc/76SA-8MMJ].

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Cruz, supra note 4.

[34] Bailey, supra note 26.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] James Evans, Kiosk Check-In for Probationers, Gov’t Tech. (Aug. 12, 2010), https://www.govtech.com/magazines/gt/kiosk-check-in-for-probationers.html [https://perma.cc/S24K-MHK8].

[42] Bailey, supra note 26.

[43] Evans, supra note 41.

[44] Ending Chronic Homelessness Saves Taxpayers Money, Nat’l All. End Homelessness, https://endhomelessness.org/wp-content/uploads/2017/06/Cost-Savings-from-PSH.pdf [https://perma.cc/FB56-VL8Q] (last visited Nov. 5, 2024) [hereinafter Ending].

[45] Id.

[46] Id.

[47] Id.

[48] Id.

[49] Id.

[50] Permanent Supportive Housing (PSH), HUD Exch., https://www.hudexchange.info/homelessness-assistance/coc-esg-virtual-binders/coc-program-components/permanent-housing/permanent-supportive-housing [https://perma.cc/J8P4-RJ39] (last visited Nov. 5, 2024).

[51] Id.

[52] Ending, supra note 44.

[53] Joe Colletti, What is the Potential Impact of Recently Designated “DedicatedPlus” Project Beds on California’s Chronically Homeless Population, Hub for Urb. Initiatives, (Apr. 30, 2018), https://homelessstrategy.com/what-is-the-potential-impact-of-recently-designated-dedicatedplus-project-beds-on-californias-chronically-homeless-population [https://perma.cc/47QR-UFBM].

[54] Id.

[55] Id.

[56] George Cauthen & Jennifer Wilson, Homeless Courts: An Alternative to the Criminalization of Homelessness, Nelson Mullins, (May 2019), https://www.nelsonmullins.com/storage/bSc5dNtmbFQDt4JRwi9L3OoYPU2ulMHT6RqS8Tzo.pdf [https://perma.cc/7NUJ-UY9V].

[57] Id.

[58] Id.

[59] Id.

[60] George B. Cauthen & Jennifer P. Wilson, Homeless Courts: An Alternative to the Criminalization of the Homeless, Am. Bar Ass’n (May 2019), https://www.americanbar.org/content/dam/aba/administrative/homelessness_poverty/one-pagers/homeless-court-one-pager.pdf.

[61] Id.; Cauthen, supra note 56.

[62] Id.

[63] Id.

[64] Id.

[65] Id.

[66] Id.

[67] Id.

[68] Id.

[69] Ending, supra note 44.

[70] Cruz, supra note 4.

[71] Bailey, supra note 26.

[72] Cruz, supra note 4.

[73] Bailey, supra note 26.

[74] Id.

[75] Id.

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