Justice Department Calls Boise Laws ‘Cruel and Unusual Punishment’

Anti-homeless ordinances in Boise, Idaho, are being challenged by the National Law Center on Homelessness and Poverty. The Department of Justice states that laws which criminalize involuntary behavior or conditions are in violation of the Eighth Amendment protections against cruel and unusual punishment, making them unconstitutional.

A Column on Human Rights

by Carol Denney

It ought to be good news that the Department of Justice (DOJ) issued a statement of interest on August 6, 2015, in a case in Boise, Idaho, which criticizes the increasing willingness of cities to criminalize sleeping, sitting, and other inevitable conditions of homelessness. It sounds like music to those who care about human rights.

The first sentence affirms that “on any given night in the United States, half a million people are likely to be experiencing homelessness…” which, although an undercount, at least represents the DOJ’s recognition of a crisis.

The DOJ statement cautions that homeless individuals are a diverse population with a wide spectrum of unmet needs that most communities lack the resources to address. It acknowledges that many are forced into homelessness by circumstances “beyond their control,” a phrase in sad need of meditation by politicians. It continues to be seductive for city councils nationwide to blame the poor for the conditions of poverty. But the obvious result of skyrocketing rents and evictions makes it harder to do so in educated circles.

Boise, Idaho, has two ordinances being challenged by the National Law Center on Homelessness and Poverty. The first is a broad law against camping in public, and the second defines “disorderly conduct” as including lodging or sleeping in any building, structure or place, “whether public or private” without permission.

The legal challenge points out that when Boise’s shelters are full, people without homes have no choice but to violate these laws. The U.S. Department of Justice agrees, stating that “when adequate shelter space does not exist, there is no meaningful distinction between the status of being homeless and conduct of sleeping in public.”

Are the legal departments in cities nationwide listening? The DOJ states clearly that laws which criminalize involuntary behavior or conditions are in violation of the Eighth Amendment protections against cruel and unusual punishment, making them unconstitutional. But the statement of interest is not law, and does not carry the weight of law.

So the crucial question is: Do city officials and their legal departments have to listen to the DOJ ruling? Yes and no, stated one experienced criminal law attorney who described the statement as “legally meaningless.” The statement is probably noted by legal departments and legal observers, but there is no mechanism by which such statements affect court cases.

The federal government’s 2012 U.S. Interagency Council on Homelessness (USICH) is certainly counted as an effort to steer cities away from criminalization, but the tools for civil rights attorneys have not changed. The political pressure to prettify the streets for shoppers has not changed. And the experience of people forced to live on the street has not changed.

Cities such as San Francisco are already responding that their laws do not criminalize homelessness, but are a necessary response to maintaining public safety from blocked sidewalks.

The Department of Justice could sue cities with unconstitutional laws. But it might not want to in a political climate in which it is consistently criticized for interfering with states’ rights, as it has with the issue of gay marriage.

“Everyone has the right to…” suffer from poverty on the streets. Robert Terrell photo

“Everyone has the right to…” suffer from poverty on the streets. Robert Terrell photo


Berkeley attorney Osha Neumann commented that the Boise case “has been dragging through the courts since 2009 and arises out of arrests of homeless people that began in 2006. It still hasn’t been resolved, and we still don’t have an opinion we can cite as precedent from a court saying that to arrest homeless people for sleeping outside when there are no shelters is cruel and unusual punishment. We made that argument to federal court when we were fighting the eviction of people who were living on the Albany Bulb and a federal judge was supremely uninterested.”

Neumann pointed out that the federal government also has not restored funding for low-income housing, and he confirmed that the Justice Department “could certainly launch an investigation of cities that are criminalizing homelessness and if necessary take enforcement action, including working with the cities to end abuses as they did in Ferguson.”

Pattie Wall, the director of Berkeley’s Homeless Action Center, agreed that absent the force of law, local police will continue to issue tickets “with or without laws by the force of state violence.”

She goes on to note that “Berkeley has been unpersuaded by federal policy on their criminalization of homelessness. The USICH issued a report back in 2012, explaining why criminalization actually erodes efforts to solve homelessness. That same year, Mayor Bates signed on to a US Conference of Mayors statement in support of the USICH report. He nonetheless championed Measure S in 2012, and has been central to the Maio-sponsored new legislation to further criminalize Berkeley’s homeless people.”

It ought to be good news, but cities and politicians who see their own laws as perfectly fair or even beneficial can continue to use them. Berkeley Councilmember Lori Droste, for instance, thinks that arresting people gets them into recovery programs.

Berkeley’s council majority thinks there are enough shelter beds, lot of services, and that police contact is just another kind of outreach. In Santa Cruz, people who lay down to sleep get ticketed.

It’s a DOJ versus BID smackdown. It’s the property-based Business Improvement Districts nationwide who want a Disneyland effect for their commercial districts and the city councils who support them will keep facing off against the Department of Justice’s quavering statement of interest about cruel and unusual punishment.

If you’re on the street, you know who’s winning.

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