SU Law Publishes Most Expansive Study Yet On Criminalization of Homelessness

The Seattle University Law School recently published a report detailing Washington State’s laws designed to exclude certain individuals from public space. The report consisted of four briefs, each detailing a different aspect of Washington’s legal system and how it affects people experiencing homelessness. The study is the most extensive of its kind that has ever been published.

The project began when Justin Olson and Scott MacDonald were research assistants for Law Professor Sara Rankin. Rankin wanted to expand the project, and developed it into a course. She handpicked six students, all of whom decided to participate.

The project comprises four individual studies. Each brief focuses on a different aspect of the criminalization of homelessness. The bulk of research ultimately suggests that it would be more prudent and cost effective to invest in resources to help our homeless community.

The premise of the studies is that within our legal system are laws that target homeless people and make them vulnerable to citations when they do basic, life-sustaining things like trying to find a place to sleep. The researchers suggest that using the criminal justice system as a means of addressing homelessness is a misguided and even
negligent approach.

“Now [people experiencing homelessness] have a criminal history and that criminal history can keep them from getting jobs,” Rankin said. “That criminal history can keep them from getting housing, and that criminal history—because of all of those things—that criminal history is likely to keep them out on the street longer, which is likely to result in an additional violation.”

Below we briefly outline the four briefs.

“AT WHAT COST: THE MINIMUM COST OF CRIMINALIZING HOMELESSNESS IN SEATTLE AND SPOKANE” & “THE WRONG SIDE OF HISTORY: A COMPARISON OF MODERN AND HISTORICAL CRIMINALIZATION LAWS”

One of the briefs, worked on by Joshua Howard, analyzed the cost-effectiveness of criminalization of homelessness. Part of his task was to look at alternatives and assess the comparative cost-effectiveness for those as well. In just Seattle and Spokane, he found that millions of dollars could be saved with investment in resources like affordable housing.

Javier Ortiz and Matthew Dick worked on a brief that addressed the issue of why we have laws that target homeless people. Specifically, they analyzed this history of laws that have historically targeted specific groups.

Among the institutions explored were vagrancy laws, anti-Okie laws, Jim Crow laws, ugly laws and Sundown Towns, all of which are related in that they sought to exclude “undesirable” populations out of public space and were subsequently repealed by courts, given that they violated the constitutional rights to equal protection under the law.

In each of the aforementioned cases, it became lawful to exclude or segregate some members of the public from the public on the basis that the population was in some way undesirable.

“The explanation that [exclusion] laws have existed on a continuum is correct,” said Eric Tars, senior attorney at the National Law Center on Homelessness & Poverty. “We see, in communities across the country, that as one class or group of people becomes less desirable in a community—whether it’s African Americans, Asian Americans, disabled Americans or homeless Americans—that communities try to come up with restrictions on the use of public space to push those people out of public view, or out of the community altogether.”

Laws like these reflect a societal fear of the other and a desire to deal with that fear by removing the source of that fear—certain people—from the public eye.

“WASHINGTON’S WAR ON THE VISIBLY POOR: A SURVEY OF CRIMINALIZING ORDINANCES & THEIR ENFORCEMENT”

Olson and MacDonald’s brief looked at the ordinances themselves. Compiling data from dozens of jurisdictions, he was able to analyze what the laws were that made being homeless a crime, and what the enforcement records are for those laws.

According to the brief, “Current anti-homeless ordinances seek to criminalize the basic human life-sustaining conduct of homeless people and in turn, limit their accessibility to public spaces. This conduct, however, is not in and of itself criminal.”

That is, the act of sitting, eating, or otherwise existing in public spaces should not be inherently illegal, but attribution of the conduct to homeless people has made the acts illegal.

“By punishing these acts, local authorities are controlling public spaces much like the local authorities that enforced historical exclusion laws did” in that they function to keep undesirable people away from certain spaces.
In Seattle, this desire for control over space has seen the development of new criminalization ordinances such as “a sit and lie ordinance, a sleeping in public spaces ordinance, parks exclusion orders, an aggressive panhandling ordinance, a sidewalk obstruction ordinance, an anti-camping ordinance, a public urination/defecation ordinance, and a storage of personal property on public property ordinance.”

While historical exclusion laws used terms like “drunkard,” or “vagrant” to define the undesirable individuals who were to be excluded, modern laws must use more tactical modes of exclusion in order to appear more appealing than their historical counterparts. The creation of a litany of ordinances works to sidestep the problem of ambiguity associated with historical exclusion laws in that they allow officers to choose which ordinance to cite in order to achieve a desired result. The brief states that although the new ordinances may appear more specific regarding the conduct they prohibit, the variety of tools that now exist for a city to choose from results in a similar degree of lateral discretion that was allowed under historical exclusion laws.

These laws have been helped along by the “Broken Window Theory,” which essentially states that, in order to decrease the crime rate within a community, it is necessary to eliminate all evidence of incivility from public view. Thus, communities need to go about eliminating everything undesirable from the streets, from broken windows to gang activity.

“The problem [with Broken Window Theory] is that people were looking at things like homelessness and homeless people as a ‘broken window,’” Tars, the senior attorney, said with regard to the way the theory has impacted
homeless populations.

According to Tars, the problem with this application of the theory is in the negative results it has seen.

“You don’t ‘solve’ homelessness by arresting people—you solve it using outlets like affordable housing.”

A shift from criminal to civil ordinances has also led the legal world in a direction that actively criminalizes the life sustaining activities of homeless people. Given that criminal ordinances require defendants to appear before a jury before being fined or jailed, while civil ordinances require only a fine be paid, civil ordinances seem more lenient than their counterparts. According to the brief:

“While classifying an ordinance as civil rather than criminal may appear to some as a sign of lenience, the actual effect is a relaxation of due process for those cited under the civil ordinance. Due to the civil classification of the citation, the homeless person cited (1) loses the right to legal representation, (2) loses the right to a jury trial, and (3) is often cited for a later criminal charge due to the failure to pay a fine.”

Thus, it can be noted that this shift from criminal to civil ordinances forces the law to work against homeless populations even more so than it had previously.

“DISCRIMINATION AT THE MARGINS: THE INTERSECTIONALITY OF HOMELESSNESS & OTHER MARGINALIZED GROUPS”

Kaya Lurie and her co-author worked on a brief that looked into who is homeless. As determined in Olson and MacDonald’s brief, there are laws that make it illegal to be homeless and to do many life-sustaining activities. And in Ortiz and Dick’s brief, that message is given some context by looking at the long-winded history of similar laws, targeting and criminalizing groups of people. Lurie’s brief analyzes the demographics of people affected by homelessness.

“I looked at the national and Washington state statistics to show how these marginalized groups are impacted by homelessness, to compare what the portion of the population that they represent, compared to the portion of the homeless population that they represent,” Lurie said.

Lurie focused on six different groups: LGBTQ individuals, racial minorities, women, people with mental illness, veterans, and individuals who have been incarcerated.

Essentially what Lurie found was that many of the same groups that had been targeted by discriminatory laws were the same groups that make up the most part of the current homeless population, highlighting what seems to be a continuation of systemic oppression through a different, unaddressed lens.
“Ignoring the diverse identities and causes of homelessness facilitates dehumanization,” Lurie said.

The research has already gotten widespread attention. Scholars across the country are talking about the briefs, asking questions and trying to get involved.

MOVING FORWARD
“The research suggests that we all share some complicity in creating the circumstances in which homelessness and poverty can thrive,” said Rankin.
The researchers hope that their briefs will inspire more conversation, and hopefully also the repealing or revision of these laws.

Olson says that they have not offered a solution to homelessness, but that they have identified failed policy that has previously been purported as a solution.

According to Olson, the more immediate effect of repealing those laws would be that poverty would become more visible. Not everyone would like that at first, but Olson said it’s necessary.

While homelessness and poverty have long been considered social justice issues, this group of law students has now introduced the crucial legal side of it into the conversation.

While Lurie said that policy advocacy is important, Olson said that you don’t have to be a law student to try and figure this out.
“We looked at it through a legal lens because we’re law students,” Olson said. “I think any student in any specialty could look at it through their own lens.”

The students called their briefs “living documents.” In other words, they are not final; they are intended to raise questions and inspire more research.

Lena Beck

Lena Beck is a freshman Humanities for Leadership major. She does best with ample access to coffee, and enjoys people-watching from the top of parking garages.


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